Order 41 Rule 27 CPC related with Additional Evidence

PLJ 2012 Lahore 264 Present: Ch. Shahid Saeed , J. MUHAMMAD TUFAIL (deceased) through Legal Representatives--Petitioner versus NAZIR HUSSAIN (deceased) through Legal Representatives and others--Respondents C.R. No. 116 of 1995, decided on 30.11.2011. Civil Procedure Code, 1908 (V of 1908)-- ----O. XLI, R. 27--Additional evidence--Concurrent findings--Documents which petitioner intended to place on record through additional evidence had no nexus--If application for additional evidence was accepted even then the documents would not helpful--When appeal was pending before First Appellate Court, the documents were in knowledge of petitioner but application was not filed--Question of--Either the documents were being produced at belated stage and had any relevancy with controversy or not--Not availed remedy before First Appellate Court--Validity--Appellate Court was competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error was committed then in revision additional evidence can be admitted in a fit and proper for clarification if that was essential for just decision of the case--If petitioner had not filed any application for additional evidence before appellate Court--If one or other party had failed to produce the document, the Court had ample power to do the needful so as to advance justice rather than injustice--No bar to file application for additional evidence at any stage even before High Court but documents which the petitioner intended to place on record in that case no relevancy with matter in issue--Findings of Courts below on question of facts and law based on proper appreciation of oral as well as documentary evidence led in suit were not susceptible to review to be upset or substituted in revisional jurisdiction--Petition was dismissed. [Pp. 267 & 269] A & B Syed Kaleem Ahmed Khurshid , Advocate for Petitioner. Mr. Zahid Saleem , Advocate for Respondents. Date of hearing: 30.11.2011. Judgment Through the instant civil revision petitioner has challenged the impugned judgments & decrees passed by the Courts below by way of which suit for declaration filed by the petitioner was dismissed by the learned trial Court vide judgment & decree dated 19.11.1987. Petitioner preferred an appeal which also met with the same fate by the learned appellate Court. 2. Brief facts of the case are that on 05.11.1976 the petitioner filed a suit against the respondents. In the plaint it was stated that the land measuring 158 kanals 5 marlas fully described in the plaint, was transferred in favour of one Murad at Khata No. 325 of R.L.II village Mangoo Taroo Tehsil Nankana Sahib, District Sheikhupura . The said Murad sold away the land to the petitioner vide registered sale-deed dated 11.03.1975 and delivered the possession and he is continuing in possession as an owner. Rehmat Khan, predecessor-in-interest of Respondents No. 1 to 5 in collusion with the Staff of Respondent No. 6 got entered Khasra Nos. 623, 624 and 625 which are included in the said 158 kanals 5 marlas at Khata 123/248 of the said RL-II vide orders dated 28.07.1976 of Chief Settlement Commissioner and 04.09.1976 and 04.09.1976 of the D.S.C.Nankana Sahib. These orders have been passed without notice to the petitioner. With these averments he sought declaration that he is owner in possession of the said suit and said orders are illegal and void. The Respondents No. 1 to 5 in their written statement took the plea that the land was never allotted to Murad son of Mandoo and as such he had no authority to transfer the land to the petitioner. Issues were framed. Evidence of parties was recorded. Ultimately the learned trial Court dismissed the suit of the petitioner. Appeal of the petitioner was also dismissed. Having dissatisfied by both the judgments petitioner has preferred the instant civil revision. 3. It is pertinent to mention here that initially this civil revision was taken up by this Court and the same was dismissed vide judgment dated 21.07.2003. Petitioner filed a CPLA No. 568-L of 2009 before the Hon'ble Supreme Court of Pakistan. Ultimately the same was allowed. The impugned judgment dated 21.07.2003 passed by this Court was set aside and the case was sent back to this Court with a direction to decide the application of the petitioner for additional evidence on merits and thereafter to decide the revision petition afresh. 4. Learned counsel for the petitioner contends that the impugned judgments & decrees passed by the Courts below are against law and facts and also not sustainable in the eyes of law; that while deciding the civil revision this Court has over sighted the application of the petitioner U/O. XLI, Rule 27 CPC for additional evidence; Further argued that the document which the petitioner intends to place on record through the additional evidence are much relevant with the present controversy; Further maintains that the evidence on record has been mis -read inasmuch as the copy of Rozenamcha has not been properly taken into consideration. Lastly learned counsel for the petitioner has relied upon PLD 1964 Supreme Court 302, PLJ 2009 Lahore 79, 1992 Law Notes (S.C.) 718, K.L.R.1997 Civil Cases 89 (Lahore) and 2008 SCJ 181. 5. On the other hand, learned counsel for the respondents contends that neither the land in dispute was allotted to Murad son of Mahndoo nor the petitioner is bona fide purchaser of the said land. Further states that in the learned trial Court full opportunity was given to the petitioner to prove his stand but he has failed to do so. That the documents which the petitioner intends to place on record through the additional evidence have no nexus with the present controversy and if the application of the petitioner for additional evidence is accepted even then the said documents would not be helpful for the petitioner. Further argued that when the appeal of the petitioner was pending before the learned First Appellate Court the said documents were in the knowledge of the petitioner but at that time petitioner did not file any application. That there are concurrent findings of both the Courts below against the petitioner and has also supported the impugned judgments & decrees of the Courts below. 6. Arguments heard. Record perused. 7. Admittedly, two applications of the petitioner for additional evidence are available on record, which have been over-sighted by this Court at the time of deciding the instant civil revision in the earlier round of litigation. Through both the C.Ms. No. 1-C/1995 and C.M.No . 1-C/1996 petitioner intended to produce copy of the order dated 12.05.1992 passed by Mr. Shaukat Ali Rana , Additional Settlement Commissioner (Revenue), Lahore and the judgment dated 22.10.1990 passed by this Court in Writ Petition No. 386-R of 1982. The question which is to be decided by this Court either the abovesaid documents are being produced at belated stage and the same have any relevancy with the present controversy or not. It is an admitted fact that appeal of the petitioner was decided by the learned First Appellate Court on 20.09.1994, whereas the judgment in Writ Petition No. 449-R of 1992 was passed by this Court on 22.10.1990 and the verdict of the Additional Commissioner (Revenue) Lahore is of 12.05.1992. It means that both the judgment and order were passed during the pendency of the civil appeal of the petitioner and he was well-aware about the said documents. If the same have any relevancy with the present dispute then why the petitioner did not file any application for additional evidence before the learned First Appellate Court. Petitioner has not given any plausible explanation that why he could not produce the said documents at the relevant time. If for the sake of arguments the abovesaid documents are taken into consideration, even then the same would not be helpful for the petitioner because the claim of the petitioner was regarding Khata No. 325 of R.L-II village Mangoo Taroo Tehsil Nankana Sahib, District Sheikhupura , whereas the documents in dispute relate to some other Khata /Property No. 5143, therefore, both these documents have no relevancy with the case in hand. Furthermore Rule 27 of Order XLI CPC is self explanatory. It is in negative form. Petitioner has not availed the said remedy before the First Appellate Court. It is stark reality that under Order XLI, Rule 27, CPC, Appellate Court is competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error is committed then in revision additional evidence can be admitted in a fit and proper case for clarification if that is essential for just decision of the case. But in the case in hand, petitioner has not filed any application for additional evidence before the learned appellate Court. No doubt, if one or the other party had failed to produce of the disputed document, the Court had ample power to do the needful so as to advance justice rather than injustice. There is no bar for the petitioner to file application for additional evidence at any stage even before this Court but the documents which the petitioner intended to place on record in this case have no relevancy with the matter in issue. The said applications have been filed just to linger on the matter. There is no substance in the C.Ms filed by the petitioner and the same are dismissed. 8. Record further reflects that petitioner has produced eight witnesses in support of his claim. On the other hand Abdul Hameed official witness appeared as DW.1 who brought the Register R.L.II and deposed that R.L.II is correct upto Khata No. 323 and Khata No. 325/7 is in the name of Habib Ahmad son of Bashir and according to the Register RL.II Khata No. 325 was not allotted in the name of any Murad Khan son of Mahndu rather Khata No. 325/7 is in the name of Habib Ahmad. Moreover according to Ex.P . 15 there is no entry of number of the claim Form. In Column No. 12 the entry is that units have been received from Qila Dharam Singh vide order dated 17.04.1964 of S.D.C. A copy of the said order has not been produced. According to copy of Roznamcha Waqati Ex.P.4 units against the Claim Form No. 5343 were received from Qila Dharam Singh at Mangoo Taroo . Learned counsel for the petitioner has failed to reconcile the documents Ex.5, P.4 and P.2 which pertain to different Claim Forms and certainly neither Ex.P.2 nor Ex.P.4 is relatable to the Claim Form mentioned in Ex.P.5. Needless to state that no effort was made to summon the record from the Central Claim Office in this behalf. In this way Ex.D.1 copy of the order passed by this Court in Civil Revision No. 800/88 in which it has been observed that the allotment in favour of Murad was cancelled on 14.02.1974 and the petitioner purchased the said land from the so called allottee on 11.03.1975, obviously after the cancellation of the allotment having no protection of bona fide purchaser. It is also apparent on the record that sale-deed Ex.P.1 was attested on 11.03.1975 i.e. after about one year and one month after the cancellation of the allotment from the name of Murad Khan, therefore, it can safely be presumed that at the time of attestation of the sale-deed Ex.P.1 said Murad Khan was not holding any allotment. Ex.D.2 also reveals that no land was allotted to Murad Khan son of Mahndu Khan and the same was not entered in the revenue record. The citations referred to by learned counsel for the petitioner are distinguishable from the facts and circumstances of the case in hand and the same are not helpful for the petitioner. It is also pertinent to note here that in the registered sale-deed as well as some other documents the caste of said Murad Khan was mentioned as Jat , whereas in death Certificate and general power of attorney dated 18.05.1972 the caste of Murad Khan has been mentioned as Meo Rajput . Apparently it seems that petitioner having in league with his accomplices had firstly got prepared the general power of attorney and then got entered the death of said Murad Khan in the register kept for the purposes by one Jahangir son of Muhammad Din who was also the marginal witness of Ex.P . 1, so the factum of forgery and fraud on the part of petitioner cannot be ruled out. 9. Further more there are concurrent findings of facts in the matter and the Courts below while passing the impugned judgments and decrees took a count of every bit of evidence placed before them and were not shown to have been over looked any part of the record from their judicious consideration. Findings of the lower Courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review to be upset or substituted in revisional jurisdiction. The findings of the Courts below based on material on record would not be amenable to interfere with in revisional jurisdiction. 10. Resultantly, this revision petition having no force is dismissed with no order as to costs. (R.A.) Petition dismissed