1989 PLP 344 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.XLI R.27 & 5.115‑‑Revisional jurisdiction, exercise of‑‑Where Court allowed production of additional evidence without perusing evidence already on record, and without recording reasons for allowing such evidence, High Court in revisional jurisdiction set aside order allowing additional evidence as also the impugned judgment and decree and remanded case for re-determination in the light of Court's observations and in accordance with law. Athar Rehman Khan for Petitioner. Altaf Ibrahim Qureshi for Respondent. Date of hearing: 14th November, 1988. This revision petition arises out of a suit for possession through pre‑emotion filed by the respondent against the petitioner seeking, to pre‑empt the sale of 1arld measuring 25 Kanals 10 Marlas situate in Mauza Patti Naich, Tehsil Kot Addu, District Muzaffargarh, which had been 'sold to the petitioner by registered decd of sale dated 6‑2‑1969. In the plaint superior right of pre‑emotion was claimed on, the ground that the respondent was co‑sharer in the land-owner in the estate and collateral of the vendor.

2. This suit .was contested by the petitioners which led to the framing of as many as 11 issues. Both the parties produced their evidence. The learned trial Court by means of its judgment and decree dated 10‑6‑1982 dismissed the suit filed by the respondent, in view of its findings on issues Nos. l, 2 and‑3 which related for the questions of court‑fee and limitation, and also issue No.4 regarding superior right of pre-emption. An appeal was filed by the respondent before the learned District Judge Muzaffargarh which was heard by the Additional District Judge who vide its judgment and decree dated 7‑12‑1983 accepted the appeal and decreed the suit filed by the respondent. During the course of hearing of the appeal an application under Order XII, Rule 27, C.P.C. for permission to produce additional evidence was made by the respondent which was granted 'by the learned Additional Distract judge who recorded the additional evidence and then passed the impugned judgment'.

3. The learned counsel has strenuously challenged order dated 7‑12‑1983 allowing the respondent to produce additional, evidence. The learned counsel 'submits that the parties had an ample opportunity, of producing their evidence before the trial Court. However, the documents sought to be produced by way of additional evidence, were not produced at that time. No explanation as to why these documents were withheld was forthcoming. According to the learned counsel, there was no justification for the Additional District Judge to record an additional evidence. The learned counsel for the respondent has supported the order of the learned Additional District Judge as also the impugned decree.

4. I have considered the argument of the learned counsel. It is apparent from the perusal of the order dated 7‑12‑1983 that no sufficient reasons for allowing additional evidence were given by the learned Additional District Judge. The provisions of Order XLI, Rule 27 require in no uncert4in terms, that the Court allowing production of additional evidence, shall record its reasons for doing so. Mere production of the words of the rule are not enough, which appears to have been done by the learned Additional District Judge. Reference may be made to Muhammad Ikhlas and others v. Muhammad Ismail P L D 1963 SC 466 with advantage. Furthermore, before the additional evidence could be allowed, the learned Additional District Judge was under an obligation to have first considered the evidence produced by the parties and then decide as to whether the evidence on record was sufficient to enable it to pronounced judgment or not. Without having perused the evidence already produced by the parties, the learned Additional District Judge could not have decided the application under Order XLI, Rule 27 C.P.C. It is, therefore, quite evident that the application under Order XLI, Rule 27, C.P.C. has not been decided in accordance with law by the Additional District Judge. In view of what has been stated above, this revision petition is accepted, the order dated 7‑12‑1983 as also the impugned judgment and decree of the learned Additional District Judge are set aside. The appeal as well as the application for additional evidence are remanded to him for re-determination in accordance with law in the light of the observations made above. The parties are directed to appear before the learned District Judge, Muzaffargarh on 14th of December, 1988, who shall either hear the appeal himself or entrust the same to any other Additional District Judge. The parties are left to bear their own costs. A . A . / A‑465/ L Case remanded.