2016 PLP 2 (CLCN)

MAHMOOD AHMAD BHATTI, J.

Hafiz Muhammad Ashraf, the petitioner has filed this revision petition, assailing the validity of the order dated 10.10.2013 passed by an Additional District Judge, Vehari, whereby he dismissed the petition of the petitioner herein, moved under Order XLI, Rules 27, C.P.C. for production of additional evidence.

2. The plain and unvarnished facts are that the petitioner instituted a suit for specific performance against Fayyaz Mustafa, respondent No.3 herein, contending that he had entered into agreement to sell with the latter in respect of land measuring 5 kanals, 10 marlas, situated in Chak No.41/WB, Tehsil and District Vehari. As the vendor did not fulfill his contract, the petitioner/plaintiff was constrained to file a suit for specific performance against him. It seems that another suit for specific performance was filed by Mst. Shahida Mustafa, respondent No.1 herein against Fayyaz Mustafa, respondent No.3 herein. Both the suits were consolidated and consolidated issues were framed. While the suit of the petitioner was dismissed vide judgment and decree dated 23.10.2010 passed by learned Civil Judge Vehari, the suit brought by Mst. Shahida Mustafa was decreed, obliging the petitioner to prefer an appeal against the aforesaid judgment and decree in the court of learned District Judge Vehari.

3. During the pendancy of the appeal, the petitioner filed a petition under Order XLI read with section 151, C.P.C. seeking to produce additional evidence, including the permission to produce witnesses, which for one reason or another, he had failed to examine/produce in the trial court.

4. An Additional District Judge Vehari turned down, the application of the petitioner for the production of evidence vide order dated 10.10.2013, which is under challenge before this court.

5. Learned counsel for the petitioner contended that the learned appellate court did not exercise its jurisdiction in accordance with law, and it did not give sufficient reasons to reject the petitioner's application for production of additional evidence, which as per his contention is essential to decide the appeal as well as the suits brought both by the petitioner and Mst. Shahida Mustafa, respondent No.1. In order to strengthen his submissions, he placed reliance on the judgments reported as (PLD 2008 SC 564) and (2012 SCMR 1258).

6. Learned counsel for Mst. Shahida Mustafa, respondent No.1 controverted the arguments of the learned counsel for the petitioner. His precise submission was that the case of the petitioner does not fall within the ambit of Order XLI, Rule 27, C.P.C. He elaborated that the petitioner/plaintiff did not move any application for production of additional evidence before the trial court, which might have furnished him a ground to repeat such an application in terms of Order XLI, Rule 27(1)(a), C.P.C. Similarly, at no stage was it required by the appellate court that the parties to the appeal produce further evidence so as to enable it to pronounce the judgment or decide the appeal pending before it. Respondents counsel argued further that the parameters set by the Legislature in Rule 27 of Order XLI, C.P.C. cannot be disregarded, at the whims and caprices of the plaintiff/petitioner. In order to fortify his submissions, he placed reliance on a judgment of the august Supreme Court of Pakistan reported as "Muhammad Yousaf v. Mst. Maqsooda Anjum and others (2004 SCMR 1049). The law on the subject was tersely restated by the apex court in the following words:-- "It is well-settled that additional evidence cannot be received to fill up the lacuna or provide for deficiency in the case of a party. It is also well settled that the additional evidence is permitted if, the Court needs the same for purposes of disposal of the case. By requesting the Court to permit him to produce private documents as additional evidence, the petitioner was clearly trying to fill up a lacuna and provide for the deficiency in the case. This cannot be permitted".

7. Arguments heard and record perused.

8. The petitioner has failed to bring his case within the purview of the provisions of Order XLI, Rule 27, C.P.C. It has not been denied by his counsel before this court that the documents, which the petitioner now seeks to produce by way of additional evidence, were in existence at the time of recording of the evidence for the plaintiff/petitioner. He was candid enough to admit that no such application for production of additional evidence was made to the trial court. As for the learned appellate court, it did not observe at any stage that it required certain documents, without which it could not decide the appeal pending before it.

9. A perusal of the copy of judgment and decree dated 23.10.2010 passed by the learned trial Court appended to the writ petition shows that while dismissing the suit of the petitioner, it also took into account that he had failed to produce the marginal witnesses to the agreement to sell. This being so, the application moved by the petitioner for production of additional evidence before the learned appellate court is nothing but a desperate attempt to fill in the lacunas, which is simply impermissible.

10. The upshot of the above discussion is that the learned appellate court did not commit any material irregularity in passing the order dated 10.10.2013, and it rightly exercised the jurisdiction conferred upon it by the law of the land. There being no ground or reason to interfere with the well‑argued and well-reasoned order dated 10.10.2013 passed by learned Additional District Judge Vehari and the revision petition being without merits is hereby dismissed. ZC/M-47/L Revision dismissed.