2015 PLP 1059 (YLR)

ABDUL LATIF KHAN, J.

This civil revision has been filed against the judgment and decree dated 20-11-2013 passed by the learned Additional District Judge/Izafi Zila Qazi, III Swat, whereby application filed by respondent for recording of additional evidence was allowed.

2. Arguments heard and record perused.

3. A perusal of record reveals that the instant suit bearing No. 168/1 (Neem) of 2002 was filed by the predecessor-in-interest of the respondents Mst. Tamam Saleha against Rafiullah and others for declaration to the effect that the suit property was legacy of her father Shah Hilal and was entitled to her legal sharai share and defendants have no nexus with her share and similarly inheritance Mutations No. 59 dated 7-12-1979 and 205 dated 26-6-1989, wherein she has been deprived of her rights are illegal and ineffective upon her rights.

4. Another suit bearing No. 200/1 (Neem) of 2010 was filed by Mst. Jehan Ara against Samiullah etc regarding the suit property wherein she sought declaration to the effect that the property in dispute being legacy of Bakht Munir son of Shah Hilal and sought her legal sharai share as daughter of Bakht Munir out of the legacy of her father and defendants have got no nexus with the same and that she has not gifted the property in favour of the defendants through any deed.

5. There is yet another suit bearing No. 180/1 of 2005 filed by Mst. Asmat Ara against Samiullah and others for declaration to the effect that suit property being legacy of Bakht Munir has to be devolved upon her as daughter to the extent of her sharai share and defendants have got no concern with the same and sought cancellation of mutation effecting her rights.

6. All the suits were consolidated and partial decrees were passed by the Trial Judge in favour of the plaintiffs, against which appeals were filed by them, however, the appeal was also filed by the present respondents. During the pendency of appeal an application was moved by the respondents under Order XLI Rule 27 of C.P.C. for production of additional evidence, which was allowed through the impugned judgment.

7. It is pertinent to mention that the respondents, legal heirs of Mst. Tamam Saleha, plaintiffs in suit bearing No. 168/1 have moved an application for recording of additional evidence before the appellate Court mainly on three (3) grounds:--

8. Firstly, that at the time of recording of evidence before the Trial Court the original documents were produced by the respondents, which were posted as Exh.P.W.10/2 to Exh.P.W.10/63, however, when the official of Tehsil Agency was summoned, he produced relevant registers of documents Exh. P.W. 10/30, Exh. P.W. 10/33, Exh. P.W. 10/37, Exh. P.W. 10/38, Exh. P.W. 10/39, Exh. P.W. 10/42 and Exh.P.W.10/44, which were posted as Exh.P.W.6/1 to Exh.P.W.6/5 whereas registers of the remaining documents i.e. Exh. P.W. 10/2, Exh. P.W.1 0/6 to Exh. P.W. 10/13, Exh. P.W. 10/17, Exh. P.W. 10/18, Exh. P.W. 10/20, Exh. P.W. 10/21, Exh. P.W. 10/23, Exh. P.W. 10/24, Exh. P.W. 10/26, Exh. P.W. 10/28, Exh. P.W. 10/40, Exh. P.W. 10/45, Exh. P.W. 10/47, Exh. P.W. 10/51, Exh. P.W. 10/57, Exh. P.W. 10/58, Exh.P.W.10/59 and Exh. P.W. 10/62 were not produced. Para-No. 2 further reveals that the reason advanced for non-production of the relevant registers was that as the case was an old one and the Trial Court was in hurry to dispose of the suit, therefore, the concerned clerk could not trace-out and produce the requisite record. It is pertinent to mention that at the relevant time the present respondents have not taken any serious step to move an application before the Trial Court as they did before the appellate Court culminating into the impugned order. Moreover, conduct of the respondents shows that they produced the entire evidence and closed the same without considering this important aspect of the case at the relevant time. Secondly, in Para No. 7 of the application moved by the respondents forgery has been alleged to the effect that Exh.DW-6/8 has been tampered on front page by substituting the name of Bakht Munir instead of Shah Hilal and on the back page of the same instead of No. 291 a figure of 297 has been mentioned. It is also averred that the property situated in Rang Mohallah transferred on behalf of Tota, and Bacha Khan in favour of their predecessor Shah Hilal by dint of deed dated 291 attested on 1-3-1950, original of which has been lost and was not in possession of the respondents. Strange enough that this plea too was not taken in the Trial Court that the original deed was tampered or forged and during that period the respondents kept mum for the reasons best known to them and opted to close their evidence rather order sheet No. 42 of the trial Court dated 7-3-2012 reveals that counsel for the plaintiffs/respondents undertakes not to produce further evidence and case was listed for the evidence of defendants. Muhammad Sadiq v. Alla Ditta's case reported as 2012 CLC 495 his Lordship held as under:-- "Production of additional evidence

parties to an appeal, would not be entitled to produce additional evidence, whether oral or documentary in the appellate Court--However, if the Court from whose decree an appeal was preferred refused to admit evidence, which ought to have been admitted, or the Appellate Court required any document to be produced to enable it for disposal of the controversy, the Appellate Court could allow such evidence or documents to be produced."

9. Third ground taken in the application was based upon the averments made in the Para No. 8 of the application, which reveals that the partial property was purchased by Haji Shah Hilal, predecessor-in-interest of the parties through various deeds, which came into the knowledge of the respondents after filing of appeal before the District Judge and wanted to produce the same as additional evidence before the Court of appeal, which too was an afterthought prayer. Needless to mention that the plaintiffs/respondents have not annexed any of the document wants to produce as additional evidence before the appellate Court with the plaint nor mentioned in the list of witnesses filed by the plaintiffs/respondents before the Trial Court. It is bounden duty of the plaintiff to produce the documents in his possession or power at the time of presentation of plaint or deliver the same at the relevant time even those documents which are not in possession or power of the plaintiff and wants to rely upon in evidence in support of claim made in the plaint shall enter these documents in a list to be appended with the plaint. The plaintiff shall produce at the time of first hearing of suit all the documents of every description in possession or power or not in possession or power but relied upon through a list prepared by the plaintiff in case of non-production of the documents, the Court has no power to receive the same at the subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production of the same at the relevant time. The Court is bound to record reasons for receiving such documents at belated stage. Similarly, plaintiff shall present in the Court the list of witnesses whom he wants to produce in the evidence or produce the documents within time specified by the relevant provisions. The original documents have already been produced and were posted and exhibited and the plaintiffs could not be allowed to patch up weaker parts of their case and raise new points. It does not stand to reasons that the plaintiffs were not in know of the deeds as mentioned in Para No. 8 of the application and if it is taken as truth then how they acquired knowledge regarding the documents, which were produced at subsequent stage. For convenience sake Order VII, Rule 14, Order XIII, Rules 1 and 2 are reproduced for guidance as under:--

14. Production of document on which plaintiff sues... (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. List of other documents

(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

10. Similarly, Order XIII, Rules 1 and 2 are also reproduced for ready reference as under:-- (1) Documentary evidence to be produced at first hearing...(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. (2) The Court shall receive the documents so produced: provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

11. In the same context, Order XVI Rule 1 is reproduced for guidance as under:--

1. Summons to attend to give evidence or produce document... (1) Not later than seven days after settlement of issues, the parties shall present in Court a 2{ certificate of readiness to produce evidence, along with a list of witnesses whom they propose to call either to give evidence or to produce documents.

12. The Court of appeal at appellate stage cannot record additional evidence within exception of Order XLI, Rule 27, C.P.C, which is also reproduced for guidance 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 (a) 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.

13. The plaintiffs have neither annexed any of the documents along with the plaint wish to produce nor mentioned these documents in the list of witnesses and right has been accrued to the other side as decree has been in favour of the petitioners and plaintiffs to two other suits, who have been arrayed as respondents in the instant petition. The grounds mentioned in Order XLI, Rule 27, C.P.C. on the basis of which additional evidence can be allowed are not attracted to the instant case. The learned appellate Court has reproduced the grounds mentioned an Order XLI, Rule 27, C.P.C., however has given no reasons as to how these grounds are attracted to the instant case with special reference to the conduct of the respondents, who have not bothered to move an application before the proper forum or annex these documents at the relevant juncture and have no liberty to move an application on their own whim and wish without showing any sufficient cause. The fact of non-production of documents within possession or power or otherwise, which should have been but have not been produced in accordance with law beyond the powers of Court to receive it at subsequent stage unless good cause has been shown and that too, to the satisfaction of the Court and it is always subject to reasons, which is lacking in the impugned order as to how the Court was satisfied and for what reasons the belated receipt of documents has been allowed. It has been held by their Lordships in Muhammad Anwar and others v. Mst. Ilyas Begum's case reported as PLD 2013 Supreme Court 255 "That where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as technicality".

14. It is by now settled principle of law that every "lis" before the Court or even before the quasi-judicial authority must be disposed of with reasoned judgment, so, that the person losing the case may go with the impression that the findings against him was reached according to law and were not the result of whim and caprice. In Mohabar Parshad's case reported as AIR 1970 Supreme Court, 1302, the Indian Supreme Court has expressed a similar view with regard to the judgment of an authority exercising the powers of quasi-judicial authority. Recording of reasons in support of decision is must after ascertaining the facts and relevant law attracted to the matter in order to record a just decision. The learned appellate Court has given a few lines in concluding Para of its judgment after reproducing the conditions laid down under Order XLI, Rule 27 of C.P.C. and, as such, failed to perform the duties entrusted to the Court of appeal by the legislature strictly in accordance with law with special reference to the conduct of the applicants/respondents, who have not seriously taken the matter at any stage of the proceedings before the Trial Court. The Courts are not to fill any lacunas in the cases of parties and substantial justice has to be done in light of the provisions of law and procedure to be adopted, as parties have to comply with the provisions of law and no lenient view be taken on the ground that technicalities should be avoided. No doubt technicalities should not come in the way of dispensation of substantial justice, however, Courts have no power to allow delinquent parties, with lenient view to receive documents at belated stage and that too when a right has been accrued as decree passed in favour of other party. It is mandatory for the parties to produce the documents at first stage within possession or power or otherwise and mentioned the same in the list of reliance and thereafter Order XVI Rule 1 of C.P.C. requires the parties to produce the list of witnesses to be produced, to call either to give evidence or produced the documents within specified time after settlement of issues. Whereas sufficient material available on record to pronounce the judgment and if the plaintiffs who were under the initial burden to prove the case have failed to produce the evidence and decree has been passed against them, could not be given another opportunity of trial for production of documents in order to improve the case in the garb of provisions of Order XLI, Rule 27 C.P.C. The provisions of Order XLI, Rule 27 of C.P.C. are not meant for filling gaps and lacunas rather aimed for doing ultimate justice. The conduct of parties which play a vital role shall be visited, with caution. It was held by his Lordship in Salat v. Wadi Hussain and others reported as 2012 YLR 2344 as under:-- "Production of additional evidence in Appellate Court

Petitioners had already appended a copy of record of rights, with the original suit by wanted to place on record a copy of record of rights regarding the same years, but with new entries thus wanted to fill up the lacunas in their evidence through a fresh document-Validity

Parties could not be allowed to patch up the weaker parts of their case or to raise new points".

15. In case of Bashir Ahmad, 1985 SCMR 1232, the apex Court observed that Order XLI, Rule 27 of C.P.C. does not envisage filling up of lacunas left by a party in evidence before the Trial Court. For convenience, the same is reproduced as under: Order-XLI Rule 27

Production of additional evidence in appellate Court

petitioner having failed to produce evidence before trial Court--Case of petitioner seriously weakened

petitioner applying for permission to produce additional evidence before appellate Court

Permission refused- --Plea that additional evidence would have helped to clarify position and enabled complete justice to be done, repelled

Order XLI, Rule 27, C.P.C. does not envisage filling up of lacunas left by a party in evidence before trial Court-Additional evidence to be allowed if Court itself so requires on basis of appreciation of evidence already on record

Court cannot allow additional evidence to patch up weaker part/to fill up omission/to raise new point.

16. The reasons given in the application are not sufficient to attract the provisions of Order XLI, Rule 27 of C.P.C, omission to mention the documents in the plaint or list of reliance and list of witnesses and thereafter no serious efforts made for seeking the relief of additional evidence before the Trial Court merely on the ground that the Court was in hurry for disposal of suit that too when the order sheets negate the version of plaintiffs/ respondents, leads to the conclusion that the plaintiffs were negligent in compliance with the provisions of law referred above and Court of appeal was not justified to allow the application for recording of additional evidence and failed to decide the matter pending before it with conscious and application of independent mind. For the aforementioned reasons, I allow the instant petition, set aside the impugned order and direct the Court of appeal to decide the main appeal wihin a period of one month positively on merits strictly in accordance with law. The parties are directed to appear before the learned appellate court accordingly. AG/427/P Revision allowed.