P L D 1983 Lahore 349 (PLP)

Ch. Nisar Ahmad for Appellants. Ch. Abdur Rashid Gujjar for Respondents. Pate of hearing - 24th January, 1983. The facts of the case are that on 8-2-1977, the respondents Faqir Muhammad and Imam Bibi filed a suit in the Civil Court of Mianwali, against petitioners-defendants Mst. Umari and Mst. Rehmate for declaration that the order dated 23-7-1973 of A. C. 11, Liaqatabad mutating 7/16th share of the inheritance of Ghulam Muhammad deceased in favour of petitioners Mst. Umari and Mst. Rehmate as daughters and appellate order dated 29-12-1976 of Settlement Officer, Bhakkar, affirming the said order and order dated 1-2-1977 of Commissioner, Sargodha dismissing respondents plaintiffs' revision and maintaining said mutation order were wrong, against law, void and inoperative against their rights and that the petitioners-defendants were not the heirs of Ghulam Muhammad deceased and were not entitled to get any share in the inheritance of the deceased and respondents plaintiffs alone were heirs of said Ghulam Muhammad and as such owners of entire land measuring 120 kanals detailed in the plaint. There was also a prayer for permanent prohibitory injunction against petitioners-defendants. The suit was decreed in favour of respondents-plaintiffs Faqir Muhammad and Imam Bibi by judgment and decree dated 13-2-1979 of Civil Judge 1st Class, Mianwali. The petitioners-defendants Mst. Umari and Mst. Rehmate filed an appeal before the District Judge on 3-3-1979. On 21-7-1979, petitioners-defendants filed an application under Order XLI, rule 27, C. P. C. for permission to adduce additional evidence on the ground that they had now brought certified copies of extracts from birth Register of Municipal Committee, Jullundur, duly attested by the Second Secretary of Pakistan Embassy in New Delhi conclusively showing them be daughters of Ghulam Muhammad and that same should be allowed to be produced in evidence. Reply to this application was submitted by the respondents-plaintiffs on 19-3-1980. The District Judge by his order of even date fixed this application as well as the main case for 8-5-1980, for arguments. On 8-5-1980 however, the learned District Judge decided the main appeal and dismissed the same although he had heard arguments in the application for production of additional evidence also. He made no mention of the said application in his judgment nor made any adjudication on the same in his said judgment. This is a revision against the said judgment and decree.

2. The point convassed by the learned counsel for the petitioners in this revision is that the District Judge had failed to exercise jurisdiction vesting in him in deciding the main appeal without deciding the said application. The point submitted by the learned counsel for the respondents in reply is that Order XLI, rule 27, C. P. C., which is reads as below : "27.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reasons for its admission." provides only for suo motu exercise of powers by the Appellate Court and no party has any right to file an application and, therefore, the impugned judgment and decree of the District Judge without adverting to and deciding the said application was valid. I am afraid, I cannot accept this contention. Even a party can avail of the benefit of Order XLl, rule 27, C. P. C. and submit to the Court a. application for production of additional evidence. No doubt exercise of the power is not dependent upon filing of such an application by a party to a suit and a Court can suo motu exercise that jurisdiction when circumstance exist warranting exercise of the same, but it is axiomatic that an application under Order XLI, rule 27, C. P. C. can also be filed before a Court for reception of additional evidence. The wording of Order XLI, rule 27, C. P. C. do not sustain the interpretation that power is merely suo mom an no application can be filed by a party to that suit for reception of additional evidence. The words "The parties to an appeal shall not be entitled t produce additional evidence..." contemplate the parties wanting to produce evidence which can be done by them only by filing an application to the Court for that purpose. Further one of the conditions on which production of additional evidence can be allowed is that the Court from whose decree the appeal is preferred had refused to admit evidence which ought to have A been admitted. The Court of appeal cannot in all circumstances itself come to know of evidence wrongly disallowed by the trial Court so as to enable it to exercise its suo motu powers and admit such evidence. In some of the cases, such a circumstance may remain concealed from view of the Court and in that contingency it will have to be pointed out to the Court by a part to the suit by means of an application. Furthermore although the appellant Court can allow production of additional evidence when it itself require that evidence to enable itself to pronounce a judgment, which otherwise it is not in a position to pronounce, it can also allow further evidence to be produced if it requires the same for any substantial cause other than one of enabling it to pronounce a judgment. Under this head, fall the cases in which though the Court is in a position to pronounce judgment, and it cannot strictly say that it requires additional evidence to enable it to pronounce all judgment, but still it considers that in the interest of justice something which remains obscure should be clarified or elucidated so that it can announce its judgment in a more satisfactory way as in case of Ajibar Biswas and another v. Golam All Dajadar (P L D 1968 Dacca 546) and in case of Amir Baksh and another v. Khuda Yar (P L D 1960 Lah. 256) and case of Sh. Khurshid Ahmad v. Abdul Aziz (1979 S C M R 384). Under this head fall also the case of a next friend of a minor who is careless in producing evidence before trial Court on behalf of the minor and Court requires the additional evidence to protect the interest of the said minor as in case of Muhammad Ali and another v. Abdul Khaliq and another (P L D 1958 Lah.226). Other cases held included in this category are those in which the said evidence was not available to the party at the trial stage and that he could not have got it with due diligence and when such evidence, apart from being of unrmpeichable character was so material that its absence would have resulted in miscarriage of justice a in case of Taj Din v. Jumma and 6 others (P L D 1978 S C (A J & K) 131). Who can dispute that these circumstances and others in which the appellate Court may feel the necessity of getting relevant additional evidence cannot dawn on the mind of the appellate Court themselves and these have to be placed before the Court by means of an application for permission to file additional evidence duly supported by an affidavit. It is, therefore, inherent in the language of this rule that a party to an appeal has a right to file an application for permission to adduce additional evidence. Last but not the least, the word `allow' in the sentence, "the appellate Court may allow such evidence or document to be produced or witness to be examined" visualizes a party who is an aspirant to production of additional evidence and who is allowed the same and the efficacious method for a party to point out to the Court that circumstance, were such that it should be allowed the same is by an application to the Court. It cannot be, therefore, said that no application lies under Order XLI, rule 27, C. P. C. and the power under it is only suo motu. The learned counsel for the respondent has, however, relied upon case of Muhammad Qasim v. Additional District Judge and others (P L D 1982 Lah. 14), in which I had held that power of appellate authority to allow additional evidence under section 15(3) of Punjab Urban Rent Restriction Ordinance, 1959, was of its own motion and suo motu only and no party had been given a right to file an application and, therefore, Additional District Judge, as appellate authority was not bound to decide such an application and failure to advert to and decide the same did not amount to failure to exercise jurisdiction vesting in the said appellate authority. That decision, however, was based on the peculiar wording of said section 15(3) of Punjab Urban Rent Restriction Ordinance, 1959. It reads as below : "The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller." It is clear from the perusal of that provision that so far as further enquiry is concerned; the wording of the relevant portion of said subsection excludes any right on the part of a party to an appeal to pray for production of additional evidence as the power to make further enquiry in the matter is confined to the situation of the appellate authority itself feeling the necessity of making further enquiry and the words "make further enquiry as it thinks fit are clearly relatable to appellate authority alone and not to a party. If the intention of the law-giver had been to permit parties to file an application, then instead of the words "after making such further enquiry" words would have been "after allowing such further evidence." That case is, therefore, clearly distinguishable because of the wording of said section of Punjab Urban Rent Restriction Ordinance, 1959. It is the language of the particular section of the Statute which determines the matter. For instance, section 3-A of Industrial Relations Ordinance, 1969, which reads as below :- "The Tribunal may, on its own motion at any time, call for the record of any case or proceeding under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purposes of satisfying itself on the correctness, legality or propriety of such order, and may pass such order in relation thereto as it thinks fit: ...." was held in case of Jannat Textile Mills Ltd. v. Sind Labour Appellate Tribunal, etc. (P L D 1979 Kar. 725) to be suo motu only and application filed thereunder was held to be incompetent. The instant case, however, is not of that type. The language in which Order XLI, rule 27, C. P. C. is couched does not exclude the filing of an application by a party to the case .before the appellate authority t allow additional evidence to be produced. Rather the said wording explained earlier, contemplates that even a party may file an application to the appellate Court for reception of such additional evidence. In my view, therefore, the application under Order XLI, rule 27, C. P. C. filed by petitioners before the appellate Court for production of additional evidence was competent and the Court was under a legal obligation to decide the same and failure of the District Judge to advert to and decide the sum , amounted to failure to exercise jurisdiction vesting in him and District Judge had acted in exercise of his jurisdiction illegally and with material irregularity in deciding the main appeal and in passing the impugned judgment an decree without deciding the said application under Order XLI, rule 27, C. P. C. Therefore, in exercise of my jurisdiction under section 115, C. P. C. I set aside the impugned judgment and decree of the District Judge and remand the case to him with the direction that he should first decide the application under Order XLI, rule 27, C. P. C. and if he decides the same in favour of the petitioners, then proceed to receive the said additional evidence and the decide the main case afresh. The parties will bear their own costs. M. Y. H.????????? Petition dismissed.