1996SCMR598 (PLP)

Date of hearing: 24th January, 1996. MUHAMMAD ILYAS, J

This petition has arisen out of a civil suit brought by the petitioners, Ejaz Muhammad Khan and others, against the respondents, Mst. Sahib Bibi and others. The suit was dismissed by a Civil Judge of Okara. Petitioners filed appeal before an Additional District Judge of the said District. During the pendency of the appeal, the petitioners made an application for permission to produce additional evidence. The learned Additional District Judge, however, did not allow them to do so, for the following reasons recorded in his judgment: "

6. The prayer for additional evidence cannot be granted on the ground that factum of death of Hakim Khan allottee had been thrashed during the course of trial by the learned trial Court and a prolonged period of litigation stood already consumed from 1968 to 1994 and the grant of prayer of additional evidence on vague proof of death, would put more premium on further delay. The appellants/plaintiffs are still not certain regarding the exact date of death of Hakim Khan allottee. The petitioner for additional evidence has no force. The same is dismissed." In view of the evidence on the record, the learned Additional District Judge did not find any force in the appeal. It was, therefore, dismissed by him. Thereafter, the petitioners went in revision before the Lahore High Court, but in vain.

2. When the matter was pending before the learned Single Judge of the High Court, exception was taken to the order, of the learned Additional District Judge who had disposed of the revision petition. It was argued before him that the learned appellate Court erred in not allowing the petitioners to produce additional evidence. Their plea, however, did not find favour with the learned Judge in Chamber; and on the basis of the record, the revision petition was dismissed by him.

3. Before us, too, the only question agitated by the learned counsel for the petitioners was that miscarriage of justice has resulted due to the refusal of the learned Additional District Judge to allow production of additional evidence. He, therefore, sought leave to appeal against the order of the learned Single Judge.

4. The record would reveal that the suit was filed in 1986. The additional evidence, sought to be produced by the petitioners, was not adduced during the pendency of the suit which was decided in 1991. Application for additional evidence was made in 1993, i.e., after about two years of the decision of the trial Court and the filing of the appeal. Total duration of period of inaction on the part of the Petitioners (from 1986 to 1993) comes to about seven years. Learned counsel could not explain why the petitioners did not take any step to produce the evidence in question for so many years. No doubt, Order XLI, rule 27, of the Code of Civil Procedure empowers the appellate Court to receive additional evidence in appropriate cases but in view of lack of vigilance on the part of the' petitioners which lasted for year together, it was not a fit case for exercise of powers by the learned appellate Court under rule 27 ibid in favour of the petitioners. According to the application of the Petitioners, they wanted to produce large number of documents. Production and proof of those documents, where necessary, would have not only delayed the disposal of the appeal but would also have, in a way, reopened the whole case before the learned appellate Court because after the production of additional evidence by the Petitioners, in all fairness, the respondents also had to be given opportunity to adduce evidence in rebuttal of the additional evidence. Such a situation was hardly contemplated by the makers of rule 27 ibid. Possibility of fabrication of the documents sought to be produced by the petitioners as additional evidence or the making of any alteration or interpolation therein during the aforesaid period of seven years could also not be ruled out completely. Although it was stated by the Petitioners that Additional evidence may be received for doing justice in the case yet the receipt thereof could also lead to injustice if the apprehended fabrication, etc., of the documents had actually taken place. The petitioners also wanted to examine some person as witnesses. What prompted the said witnesses to enter the witness-box after seven years and not earlier can be guessed in more than one ways. It was discretionary with the learned appellate Court to allow or disallow the production of additional evidence and there is no cogent reason to entertain doubt with regard to the judicious exercise of discretion by it. We are, therefore, not inclined to interfere with the orders of the learned Additional District Judge and that of the learned Judge in Chamber in respect of the petitioners' prayer to produce additional evidence at the stage of appeal.

5. No other point was canvassed by the learned counsel to assail the order under challenge.

6. Resultantly, we dismiss the petition in hand by refusing leave to the petitioners to appeal against the impugned order of the learned Judge in Chamber. A.A./E-55/S Leave refused.