2025 C L C 1325
[Balochistan]
Before Rozi Khan Barrech, J
SANAULLAH ---Petitioner
Versus
CANTONMENT EXECUTIVE, OFFICER, QUETTA CANTT and 2 others ---
Respondents
Civil Revision No. 539 of 2024, decided on 27th September, 2024.
Civil Procedure Code (V of 1908) ---
----O. XLI, R. 27& S. 115--- Production of additional evidence at appellate stage ---Scope ---
Irrelevancy of documents -Absence of reasonable cause--- Plea of non -possession of
documents during pendency of suit ---Validity ---Under O. XLI R. 27, C.P.C., the appellate
court may allow additional oral or documentary evidence in limited circumstances, thus, its
scope is limited ---Order XLI, Rule 27, C.P.C., empowers the appellate court to allow
additional evidence after recording reasons ---No plausible explanation or reasonable cause
was shown for production of additional evidence ---Law regarding additional evidence was
not intended to allow an unsuccessful litigant to patch- up weak parts of their case and fill
omissions on appeal, and such power ought to be exercised sparingly--Petitioner neither
applied to the Trial Court for recording additional evidence nor did the appellate court find it
necessary to allow placing of documents as additional evidence ---Petitioner merely tried to
patch -up weak parts of his case without discovery of new evidence, facts, or documents,
thus, the appellate court committed no illegality in dismissing the application for producing
additional evidence ---Order XLI, Rule 27, C.P.C., disclosed no exceptional circumstance to
justify recording of additional evidence and the grounds were flimsy and appeared to be an
attempt at a fishing or roving inquiry---Civil revision was dismissed, in circumstances.
Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 rel.
Sharjeel Haider for Petitioner.
Date of hearing: 25th September, 2024.
ORDER
ROZI KHAN BARRECH, J. ---The petitioner feeling aggrieved from the orders
dated 11.09.2024 (''impugned order'') passed by learned Additional District Judge -III, Quetta
("appellate court") whereby the application filed by the petitioner for recording additional
evidence under the provision of Order XLI Rule 27, C.P.C. was dismissed, has preferred the instant revision petition.
2. Concisely, the facts of the case are that the petitioner/plaintiff filed a suit for
declaration and transfer of Bungalow No.24 -C Model Town Quetta against the respondents
which after a full dressed trial was dismissed by the learned Judicial Magistrate -VIII/Civil
Judge Quetta ('trial court').
Aggrieved from the findings of the trial court the petitioner had preferred an appeal
under Section 96, C.P.C. before the learned District Judge, Quetta which was entrusted to Additional District Judge -III. During the pendency of the appeal, the petitioner filed an
application under Order XLI Rule 27, C.P.C. for permission to produce documents and additional evidence which was contested by the respondents through filing a rejoinder. The appellate court after hearing arguments of learned counsel for the parties dismissed the application vide impugned order dated 11.09.2024, whereafter the instant revision petition was filed.
3. I have heard the learned counsel for the parties and gone through the law governing
the issues.
4. The record transpires that the documents sought to be produced by the
petitioner/plaintiff have no relevance to the subject matter. It is further apparent from the
contents of the plaint that there is no mention of the said documents therein. It was introduced when the suit filed by the petitioners/plaintiffs was dismissed and during the pendency of the appeal before the appellate court. Even otherwise, the petitioner/plaintiff
also did not mention in the application filed under Order XLI Rule 27, C.P.C. that the said
documents are not in his custody. It seems that he was surely in the knowledge of the said
documents while filing the plaint. There is no explanation and no reasonable cause shown by the petitioner to allow him to produce the said documents through additional evidence. The only ground taken in the ibid application is that the mentioned documents in the application were not in possession of the petitioner while the suit was before the trial court. The documents in serials Nos. 1 and 2 are related to the year 2012 and the documents mentioned at serials Nos. 3 and 4 are related to the year 2014, while the suit was filed by the petitioner in the year 2015 but no plausible explanation and no reasonable cause was shown by the petitioner to allow him to produce the said documents as additional evidence. It is an
admitted fact that the petitioner applied to the appellate court through proper application for
recording additional evidence but a glance over the contents of the Order XLI Rule 27,
C.P.C. depicts that in very few circumstances or conditions the appellate court may allow a party to the appeal to produce additional oral or documentary evidence, thus, as such its scope is limited one and Rule 27 of Order XLI, C.P.C. empowers the appellate court to allow
additional evidence to be adduced, whether oral or documentary, after the recording of
reasons. This power is circumscribed, by three eventualities described in clauses (a) to (c) i.e.
if the court from whose decree the appeal has been preferred, has refused to admit evidence that ought to have been admitted; or where the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment. Rule 28 of
Order XLI describes the procedure for taking additional evidence and provides that the
appellate court may either take such evidence or direct the court from whose decree the
appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the appellate court. Rule 29 of Order XLI further provides that where additional evidence is directed or allowed to be taken, the appellate court shall specify the points to which evidence is to be confined and record in its proceedings the points to specified. It would also be relevant to refer to Rule 23 of Order XLI of C.P.C. which describes the mode and conditions for remanding of a case by the appellate court.
5. It is settled now that the provision of law with regard to additional evidence are
clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch -
up the weak parts of his case and fill up omissions in the court of appeal, and such power ought to be exercised very sparingly. In the case in hand, the petitioner had earlier neither applied to the learned trial court for recording his additional evidence nor the learned appellate court had felt it necessary to allow placing of documents as additional evidence. However, the petitioner had tried just to patch- up the weak parts of his case without
discovery of new evidence, facts, or documents, therefore, the appellate court while dismissing the application of the petitioner for producing additional evidence has committed no illegality. In the like nature case the Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of Abdul Hameed and 14 others v. Abdul Qayyum and 16 others reported as 1998 SCMR 671 has held as under:
"Learned courts below were justified in refusing to allow production of the said documents at the appellate stage, especially when no reasonable ground for not producing the same during the trial of the suit was shown. Parties were conscious of the question involved in the suit and they did produce the evidence. In the circumstances of the case, we are in agreement with the courts below that justification for production of the certified copies in question as additional evidence was not made out. The discretion so exercised, does not suffer from any jurisdictional error."
6. The grounds mentioned in the application, filed under Order XLI, Rule 27 of the
C.P.C., did not disclose any exceptional circumstance to justify the recording of additional evidence. The grounds were flimsy and appeared to be an attempt to embark upon a fishing or roving inquiry.
7. Learned counsel for the petitioner has not been able to point out any illegality or
infirmity in the impugned order, calling for interference of this court. Resultantly, the instant
civil revision, being bereft of any merits, is hereby dismissed in limine.
SA/106/Bal Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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