2014 Y L R 167
[Balochistan]
Before Muhammad Noor Meskanzai, J
AMIR MUHAMMAD ---Petitioner
Versus
ABDUL BARI and 6 others ---Respondents
Civil Revision No.148 of 2012, decided on 20th September, 2013.
(a) Civil Procedure Code (V of 1908) ---
----O. XLI, R. 27 ---Specific Relief Act (I of 1877), S. 42 ---Suit for declaration ---Production of
additional evidence in Appellate Court ---Requirements ---Suit was dismissed against which
appeal alongwith application for additional evidence were filed ---Said application was dismissed
by the Appellate Court ---Validity ---One of the documents sought to be produced had already
been tendered in evidence whereas other document was neither relied upon nor said document
contained any reference in the plaint ---Plaint iff had failed to show as to how such document was
necessary for just decision of the case ---Document in question had been produced for the first
time before the Appellate Court ---Reason mentioned in the application for production of
evidence was of no ava il---Document sought to be produced seemed to have been obtained from
the Revenue Record and such Revenue Record was always available ---Said document appeared
to be tampered which required another enquiry which was neither warranted nor advisable ---If
proper explanation was not offered for not tendering the document in evidence before the Trial
Court then Appellate Court would be reluctant to entertain the request for production of
evidence ---Material already available on record had not been held/treated in sufficient by the
Appellate Court to warrant a decision of the case on merits ---Document sought to be produced
was not required by the Appellate Court to enable it to pronounce judgment ---Evidence must be
required by the court itself and such power was exe rcisable in the interest of justice and not for
the purpose of patching up of weak case or to allow to fill in the gaps ---Provisions of O. XLI, R.
27, C.P.C. were not attracted to the present case ---Any interference by the High Court would
amount to pre -empt the powers of the Appellate Court which was neither aim of law nor the
requirement of justice ---Appellate Court had rightly passed the impugned order ---Said order was
neither open to any exception nor it suffered from any illegality, irregularity, perve rsity,
impropriety and invalidity ---Revision was dismissed in circumstances.
Muhammad Ramzan and others v. Niaz Ali and others 1988 SCMR 1652; Sm. Krishna
Subala Bose and others v. Dhanapati Dutta and others AIR 1957 Cal. 59 and Bashir Ahmed v.
Ahmad -ul-Haq Siddiqui 1985 SCMR 1232 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. XLI, R. 27 ---Powers of the Appellate Court to record additional evidence ---Conditions ---
Conditions for recording additional evidence were that the evidence sought to be p roduced had
been refused by the Trial Court to admit which ought to have been admitted and that the
Appellate Court required any document to be produced or witnesses to be examined in order to
enable itself to pronounce the judgment and for any substantial cause.
Najeebullah for Petitioner.
Adnan Ejaz for Respondents.
Date of hearing: 22nd August, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this judgment, I would like to
dispose of Civil Revision Petition No. 148 of 2012, whereby the petitioner has called in question
the legality, validity and propriety of the order dated 15th May, 2012 passed by the Additional
District Judge -I, Quetta.
2. Facts in brief, are that the petitioner filed a suit for declaration, cancellation of mutation
of Inheritance No. 88 to the extent of Shamilat land, permanent injunction and consequential
relief against the respondents Nos. 1 to 7, in the court of Civil Judge -III, Quetta. The suit was
contested by the respondents. The trial Court after obtaining wr itten statement framed the
necessary issues. Thereafter, the parties produced their evidence in support of their respective
claims. The trial Court after fulfilling the legal formalities dismissed the suit vide judgment and
decree dated 29th September, 201 1. Feeling aggrieved of the judgment and decree referred to
herein above the petitioner preferred Civil Appeal No. 119 of 2011, which is sub judice before
the Additional District Judge -I, Quetta. Along with appeal, the petitioner filed an application
under Order XLI Rule 27, C.P.C. seeking production of following additional evidence: --
(i) Revenue Record of jama bandi prepared in the year 1950 -51.
(ii) Pedigree -table of the shamilat land in question.
3. The application was contested by the respondents . The learned appellate court after
hearing the parties vide order impugned herein dismissed the application, hence instant revision
petition.
4. Learned counsel for the petitioner contended that the appellate court committed material
irregularity by dis missing the application as the documents sought to be brought on record were
quite important and essential for just decision of the case. It was further stated that the appeal
being the continuity of the suit confers a right upon a party to produce at any subsequent stage
the evidence that was either not available or not in the knowledge of the parties at the time of
producing its evidence. The learned counsel requested for acceptance of the petition, setting
aside the impugned order and allowing the applic ation for additional evidence with permission to
the petitioner to place on record both the above referred documents.
Learned counsel for the respondents strenuously opposed the submissions and stated that
the petitioner has neither relied upon the docu ment in question in his plaint nor the same were
referred to and listed in the list of reliance. It was further stated that the document sought to be
produced by the petitioner are neither necessary nor would help the Court to arrive at just
decision of th e case. The learned counsel for the respondents requested for dismissal of the
petition.
5. I have considered the arguments advanced by the learned counsel for the parties and have
perused the available record. The perusal of the record reflects that one of the document i.e.
Pedigree -table sought to be produced by the petitioner has already been tendered in evidence i.e.
Exh.d/2, as reflected from the observations of the appellate Court. So far as, the second
document is concerned, it is pertinent to note that neither this document was relied upon nor the
said document contains any reference in the plaint. The petitioner has further failed to show how
this document is necessary for just decision of the case. The language of Order XLI Rule 27,
C.P.C. reveal s that it is coached with negative language and places an embargo upon the powers
of the appellate court with regard to entertaining additional evidence unless three conditions are
satisfied: (i) the evidence sought to be produced has been refused by the t rial Court to admit
which ought to have been admitted (ii) the appellate court requires any document to be produced
or witness to be examined in order to enable itself to pronounce the judgment; and (iii) for any
other substantial cause. As far as the firs t condition is concerned, this does not apply in this case
as the document sought to be produced by the petitioner has not been relied upon as a piece of
evidence nor the plaint contains any reference of the document. Furthermore; within the
perspective of Order XLI Rule 27, C.P.C. it is inevitable for an applicant to show the document
was tendered in evidence and the Court refused to admit the same without plausible, reasonable
and viable justification. It should further be shown that the document sought t o be brought on
record ought to have been admitted. The document for the first time has been produced before
the appellate Court. The reason mentioned in the application is of no avail because the document
sought to be produced seems to have been obtained from the Revenue Record and such Revenue
Record is/was always available and secondly the said document, according to the observations of
the appellate court appears to have been tampered with, which requires another enquiry, thus, in
the garb of this appli cation, another protracted trial would start in the appellate jurisdiction which
is neither warranted nor advisable. The law stands settled on the subject that if proper
explanation is not offered for not tendering the document in evidence before the trial Court, the
appellate court would be reluctant to entertain the request for production of evidence. Reliance is
placed on the judgment titled as 'Muhammad Ramzan and others v. Niaz Ali and others' reported
in 1988 SCMR page 1652, relevant at page 1654. Rel evant observations therefrom are
reproduced hereinbelow: --
"It is also contended that the learned High Court was not right in rejecting their prayer for
additional evidence. This contention is also without any merit, for, no explanation has been
offered why the evidence which was sought to be produced in the High Court for the first time
was not tendered before the trial Court".
6. As far as the second condition is concerned, this condition is lacking. Since the material
already available on record has not been held/treated insufficient by the appellate Court to
warrant a decision of the case on merits. The appellate Court rejected the request meaning
thereby the document sought to be produced is not required by the appellate Court to enable it to
prono unce judgment, in such a situation, the provisions of Order XLI Rule 27, C.P.C. are not
attracted. In this regard reliance is placed on the judgment titled as 'Sm. Krishna Subala Bose and
others, v. Dhanapati Dutta and others' reported in AIR 1957 Calcutta 59, (relevant observations
at page -61) wherein it has been observed as under:
"Additional evidence may be taken in appeals only under Order XLI R.27. As the
document was not tendered at the trial, R.27(1) of Order XLI does not apply. So R.27(2) is the
only part of the rule that can be invoked. It applies only where the appellate Court needs the
additional evidence for being able to pronounce judgment or for any other substantial cause."
7. As far as the third contention i.e. any other substantial caus e is concerned, this again
requires that the evidence must be required by the court itself and this power is exercisable in the
interest of justice and not for the purpose of allowing the patching up of a weak case or to allow
to fill -in the gaps. I have n o doubt in my mind that by requiring additional evidence within the
domain of Order XLI, Rule 27, C.P.C., it is the judicial wisdom of the Court that is to prevail and
not the wish and whim of a particular party. Reliance is placed on the case titled as 'B ashir
Ahmed v. Ahmad -ul-Haq Siddiqui' reported in 1985 SCMR 1232, relevant observations there -
from read as under: --
""Rule 27 of Order XLI, C.P.C. does not envisage filling up of the lacunas left by a party
in the evidence before the trial Court. Additi onal evidence under the above rule may be allowed
to be recorded if the appellate Court itself so requires. Additional evidence cannot be allowed in
order to enable a party to patch up the weaker part of its case or to fill up omission or to enable it
to raise a new point. It can be allowed only if it is required by the appellate Court itself on the
basis of its own appreciation of the evidence already on record."
--------------------------------------
--------------------------------------
We have perused the judgments on this point which were relied upon before the Division
Bench by the parties, namely, Messrs Muhammad Siddiq Muhammad Umer and another v.
Australasia Bank Ltd. PLD 1966 SC 684, Khan Iftekhar Ahmad v. Messrs Ghulam Nabi Corpn.
PLD 19 71 SC 550 and Secretary to Government of West Pakistan and another v. Gulzar Ahmad
PLD 1969 SC 60, as also the earlier judgment delivered by this Court in the case of Muhammad
Ikhlas v. Muhammad Ismail PLD 1983 SC 466 and are satisfied that in the facts an d
circumstances of this case the view taken by the learned Judges in the High Court refusing
permission to the petitioner to produce additional evidence at the appellate stage, was quite
correct and cannot be faulted."
8. At this premature stage no inter ference is called for. Perhaps, at this juncture any
interference would amount to pre -empt the powers of the appellate court which is neither aim of
law nor the requirement of justice.
For the foregoing reasons, I am of the considered opinion that the a ppellate court after
attending each and every aspect of the case has rightly passed the impugned order and the same
is neither open to any exception nor it suffers from any illegality, irregularity, perversity,
impropriety and invalidity. Thus, the petitio n has no force, which is accordingly dismissed
leaving the parties to bear their own costs.
AG/101/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,
let us know.