P L D 1989 Peshawar 61 (PLP)

H . Saadullah Khan Mian Khel and Mazhar Alam Khan for Petitioner. Malik Muhammad Bashir for Respondents. Date of hearing: 3rd December, 1988. Ghulam Muhammad Shah has challenged the judgment and decree dated 28‑1‑1988 of the learned District Judge, D.I. Khan whereby he dismissed the application of the plaintiff‑petitioner for producing additional evidence in the shape of placing on record copy of the 'Aks Shijrah Qistwar" regarding old Khasra numbers. Earlier the learned Civil Judge had dismissed the suit of the, plaintiff by his judgment dated 16‑6‑1987 against which the plaintiff filed a regular appeal which is still pending adjudication.

2. Facts of the case in brief are that Ghulam Muhammad Shah plaintiff instituted a suit for permanent injunction against the defendants‑respondents praying for restraining them from constructing any shops in between the north circular road and the bungalow of the plaintiff. It was contended that there existed no Khasra No. 1/3424 and that the "Tatima" in respect of the said Khasra number was the result of collusion between the Revenue staff and the defendants‑respondents and was a fictitious one. The suit was resisted by the defendants‑respondents. On 1‑10‑1984 it was agreed upon between the counsel for the parties that a commission be appointed with a view to ascertain whether there existed Khasra No. 3424 in between the circular road and the bungalow of the plaintiff. It was further agreed upon that in case the existence of Khasra No. 3424 was established the suit of the plaintiff should then be dismissed. In the light of the report of the commission the suit of the plaintiff was dismissed by the judgment and decree dated 16‑6‑1987 of the learned trial Judge. Aggrieved by the said judgment and decree the plaintiff preferred an appeal in the Court of the learned District Judge. Alongwith the appeal an application under Order XLI, Rule 27 was also filed wherein it was prayed that the plaintiff‑appellant be allowed to produce additional evidence by placing copy of the "Aks Shijrah Qistwar". The learned District Judge, however, did not accede to this prayer of the plaintiff and dismissed his application by his order dated 28‑1‑1988 against which the instant civil revision petition has been filed.

3. Arguments of the learned counsel for the parties have been heard and record of the case has been thoroughly examined.

4. In this case the only question for determination before the Courts below was whether there existed certain land in between the north circular road and the bungalow of the plaintiff or not. In this connection both the parties agreed to the appointment of a commission who was to ascertain the existence of such land with its Khasra number and the area involved. Abdur Rehman, District Qanoongo was accordingly appointed commission to inspect the spot in the presence of the parties and also to locate 'Tatima' Khasra No. 1/3424. Abdur Rehman Commission accordingly submitted his report pursuant to the Court order in view of the agreement between the parties. According to this report the bungalow of Ghulam Muhammad Shah, plaintiff is situated in Khasra No. 3423 and that there was a "Ghair Mumkin‑Kassi' on the southern side of the said bungalow in between the circular road and the bungalow of the plaintiff. This 'Ghair Mumkin Kassi' is situated in Khasra No. 3424 and has got an area of 16 Marlas. The perusal of the report of the commission would clearly suggest that there did exist Khasra No. 3424 (old Khasra No. 1471) which has an area of 16 marlas and which is situated in between the north circular road and the bungalow of the plaintiff. After giving due consideration to the report of the commission and the objections raised by the plaintiff on the said report the learned trial Judge came to the conclusion that the report of the Commissioner was correct and accordingly in view of the statement of the counsel for the parties dated 1‑10‑1984 referred to above dismissed the suit of the plaintiff. At appeal stage, however, the plaintiff‑appellant through an application under Order XLI, Rule 27 wanted the appellate Court to allow him to produce additional evidence by placing on record the certified copy of the ' Aks Shijrah Qistwar' which allegedly he had obtained in 1985 but which was not available either at the time of inspection of the spot by the commission nor while filing objection to the report of the commission. The learned District Judge, however, opined that the available record was sufficient for the disposal of the main appeal and accordingly dismissed his application for the production of the additional evidence. Under Rule 27 of Order XLI, C. P. C. parties to an appeal are not entitled to produce additional evidence oral or documentary in the Appellate Court except where the Court from whose decree the appeal is preferred has refused to admit evidence or it is established that not withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or 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. Under the provisions of the said rule, therefore, it is clear the Appellate Court in the ordinary course is not supposed to travel beyond the available record of the lower Court and in case it allows additional evidence it has to record sound reasons for its admission. Undoubtedly the Appellate Court has the discretion subject to the limitation embodied in the aforesaid rule to allow additional evidence but still the parties are not entitled to produce additional evidence at appeal stage as of right but such matter is entirely in the discretion of the Court. Nowhere in the plaint or in the objections to the report of the commission the plaintiff has made reference towards the certified copy of the 'Aks Shijrah Qistwar' which he now seeks to produce at appeal stage. Even with the application seeking production of the certified copy of the 'Aks Shijrah Qistwar' the petitioner did not file the certified copy but instead placed a micro photo copy which under the law has no authentication. No doubt the Appellate Court is not prevented to admit additional evidence which is discovered subsequent to the decision of the lower Court but it by itself is no ground for its admission in the appeal. In Sobharam Tikaram and others plaintiffs‑appellants v. Rajkumar Munnalal and others defendants‑respondents A I R 1959 Madhya Pradesh 118 it, was held that: "The principles for admission of additional evidence under Order XLI Rule 27(1) (b) are (i) that the discretion given to the appeal Court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitation specified in the rule, (ii) that the legitimate occasion for the application of the rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside of the Court, of fresh evidence and the application, is made to import it and (iii) that the true test is whether the Appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. " It thus stands established that the mere discovery of fresh evidence subsequent to the decision of the lower Court is no ground for its I admission in appeal unless the Appellate Court requires the evidence to enable it to pronounce judgment and that fresh evidence can only be granted if the evidence sought to be produced is conclusive in character and is free from suspicion. As has been observed in the absence of the original record the mere allegation of possessing a certified copy which too is not even placed on record before the Appellate Court, in the presence of solid evidence, creates suspicion about the authenticity of the document sought to be produced at the appeal stage.

5. Be that as it may, in its revisional jurisdiction this Court is required to see whether in arriving at a certain conclusion the Court below has acted without jurisdiction or has committed some illegality or his decision is based on the non‑reading of evidence or the misreading of evidence. The admission of a fresh evidence is entirely the discretion of the Appellate Court and unless it is established that the said discretion has not been exercised judiciously, this Court is not supposed to interfere with the exercise of such discretion. As far as the main appeal is concerned which is to be decided on the facts and the record available before the Appellate Court, it is still pending final adjudication. Therefore, in my opinion neither the Appellate Court in refusing the admission of the fresh evidence has, acted illegally nor has any jurisdictional error been committed. There is, therefore, no force in this civil revision petition which is accordingly dismissed, leaving the parties to bear their own costs. A.A. /679/P Revision dismissed