2017 PLP 100 (CLCN)

MUHAMMAD SALEEM JESSAR, J.

By means of instant civil revision application, the applicant/appellant/defendant (hereinafter to be referred as the applicant) has assailed the order dated 21.5.2012 passed by learned Ist Additional District Judge, Shahdadkot (hereinafter to be referred as the Ist Appellate Court) in Civil Appeal No. 05/2011 re: Hakim Ali v. Ghulam Mustafa and others, whereby learned Ist Appellate Court has dismissed his application under Order XLI, Rule 27, read with section 151, C.P.C. for production of certain documents to be taken as an additional evidence during pendency of his appeal.

2. The brief facts of the case are that the respondent had filed suit for cancellation of documents, specific performance of contract and perpetual injunction before the Court of learned Senior Civil Judge, Shahdadkot (hereinafter to be referred as trial Court) being F.C. Suit No. 10/2007. After admission of the suit, summonses were issued to the applicant and the case was contested by the applicant before the trial Court and after full dressed trial the suit was decreed in favour of the respondent/plaintiff vide judgment and decree of the trial Court dated 05.01.2011 respectively. The applicant preferred an appeal before the District Judge being Civil Appeal No. 05/2011 re: Hakim Ali Magsi v. Ghulam Mustafa and others, which later was entrusted to 1st Additional District Judge (1st Appellate Court) and during pendency of appeal the applicant filed an application under Order XLI, Rule 27 read with section 151, C.P.C. for production of documents viz. registered sale deed bearing jaryan No. 310 dated 23.5.2006 and entry No. 423, dated 20.7.2006, Form VII-B duly mutated in continuation of the above registered sale deed in favour of the applicant. The said application was contested by the respondents and the 1st Appellate Court after hearing to either side has dismissed the same in following words: "Since the appellant was having the relevant documents even before the learned trial Court when the matter was pending there and this Court too has already disallowed the application of appellant filed by him under section 107, read with Order XLI, Rules 27, 33 and section 151, C.P.C. under such order dated 30.09.2011, as such the instant application which is for the same purpose cannot be allowed at this stage and the instant application was filed by the learned counsel for the appellant under Order XLI, Rule 27, C.P.C. read with section 151, C.P.C. therefore, merits no consideration and the same is dismissed accordingly."

3. I have heard Mr. Abdul Rahman Bhutto, learned counsel for the applicant and Mr. Rab Nawaz Soomro, advocate for respondent No. 1 and perused the material, judgment and decree passed by the trial Court as well as impugned order passed to the 1st Appellate Court and the material made available before me, with able assistance of the counsel for respective parties. 3(sic.) Mr. Abdul Rahman Bhutto has contended that the applicant has certain original documents which are essential for just decision of the case. As per his contention that the counsel representing the applicant before the trial Court though was in possession of the said documents, inadvertently could not submit the same before the trial Court during the proceedings and, therefore, in an appeal he has filed an application for bringing such documents on record by way of additional evidence but his request was refused and even no additional issues in this behalf were framed and the application under section 107 read with Order XLI, Rules 27, 33 and section 151, C.P.C. filed by him was also dismissed by the 1st Appellate Court in terms of his order dated 30.9.2011. The defence of learned counsel for the applicant as agitated by him before the 1st Appellate Court to support of his contentions that the photostat copies of the above documents had already been filed before the trial Court and are on the record of the Court file and originals of the above were given to the earlier counsel of the applicant but he inadvertently could not submit before trial Court and in order to reach at right conclusion of appeal he attempted to be taken on record through an additional evidence but the same was also declined. Lastly, Mr. Bhutto contended that in case instant revision is not allowed, the very interest of the applicant, who is subsequent vendee of the suit property will be defeated. In support of his contention, he has relied upon the case of Ghulam Ahmad Chaudhry v. Akbar Hussain and another (PLD 2002 SC 615).

4. On the other hand Mr. Rab Nawaz Soomro, learned counsel for respondent No. 1 contended that suit was filed to respondent No. 1 in the year 2007 and it was pending and contested upon 2011. The applicant is claiming to be in possession of the registered sale deed dated 23.5.2006 and subsequent it's mutation dated 20.7.2006, were in his possession prior to the filing of suit and subsequently it was tried for about four years and through the period they had not bothered to produce the same in evidence by filing such an application nor had moved any application regarding production of the same through concerned department. By keeping certain documents in their possession, which is noticeable period, smells mala fide on their part and suggests further the documents allegedly to be in favour of the applicant are either false and fabricated or same were not in possession for the applicant and subsequently they have been managed only to defeat the interests of his client and nothing else. He has stressed that law favours to vigilant and not indolent. In support of his contentions, he has placed reliance upon the case of Shakoor v. Province of Punjab (PLD 2013 Lah. 17).

5. In the case of Shakoor v. Province of Punjab (supra) the Bench of Lahore High Court has held that party had on opportunity but not produced evidence could not be allowed to give evidence that could have been given in Court below and party to appeal could not be allowed to produce additional evidence to patch up weaker parts of its case or fill up an omission. It is well settled principle of law that, appellate Court could ordinarily neither travel beyond record of trial Court nor taken evidence on appeal and permission to produce additional evidence could not be claimed as of right by a party. Hence, when first Appellate Court does not find necessity to allow the application, then, High Court in exercise of its revisional jurisdiction under section 115, C.P.C. cannot interfere with such order, particularly when the whole appeal is not before the Court.

6. In the case of Ghulam Ahmad Chaudhry v. Akbar Hussain and another (supra) relied upon by learned counsel for the applicant petition was converted into appeal and was disposed of with the consent of the parties and was not on merits, therefore, in the instant case the situation is different and other side has vehemently opposed the application.

7. The fact of production of additional evidence and inclusion of admission of certain documents was fully in the knowledge of applicant and same was not raised by them before the trial Court, the applicant could not fill up the lacunas in his case by relying on Order XLI, Rule 27, C.P.C. The applicant had to prove his case on the basis of material facts relevant on the date of institution of his written statement in the suit. The instant suit was instituted in the year 2007 and decided in the year 2011 and the said plea was not taken by the applicant at the relevant time and thus was correctly rejected by the 1st Appellate Court at the later stage. In these circumstances, precedent cited by learned counsel of the applicant is distinguishable and do not help his arguments, however, the citation relied upon by learned counsel for the respondent is very much relevant and applicable to the case in hand. Consequently, instant revision application lacks merit and is accordingly dismissed with no order as to costs.

8. These were the reasons for short order dated 27.2.2017, whereby after hearing to either side this revision application was dismissed in following terms. "For reasons to follow Civil Revision Application is dismissed." MQ/H-3/Sindh Revision dismissed.