1990 PLP 1446 (CLC)

‑‑‑‑O.XLI, R.27 & S.115‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Additional evidence‑‑‑Suit for specific performance of agreement to sell dismissed by Trial Court‑‑‑Appellate Court having allowed plaintiff to produce additional evidence remanded case to Trial Court‑‑‑Revision against remand‑‑‑Plaintiff had neither produced original agreement to sell in evidence, nor the witnesses who were allegedly present at the time of execution of alleged agreement‑‑‑Nothing was said about the non‑production of original agreement to sell in grounds of appeal‑‑‑In application for production of additional evidence, no good ground was shown for its non‑production during trial‑‑‑Mere fact that original agreement could not be produced due to negligence of counsel conducting the case before Trial Court was hardly sufficient to allow plaintiff to produce additional evidence‑‑‑No case could be remanded merely to allow an opportunity to a negligent party to fill in gaps left in its case‑‑‑Order in question, was otherwise illegal being violative of O.XLI, R.27, Civil Procedure Code, 1908‑‑‑Even if conditions requisite for permission to produce additional evidence were‑ satisfied, Appellate Court should have itself recorded additional evidence or directed Trial Court to take such evidence and sent the same to Appellate Court‑‑‑No legal justification existed to set aside judgment of Trial Court merely for having some additional evidence recorded by Court below‑‑‑No legal justification to allow production of additional evidence thus existed‑‑‑High Court in revision, set aside order of remand‑‑‑Appellate Court was directed to decide the case on merits in the light of material on record. Ch. Abdul Ghani for Petitioners. Malik Sharif Ahmad for Respondent. Date of hearing: 3rd October, 1989. This revision petition arises out of a suit for specific performance of the agreement dated 29‑12‑1969 filed by the respondent in the Court of the Senior Civil Judge, Vehari, on 14‑11‑1981. The suit was dismissed by the trial Court vide the judgment and decree dated 15‑3‑1986. The respondent's appeal was allowed by the learned Additional District Judge, Vehari, vide his judgment dated 16‑10 1986 and the case was remanded to the trial Court for a fresh decision. The Appellate Court had, in fact, accepted an application for production of additional evidence and remanded the case for recording the additional evidence and fresh decision of the case.

2. I have heard the learned counsel for the parties and gone through the relevant record.

3. The respondent had never produced the original agreement to sell dated 29‑12‑1969 in the trial Court. Only a photo copy was produced. In the written statement filed by the present petitioners, the execution of the alleged agreement to sell was denied. It was, therefore, imperative for the respondent to have produced the original agreement in evidence and proved its execution in accordance with the law. The trial Court had specifically mentioned in the judgment that the plaintiff/respondent had neither produced the original agreement in evidence nor the witnesses, who were allegedly present at the time of the execution of the alleged agreement. In the grounds of appeal, nothing was said about the non‑production of the original agreement to sell. In the application for production of additional evidence, no good ground was shown for its non- production during the trial. The mere fact that the agreement could not be produced due to the negligence of the counsel conducting the case before the trial Court was hardly sufficient to allow the respondent to produce additional evidence. If a party or its counsel have acted negligently, then they must suffer the consequences of the same. A case cannot be remanded merely to allow an opportunity to a negligent party to fill in the gaps left in its case. The impugned order is otherwise illegal, being violative of Order XLI, rule 27 of the C.P.C. Even if the conditions requisite for permission to produce additional evidence were satisfied, the Appellate Court should have itself recorded the additional evidence or directed the trial Court or any other Court subordinate to it to take such evidence and send the same to the Appellate Court as provided under Order XLI, rule 28 of the C.P.C. There was no legal justification to set aside the judgment of the trial Court merely for having some additional evidence recorded by the Court below. In the present case, there was no legal justification to allow production of additional evidence. 1, therefore, accept the revision petition and set aside the impugned remand order dated 16‑10‑1986 passed by the Additional District Judge. The learned Additional District Judge is directed to decide the appeal filed by the respondent on merits in the light of the material on the record. There shall be no order as to costs. AA/F‑193/L Revision accepted.