2017 PLP 1040 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is addressed against the judgment of the High Court dated 2.1.2012 whereby revision petition filed by the appellant has been dismissed.

2. The facts briefly stated are that the parties are contesting for their respective claim regarding the land in dispute situated at Mozia Sahang, Tehsil and District Mirpur. The trial Court dismissed the suit of the appellant whereas the cross suit filed by defendant-respondents has been decreed in their favour vide judgment and decree dated 31.8.2007. The plaintiff-appellant challenged the trial Court's order dated 31.8.2007, through an appeal before the District Judge Mirpur on 28.9.2007. The suit was entrusted to the Additional District Judge, Mirpur. During pendency of the appeal, the plaintiff-appellant submitted an application for producing copies of revenue record as additional evidence. The defendant-respondents filed objections on the application filed by the plaintiff-appellant. The Additional District Judge, Mirpur rejected the application and the revision petition filed by plaintiff-appellant before High Court also met the same fate. He has now approached this Court to challenge the validity of the judgment of the High Court through the instant appeal.

3. Haji Ch. Muhammad Afzal Advocate, the learned counsel for the appellant argued the case at some length. He submitted that under the statutory provision of Order XLI, Rule 27 of Civil Procedure Code, the appellate Court is vested with the vast powers to allow the application for production of additional evidence. He submitted that the Courts below have fell in error of law while declining the application in this regard. He submitted that there was sufficient cause for filing the application which has been illegally rejected. He also submitted that according to the principle of law enunciated by the superior Courts and the apex Court of Pakistan, it is obligatory to allow the application for permission to produce the additional evidence. Thus, the impugned judgments of the Courts below are violative to the statutory provisions of law as well as the principles of administration of justice. Hence, this appeal merits acceptance.

4. Conversely, Mr. Saadat Ali Kiani, Advocate, the learned counsel for the defendant-respondents forcefully defended the impugned judgment and submitted that the orders passed by the Courts below are speaking one. The appellant has failed to apply for production of documents/revenue record before the trial Court and even in the first appellate Court. No justification or explanation for production of additional evidence has been advanced in the application. He focussed his arguments with reference to the application submitted for permission to produce additional evidence. He submitted that contents of para-2 of the said application are very much clear which speaks that the appellant has failed to advance any sufficient cause. He further submitted that according to statutory provisions, the application for producing additional evidence cannot be allowed in routine rather there should be sufficient reasons to satisfy the Court, thus, this appeal has no substance and the same is liable to be dismissed with costs.

5. We have considered the arguments of the learned counsel for the parties and also examined the record made available. According to the record, the parties are facing litigation since more than a decade's period. After facing litigation before the trial Court the suit of plaintiff-appellant was dismissed vide judgment and decree dated 31.8.2007. Against this judgment the appellant filed an appeal before the District Judge on 28.9.2007 and thereafter almost after more than 2 year's period he submitted the application for permission to produce additional evidence. Relevant para-2 of this application is relevant which reads as follows:-

6. According to admitted facts, the suit remained pending for almost 7 years' period before the trial Court. The appellant submitted no application for production of additional evidence, therefore, in the light of statutory provision of Order XLI, Rule 27, of C.P.C., there must be sufficient cause and reason for production of additional evidence at appellate stage. The examination of the contents of application referred to hereinabove, clearly speaks that no reason or justification has been advanced by the appellant in this regard why the available documentary evidence has not been produced at this stage of proceedings of recording evidence of the parties. The parties should be vigilant while prosecuting their cases before the Courts and if any party is careless and at proper time fails to take necessary steps, after completion of legal process of recording evidence, at appellate stage, the case cannot be reopened in the garb of production of additional evidence. If such like practice is encouraged there will be no end of litigation. According to celebrated principle of law, the permission for additional evidence can only be granted if the trial Court has refused to admit the evidence which ought to have been admitted or if the appellate Court requires any document to be produced or witness to be examined to enable it to pronounce judgment or for any other substantial cause. Without fulfilling these statutory requirements, the application of a party in casual manner for filling the lacunas or reopening the proceedings cannot be allowed. It will be useful to reproduce here the statutory provision of Order XLI, Rule 27, of C.P.C. as under:- "

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." A bare reading of this statutory provision clearly speaks that there must be sufficient cause and reason for allowing the application for permission to produce the additional evidence at appellate stage. In the light of the facts of this case, the appellant has failed to advance any sufficient cause or reason and justification for production of additional evidence, therefore, the orders passed by the Courts below are speaking one, consistent with the statutory provisions as well as principle of law and justice, hence, finding no force, this appeal stands dismissed with costs. ZC/85/SC(AJ&K) Appeal dismissed.