2005 PLP 1861 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

This civil revision assails judgments /decrees, dated 28-6-2002 and 14-7-2004 passed by learned Civil Judge and learned Additional District Judge, Gujranwala whereby suit of the respondents was decreed and appeal of the petitioner was dismissed, respectively.

2. Succinctly, relevant facts are that Wali Muhammad deceased real brother of the respondents owned house measuring 7-1/2 Marlas and died issueless, leaving behind the respondents as his sole heirs. The respondents filed a suit for declaration with possession of the above-referred house against the petitioner claiming that the same was given to him for temporary residence being their paternal cousin but he, on demand, refused to return the possession of the house necessitating filing of suit.

3. The Petitioner being defendant in the suit contested the suit by filing his written statement wherein he pleaded that Wali Muhammad deceased has sold the house in his possession for a consideration of Rs.80,000 through an agreement, dated 5-4-1993 whereunder he also delivered possession to him. It was further asserted by the petitioner that he had spent an amount of Rs.60,000 for improvement/renovation of the house being owner in possession of the same. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful, on the basis of his appraisal of evidence on the file, decreed the suit of the respondents vide judgment and decree, dated 28-6-2002.

4. The petitioner aggrieved of decision of' the trial Court filed an appeal before the learned Additional District Judge where he also moved an application under Order XLI Rule 27, C.P.C. praying that copy of register of the stamp vendor Muhammad Hussain, containing entry, dated 5-4-1993 regarding sale of stamp-paper of agreement Exh.D.1 may be allowed to be produced by way of additional evidence. This application was contested by the respondents by filing their written reply and was dismissed by the learned Additional District Judge on 14-7-2004 on two fold grounds firstly, that the petitioner himself neglected to produce this document at the time of recording of evidence and secondly on the ground that it being a private document, the same is not admissible per se. The learned Additional District Judge ultimately dismissed that appeal of the petitioner, as well, upholding the findings of the trial Court vide appellate judgment and decree, dated 14-7-2004. The petitioner thereafter, filed instant revision petition challenging concurrent judgments/decrees of the two Courts below and order of first appellate Court, dated 14-7-2004 whereby permission to lead additional evidence was declined. The revision petition was admitted to regular hearing and after completion of record, has now been placed for final determination. The respondents in response to notice by this Court have appeared and are represented through their counsel.

5. Learned counsel for the petitioner submitted that he had proved execution of the agreement, dated 5-4-1993 by the deceased owner Wali Muhammad which could be used by him as a defence to the suit by the respondents for declaration/possession of the property in his occupation. It was further submitted that the petitioner besides proof of agreement, dated 5-4-1993 moved an application to appellate Court seeking permission to produce copy of the register of the stamp vendor which was dismissed illegally, in isolation of the appeal. According to him, reasons given by the appellate Court in order, dated 14-7-2004 were not lawful hence by setting aside this order, certified copy of the relevant portion of the register of the stamp vendor may be entertained in evidence. Findings of the two Courts below in support of their judgments were claimed to be tainted with illegality of misreading/non-reading of evidence on the file, thus those were prayed to be annulled in revisional jurisdiction of this Court.

6. Learned counsel for the respondents refuted the arguments of the petitioner, supported the concurrent judgments /decrees of the two Courts below and urged that agreement. Exh.D.1, on the face of it, was a forged document as the same was not entered into the register of the scribe, as is clear from the statement of D.W.1. It was further submitted that body of the agreement was written by two handwritings and the date beneath this document was tampered which was enough proof of its fabrication by the petitioner. Opposing the prayer regarding additional evidence by the petitioner, it was asserted that the petitioner availed opportunity of proving his case before the trial Court but no effort was made to bring the document on record, now sought to be produced. It was further argued that appellate Court was legally justified to dismiss the application, for the reasons recorded in the said order. Concurrent judgments of the two Courts below were claimed to be immuned from interference under section 115, C.P.C.

7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before undertaking the exercise of determining the respective stance of the parties, on merits of the case, I would like to first look into legality or otherwise of the order, dated 14-7-2004 passed by the learned Additional District Judge refusing to entertain additional evidence in form of a certified copy of the register of a stamp vendor, containing entry of stamp-paper of Exh.D.L Under the provisions of Order XLI Rule 27, C.P.C., parties to an appeal are not entitled to produce additional evidence whether oral or documentary in appellate Court unless the trial Court had refused to admit such evidence which ought to have been admitted or the appellate Court requires any document to be produced to enable it to pronounce the judgment or for any other substantial cause. Undeniably, the document sought to be produced was not tendered before the trial Court and for the first time, was sought to be produced in appeal, as such, none of the reasons on which the appellate Court could allow or refuse permission to produce additional evidence, could be determined without looking into the merits of the case. Meaning thereby that application under Order XLI Rule 27, C.P.C. A could not be decided in isolation to the appeal and should have been decided there along because while hearing appeal Court would look into the merits of the case and in case of necessity, it could have allowed the prayer to the petitioner. Entire case of the petitioner, as built and stood, hinged on the validity of agreement Exh.D.1. Entry of purchase of stamp paper for inscribing agreement, dated 4-7-1993 in the stamp vendor register which also contained thumb-impression of Wali Muhammad deceased was not only a relevant piece of evidence but also would have enabled the appellate Court to pronounce a just decision between the parties. Reasons for non-production of this document before the trial Court, whatever may be but grounds on which permission to lead additional evidence was prayed, should have been considered in their true perspective which was not done at the time of passing of order, dated 14-7-2004. Register of the stamp vendor is not a private document as the same is prepared the stamp Act and Rules thereunder which is maintained/kept under the directives of District Officer (Revenue) concerned. Certified copies of such register are issued under Article 87 of Qanoon-e-Shahadat Order, 1984 like the one issued in favour of the B petitioner thus refusal to grant permission to produce this document by way of additional evidence on the ground that it was a private document, is simply unwarranted and superfluous. Appellate Court incorrectly remarked that any document cannot be allowed to be produced at appellate stage. If one is to accept this reason, that would amount to negate the provisions of Order XLI Rule 27, C.P.C. The order, dated 14-7-2004 is based on extraneous reasons which are not known to law thus the same is not sustainable. As noted above, application under discussion should have been decided along with appeal and as, admission/entertainment of document in question in evidence, would have reflexes on appellate judgment, I am left with no other option except to set aside the appellate judgment, as well and to remit back the case the appellate Court for its fresh decision, after deciding application of the petitioner under Order XLI Rule 27,. C.P.C. again in accordance with law. Since the case is being remitted to the appellate Court, I avoid to embark upon to decide merits of the case lest findings of this Court may not prejudice the mind of the appellate Court.

8. For the reasons noted above, order, dated 14-7-2004 and appellate judgment/decree, dated 14-7-2004 being tainted with illegalities /irregularities are hereby set aside by allowing instant revision petition with the result that the petitioner's appeal as well as application under Order XLI Rule 27, C.P.C. shall be deemed to be pending before the first appellate Court and will be decided in light of observations made above. Parties are directed to appear before the learned Additional District Judge, Gujranwala on 28-7-2005. There will be no order as to costs. M.H./N-66/L Case remanded.