P L D 2000 Supreme Court (AJ&K) 20 (PLP)

MUHAMMAD YUNUS SURAKHVI, J.

This appeal, with leave of the Court, is directed against an order passed athe High Court of Azad Jammu a Kashmir on 29-1-1999 by which the revision petition filed b sspondent No.1 was accepted and the judgment of the District Judge, Kotli dated 30-6-1998 was set aside.

2. The facts forming the background of the present appeal are that two suits, one on behalf of the plaintiff-appellant and the other on behalf of respondents were filed in the Court of Sub-Judge Sehnsa, which were consolidated and disposed of by a common order. The suit filed by Abdul Khaliq plaintiff-respondent was decreed and that of plaintiff-appellant Muhammad Siddique and others was dismissed. Abdul Khaliq respondent filed an appeal before the District Judge, Kotli wherein an application for production of additional evidence do behalf of respondent was moved which was accepted by the District Judge Kotli vide his order dated June 30, 1998. Abdul Khaliq respondent feeling aggrieved by the order of District Judge, Kotli preferred a revision petition in the High Court which was accepted by the High Court vide its order dated 29-1-1999 by setting side the order of District Judge, Kotli. Hence the present appeal.

3. Arguing the case on behalf of appellant it was vehemently contended by Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, that the High Court fell in error in accepting the revision petition filed by respondents and by setting aside the order of District Judge. According to the learned counsel the District Judge, Kotli allowed the production of additional evidence on the ground that the same was essential to enable him to pronounce the judgment and thus the discretion exercised by the District Judge should not have been normally disturbed. The learned counsel submitted that in absence of additional evidence the judgment could not have been pronounced as such the application was moved and the district Judge after consideration of facts and law allowed the same thus warranting no interference by the High Court. It was also contended that the aforesaid evidence was essential for doing complete justice between the parties and was so required to pronounce the judgment effectively. The learned counsel for the appellant placed reliance on a reported case of this Court titled Muhammad Rizwan v. Abdul Jabbar and others 1999 SCR 187 and Muhammad Hanif v. Mst. Parsan Bibi and others 1996 MLD 1158.

4. Mr. Liaquat Ali Khan, the learned unsel for the respondents submitted that the learned District Judge did not apply his mind and allowed the plaintiff appellant to adduce the additional evidence. It was strenuously argued by the learned counsel that the plaintiff appellant did not show any legal justification for the application moved for producing additional evidence. It was elaborated that the only ground urged by them was that they were simpleton as such they could not produce additional evidence. It was further argued that the Appellate Court did not require the aforesaid evidence to enable it to pronounce the judgment or for any other substantial cause. The learned counsel also argued that the order passed by the District Judge amounted to patching up the weak parts of appellant's, case as such there was no occasion for the production of additional evidence. The learned counsel for the respondents relied on Taj Din v. Jumma and 6 others PLD 1978 SC(AJKI 131 - Abdul Qayyum v. Bashir Ahmed Khan and 4 others 1996 SCR 22.

5. After hearing the respective contentions of the learned counsel for the papps and perusing the record it may be stated that two suits one by Abdul Khaliq against appellant Muhammad Siddique and others and the other was filed by Muhammad Siddique appellant in the Court of Sub-Judge, Sehnsa which were consolidated and were disposed of through a common order dated May 18, 1994, whereby the suit filed on behalf of Abdul Khaliq was decreed while that of Muhammad Siddique appellant was dismissed. Muhammad Siddique and others filed an appeal before the District Judge, Kotli against the aforesaid order. During the pendency of the aforesaid appeal an application on behalf of appellants was moved to allow them to produce the additional evidence. The application after receiving objections from the opposite side and hearing the parties was accepted by the District Judge, Kotli. The order of District Judge was challenged by way of revision filed by the respondent before the High Court and the same was allowed.

6. The parties to an appeal are not entitled to adduce any additional evidence but the same can be allowed if the Court from whose decree an appeal is preferred, has (i) refused admit the evidence which ought to have been admitted or (ii) e Appellate Court requires any document to be produced or anqutness to be examined to enable it to pronounce the judgment oror any other substantial cause under Order XLI, rule 27, C.P.C. which is an exception to the onciple that the Appellate Court cannot record fresh evidence. Therefore, under the aforesaid rule, the additional evidence cannot be recorded unless the provisions.of the aforesaid rule are attracted. Thus the power to allow evidence is discretionary in nature but the same is circumscribed by the limitation specified in the said rule as the evidence under sub-rule (b) of rule 27 Order XLI, C.P.C. is requiredy the Appellate Court itself a not by a party to the appeal. The parties cannot be -allowed in order to patch up the weaker parts of, their case or fill up e lacuna or to enable them to ise a new point. The relevant sub-rule (b) referred to above relates to ability to pronounce the judgment satisfactorily to the mind of the Court delivering it. It may also be clarified thathe occasion can only arise if the Court so feels to require any document to be produced E or any witness to be examined when it applies its mind at the time of hearing the arguments in the aeal. The inadvertence of the oties or mistaken legal advice or ignorance of law or negligence of a party are no grounds for allowing the additional evidence: It may be allowed only when a party is unable to produce the evidence through no fault of its own or where the evidence is imperfectly taken by the lower Court. A.party that had an opportunity but elected not to produce evidence cannot be allowed to give evidence that could not have been given in the Court below. Silarly it is enjoined upon theourt allowing the additional evidence that it must also record the reason therein, This proposition finds support from the case reported as Parsotim Thakur's case AIR 1931 PC 143,

7. A similar proposition came under consiration of this Court in Taj Din's case (PLD 1978 SC (AJ&K) 131) where the proposition was resoed in the following manner.-- "We have examined the evidence and considered the arguments submitted by the Advocates for the rties and are of the view that legitimate occasion for the admission of additional evidence by the Appellate Court, under Order XLI, rule 27, C.P.C., is when appreciation of evidence, as it stands, an inherent defect oracuna becomes apparent or when the discovery is, made afterwar by a party and an application is made to supply the defect. A even then the provisions of rule 27, Order XLI, C.P.C. impose strict conditions so as to prevent a litigant from being negligent in producing evidence at the time of the trial. A litigant for permission to adduce addition evidence at the stage of appeal, has to establish that evidence available apart from being ofn unimpeachable character is so material that its absence might result in miscarriage of justi and that in spite of reasonab care and due diligence it could not be produced at the time the question was being tried or it has come into existence after completion of the trial. Where, therefore, a party has been neglent in producing evidence at the time the issue was being tried and a 'lacuna had been left and it is not shown as to how the sence of the proposed evidenceould result into failure of justice, a prayer for additional evidence in these circumstances obviously would not be granted. The record of right was already in existence when the issue was being tried and the party, with due care, could obtain the copy of this document and produce the me at the time of the trial. Aany rate, even otherwise, this document does not disclose any kinship between the pre-emptor and the first vendor. It is not omissible, under rule 27 of Order XLI, C.P.C. to allow fresh evence to enable a party to patch up the weak points of his casend fill up the omissions in the Court of appeal. We are supported in this view by PLD 1958 SC Ind.) 170 wherein it is held:-- "It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the pares to remove certain lacunas in presenting its case at proper stage, and to fill in gaps, Of course, the position is differenthere the Appellate Court Itself requires certain evidence to be adduced in order to enable it to do justice between the parties, The Supreme Court would not permit add)tlanal evidence to be placed in appeal when there was ufflclent opportunity f r the tty AD seeking to place additional evidence to place all the relevant matters before the High Court."

8. The aforesaid view is further supported by a verdict of the Supreme Court of Pakistarecorded in Bashi r Ahmad's case 1985 SCMR 1232.

9. In the instant case the application was moved on the ground that the partwas simpleton as such could noproduce the relevant evidence. The learned District Judge before hearipg arguments in appeal a applying his mind to the evidce already on record, allowed e additional evidence on the gund available in sub-rule (b) of rule 27, Order 41, C.P.C. but omitted to look into the other necessary conditions justifying the allowing of additional evidence such as the evidence being available, why could not be produd before the trial Court when the opportunity was provided to them. The policy of law laid dowin rule 27, Order XLI, C.P.C. appears to be not ~~ to allow adtional evidence to fill up the lacunas. The Appellate Court caonly allow additional evidence if it itself so feels that the judgment cannot be pronounced. The District Judge had no occasion to apply his mind before arguments or appreciating the evidence on record on the application moved by the concerned party and also failed to record the reasons for allowing the production of additional evidence as such theigh Court in our view committeno error by accepting the revion petition filed by the respondents.

10. In the light of what has been stated above finding force in this appeal it is veby dismissed with costs. H.B.T./455/SC(AJ&K) Appeal dismissed.