Essential Documents for decision can be produced after additional evidence petition acceptance
📝 AI Summary — Plain-Language Overview
This case arose from a property dispute. The respondents had sued for specific performance of an agreement to sell, claiming the petitioners had failed to complete their end of the deal. The trial court ruled in favor of the respondents and ordered the contract enforced. The petitioners appealed, and during the appeal, they asked the court to allow additional evidence, specifically, records from the stamp vendor and the person who wrote up the document, to prove that what was actually signed was a lease agreement, not a sale contract. The appellate court (District Judge) refused to allow this additional evidence, so the petitioners challenged that refusal in the Lahore High Court.
The High Court sided with the petitioners. It explained that under the law governing additional evidence in appeals, such evidence can be admitted not only when a lower court wrongly refused to admit it, or when it's needed for a just decision, but also whenever there is "any other substantial cause." The court found that the petitioners' claim, that the actual transaction was a lease rather than a sale, had already been raised in their written statement, so they weren't barred from introducing supporting evidence later. It ruled that the District Judge had wrongly refused to exercise this discretion and allowed the additional evidence to be produced.
This case matters because it clarifies that parties aren't automatically barred from introducing important supporting documents on appeal just because they didn't do so at trial, especially when those documents are essential to fairly deciding the true nature of a disputed agreement.
یہ مقدمہ ایک جائیداد کے تنازعے سے پیدا ہوا۔ مدعا علیہان (جواب دہندگان) نے بیع کے ایک معاہدے کی مخصوص انجام دہی (اسپیسفک پرفارمنس) کے لیے دعویٰ دائر کیا تھا اور موقف اختیار کیا تھا کہ درخواست گزاروں نے اپنے حصے کا معاہدہ پورا نہیں کیا۔ ٹرائل کورٹ نے مدعا علیہان کے حق میں فیصلہ دیا اور معاہدے کی تعمیل کا حکم صادر کیا۔ درخواست گزاروں نے اس فیصلے کے خلاف اپیل دائر کی، اور اپیل کے دوران عدالت سے استدعا کی کہ اضافی شواہد پیش کرنے کی اجازت دی جائے، خاص طور پر اسٹامپ فروش اور دستاویز لکھنے والے شخص کے ریکارڈ، تاکہ یہ ثابت کیا جا سکے کہ درحقیقت جس دستاویز پر دستخط ہوئے تھے وہ بیع نامہ نہیں بلکہ اجارہ نامہ (لیز کا معاہدہ) تھا۔ اپیلٹ کورٹ (ڈسٹرکٹ جج) نے یہ اضافی شواہد پیش کرنے کی اجازت دینے سے انکار کر دیا، جس پر درخواست گزاروں نے اس انکار کو لاہور ہائی کورٹ میں چیلنج کیا۔
ہائی کورٹ نے درخواست گز
Generated from the full judgment text below — not a substitute for reading the actual opinion.
PLJ 2014 Lahore 28 Present: Mehmood Maqbool Bajwa , J. MUHAMMAD FAYYAZ (deceased) through LRs etc.--Petitioners versus SAEED AHMAD (deceased) through LRs. etc.--Respondents C.R. No. 2907 of 2012, decided on 12.4.2013. Civil Procedure Code, 1908 (V of 1908)-- ----O. XLI, R. 27--Additional evidence--Suit for specific performance of executory contract of sale--Failed to perform part of contract--Document sought to be produced were essential for decision--Concept of filling gaps and lacunas in lis is no more recognized in civil administration of justice--Validity--Mere omission on part of petitioners to make an application for respondents would not be sufficient to non-suit the petitioner--No executory contract of sale was executed between adversaries and it was a lease agreement--Documents sought to be produced at instance of petitioners record of stamp vendor as well as petition writer in order to substantiate its content can is substantial cause--Application for production of additional evidence was allowed. [P. 30] A & B Raja Nadim Haider , Advocate for Petitioners. Ms. Shaista Habib , Advocate for Respondents. Date of hearing: 12.4.2013. Order Suit for specific performance of executory contract of sale was instituted by respondents against present petitioners claiming specific performance of said agreement maintaining that present petitioners failed to perform their part of contract. Since there was contest, therefore, after casting issues and recording evidence, learned trial Court granted decree in favour of respondents, which decree was called in question at the instance of petitioners by preferring an appeal before the learned District Court, in which application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908 was made at the instance of petitioners for production of record of stamp vendor and petition writer, upon which statedly agreement to sell was written. After calling written reply, the said application was declined by the learned District Judge, vide order dated 25.7.2012.
2. Learned counsel for the petitioners contended that the documents sought to be produced at the instance of petitioners were essential for just decision of the case and the learned District Judge while declining the application failed to exercise jurisdiction vested in it. Submitted that the opinion formulated by the learned appellate Court that the documents sought to be produced are not relevant is erroneous keeping in view the stance taken by the petitioners in written statement whereby it was specifically alleged that the property was leased out and period of lease has been terminated. Seeking help from the dictum laid down in " Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778), "Muhammad Younus and 2 others v. Abdul Ghaffar and others" (1998 MLD 1622), " Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar Asghar " (2001 CLC 1721), it was maintained that the application should have been allowed because the concept of filing gaps and lacunas in the lis is no more recognized in civil administration of justice. On the other hand, learned counsel for the contesting respondents while endorsing the impugned order maintained that since no objection was raised at the instance of petitioners in the written statement regarding execution of lease agreement, therefore, the petitioners are estoped by their words and conduct to raise the plea by production of additional evidence before the learned appellate Court. Banking upon the dictum laid down in "Muhammad Tariq and others v. Mst . Shamsa Tanveer and others" (PLD 2011 Supreme Court 151), it was maintained that the petitioners are estopped to produce additional evidence as no such plea was taken in the written statement. Further maintained that the petitioners failed to point out any compelling circumstances due to which they were unable to produce the additional evidence before trial Court. Likewise, argued, no reason has been assigned why the application was not made before the learned trial Court. In this regard help was sought from the dictum laid down in Government of Khyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511).
3. Provision of Order XLI, Rule 27 of The Code of Civil Procedure, 1908 can be pressed into service on the following grounds. (1) Improper refusal of trial Court to admit documents (2) Conclusion of appellate Court feeling the necessity of admission of such documents to enable it to pronounce judgment, and (3) for any other substantial cause. One of the grounds mentioned in Rule 27(1) of said order is that if the that Court has wrongly disallowed the application for additional evidence, reference of which has been made in the dictum laid down in "Government of Kyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511) cited at bar by learned counsel for the respondents. However, there are two other grounds as well mentioned in the provision of law under reference, according to which additional evidence can be admitted in evidence, if the Court feels that the evidence is required in order to reach a just conclusion, which opinion admittedly can be formulated by the appellate Court and not by this Court while exercising re visional jurisdiction.
4. However, matter does not end here. There is another ground mentioned in the provision upon which appellate Court can also allow the application of additional evidence if there is "any other substantial cause". In view of the matter, mere omission on the part of petitioners to make an application before learned trial Court as argued by learned counsel for respondents would not be sufficient to non suit the petitioners.
5. Stance taken by learned counsel for the respondents that factum of lease was not agitated in the pleading, therefore, keeping in view the doctrine of " Scendum Ellegata et- probata ", petitioners are estopped to make an application for the admission of said documents can not advance the plea of respondents keeping in view para 4 of the written statement in which it was categorically mentioned that the property was leased by the petitioners and lease money was paid and lease period has been terminated.
6. It is the case of petitioners that in fact no executory contract of sale was executed between the adversaries and it was a lease agreement. Documents sought to be produced at the instance of petitioners i.e. record of stamp vendor as well as petition writer in order to substantiate its contention is "substantial cause".
7. Rule of law expounded in " Zar Wali Shah" (1992 SCMR 1778) substantiates the plea of petitioners regarding admission of documents in evidence sought to be produced.
8. In view of discussion, learned District Judge while declining the application failed to exercise jurisdiction vested in it and as such while allowing the revision petition, application for additional evidence is accepted but without any order as to costs. (R.A.) Petition allowed