2011 PLP 1511 (MLD)

MIFTAH-UD-DIN KHAN, J.

Government of Khyber Pakhtunkhwa through Secretary Forest Department, Peshawar etc., have filed the present revision petition under section 115, C.P.C. against the judgment and order dated 1-12-2010 of the learned District Judge, Mansehra in Appeal No.60/13 of 2003/2010, whereby, an application of petitioners for additional evidence and ordering dismissal of suits of respondents for not depositing court-fee on the decretal amount within the required period was dismissed.

2. The brief facts are that the respondent instituted three suits bearings Nos.208/1 of 1990, 217/1 of 1992 and 339/1 of 1993 for declaration, perpetual injunction and specific performance of agreement against the petitioners. All the three suits were decreed by the learned trial court vide judgment and decree dated 27-2-1997. The present petitioners preferred an appeal before the learned District Judge, Mansehra, which was returned to the petitioners for lack of pecuniary jurisdiction. Later on petitioners filed the aforesaid appeals before this court and this court vide judgment and order dated 19-3-2003 returned the appeal to the petitioners for presentation before the learned District Judge. The learned District Judge Mansehra vide judgment dated 3-11-2003 accepted all the three appeals of petitioners and remanded all the three suits to Senior Civil Judge. Mansehra for afresh decision. Aggrieved from the judgment and order of remand dated 3-11-2003, the respondent filed a revision petition before this court which was accepted and the order of remand dated 3-11-2003 of learned District Judge, Mansehra was set aside and the learned District Judge, Mansehra was directed to decide the appeals. The learned District Judge, Mansehra vide judgment and order dated 8-3-2005 dismissed all the three appeals of the petitioners. The petitioners filed three revisions before this Court which were accepted vide judgment and order dated 17-5-2010 and all the three cases were remanded to the learned District Judge/appellate Court with a direction to consider application of the petitioners for additional evidence as well as question of affixation of court-fee. The learned District Judge, Mansehra vide judgment and order dated 1-12-2010 dismissed the application of petitioners for additional evidence and affixation of court-fee. The petitioners have now assailed the judgment and order dated 1-12-2010 through the present revision petition before this Court.

3. Mr. Abbas Khan Sangeen learned Deputy Advocate-General contended that the order of learned District Judge, whereby the petitioners have been disallowed to produce additional evidence is not in accordance with law and facts available on record. He further submitted that the learned District Judge has, not applied judicial mind to the fact that in case the request of the petitioners for additional evidence is not allowed loss in millions would be caused to government exchequer. He further submitted that the documents and witnesses to be examined by the petitioners as additional evidence were necessary in the interest justice and to arrive at a fair conclusion but the learned District Judge has acted with illegality and material irregularity while rejecting the application of the petitioners for additional evidence and not ordering dismissal of suits of respondents on account of non-affixation of court-fee on decretal amount.

4. The contention of the learned, counsel for petitioners in respect of dismissal of suits of respondent on account of non deposit of court-fee on decretal amount within required time is without substance due to the reason that this controversy has been set at rest by Division Bench of this Court vide judgment and order dated 19-3-2003 in R.F.A. No.2 of 1998. The relevant portion of the judgment is reproduced as under:-- "In Suit No. 339/1 valuation by the plaintiff is given as Rs.400 and reiterated the same in para 10 of the plaint. The applicants did not object in the written statement and so is the case in Suit No. 208/1 while in Suit No.217/1 valuation fir the purposes of court fee and jurisdiction is stated to be Rs.20,000 and again this was not disputed seriously by the appellants. Basically all the three suits for declaration and permanent injunction. The valuation given in the suits fell within the competency of the learned District Judge. It was well settled that valuation for appeals is governed by the subject-matter of the original suits and not the decrees PLJ 1987 Supreme Court page 265 (sic) can be quoted with advantage. The learned counsel for the appellants was indeed unable to point out as to how the declaratory suit and relief for permanent injunction in the circumstances of the case was beyond the jurisdictions of the Appellate Court. Faced with this situation the learned counsel for the parties agreed that the cases be remanded to the learned District Judge for decision." As the question of affixation of court-fee before the trial Court and appellate court has been decided by this court on 19-3-2003 which judgment has attained finality, therefore petitioners were not justified to re-agitate the same matter, hence the learned appellate Court was quite justified to turn down the request of the petitioners in this connection.

5. Taking up the request of the petitioners for additional evidence before the learned Appellate Court, the relevant provisions of law i.e. (Order XLI Rule 27, C.P.C.) is reproduced as under:-- "Production of additional evidence in Appellate Court

( 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, (c) 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 reason for its admission." It is clear from the provisions of Rule 27 referred to above that the learned Appellate Court can allow additional evidence in case where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. Nothing on the record exists that the petitioners had produced any evidence before the trial Court which had been refused to be admitted by the learned trial court. Thus the request of petitioners for additional evidence is not covered by clause (a) of Rule 27 Order XLI, C.P.C.

6. The Appellate Court can allow additional evidence in the shape of any document or witness to enable it to pronounce judgment or for any other substantial cause under clause (b) of the rule ibid. This discretionary power under the law has to be exercised judicially for securing ends of justice. The provisions of this Rule are meant to promote substantial justice and must be exercised in the interest of justice and not for the purpose of allowing the appellant to fill up lacuna in evidence. The requirement of additional evidence must be requirement of court after arriving at 'conclusion that judgment could not be announced without such additional documents or evidence. In the present case the petitioners want to examine Muhammad Hanif Shah, Muhammad Aslam Khan and Hashim Ali Khan the then Divisional Forest Officers as additional witnesses at appellate stage. Apparently the necessity of producing additional evidence is not on account of discovery of any new fact which was not within the knowledge of the present petitioners. It is also not the case of the petitioners that during pendency of the suit some new document has been discovered which has to be proved through the production of the above-mentioned witnesses. The petitioners have also not furnished any explanation as to why these witnesses who are employees of the petitioners have not been produced before the trial Court at the relevant time. If the petitioners on account of their own negligence, inadvertence mistaken legal advice or any act and omission had not examined them as a witness then the aforesaid lacunas cannot be allowed to be filled by invoking the provisions of Order XLI, Rule 27, C.P.C. In this connection, reference may be made to PLD 2000 SC (AJ&K) page

20. The relevant portion of the dictum laid down on the point is reproduced as under: "The parties to an appeal are not entitled to adduce any additional evidence but the same can be allowed if the Court from whose decree an appeal is preferred, has (i) refused to admit the 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 the judgment or for any other substantial cause under Order XLI, Rule 27, C.P. C. which is an exception to the principle that the Appellate Court cannot record fresh evidence. Therefore, under the aforesaid rule, the additional evidence cannot he recorded unless the provisions of the aforesaid rule are attracted. Thus the power to allow evidence is discretionary in nature but the same is circumscribed by the limitation specified in the said rule as the evidence under sub-rule (b) of Rule 27 of Order XLI, C.P.C. is required by the Appellate Court itself and not by a party to the appeal. The parties cannot be allowed in order to patch up the weaker parts of their case or fill up the lacuna or to enable them to raise a new point. The relevant sub-rule (b) referred to above relates to ability to pronounce the judgment satisfactorily to the mind of the Court delivering it. It may also be clarified that the occasion can only raise if the Court so feels to require any document to be produced or any witness to be examined when it applied its mind at the time of hearing the arguments in the appeal. The inadvertence of the parties or mistaken legal advice or ignorance of law or negligence of a party are no grounds for allowing the additional evidence. It may be allowed only when a party is unable to produce the evidence through no fault of its own or where the evidence is imperfectly taken by the lower court. A party that had an opportunity but elected not to produce evidence cannot be allowed to give evidence that could not have been given in the court below. Similarly, it is enjoined upon the Court allowing the additional evidence that it must also record the reason therein." Similarly, the controversy in respect of additional evidence at appellate stage has been dealt with in PLD 2004 SC (AI&K) page

35. The relevant portion of judgment is reproduced as under:-- "O. XLI, R. 27-Additional evidence-Production of-Additional evidence could be allowed only where: (i) Trial Court had improperly refused to admit the evidence which ought to have been admitted or (ii) appellate Court required such document or witness and could not pronounce judgment without such additional evidence, or (iii) Appellate court required such evidence for any other cause--Additional evidence could not be allowed in order to allow a party to patch up the weaker part of its case or fill up omissions or to enable it to raise new point-Party to the appeal could move the Court for additional evidence, but it could only be allowed if it was required by Appellate Court itself' on the basis of its own appreciation of the evidence already on record-Provisions of R.27 of O.XLI, C.P.C. were attracted if some inherent lacuna or defect was apparent and the test was whether Appellate Court could pronounce judgment satisfactorily without taking into consideration the evidence sought to be produced." In case of Shtamand and others v. Zahir Shah and others 2005 SCMR 348 the apex Court observed as under:-- "Plaintiffs wanted to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in O.XLI, R.27, C.P.C-Application for additional evidence could not be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at appellate stage in absence of any reasonable justification which was lacking in the case-No illegality, perversity or infirmity could be pointed out warranting interference in the order being well based."

7. The respondent instituted suits against petitioners in 1990, 1992 and 1993 in which judgment was delivered by the learned trial Court on 27-2-1997 and thereafter the matter kept rolling between appellate court and revisional court when all of a sudden the Government and Forest Department woke up from deep slumber after fifteen years realized loss worth millions, prompted petitioners to submit application for additional evidence on 31-1-2005 before the learned Appellate Court. One really feels traumatic and shocked to see such negligence and lack of interest which in. turn has caused destruction of national wealth through mutual collusion. It is not understandable as to why the relevant record was not produced before the trial Court at relevant time with. pleadings and who is responsible for not producing the same. What action has been taken against the officer responsible for withholding the relevant record. Even uptill now it is not known as to with which documents the additional witnesses are to be confronted or to be proved through them during recording additional evidence. In the absence of such documents the learned appellate court was not in a position to know about the relevancy of these documents with the matter in controversy between the parties and also to enable him to arrive at a conclusion that production of such additional evidence is necessary in the interest of justice to pronounce judgment in appeal. Thus, the learned Appellate Court was quite justified to dismiss the application of petitioners for additional evidence. As the petitioners have failed to show that the learned Appellate Court while exercising his judicial discretion has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted with illegality or material irregularity while passing the impugned order, therefore, the same cannot be interfered with by this Court in supervisory jurisdiction. The revision petition of petitioners is therefore dismissed in limine. H.B.T./176/P Petition dismissed.