Additional Evidence Petition Under Order XIII Rule 1 and 2

PLJ 2014 AJ&K 137 Present: Sardar Abdul Hameed Khan, J. MENDI KHAN --Petitioner versus INAYAT ALI & others --Respondents W.P. No. 32 of 2012, decided on 22.3.2013. Civil Procedure Code, 1908 (V of 1908)-- ----S. 115-- Revisional power--No material irregularity by subordinate Court--Validity--Where no appeal lies and such Court appears to have exercised the jurisdiction not vested in it by law or failed to exercise the jurisdiction so vested or acted in exercise of the jurisdiction illegally or with material irregularity but where the subordinate Court has exercised the jurisdiction vested in it in a lawful manner and there appears no material irregularity in the case decided by a subordinate Court, revisional powers cannot be exercised--If the Court, in exercise of revisional jurisdiction, comes to the conclusion that no violation of law or exercise of illegal jurisdiction or material irregularity is committed, then, obviously the Court shall decline to exercise the revision jurisdiction. [Pp. 139 & 140] A Civil Procedure Code, 1908 (V of 1908)-- ----S. 115 & O. XIII, Rr . 1 & 2--Civil revision--Production of all evidence or list of witnesses at first hearing of the suit--If party fails to produce sufficient cause to adduce additional evidence--Validity--It is the duty of the trial Court to decide an application under Order XIII, Rules 1 and 2 of CPC for allowing or disallowing an application for adducing the additional evidence and District Judge, while exercising powers under Section 115, CPC, is duty bound to look into the fact whether the lower Court has exercised the jurisdiction vested in such Court in a lawful manner or not--No illegality while allowing the application for adducing the additional evidence, therefore, District Judge was right in declining to exercise the revisional powers under Section 115, CPC. [P. 140] B & C AJ&K Interim Constitution Act, 1974 (VIII of 1974)-- ----S. 44--Civil Procedure Code, (V of 1908), S. 115 & O. XIII, Rr . 1 & 2--Constitutional petition-- Revisional power--Dismissal of application for production of additional evidence--Writ jurisdiction cannot sit as Court of appeal--Validity--Under Section 44 of AJ&K Interim Constitution Act, 1974, Court has ample powers to make an order on an application of any aggrieved person directing a person performing functions in connection with the affairs of State or a local authority to refrain him from doing which he is not permitted under law to do which he is bound to do under law--Trial Court while exercising his revisional jurisdiction has failed to exercise the power vested in him under the relevant provisions of law and order is perverse and against legal provisions, then a writ can be issued to such a Court but while exercising constitutional jurisdiction, High Court cannot exercise such powers which are vested in it as an appellate Court--High Court while exercising the constitutional jurisdiction cannot sit as appellate Court on the decision of a lower Court passed in exercise of revisional jurisdiction--Impugned order before High Court by way of writ petition is perverse and against the legal provisions--Petitioner has not succeeded to make out a case for issuance of a direction against the respondents--Petition stands dismissed in limine . [Pp. 140 & 141] D, E, F & G Mr. Liaquat Ali Khan , Advocate for Petitioner. Mr. Arshad Majeed Malik , Advocate for Respondents. Date of hearing: 22.3.2013. Order This writ petition has been filed against the order of District Judge Bhimber dated 27.1.2012, whereby the said Court dismissed the revision petition filed by the present petitioner. The precise facts giving rise to the instant writ petition are that both the petitioner and respondents have filed two suits against each other in the Court of Senior Civil Judge, Bhimber , It is stated that the Senior Civil Judge Bhimber recorded the evidence in the suit titled " Inayat Ali and other vrs . Mendi Khan and others". It is also stated that after recording the evidence, the Plaintiff/Respondent No. 1 to 10, Inayat Ali and others moved an application for additional evidence on 24.01,2011. After hearing he parties, the trial Court dismissed the application vide its order dated 20.10.2011. Feeling dissatisfied by the above said order, the present petitioner and respondent/ Inayat Ali also filed revision petitions before the District Judge, which also met the same fate, hence this writ petition. Mr. Liaquat Ali Khan, the learned counsel for petitioner argued that the costs awarded by the lower Court while allowing application for additional evidence was not paid, thus, the respondents could not take benefit of that impugned order, rather, the costs was paid after institution of writ petition before this honourable Court. Thus, the impugned order passed by the learned District Judge is illegal and the application for additional evidence of the respondents should have been rejected by the trial Court and the revision before the District Judge was also not properly considered and the learned District Judge has exercised the jurisdiction vested in the Court under Section 115 of Civil Procedure Code illegally and this amounts to material irregularity. The learned counsel for the petitioner has also argued that the application for arraying the legal representatives should have been refused by the Courts below. While controverting the arguments advanced by the counsel for the petitioner, Mr. Arshad Majeed Malik , the learned counsel for the respondents vehemently contended that the application for additional evidence was legally allowed by the trial Court and the application for rejection of the application for additional evidence for non-payment of costs of Rs. 500/- was also legally and properly rejected, as the respondents were ready to pay the costs in the open Court, but the petitioner refused to receive the costs and showed an intention to file a revision petition, however the costs has now been paid as admitted by the counsel for the petitioner. He also argued that this Court in writ jurisdiction cannot sit as a Court of appeal and prayed for dismissal of the petition in limine . I have heard the arguments advanced by the learned counsel for the parties and gone through the record of the case made available. A perusal of the record shows that both the contesting parties filed two different applications; one for adducing additional evidence and the other for arraying legal representatives of one of the deceased. Both the applications were allowed by trial Court, however, the application for adducing the additional evidence was allowed subject to payment of costs. On non-payment of costs awarded by the trial Court, an application for rejection of the application for allowing additional evidence was moved which was rejected the trial Court. Two separate revision petitions were filed by the parties before the District Judge, Bhimber , on 29.11.2011 titled " Mehndi Khan vrs . Inayat Ali and others" and " Inayat Ali Vrs . Mehndi Khan and others". The learned District Judge, dismissed both the revision petitions through the impugned order while exercising revisional jurisdiction under Section 115 of CPC. It may be mentioned here that the revisional powers under Section 115, CPC can be exercised by a revisional Court if from the perusal of any case by any Court subordinate to such Court and where no appeal lies and such Court appears to have exercised the jurisdiction not vested in it by law or failed to exercise the jurisdiction so vested or acted in exercise of the jurisdiction illegally or with material irregularity but where the subordinate Court has exercise the jurisdiction vested in it in a lawful manner and there appears no material irregularity in the case decided by a subordinate Court, the revisional powers cannot be exercised. If the Court, in exercise of revisional jurisdiction, comes to the conclusion that no violation of law or exercise of illegal jurisdiction or material irregularity is committed, then, obviously the Court shall decline to exercise the revision jurisdiction. Under Order XIII, Rules 1 and 2 of CPC it is provided that the parties to the suit shall produce all the evidence or list of witnesses at the first hearing of the suit. However, an exception is provided that if a party fails to produce the relevant evidence at the first hearing of the suit, the Court may allow the party on furnishing sufficient cause to adduce additional evidence. It is the duty of the trial Court to decide an application under Order XIII, Rules 1 and 2 of CPC for allowing or disallowing an application for adducing the additional evidence and the District Judge, while exercising the powers under Section 115, CPC, is duty bound to look into the fact whether the lower Court has exercised the jurisdiction vested in such Court in a lawful manner or not. In the instant case, the learned District Judge, while exercising the revisional powers, has reached to the conclusion that the trial Court has committed no illegality while allowing the application for adducing the additional evidence, therefore, the District Judge was right in declining to exercise the revisional powers under Section 115, CPC. Under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, this Court has ample powers to make an order on an application of any aggrieved person directing a person performing functions in connection with the affairs of the State or a local authority to refrain him form doing which he is not permitted under law to do or to do which he is bound to do under law. Of course, the direction can be issued by this Court to the Courts or Tribunals subordinate to it to do what they are required by law to do. If this Court, while exercising Constitutional power vested in it under Section 44 of the Interim Constitution Act, 1974, reaches to the conclusion that the trial Court or the District Judge, while exercising his revisional jurisdiction has failed to exercise the power vested in him under the relevant provisions of law and the order is perverse and against the legal provisions, then a writ can be issued to such a Court but while exercising Constitutional jurisdiction, this Court cannot exercise those powers which are vested in it as an appellate Court. There is marked distinction between the powers vested in this Court under Section 44 of the Interim Constitution Act, 1974 in writ jurisdiction as Constitutional Court and the powers vested in it as a Court of appeal. This Court while exercising the Constitutional jurisdiction cannot sit as appellate Court on the decision of a lower Court passed in exercise of revisional jurisdiction. What is necessary for issuance of a writ is that an order impugned before this Court by way of writ petition is perverse and against the legal provisions. The apex Court in a case titled " Ghulam Mustafa vrs . AJ&K Government and 2 others" reported in 1996 SCR-8, has observed as under: "----There is a marked distinction between the jurisdiction vested in a Civil Court, while exercising the powers as a Court of appeal and the jurisdiction exercised, by the High Court in writ jurisdiction. The High Court while exercising the writ jurisdiction cannot sit upon the judgments of subordinate Courts or the Local Authorities or tribunals as a Court of appeal. Even the illegal orders or judgments passed by the subordinate Courts or Local Authorities or Tribunal cannot be set aside by the High Court while exercising its powers in writ jurisdiction. --S. 44 of the Interim Constitution Act--a writ of mandamus can only be issued when there is a legal right vested in the aggrieved person and the person against whom the mandamus is sought is under a legal obligation to perform or refrain from performing an act. Thus the scope of powers of the High Court and even this Court in accordance with the limits and confines of law as provided in Section 44 of the Constitution Act are limited and can only be exercised in the exigencies mentioned above". Thus, in view of above discussion and keeping in view the principles laid down by the apex Court, the petitioner has not succeeded to make out a case for issuance of a direction against the respondents. Thus, the petition stands dismissed in limine . (R.A.) Petition dismissed