2021 PLP 1480 (SCMR)

SAJJAD ALI SHAH, J.

The Petitioner seeks leave of this Court to file an appeal against the judgment of the Lahore High Court whereby the said Court while rejecting his civil revision maintained the order of Appellate Court, allowing respondents' application under Order XLI, Rule 27, C.P.C. and allowing them to adduce additional evidence and in that process had set aside the judgment and decree.

2. Briefly, the respondents filed a pre-emption suit on 17.02.2003 against the petitioner by claiming Shafi Sharik and Shafi Khalil, inter alia, in order to prove Talb-i-Ishhad, it was asserted in the plaint that a registered notice was sent to the Petitioner on 08.02.2003. The Petitioner in response denied the receipt of any notice. It appears that during the trial the Respondents on 18.07.2003 moved an application to produce the notice dated 08.02.2003 in respect of Talb-i-Ishhad through secondary evidence as, according to the Respondents, the original was sent to the Petitioner. The said application was allowed and the photocopy of the notice was produced as Exb.P-1. Notwithstanding the suit of the Respondents was dismissed on the ground that they not only failed to produce the acknowledgement due receipt to prove it but also failed to produce the postman concerned to prove the delivery of the notice. The Respondents consequently appealed against the judgment of the trial court and along with memo of leave filed an application under Order XLI, Rule 27, C.P.C. to produce registered acknowledgment due receipt of the notice of Talb-i-Ishhad and to examine the postman. The appellate court after hearing the parties not only allowed the application but in that process while remanding the case to the trial court for recording evidence also set aside the judgment/decree. The Petitioner being aggrieved with such order approached the High Court by filing Civil Revision Petition which after hearing was dismissed by the High Court through the order impugned.

3. Advocate Supreme Court for the petitioner contends that though the appellate court has the powers under Order XLI, Rule 27, C.P.C. to allow production of oral or documentary additional evidence at the appellate stage and it either may record such additional evidence itself or may get it recorded through the trial court but it has no power to set aside the judgment/ decree merely on the ground that the additional evidence is allowed to be adduced. Per ASC the appellate court after considering the impact of the additional evidence has to pass the judgment and consequently setting aside of judgment/decree while allowing application for additional evidence cannot be sustained. It was next contended that production of acknowledgement due and examination of postman being legal requirement and the non-compliance resulted in dismissal of the suit, therefore, allowing the respondents to produce such additional evidence amounts to filling up the lacunas which is not only illegal but prejudicial to the interests of the petitioner. In support, reliance has been placed on the judgments of this Court in the case of Bashid Ahmed v. Ahmad-ul-Haq Siddiqui (1985 SCMR 1232) and Rana Abdul Kareem Khan v. Idara National Industrial Cooperative Finance Corporation (Defunct) 2016 SCMR 2067. It was, therefore, prayed that neither the order of the High Court nor of the appellate court could be sustained and both are required to be set aside and the appellate court be directed to decide the appeal on the basis of available record, strictly in accordance with law.

4. On the other hand, ASC for the respondents while placing reliance on the judgment of this Court in the case of Zar Wali Shah v. Yousuf Ali Shah (1992 SCMR 1778) contends that in Islamic Jurisprudence there is no concept of filling up the lacunas and, therefore, the submission to that effect is totally misplaced and is liable to be rejected. It was submitted that the appellate court has rightly while exercising its powers has allowed production of additional evidence which is in accordance with the provisions of Order XLI, Rule 27, C.P.C. and, therefore, no interference in the order impugned is required. In the end it was submitted that the trial court has already implemented the remand order by recording the evidence of postman and production of acknowledgement due.

5. In rebuttal, ASC for the petitioner contends that the petitioner did not receive any notice from the trial court before recording additional evidence and, therefore, he was totally unaware regarding the proceedings taken place before the trial court. It was submitted that the petitioner has no issues with the implementation of the remand order so far as the recording of additional evidence is concerned but he should be given an opportunity to be present at the time of recording evidence and to challenge the production of documentary and oral evidence.

6. We have heard the learned counsel for the parties and perused the record as well as the case law cited at bar.

7. Since the production of additional evidence is not objected, therefore, the only question, which needs our attention, is as to whether the appellate court while exercising powers under Order XLI, Rule 27, C.P.C. could set aside the judgment and decree. The provisions of Order XLI, Rule 27, C.P.C. not only detail the powers of the appellate court to allow additional evidence but also provide that under what circumstances such additional evidence is to be allowed, whereas, Order XLI, Rule 28, C.P.C. prescribes the mode of taking additional evidence and lays down that where the additional evidence is allowed to be produced, the appellate court may either take such evidence, or direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to the appellate court, meaning thereby, that the effect of the additional evidence is to be considered by the appellate court and not by the court whose decree is under appeal. It leaves no doubt in our minds that the appellate court is required to decide the application for adducing additional evidence itself and has to give the reasons for allowing such application and that too within the parameters of Rule

27. In case the application is allowed then the appellate court may record the additional evidence itself or direct the trial court to record such evidence and to remit the same to the appellate court, however, under no circumstances the appellate court could set aside the judgment and decree of the trial court while remanding the case to the court whose decree was under appeal for having the additional evidence recorded. The order of the appellate court in the circumstances could not be sustained and, therefore, is liable to be set aside on this score alone.

8. As to the production of additional evidence, the powers of the appellate court under Order XLI, Rule 27, C.P.C. are not absolute but are structured by the provisions of rule 27 itself and could only be exercised in cases where (i) the court whose decree is under appeal has refused to admit a piece of evidence which ought to have been admitted or (ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or (iii) for any other substantial cause and that too after recording reasons. The case in hand was not the one where the appellate court required any additional evidence for pronouncement of its judgment or the trial court had refused to admit additional evidence, but was a case where the appellate court was of the view that since the acknowledgement due is a document supported through public record and its authenticity is verifiable with no chance of manipulation, therefore, to do complete justice allowed the production of additional evidence. However, it is to be kept in mind that Rule 27 does not envisage providing of second opportunity to adduce evidence or to rectify the inadvertence or negligence of a party. In the instant case, since the appellate court has, while exercising its discretion, come to the conclusion that the production of acknowledgement due being safe as its authenticity was verifiable beyond doubt, therefore, treated it as a substantial cause for allowing recording of additional evidence. Since the challenge thrown on this portion of the order is given up and rightly so, therefore, we would not like to further dilate on this issue. However, the trial court in order to meet the ends of justice would provide an opportunity of rebuttal, objection and cross-examination to the present petitioner.

9. These are the reasons for our short order of the even date whereby we converted the petition into appeal and allowed the same in a manner that the order of the appellate court as well as High Court to the extent of setting aside the judgment and decree of the trial court was set aside and the trial court was directed to allow an opportunity to the petitioner of rebuttal, objection and cross-examination and then to remit such additional evidence along with all original record to the appellate court which, after hearing the parties, considering such additional evidence, would decide the pending appeal, strictly in accordance with law. MWA/M-47/SC Appeal allowed.