1988 PLP 1782 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the plaintiff to examine whether the High Court was justified in law in allowing the defendant to lead additional evidence in the High Court where a Revision Petition under section 115 C.P.C. was pending and sufficient opportunity had already been afforded to the defendant produce whatever evidence he wanted to lead on .the issues framed in the case. The appellant was on the staff of a nationalized educational institution and his qualifications of being Master of Arts in English, having passed that examination in 1970 in the Second Division, was the subject‑matter of inquiry before the respondent No.2 and for that purpose an Inquiry Officer (respondent No.3) had been appointed. The appellant filed a Civil Suit impleading the University of the Punjab, Lahore as defendant in the case and claimed that "the opinion, information or decision of the University defendant No.1 conveyed to the Enquiry Officer defendant No.3 is illegal, improper and ineffective" and he sought a declaration from the civil Court "that he has passed. his M.A.Exam. in English from the University of the Punjab in the year 1970" and prayed for consequential injunction. The suit was contested. A number of issues were framed, the one on merits being Issue No.5 "whether the plaintiff cleared his M.A.English Examination, in 1970? OPP" Only one witness was produced by the appellant and he was the Administrative Officer of the University of the Punjab. Various opportunities were given to the defendant/ respondent to produce evidence but on its failure to produce any evidence, its evidence was closed and the findings were recorded in favour of the appellant and his suit‑was decreed. In First Appeal, the respondent took up the plea that the learned civil Judge did not allow him an adequate opportunity to lead evidence which should be allowed at the appellate stage. Not only such opportunity was not given, .the appeal was dismissed observing as follows‑. "In other words the appellant did not bother‑to rebut whatever little evidence the respondent‑plaintiff produced. Learned Civil Judge, therefore, had no option but to decide the case on the basis of material produced before him. It is necessary to mention here, that even the learned Civil Judge observed that the appellant‑ defendant before him failed to rebut the evidence.'" A revision was then filed before the High Court which is still `pending. An application under Order XLI, Rule 27 read with section 151 C.P.C. for permission to adduce additional evidence before the High Court was moved. It was contested. The learned Judge held that "additional evidence can be' allowed by the High Court even at the revisional stage in the interest of justice" and therefore, permitted "the petitioner to produce additional evidence". Mr. A.R.Sheikh, Senior Advocate, the learned counsel for the plaintiff /appellant has contended that the jurisdiction exercised under section 115 C.P.C. is limited and cannot be availed of for the purpose of admitting additional evidence particularly so where it amounts to allowing an opportunity to a litigant to make up for its failure and default. As no question of law or jurisdiction was involved in the Revision it was completely outside the powers of the High Court to fallow the additional evidence particularly so when a number of opportunities had been afforded to the party for leading evidence in rebuttal and it had failed to avail of those opportunities. The learned counsel has referred to the decisions in glad jab and others v. Awal Badshah 1984 S C M R 440, Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53, and Haji Muhammad Zaman v . Zafar Ali Khan and others P L D 1986 S C

88. Ch. Muhammad Farooq, Senior Advocate, the learned counsel for the respondent has on the other hand supported the order passed by the learned Judge in the High Court on the ground that it was within the powers of the High Court to call for additional evidence where the interest of justice so required and manifestly miscarriage of justice is to result if the tainted evidence is allowed to remain on the record. An examination of the case reveals that it has certain peculiar features. The features of the plaint to be noted at this stage but not to be commented upon on merits are the following averments: ‑ (i) Someone "hatched a conspiracy against the plaintiff and joined Mr‑Muhammad Nawaz Professor Government College, Lahore with him against the plaintiff, both of whom then in a combined bid prevailed somehow upon Ch. Muhammad Yaqub the then Controller of Examinations, Punjab University, Lahore and gut the plaintiff involved falsely in a criminal case. The plaintiff was arrested and then released on bail but the Controller continued to dub the plaintiff as a member of the gang who manufactured bogus degrees. The issue that the plaintiff was holder of a bogus M.A. English degree was also ignited so that the police were actively seized of this matter in their investigation in the case." (ii) "At that time the plaintiff could not produce his M.A.English degree, which unfortunately he had mislaid and lost in February, 1974. The plaintiff however, produced convincing evidence before the Director of Education to show that his M.A. English degree had in fact been lost." (iii) "During the course of Enquiry proceedings, the worthy Enquiry Officer defendant No.3 called upon the University of the Punjab, defendant No‑1 to inform him regarding the correctness or otherwise of the said allegation. The Controller of Examinations wrote to him that the name of Mr.Ahmad Ashraf does not exist in the list of M.A. (English) held in June, 1970 in which he appeared under Roll No.2408. This means that he did not pass this examination." (iv) "That the opinion, information or decision of the University defendant No.1 conveyed to the Enquiry Officer defendant No.3 is illegal, improper and ineffective on the following among other Grounds." In contesting the suit, the defendant No.1, University of the Punjab took the position as hereunder: (i) "According to the record of the answering‑defendant'' the plaintiff never passed any M.A. (English) Examination. His name and roll number was neither mentioned in the category of successful candidates nor in the list of exempted and later‑on cases." (ii) "The degree produced by the plaintiff for verification was procured by him in collusion with some members of the clerical staff of the University office, which is not genuine. The plaintiff wants to legalize a fraud played by him by getting a declaration from this Hon'ble Court through the present suit." The respondents Nos.2 and 3 in their joint written statement took the position as hereunder:‑ "The plaintiff has committed fraud with the defendants and no one can derive benefit out of his own fraud. In case the Plaintiff is right in his contention, why he feels shy in showing his original documents /degrees to the defendants." This state of pleadings shows that both by the plaintiff as well as by the defendants, the allegation was of forgery, fraud and fabrication of record. The second feature of the case which concerns the jurisdiction is that primary evidence was not led at the trial but secondary evidence was led without making a note or passing appropriate order determining whether the conditions required under section 65 read with section 91 of the Evidence Act were at all satisfied in the case or not. The third feature of the case was that while an inquiry was still being held in the department and had not concluded a substantive adjudication was sought from the civil Court of the very matter which was being examined and sought to be dealt by an inquiry. In this background of facts the High Court could justifiably feel the jurisdictional difficulty in adjudicating upon the matter and resort calling for and allowing additional evidence to be produced by the defendant who was custodian of the primary 'evidence which could be relevant in the context, the original Degree being not available. It is true that ordinarily at the stage of civil revision there is no question of leading additional evidence but there may be exceptional cases like the one before us where the interest of the justice and the requirement of the Court in adjudicating on the matter that such additional evidence should be recorded. We have recently in the case of Haji Muhammad Zaman v. Zafar Ali Khan and others P L D 1986 S C 88 observed as hereunder:‑ "Learned counsel for the appellant has while agreeing that some evidence might be admitted at the revisional stage in order to determine the jurisdictional facts, the revision not being in continuation of the suit like an appeal, additional evidence could not be recorded on the merits of the case so as to set aside the appellate and/or the original judgment. He, however, could not exclude exceptional cases, depending upon the facts and circumstances of each case however, could not be excluded where, in order to see whether a lower Court had acted with material irregularity by virtue of which the case could fall under sub‑clause (c) of section 115(1), C.P.C., a clarificatory statement might be recorded by the High Court or evidence material might be admitted in any other form. Learned counsel for the respondents, however, contended that additional evidence could be recorded by virtue of Order XVIII, Rule 17 and if it is treated that the said provision is relatable to a suit and/or at the most an appeal, a revisional Court could record additional evidence under section 151, C.P.C. as a part of its inherent jurisdiction."' In the circumstances of the case we consider that the order allowing additional evidence to be recorded notwithstanding the failure of the respondent to produce it at the appropriate stage is not open to exception at this stage. However, it would be appropriate that the Appellate Court itself should determine the relevancy of such additional evidence and its legal effect on the case so as to allow an opportunity of challenging that decision and the reception of such specified additional evidence before the High Court. In the circumstances while allowing this appeal we would maintain the order permitting the leading of the additional evidence subject, to the conditions pointed out by the High Court and set aside the judgment of the Appellate Court on acceptance of the revision, consequent to the acceptance of the requires for additional evidence and remand the proceedings to the Firs Appellate Authority, the District Judge, for deciding the case afresh after recording evidence. The revision pending in the High Court shall stand disposed of. The judgment of the First Appellate Court shall stand set aside, The First Appellate Court shall record additional evidence as is relevant and necessary, allow an opportunity to the appellant to rebut it and pronounce judgment afresh in accordance with law. No order as to costs. M.I./A‑281/S Order accordingly.