2021 PLP 335 (YLR)

ALI BAIG, J.

This civil revision petition under Section 115, C.P.C. has been directed against the impugned judgment/order dated 27-06-2019, passed by the learned District Judge Gilgit, whereby, the learned 1st Appellate Court has dismissed the application of petitioners filed under Order XIII, Rules 1, 2, C.P.C., for production of some public documents as additional evidence.

2. Necessary facts forming the background of the instant civil revision petition are that the present petitioners/plaintiffs (hereinafter referred as petitioners) had instituted a suit for declaration and perpetual injunction in respect of certain suit land described in the heading of the plaint against the present respondents/ defendants (hereinafter referred as respondents) in the trial court. The said suit was resisted by the respondents by filing written statement in the trial court in which claim of the petitioners was denied/repudiated.

3. The learned trial court framed necessary issues in the light of pleadings of parties. After recording of evidence and hearing arguments on behalf of both the parties, the learned trial court had dismissed the suit of the petitioners vide the judgment/decree dated 26-09-2014.

4. The petitioners, being aggrieved by the judgment/ decree of the learned trial court, had filed an appeal in the court of District Judge Diamer, which was later on transferred to the court of District Judge Gilgit. During pendency of aforesaid appeal (CFA No.35/2017) before the learned District Judge Gilgit, the petitioners filed an application under Order XIII Rules 1, 2, C.P.C. for production of some public documents as additional evidence, which has been dismissed by the learned 1st appellate court vide the impugned judgment/order dated 27-06-2019, hence this revision petition.

5. The learned counsel appearing on behalf of the petitioners has contended that the impugned order passed by the learned 1st appellate court is contrary to law and facts on the record of the case as such the impugned order passed by the learned 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners has further argued that the petitioners wanted to produce some public documents in the 1st appellate court which are necessary for arriving at proper and just conclusion in the matter by the learned 1st appellate court, therefore, by accepting this revision petition, the petitioners may be allowed to produce the requisite documents in the 1st appellate court.

6. On the other hand, the learned counsel for the respondents vehemently opposed this revision petition by contending that the petitioners had wrongly filed the application under Order XIII, Rules 1, 2, C.P.C.; whereas, the petitioners should have had filed the said application under Order XLI, Rule 27, C.P.C. in the 1st appellate court; hence, the petition of the petitioners filed under Order XIII, Rules 1, 2 before the learned 1st appellate court was not maintainable and the learned 1st appellate court has rightly dismissed the aforesaid application. The learned counsel for the respondents has further argued that the petitioners had annexed unattested copies of the requisite documents with the petition and also failed to show sufficient cause for non production of said documents along with plaint or memo of appeal; thus, the learned 1st appellate court has rightly dismissed the aforesaid application of the petitioners filed under Order XIII, Rules 1, 2, C.P.C.

7. I have heard the learned counsel for the parties and perused the record with their able assistance.

8. Under the provisions of Order XLI Rule 27(1)(b), the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment may allow such evidence or documents to be produced or witness to be examined. In the instant case, the petitioners intend to produce some public documents, i.e., copy of award dated 30-06-1990 passed by the Collector Diamer, copy of compensation papers of tractorable road dated 1989 and some other public documents which were not in their possession at the time of filing of civil first appeal in the 1st appellate court. The aforesaid documents seem to be public, genuine and authentic and the learned 1st appellate court, while disallowing the application of the petitioners, has not expressed any doubt about the authenticity and genuineness of the same rather the learned 1st appellate court has held that provisions of Order XIII, Rules 1, 2 are primarily for the trial court and these provisions cannot be invoked at appellate stage. At appellate stage, the provision is given under Order XLI, Rule 27, C.P.C. The learned 1st appellate court has further held that documents placed with the file appears to be copies of documents, but the same are not certified copies strictly in accordance with Article 87 of Qanun-e-Shahadat Order 1984, therefore, the application is turned down and dismissed.

9. I do not agree with the aforesaid observations of the learned 1st appellate court, as it is settled principle of law that merely a wrong mention/disclosure of a statutory provision should not disentitle a party to relief which is otherwise available him under law. Therefore, the proper course to be adopted by the 1st appellate court was to treat the application as one under Order XLI, Rule 27, C.P.C. Interest of justice demands that parties be allowed to bring on record documents which are otherwise unimpeachable authenticity for resolving the controversy.

10. For what has been discussed above, this revision petition is accepted and the petitioners are allowed to produce the aforesaid documents in the 1st appellate court. However, for the delinquent act of the petitioners, they are burdened with costs of Rs.12,000/- and the payment of which is condition precedent for production of additional evidence. However, the authenticity and admissibility of the aforesaid documents shall be seen/ considered by the learned 1st appellate court at the time of decision of main appeal of the petitioners. This revision petition is disposed of in the above terms. File. ZC/182/GB Revision allowed.