P L D 2023 Balochistan 105
Before Muhammad Aamir Nawaz Rana, J
JAVED IQBAL ---Petitioner
Versus
SHAHEEN IQBAL and others ---Respondents
Civil Revision No. 613 of 2022, decided on 5th May, 2023.
Civil Procedure Code (V of 1908) ---
----O. XLI, R. 27---Additional evidence, producing of ---Jurisdiction of the Appellate Court --
-Scope ---Conduct of the party--- Petitioner filed an application under O. XLI, R. 27 of the
Civil Procedure Code, 1908, before the Appellate Court seeking permission to produce
marginal witnesses of alleged gift -deed ---Contention of the petitioner was that the Appellate
Court had jurisdiction to allow the production of witnesses who were not produced before the
Trial Court ---Appellate Court dismissed the said application of the petitioner ---Validity ---
Record revealed that petitioner had already mentioned name of said witnesses in the list of
witnesses having been submitted before the Trial Court, however, order -sheets of the Trial
Court showed that despite several opportunities, no efforts had been made by the petitioner to produce the said witnesses ---Parties to the suit must be vigilant while contesting the suit
and if any party is careless or fails to take necessary steps for production of evidence then
subsequently any request on behalf of such party under the garb of O. XLI, R. 27 of the Civil
Procedure Code, 1908, for production of additional evidence has to be considered with extreme caution as the conduct of a party is always extremely relevant ---Petitioner, without
mentioning any cause, did not produce the witnesses before the Trial Court ---Order XLI, R.
27(1)(a) of the Civil Procedure Code, 1908, stipulates that only in those cases where the Trial Court has refused to admit any evidence which ought to have been admitted, then the
Appellate Court can exercise the discretion to allow additional evidence---Trial Court, in the
present case, was never approached by the petitioner in such context, instead he, despite taking responsibility to produce said witnesses, failed to do so---Neither the powers under O. XLI, R. 27 of the Civil Procedure Code, 1908, are unfettered nor the Appellate Court has the discretion to allow additional evidence per its own caprice, rather the said discretion is structured / limited by the factors enunciated in the said provision of law ---Revision was
dismissed, in circumstances.
Ideal Arcade Builders and Development v. Miss Farida Shehnaz PLD 2019 Sindh 691
ref.
Khursheed Ali v. Shah Nazar PLD 1992 SC 822 distinguished.
Rasool Bakhsh Baloch for Petitioner.
Muhammad Saleem Lashari and Salman Langove for Respondent No.1.
Respondent No.2 proceeded against Ex- parte on 08.12.2022.
Abdul Tahir for Official Respondent.
Date of hearing: 7th April, 2002.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---Tersely the relevant facts leading to
file the instant Civil Revision Petition are; the respondent No.1/plaintiff had filed a suit
seeking "Declaration, Cancellation and Permanent Injunction", and sought the following reliefs:
a. Declaration be made that the legal heirs of (late) Munawar -ud-Din are shareholders
into the disputed property i.e. (Mohall and Mouza Ward No.34 Tappa Urban- II,
Tehsil City District Quetta Khewat/Khatooni Nos.239/231, Qita 02 total measuring 799 Sq.ft situated at Art School Road Quetta near corner of Jamiat Rai Road, Quetta) to the extent of share i.e. 2/3, as the basic share of 1/3 is from the legacy of their father (Munawar -ud-Din) and 1/3 share is after purchasing share of brother (late) Zia -
ud-Din by (late) Munawar -ud-Din and 1/3 share is after purchasing share of brother
(late) Zia -ud-Din by (late) Munawar -ud-Din and accordingly the disputed property to
the extent of shares of (late) Munawar -ud-Din i.e. 2/3 be divided/partitioned among
all the legal heirs of (late) Munawar -ud-Din as per their shares according to Sharia.
b. Declaration be made that the alleged gift dated 23.10.1994 is a result of fraud and same has been obtained by the defendant No.1 fraudulently while imposing forged signature of (late) Munawar -ud-Din) on the gift dated 23.10.1994.
c. Declaration be made that the gift dated 23.10.1994 be declared as illegal, unlawful and same be cancelled.
d. Declaration be made that the gift dated 23.10.1994 even otherwise is illegal as the
basic requirements/conditions of the gift has never been fulfilled nor a specific portion of the disputed property i.e. (Mohall and Mouza Ward No.34 Tappa Urban- II,
Tehsil City District Quetta Khewat/Khatooni Nos.239/231, Qita 02 total measuring 799 Sq.Ft situated at Art School Road Quetta near corner of Jamiat Rai Road, Quetta) can be gifted without partitioning.
e. Declaration be made that the disputed property i.e. (Mohall and Mouza Ward No. 34 Tappa Urban -II, Tehsil City District Quetta Khewat/Khatooni Nos.239/231, Qita 02
total measuring 799 Sq.ft situated at Art School Road Quetta near corner of Jamiat Rai Road, Quetta) is unpartitioned and same is required to be partitioned according to the shares of legal heirs of (late) Munawarud- Din i.e. 2/3 and (late) Alloudin 1/3
accordingly.
f. Declaration be made that the share of plaintiff being legal heirs of (late) Munawar -ud-
Din from the disputed property i.e. (Mohall and Mouza Ward No.34 Tappa Urban- II,
Tehsil City District Quetta Khewat/Khatooni Nos.239/231, Qita 02 total measuring 799 Sq.Ft situated at Art School Road Quetta near corner of Jamiat Rai Road, Quetta) to the extent of his shares has become 66.5 Sq.Ft and the defendant No.17 (Tehsil Authorities) be directed to mutate 133 Sq.Ft upon the name of plaintiff and partition be made while separating the shares of plaintiff.
g. Declaration be made that the mutation bearing No.337 on the basis of gift whereby
the shares of (late) Zia- ud-Din i.e. 266.3 Sq.Ft (1/3) has been transferred to defendant
No. 1 be declared illegal, unlawful and same be cancelled.
h. That the entire disputed property be partitioned among the share holders i.e. 2/3
shares of the disputed property be partitioned among the legal heirs of (late) Munawar -ud-Din and 1/3 be partitioned among the legal heirs of (late) Alloudin
(defendants Nos. 05 to 07).
i. Any other relief, which this honourable court deems fit may also be awarded along with cost of the proceedings, in the interest of justice, equity and fairplay.
2. The petitioner as well as respondents Nos. 2, 3 and 4 had filed their separate written
statements. Out of the pleadings of the parties following issues were framed:
1). Whether predecessor -in-interest of plaintiff and defendants Nos.1 to 4 namely
Munawar -ud-Din was the owner of 2/3rd shares in the disputed property i.e. house
situated in Ward No.34, Tappa Urban- II, Tehsil City, Quetta under Khewat/Khatooni
Nos.239/231, Khasra No. 02- Qitta total measuring 799 Sq:ft, Art School road near
corner of Jamiat Rai Road Quetta?
2). Whether registered gift deed dated 23 -10-1994 and subsequent Mutation No.337
dated 29. -5.1996 Ward No.34, Tappa Urban- II, Tehsil City Quetta were
prepared/sanctioned with fraud and misrepresentation?
3). Whether the disputed property is unpartitioned and is required to be partitioned amongst the legal heirs of Late Munawar -ud-Din to the extent of 2/3rd Shares and
legal heirs of Allah -ud-Din late to the extent of 1/3rd shares?
4). Whether the plaintiff is entitled to the relief claimed for?
5). Relief.
3. Thereafter the trial court allowed the parties to produce evidence in support of their
respective contentions and on conclusion of the trial, the learned trial court vide judgment and decree dated 20th December, 2021 decreed the suit.
The record transpires that only petitioner had assailed the said judgment and decree
before the appellate forum, whereas remaining legal heirs of Munawar -ud-Din did not opt to
challenge the said judgment and decree.
4. The petitioner along with his appeal under Section 96, C.P.C. had also filed an
application under Order XLI, Rule 27, C.P.C. to produce additional evidence, which application was dismissed by the appellate court vide order dated 27.09.2022 ("impugned order").
5. Learned counsel for petitioner mainly contended that under Order XLI, Rule 27,
C.P.C. the appellate Court has jurisdiction to allow additional evidence and since the witnesses which petitioner intend to produce before the appellate court are marginal witnesses of alleged gift deed, therefore their testimonies are extremely important considering the controversy between the parties. In this regard the learned counsel has relied
upon Khursheed Ali v. Shah Nazar1.
6. Conversely learned counsel appearing on behalf of respondent No.1/plaintiff while
opposing the grounds taken by petitioner in the instant petition contended that the petitioner
has been lingering on the matter from quite some time as the suit was filed on 14.04.2017,
which was decreed on 30.12.2021, but still the matter is subjudice before appellate Court and
delaying tactics are being used by the petitioner. Learned counsel further contended that it was the responsibility of the petitioner to produce the private witnesses during the trial but
since petitioner did not make any effort in this regard, therefore request of the petitioner was
rightly rejected by the appellate Court.
7. I have heard the learned counsel for the parties and have perused the record. Record
transpires that suit filed by the plaintiff was decreed on 30th December, 2021 by the trial court and the appeal filed by the petitioner is still pending before the appellate Court. The petitioner had filed an application under Order XLI, Rule 27, C.P.C. to produce additional evidence i.e. marginal witnesses of alleged gift deed i.e. Saleem Iqbal son of Munawar -ud-
Din and Abdul Rasheed son of Ahmedullah. The record divulges that Saleem Iqbal had been
arrayed as respondent No.2, who had filed his written statement as well before the trial court.
It is also relevant to mention here that the petitioner had filed his list of witnesses in which
the said witnesses were mentioned along with other witnesses. The perusal of the order -
sheets of trial court reveals that on 23.05.2019 after recording the statement of representative
of QESCO by the petitioner/defendant No. 1, the learned counsel appearing on behalf of the
petitioner requested for conclusion of the evidence of the petitioner. In this regard matter was
fixed for 17.06.2019 but the petitioner could not produce any evidence and thereafter without
making any effort to produce the aforementioned witnesses on 06.08.2019 the petitioner recorded his statement and even subsequently no efforts have been made by the petitioner to
produce the aforementioned witnesses before the trial court and when the suit had been
decreed in favour of respondent No. 1. The petitioner subsequently while filing appeal under
Section 96 of the C.P.C. had also filed an application under Order XLI, Rule 27, C.P.C. and
sought permission to produce the marginal witnesses of the alleged gift deed.
8. Since the matter is subjudice before the appellate court, therefore the scope of this
revision petition is limited to the provisions invoked by the petitioner under Order XLI, Rule
27, C.P.C. It would be appropriate to reproduce Order XLI, Rule 27, C.P.C., which reads as under:
"Order XLI, Rule 27, C.P.C: Production of additional evidence in Appellate Court.---(1) The parties to an appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court. But if ---
(a) the Court from whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,
The Appellate Court may allow such evidence or document to be produced or witness to be examined."
9. The perusal of aforementioned provisions stipulates certain circumstances in which
the appellate court can exercise its jurisdiction. It is trite law that parties to the suit must be
vigilant while contesting the suit and if any party is careless or failed to take necessary steps for production of evidence then subsequently any request on behalf of such party under the garb of Order XLI, Rule 27, C.P.C. for production of additional evidence has to be
considered with extreme caution as the conduct of a party is always extremely relevant. The
petitioner had filed his list of witnesses in which both the said witnesses were mentioned but
subsequently the petitioner without mentioning any cause did not produce them before the trial court. The ibid provision of C.P.C. i.e. Order XLI, Rule 27(1)(a) stipulates that only in those cases where the trial court has refused to admit any evidence which ought to have been admitted, then the appellate Court can exercise the discretion to allow additional evidence but in the instant case the trial court was never approached by the petitioner in this context rather the petitioner himself despite taking responsibility to produce the said witnesses failed to do so, therefore the ibid provisions of C.P.C. is not attracted in this case as the said powers of C.P.C. are not unfettered nor the appellate Court has the discretion to allow additional evidence per its own caprice, rather this discretion is structured/limited by the factors enunciated in the said provisions of law. Reliance in this regard is being placed on Ideal Arcade Builders and Development v. Miss Farida Shehnaz
2, , wherein it was held:
"2. Perusal of Rule 27(1) of Order XLI, C.P.C. shows that the scope thereof is limited
as it contemplates very few circumstances or conditions in which the appellate Court
may allow a party to the appeal to produce additional oral or documentary evidence.
Such circumstances/ conditions are, (a) where the Court from whose decree the appeal
is preferred had refused to admit evidence which ought to have been admitted, or (b)
where the appellate Court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment, or (c) for any other substantial cause.
Admittedly, the case of the appellant does not fall under Rule 27(1)(a) as he neither
attempted to produce the document in question before the learned trial Court nor did
the learned trial Court refuse to admit the same in evidence. Regarding Rule 27(1)(b),
it may be noted that the learned appellate Court was not of the view that the evidence
sought to be produced by the appellant was required by the appellate Court itself to
enable it to pronounce judgment. As far as the question of 'substantial cause'
mentioned in Rule 27(1)(c) is concerned, needless to say it depends upon the facts
and circumstances of each case. The law laid down by Hon'ble Supreme Courts of
Pakistan and Azad Jummu and Kashmir regarding production of additional evidence
in appeal is briefly discussed below:
A. In Mad Ajab and others v. Awal Badshah 1984 SCMR 440, by referring to the case
of Parshotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 Privy
Council 143, it was held by the Larger Bench of the Hon'ble Supreme Court of
Pakistan that the provisions 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.
B. In Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20,
it was held that parties to an appeal are not entitled to adduce any evidence, but the
same can be allowed if the Court from whose decree an appeal is preferred had
refused to admit the evidence which ought to have been admitted or the appellate
Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause which is an exception to the principle that the appellate Court cannot record fresh evidence ; under Rule 27 of Order XLI, C.P.C., additional evidence cannot be recorded unless provisions of the
said Rule are attracted; the power to allow additional evidence is discretionary in
nature, but the same is circumscribed by the limitation specified in the said Rule as
evidence under Rule 27(b) of Order XLI is required by the appellate Court itself and not by a party to the appeal ; it may be allowed only when a party was unable to produce evidence through no fault of its own or where evidence was imperfectly taken by the lower Court; a party that had an opportunity but elected not to produce evidence cannot be allowed to give evidence that could not have been given in the Court below ; and, the appellate Court can allow additional evidence only if it itself so feels that the judgment cannot be pronounced in the absence thereof.
C. In Taj Din v. Jumma and 6 others PLD 1978 SC (AJ&K) 131, it was held by the Hon'ble Full Bench that provisions of Rule 27 of Order XLI C.P.C. impose strict conditions so as to prevent a litigant from being negligent in producing the evidence
at the time of the trial; a litigant seeking permission to adduce additional evidence at
the stage of appeal has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced at the time the question was being tried or it has come into existence after completion of the trial ; therefore, where a party who had been negligent in producing evidence at the time the issue was being tried and a lacuna had been left and it is not shown as to how the absence of the proposed evidence would result into failure of justice, a prayer
for additional evidence in such circumstances obviously would not be granted.
D. In Nazir Hussain v. Muhammad Alam Khan and 3 others 2000 YLR 2629 [SC (AJ&K)], it was held that provisions contained in Rule 27 of Order XLI C.P. C. would reveal that the appellate Court must be very cautious while allowing additional document; and, a party which seeks to bring additional evidence on record must convince the Court with proof that such party could not lead the evidence at proper stage due to some substantial cause.
E. In Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671, application for production of additional evidence was dismissed by the lower appellate Court which order was maintained in revision by the learned High Court. It was held by the Hon'ble Supreme Court that the learned High Court was justified in refusing to allow production of additional evidence at the appellate stage specially when no reasonable ground was shown for not producing the same during the trial of the Suit ; and, though the parties were conscious of the questions involved in the Suit, yet they did produce the evidence.
F. In Nazir Ahmed and 3 others v. Mushtaq Ahmed and another 1988 SCMR 1653, leave was refused as no explanation was offered as to why the evidence which was sought to be produced in the High Court for the first time was not tendered before the trial Court.
G. In Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430, it was held that
discretion of Court should not be exercised in favour of a person who had remained indolent for years together in the matter of producing oral or documentary evidence before trial Court, and such person should suffer the consequences of his failure."
10. The case law relied upon by the learned counsel for the petitioner is distinguishable to
the facts and circumstances of the instant case.
For the foregoing reasons the instant revision petition is dismissed, the order dated
27.09.2022 passed by Additional District Judge -IV, Quetta is upheld. The interim order dated
11.10.2022 is hereby recalled.
MQ/103/Bal. Revision Petition 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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