2002 PLP 879 (CLC)

Abdul Sattar for Petitioner. Mazullah Khan Barkandi for Respondent. Date of hearing: 28th September, 2001. The petitioner, Amanullah, has demonstrated his grievances against the judgment and order, dated 7‑4‑2001 passed by District Judge/Zilla Qazi, Bunir whereby on accepting an application of the respondent for additional evidence the appeal of the respondent was also accepted and the judgment and decree, dated 22‑6‑2000 passed by Aala Illaqa Qazi in favour of the petitioner was set aside. The case was remanded to the Senior Civil Judge for recording the statement of Patwari and thereafter: to .give a fresh decision in the case.

2. The synoptical sketch of pacts relevant for the disposal of this civil revision petition is that the petitioner brought a declaratory suit against the respondent which was duly contested by the respondent and a complete trial resulted into a judgment and decree in favour of the petitioner which was challenged by way of an appeal by the respondent before the Zilla Qazi, Bunir. An application for the additional evidence was also filed by the respondent and it was duly answered by the petitioner, through a replication. The learned Appellate Court heard the arguments on the said application and consequently the application as well as appeal were accepted, the judgment and decree of the trial Court was set aside and the matter was remitted to the trial Court with the direction to record the additional evidence and decide the case afresh.

3. The learned counsel appearing on behalf of the petitioner has vehemently argued that 'first of all there was no valid ground for accepting the application of respondent for adducing additional evidence and secondly that even if the learned Appellate Court, for his own reasons, felt itself persuaded to allow the respondent to produce his additional evidence then there was no justification for the setting aside of the entire judgment and decree of the learned trial Court as setting aside of the judgment and decree in favour of the petitioner was opposed to the letters and spirits embodied in rule 27 of Order XLI, C.P.C. In the given situation the learned Appellate Court should have either recorded the additional evidence itself or at the most the case could be sent to the trial Court for recording the additional evidence and remit the memorandum thereof to it.

4. On the other side the learned counsel for the respondent has defended the impugned order by submitting that there is no jurisdictional defect or material irregularity in the impugned' judgment within the parameter of section

115. C.P.C. and. that there .is no harm if after recording the permitted additional evidence a fresh judgment is recorded by the trial Court.

5. I have no disposition to subscribe to the submissions of the learned counsel for the respondent. The relevant provisions of law governing the instant proposition is rule 27 of Order XLI, C.P.C. which eloquently specifies two situations in which the Appellate Court can allow the additional evidence, firstly where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted and, secondly where the Appellate Court requires any document to .he produced or any witness to be examined to enable it to pronounce judgment, or for arty other substantial cause. This Rule is an exception to the principle that Appellate Court cannot record fresh evidence and the additional evidence cart be recorded under this Mule provided the situation attracts its applicability. The power to allow additional evidence is discretionary in nature but such discretion is circumscribed by the limitation specified in the Rule itself. Since the learned counsel for the petitioner did rot very seriously object to the permission qua the additional evidence and has focused his, entire emphasis on the setting aside the judgment and decree of the trial Court, therefore, I do not feel inclined to interfere with the impugned order to the extent of allowing the recording of additional evidence.

6. On the question of setting aside the judgment and decree of the learned trial Court, I may observe that the instant case would come under the purview of clause (b) of rule

27. Order XLI, C.P.C. which is in the following diction: ‑‑ "(b) the Appellate Court requires any document to be produced or any witness to he examined to enable it to pronounce judgment, or for arty other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. " In fact the judgment and decree of the learned trial Court was the outcome of examining and evaluating the evidence before it. Thus the finding of the learned trial Court, which undoubtedly is a legal forum vested with the powers to decide the lie, cannot be set aside unless on transvaluation of the evidence the Appellate Court is sure that the judgment placed before it for scrutiny was demonstrating clear violation of the settled principles governing the appreciation of evidence. ‑

7. Even a plain reading of clause (b) (ibid) would be sufficient to convey the object and spirit of law embodied in rule 27, Order XLI, C.P.C. The words "to enable it to pronounce judgment" are significant to dig out the object of law. It clearly shows that where the Appellate Court feels any difficulty in pronouncing the judgment in absence of the solicited additional evidence, such evidence can be permitted: The word it is further significant which makes reference to the Appellate Court in. whose wisdom the judgment can only be pronounced after recording the additional evidence. Thus in such a situation the evidence shall either be recorded by the Appellate Court itself of may send the case to the trial Court only for the purpose of recording the additional evidence arid remit the memorandum to the Appellate Court and the Appellate Court shall thereafter pronounced its own judgment. There a no scope for setting aside the judgment and decree of the trial Court. On this paint the judgment in case of Malik Rahim Bakhsh Awan v. Ejaz Mahmood and another PLD 1990 Lah. 37 is persuasive wherein a similar proposition, by making reference to AIR 1940 Mad. 511, was resolved in the following diction:‑‑ "Under Order 41, rule 27 of the Code of Civil Procedure, the Appellate Court is required to decide the application for permission to produce additional evidence itself and record reasons for doing so. If it allows the application, it may record the evidence itself or direct the trial Court to record the evidence and remit the memorandum thereof to the Appellate Court. However, under no law can an Appellate Court set aside the judgment and decree of the trial Court and remand the case only for having the additional evidence recorded. "

8. In view of the above legal and factual perspective I hold that the learned Appellate Court by setting aside the judgment and decree of the trial Court has exercised jurisdiction not vested in it by law. I, therefore, allow this civil revision petition, set aside the order of the learned Appellate Court to the extent of setting aside the judgment and decree of the learned trial Court and send the case back to the learned Appellate Court to record the permitted additional evidence itself and then to pronounce the judgment in accordance with law within one month after procuring the attendance of the parties. The office is directed to send the case file forthwith to the learned Appellate Court concerned. No order as to costs. Q. M. H. /M. A. K. /461 /P Order accordingly.