1987 PLP 1871 (CLC)

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), O. XLI, R. 27 & S.115‑ Additional evidence‑‑Application to adduce additional evidence remaining undecided in appeal‑‑Effect‑‑No explanation given in such application as to why petitioner had not produced relevant documents in suit at proper stage and no assertion therein that documents sought to be produced were refused to be admitted by Trial Court‑‑Where application for adducing of additional evidence did not contain said requirements to enable Appellate Court to allow production of requisite documents, such application, held, would not be tenable in law‑‑Non‑disposal of such application was only an irregularity, which having not affected either merits of case or jurisdiction of Court, would not be interfered with in revisional jurisdiction of High Court. Muhammad Hussain v. Bulleh Khan1980 C L C 608 distinguished. Sh. Naweed Sheharyar for Petitioner. Land measuring 11 marlas situated in village Fatehpur Tehsil Gujrat, which had been sold by Akbar Ali son of Ilam Din in favour of the respondent Ahmad Ali, was sued out to be pre‑empted by the petitioner on the grounds of his being a collateral of the vendor and also a co‑sharer in the Khata of the suit land. Vendee entered contest by denying his claim. Necessary issues were framed and evidence of their choice was led by the parties, upon the consideration whereof learned trial Judge concluded that relationship between the pre‑emptor and the vendor had not been proved and the right claimed on the basis of being a co‑sharer was not pressed and even no proof thereabout had been adduced. The suit was consequently dismissed on 19‑9‑1975 with a finding adverse to him recorded under issue No. 1 which related to the right of pre‑emption. In an appeal thereagainst filed by the plaintiff, a learned Additional District Judge reconsidered the evidence and, confirming the conclusions of the trial Court he dismissed the appeal on 27‑1‑1987 by upholding its decree. He has now come up to this Court on revision.

2. It is conceded by the learned counsel that no documentary evidence in the form of a pedigree‑table was produced by the plaintiff to prove his relationship with the vendor which had been sought to be proved on the basis of oral evidence and copies of various Jamabandis and mutations. Whether or not a person is proved to be a collateral of another is a question of pure fact and the two courts below have concurrently reached the findings adverse to the plaintiff petitioner on this point on the basis of the evidence led in the suit. There is no error of jurisdiction of the nature of misreading or non‑reading of evidence pointed out to have been committed by those courts in holding the plaintiff to have not been proved to be a collateral of the vendor. Their findings are hence not liable to be challenged in a revision.

3. Learned counsel, however, contends that an application filed by the petitioner for permission to adduce additional evidence under Order XLI, Rule 27 of the C.P.C. has remained un‑attended and it is submitted that whether or not that application may have been accepted, the learned Additional District Judge could not have proceeded to dispose of the appeal in oblivision of the prayer made in the said application. Reliance is placed on Muhammad Hussain v. Bulleh Khan (1980 C L C 608). I have perused the application, a certified copy whereof has been filed on this record. There is no explanation even worth the name given as to why the petitioner had not produced the relevant documents in the suit at the proper stage and muchless is there any assertion to the effect that those documents may have been refused to be admitted by the trial Court. Since it stands declared in the said Rule 27 itself that the parties to an appeal shall not be entitled to produce additional evidence in the appellate Court, therefore, I do not see as to how was the application filed by the petitioner tenable at all in law and what prejudice may have been caused to him in its not having been rejected straight away on that ground because the two conditions stated in the said rule to enable the appellate Court to allow the production of such additional evidence did not exist. The non‑disposal of the petitioner's application is only an irregularity which has not affected either the merits of the case or the jurisdiction of the Court, therefore, by virtue of the provisions of section 99 of the C . P. C . such an error is not capable of sustaining interference in the decree passed in the appeal below. The precedent case relied upon by the learned counsel is not capable of supporting the grievance urged on behalf of the petitioner. Its head‑note is misleading and the judgment itself is distinguishable inasmuch as it was delivered in its own facts of that case wherein the Additional District Judge concerned had, after obtaining a written -reply to contest the prayer, proceeded to bring under consideration the documents which were desired to be produced by way of additional evidence, without passing a formal order about the acceptance of the application and since it is the requirement of sub‑rule (2) of rule 27 (ibid) that an appellate Court shall record the reasons for admission of additional evidence, therefore, in that case having been remanded for a formal decision, one way or the other of that application, the Judge concerned was simply reminded of the need for passing an appropriate order of disposal of the application because without having allowed it formally, he could not have considered these documents which had, in such a situation, not become a part of the record. All this is clear from para. 13 of the judgment and there is no rule of law contrary to the very text of Rule 27 (ibid) propounded therein to be able to invest a right in a party to an appeal for filing an untenable application for permission to produce some additional evidence and to also claim a decision thereon. Contention of the learned counsel is without merit and is therefore repelled.

4. This case really gets concluded with the concurrent findings of fact reached by the two Courts below on the basis of record because those findings have to be accepted as sacrosanct on account of the absence of any jurisdictional error committed in reaching them. There is no force in the civil revision which is accordingly dismissed in limine. A.A./W‑7/L Revision dismissed.