1999 PLP 930 (YLR)

Order, dated 4‑6‑1998 of the learned District Judge, D.G. Khan, whereby he has rejected the application, filed by the petitioner for additional evidence, under Order 41, Rule 27 of C.P.C., has been challenged through this civil revision petition.

2. A suit for declaration was filed by the petitioner which was tried by the learned trial Court and after affording due opportunities to the parties was dismissed vide judgment, dated 10‑12‑1996. An appeal was filed by the petitioner against the said judgment which appeal is pending before the learned appellate court. An application was filed by the petitioner for production of Form "B" prescribed under National Registration Act, 1973 for issuance of Identity Cards. Through this document, it was sought to be shown that the respondent/defendant Ibraheem had not been described by Meer Muhammad as his son. The application was contested by the respondents. The learned appellate Court after hearing the parties dismissed the said application vide impugned order referred to above.

3. It is contended by the learned counsel for the petitioner that the authenticity of the document sought to be produced before the learned appellate Court in the form of additional evidence was beyond doubt and the learned District Judge has erred in law in dismissing the said application. According to the learned counsel the perusal of such a document as piece of evidence would be essential for the just decision of the appeal.

4. On the other hand, learned counsel for respondent No. l contends that the application was belated inasmuch as the appeal was filed in the year, 1996, whereas, the application was filed in the year, 1998. He further contends that the authenticity of the Form B sought to be adduced in additional evidence, is not beyond doubt and that the learned appellate Court has properly exercised the discretion in rejecting the application. He has relied upon Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 and Noor Muhammad and 8 others v. Mst. Sheran Bibi and 8 others 1998 SCMR 789.

5. The admitted position in the case is that both the parties had adequate opportunities before the learned trial Court for producing evidence in support of their respective pleas. No attempt was made by the petitioner/plaintiff in order to bring on record Form B before the learned trial Court and an application was made before the learned appellate Court much after even the filing of the appeal. The petitioner/plaintiff was throughout aware of the defence of respondent No.1, who had claimed to be son of Meer Muhammad and full opportunity to the parties was available for producing whatever evidence they wanted to adduce. Order 41, Rule 27, C.P.C. which was invoked for production of additional evidence reads as follows:‑‑ "

27. 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, 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. " The rule referred to above, is prohibitory in nature that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court. This rule, however, has certain exceptions inasmuch as the additional evidence can be permitted by the learned appellate Court, if the trial Court had refused to admit the evidence which ought to have been admitted or, in case, the appellate Court itself 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. The present case does not fall in any of the aforesaid exceptions inasmuch as neither Form B was sought to be produced before the learned trial Court nor it was refused by that Court to be produced in evidence. Even the learned appellate Court has not required the petitioner/plaintiff to produce this document to enable it to pronounce the judgment. It was, thus, in the discretion of the learned appellate Court to grant or refuse permission for allowing additional evidence which discretion has been I exercised by the learned District Judge on good reasons given by him.

6. It is a settled law that provisions of Rule 27, Order 41, C.P.C. cannot be invoked for the purpose of patching up of a weak case, In Messrs Nazir Muhammad and Brothers and others v. Islamic Republic of Pakistan 1990 CLC 729, it was held that permission in such like cases is in the discretion of the Court which cannot be granted to enable a party to fill in the gaps/lacuna in the case. In Abdul Hameed's case (supra) order of the learned appellate Court refusing the permission for additional evidence and the revisional order of High Court upholding the same was maintained by the Supreme Court observing that the parties were conscious of the questions involved in the suit and they had the opportunity to produce their respective evidence before the learned trial Court. Reference may also be made to Noor Muhammad's case (supra), wherein, similar principle was reiterated. In that case, the appellate Court had declined the production of voter's list and identity card which order had been maintained by the High Court.

7. In view of the above, I do not find any legal infirmity in the order impugned in this petition. The same is unexceptionable. There is no justifiable reason to interfere with the discretion, exercised by the learned appellate Court. This revision petition was, thus, no merit which is dismissed accordingly. No order as to costs. Revision dismissed. Q.M.H./M.A.K./G‑129/L