2016 PLP 840 (MLD)

Brief facts in order to dispose of this civil revision are that respondents No.1 Muhammad Mehboob and respondent No.2 Mst.Saleem Alchtar alias Naseem Alchtar filed a suit for declaration, cancellation, cancellation, mandatory and permanent injunction against the petitioners including predecessor of petitioners Nos.1 and

2. After framing issues in the light of pleadings of the parties and record of evidence learned trial court proceeded to dismiss the suit vide judgment and decree dated 23.2.2012. Feeling aggrieved respondents filed appeal. During pendency of the appeal respondents Nos.1 and 2 moved an application under Order XLI Rule 27, C.P.C. for permission to produce additional evidence which was contested by the petitioners. Learned appellate court after hearing arguments dismissed the said application vide order dated 27.2.2013. Respondents Nos.1 and 2 then filed Civil Revision No.297 of 2013 before this Court against the said order which was allowed vide order dated 1.5.2013 whereby the matter was remanded to the appellate Court to the effect that application of the petitioners will be deemed pending. After remand of the matter learned appellate court provided an opportunity of hearing to the parties. In the light of the observations recorded by the revisional court and considering arguments advanced by learned counsel application moved under Order XLI Rule 27, C.P.C. was accepted vide order dated 9.4.2014. Being dis-satisfied now the petitioners has approached this Court through the civil revision in hand.

2. Contentions of learned counsel for the petitioners is that learned appellate court has accepted application ignoring the facts of the case and the law laid down by the superior courts that the respondents had not moved application before the trial court seeking production of document which was essential and pre-requisite condition for moving a petition before the appellate court; that the order passed by learned appellate court has resulted in miscarriage of justice, hence, the same is not sustainable in the eye of law. In support of his contentions learned counsel has relied upon the cases of Sher Baz Khan and others v. Mst.Malkani Sahibzadi Tiwana and others (PLD 2003 SC 849), House Building Finance Corporation and others v. Muhammad Akhtar Zaman and others (2005 MLD 112), Mst.Sardaran and others v. Suleman and another (2003 SC 627), Shtamand and others v. Zahir Shah and others (2005 SCMR 348), Mustafa Kamal and others v. Daud Khan and others (2009 SCMR 221), Sh.Qamar Javid and others v. Sh.Hassan Ali (2001 SCMR 1766) and Niaz Rasool through Muhammad Bilal v. Mst.Parveen Ikram and others (2013 SCMR 397).

3. Conversely learned counsel for respondents Nos.1 and 2 has contended that while deciding civil revision, this Hon'ble Court had recorded observations that documents sought to be produced through additional evidence pertaining to parentage of Karam Elahi, predecessor of the petitioners needed to be appreciated. He further maintained that the documents sought to be produced were not in the knowledge of the respondents at the time of recording evidence before the trial court and the same were obtained later on, hence, sufficient explanation was available on record for not moving application before the trial court seeking permission to produce evidence in this regard.

4. I have heard the learned counsel for the parties at length and perused the available record.

5. Perusal of the application under Order XLI Rule 27, C.P.C. moved by respondents Nos.1 and 2 before the appellate court has shown that in para-4 of that application it was mentioned that at the time of recording of evidence before the trial court the documents were not traceable, however, later on respondents succeeded to obtain certified copies of mutation of inheritance of Karam Elahi bearing number 411 dated 6.9.1992 attested in the revenue estate of Jallo, Tehsil Hasan Abdaal. The parentage of Karam Elahi, predecessor of the petitioners was a moot point in this case. The learned appellate court opined that the documents sought to be produced could lead the court in reaching just decision of the case. In the opinion of the learned appellate court the said documents would be helpful for reaching a just decision in the matter, so exercise of jurisdiction by appellate court was in line with the provisions of Order XLI, Rule 27, C.P.C. whereby it was provided that if appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment it may allow such evidence or document to be produced or witness to be examined.

6. In the citations referred by learned counsel for the petitioners which proceeded on different set of facts and circumstances it was observed that unsuccessful party in a suit was not to be granted an opportunity to fill up weaker parts of its case by producing additional evidence to the prejudice of other party. It was also noted that where a party seeking permission to produce additional evidence failed to explain the reason for not producing evidence or moving an application before the trial court. it was not entitled to the same relief. However, in the case in hand sufficient explanation has been putforth by the respondents for not producing the documents during trial. The learned appellate court has correctly exercised the jurisdiction and has committed no illegality or irregularity warranting interference by this Court in its revisional jurisdiction. Resultantly, instant civil revision, being devoid of any merits, is hereby dismissed with no order as to costs. ZC/N-60/L Revision dismissed.