P L D 1965 (W (PLP)

Civil Procedure Code (V of 1908), O. XLI, r. 27‑Scope‑-Unsuccessful litigant cannot be permitted to fill up omissions and patch up weak part of his case by producing additional evidence at appellate stage‑Court allowing production of additional evidence bound to record reasons for same‑Reasons should be factual leading to inference of necessity for proper determination‑Failure to produce, at proper stage, marginal witnesses to divorce deed on ground that they were relations of opposite‑party‑Examination of such witnesses at appellate stage cannot be permitted. Sh. Muhammad Ikhlas v. Muhammad Ismail.P L D 1963 S C 466 ref. The respondent Mst. Khurshid Begum brought a suit for dissolution of her marriage against the petitioner, Abdul Hamid, which was met by a cross‑suit by the petitioner against the respondent for restitution of conjugal rights. The respondent's suit was dismissed by the trial Court, while that of the petitioner decreed. The respondent filed appeals to the learned District Judge which have ended in a remand order made by the learned Additional District Judge, Lahore, Sardar Muhammad Amir Akbar Khan, dated the 2nd of April 1964, which is being challenged in the present revision by Abdul Hamid.

2. In the appeals before the District Judge the respondent had applied under Order XLI, rule 27 of the Code of Civil Procedure for permission to produce additional evidence. The necessity for this was explained in paragraphs 2 to 5 of the application made in this behalf. It was stated that according to the decision of the first Court on issue No. 1, which related to the factum of divorce by the petitioner in favour of the respondent, the trial Court had come to an adverse decision against the respondent because the marginal witnesses of the alleged divorce deed (copy Exh. P. 1) had not been produced. The reason for omitting to produce them was stated to be that both the marginal witnesses, namely, Abdur Rashid and Shah Din, were the close relations of the petitioner, Abdur Rashid being the real brother and Shah Din being his uncle. Paragraphs 4 and 5 specifically prayed that it was essential for the just decision of the case that the witnesses should be summoned and examined and in case they did not admit their signatures on the register of Wasiqa Nawis, any handwriting expert may be allowed to be produced and that the omission to produce these witnesses was not intentional but due to the circumstances explained above. The list of the witnesses given in the application included besides the two marginal witnesses, Malik Ashiq Husain Sabri, Wasiqa NaHvis, whose statement had already been recorded. Accepting this application for production of the additional evidence, the case had been remanded by the learned Additional District Judge with a direction to the trial Court "to give a decision in the case afresh after allowing the parties to lead evidence on issue No. 1 which relates to the divorce". It was further observed that since the decision of the case manly rests on the proof of the divorce deed Exh. P. 1, the trial Court shall take additional evidence of the appellant with regard to the proof of the divorce deed Exh. P. 1., affording an opportunity to the respondent also to produce evidence in rebuttal. Referring to the provisions of Order XLI, rule 27, C. P. Code, the learned lower appellate Court has remarked that "additional evidence can be allowed at the appellate stage if the appellate Court requires the evidence to enable it to pronounce judgment or for any other substantial cause and that in the present case it was very material to decide whether actually the appellant has been divorced by the respondent as is evidenced by the document Exh. P.

1. He considered that this aspect of the case should be properly investigated so that a correct decision in the appeal may be given. I consider that in allowing the respondent to produce additional evidence in this case, the learned lower appellate Court has extended the scope of Order XLI, rule 27 of the Code of Civil Procedure beyond its proper limitations and has thus failed to exercise its discretion in the matter in a judicious manner. It is settled by a long line of judicial decisions by the highest Courts that the provisions of Order XLI, rule 27, are not intended to permit an unsuccessful litigant in the lower Court to A patch up the weak parts of his case and to fill up the omissions. The provisions certainly enable the appellate Court to allow additional evidence if it is required by it to pronounce judgment or for any other substantial cause, but the legitimate occasion for the exercise of this power is not whenever an unsuccessful party in the lower Court applies to adduce fresh evidence without regard to its default and the reasons thereof for not having produced it at the proper stage in the lower Court. An occasion for the correct exercise of this discretion arises only when on examining the evidence as it stands some inherent lacuna or defect becomes apparent which needs to be cleared for a proper decision of the case. In other words, it has to be the requirement of the Court itself for purposes of giving a correct decision upon proper appreciation of the evidence as it stands. Again, whenever the Court decides to invoke its discretion under Order XLI, rule 27, C. P. C., it is bound to give reasons for doing so. The following remarks of their Lordships of the Supreme Court in the case of Sh. Muhammad Ikhlas v. Muhammad Ismail (P L D 1963 S C 466), may be cited with advantage: "In the judgment, the learned Judge explained that he had received further evidence because he was `of opinion that it was necessary for the proper determination of the case'. This is not quite the language used in sub‑rule (1) of rule 27 of Order XLI of the Code, and it is necessary to note that rule 27 in sub‑rule (2) lays down that whenever additional evidence is allowed to be produced by an appellate Court, `the Court shall‑ record the reasons for its admission'. It is clear that more is required under this sub‑rule than mere repetition of the provisions in sub‑rule (1); the reasons would be expected to be factual leading to an inference of necessity for proper determination: . . . On a review of the entire case, we are unable to see that the learned Single Judge in the High Court need have felt any obstacle in the way of his pronouncing judgment in the case upon the record as it had come to him."

4. In the present case, the parties went on trial on the main issue of the divorce allegedly given by the petitioner to the respondent by the execution of the divorce deed (copy Exh. P. 1). The petitioner had specifically denied the alleged divorce. In the circumstances, the respondent had to prove the divorce deed and she should have done it by producing all the evidence that was available to her on the point. Her failure to produce the marginal witnesses for the reason that they were the relations of the petitioner is hardly a ground for allowing her to produce the same witnesses, specially when the reason for their non‑production at the first trial remains unaltered. The request for the production of the handwriting expert is similarly belated, giving rise to a genuine complaint on the part of the petitioner that what the respondent is now seeking is merely to cover her omissions of the first trial and to patch up the weak parts of her case. The petitioner had clearly denied the divorce and if the respondent was basing her claim on the divorce deed (copy Exh. P. 1), the original of which was admittedly not received by her, she should have concentrated on the production of all the secondary, evidence which could be produced in support of the alleged divorce, including the handwriting expert, to prove the signatures of the petitioner and of the marginal witnesses of the divorce deed on the register Wasiqa of the Wasiqa Nawis. I feel that to allow the petitioner at this stage to produce additional evidence will amount to providing her with a handle to improve her case against the petitioner and to cover the omissions which, through lack of vigilance and effort on her part, were left out at the first trial, and this is exactly what Order XLI, rule 27 of the Code of Civil Procedure is not intended to encourage. In this view of the matter, I accept this revision and set aside the order of the learned Additional District Judge. The case shall go back to the learned Additional District Judge for deciding the appeals on merits on the record as it stands. K. B. A. ????????? Petition accepted.