2010 PLP 112 (CLC)

MUHAMMAD YOUNAS TAHIR, J.

This revision petition has been addressed against the judgment and order passed by the learned District Judge Kotli, dated 16-6-2008, whereby the application moved by the present petitioner for additional evidence was rejected. The necessary facts giving rise to the instant revision petition are that the non-petitioner/plaintiff instituted a declaratory suit in the Court of Civil Judge, Fatehpur Thakyala, regarding suit-land with the prayer of annulment of Mutation No.1265, in respect of inheritance of one Ditta Deceased. After conclusion of the trial, the learned Civil Judge, Fatehpur Thakyala decreed the suit of Mst. Channa Bibi, plaintiff/respondent vide judgment and decree dated 22-12-2005. Feeling aggrieved from the afore-said judgment and decree the petitioner/ defendant preferred an appeal before the District Judge on 16-6-2006, which is sub judice before the First Appellate Court. During the pendency of the appeal, the petitioner/defendant moved an application for additional evidence on 16-2-2006. This application was opposed by the opposite side by filing objections. After hearing the parties, the learned District Judge rejected the same vide the impugned judgment and order dated 16-6-2008. Hence this revision petition. Malik Muhammad Yousaf, the learned counsel for the petitioner, vehemently contended that the learned District Judge Kotli fell in error while disallowing the application for additional evidence, as such the impugned order is patently illegal and against the facts, therefore, is not sustainable. According to the learned counsel, the respondent, Mst. Channa Bibi has secretly alienated her whole share through gift-deed dated 13-11-1990, in favour of her sons, Muhammad Saleem and Muhammad Farooq, and when he got knowledge regarding above-mentioned gift-deed, he moved an application for additional evidence to bring on record the gift-deed in question and Misl-e-Haqiat pertaining to year, 1975-1976. He further maintained that the gift deed and Mils-e-Haqiat are public documents and the genuineness of these documents is undisputed, therefore, the same were relevant and just necessary for resolving` the real controversy between the parties. But this important aspect of the case was ignored by the learned District Judge, while passing the impugned order. The learned counsel has referred to 2009 YLR 125 and 2007 SCMR 1117 in support of his contention. While controverting the contentions raised by the learned counsel for the petitioner, Ch. Mehboob Ellahi, the learned counsel for the respondent, argued that the impugned order is quite in accordance with law and facts, therefore, same warrants no interference. According to the learned counsel, the documents sought to be produced as additional evidence are public documents and were very much in the knowledge of the petitioner/defendant at the time of institution of the suit, therefore, the petitioner/defendant has wrongly pleaded and agitated that these documents came to his knowledge at the subsequent stage of .appeal. Alternatively, it has been contended by the learned counsel that documents in question have no relevancy with the controversy between the parties as such the petitioner intends to bring on record these documents only to fill up the lacunas. The learned counsel placed reliance on the following authorities 2006 SCR 188 PLD 2004 SC (AJ&K)

35. I have given due consideration to the matter and gone through the impugned judgment/order as well as case-law referred to herein above. A careful perusal of the record shows that the declaratory suit with prayer for possession and annulment of mutation was filed on the grounds that mutation in question regarding inheritance of one Ditta, deceased had been wrongly sanctioned in the name of Mst. Anwar Bibi and the petitioner herein. After settlement of issues and affording them opportunity of producing evidence, the trial Court decreed the suit filed by Mst. Channa Bibi, respondent herein. After the lapse of a considerable time, at the stage of first appeal, the petitioner/defendant moved an application for bringing on record the gift-deed dated 30-11-1990, and a copy of Misl-e-Haqiat pertaining to years, 1975-1976 as additional evidence. It is also to be noted here that petitioner/defendant has simply pleaded in his application that he came to know about the gift deed in question after the judgment of the trial Court. In my estimation, the explanation given and pleaded by the petitioner is not plausible and is unconvincing because the gift-deed was executed on 30-11-1990, whereas the suit was filed on 30-7-2005. Therefore, how it could be said that a public document had been executed and registered secretly. It is also pertinent to mention here that the petitioner/defendant did not furnish any explanation with regard to non-production of Misl-e-Haqiat at the time of evidence. Undoubtedly, under Order XLI, rule 27, C.P.C. a document can be produced or any witness can be examined as additional evidence to enable the Court to pronounce the judgment, but at the same time the above quoted provision of law imposes an embargo that this rule applies only where, additional evidence is required by the Court. It would be useful to reproduce the relevant rule, which reads as under:

"27. (a)

(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" From the bare reading of the above referred rule it can safely be said that the power to allow additional evidence is discretionary in nature. Such power can be exercised by the appellate Court itself and not by a party to appeal. Thus, the impression can easily be gathered from the impugned judgment that the first appellate Court did not feel any necessity that in absence of documents referred to herein above; it cannot pronounce the judgment. The reliance may be pleaded on a reported judgment of the apex Court in case titled Noor Begum and others v. Muhammad Shareef and others 1994 SCR

238. In the light of dictum laid down by the apex Court in above-referred report, I feel no hesitation in holding that no sufficient or good cause has been shown by the petitioner for producing the additional evidence. The case-law referred to by the learned counsel for the petitioner has no nexus with the case in hand due to distinct facts and circumstances. The upshot of the above discussion is that finding no force in this revision petition, same stands dismissed. No order to costs. H.B.T./20/H.C.(AJ&K) Petition dismissed.