2000 PLP 1844 (YLR)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the order of the High Court, dated 4‑12-1997, whereby the revision petition filed by respondent No. l was accepted and the order of the District Judge, Mirpur, dated 28‑5‑1997 for admitting an agreement into evidence was set aside.

2. The brief facts of the case are that two cross suits were instituted in the Court of Sub‑Judge, Dadyal, by the rival parties. Both the suits were consolidated and the suit filed by Abdul Jabbar, respondent, was decreed while that of the appellant was dismissed by a consolidated judgment. Aggrieved by the judgment of the Sub‑Judge, an appeal was preferred by the appellant, herein, before the District Judge. During the pendency of the said appeal, the appellant filed an application for admitting the agreement dated 15‑3‑1951 as an additional evidence on behalf of the appellant. After hearing the parties, t!‑e learned District Judge allowed the said document. However, on revision to the High Court, the order of the District Judge was set at naught observing that under Order XLI, rule 27, C.P.C. the Appellate Court could allow additional evidence only if the Court is not able to pronounce the judgment and not otherwise. Consequently, the appellant has come up with an appeal to this Court.

3. It has been contended on behalf of the appellant that the High Court has riot properly appreciated the scope of rule 27 of order XLI, C.P.C because additional evidence can he adduced at the appellate stage for any substantial reason even without being satisfied that it was necessary for pronouncing the judgment. The learned counsel has argued that a photostat copy of the aforesaid agreement was filed in the trial Court and issue No. 17 with regard to the execution of the aforesaid document was also framed. Therefore, the appellant was not introducing the factum of the agreement for the first time in the Court of District Judge. The learned counsel has contended that it was through oversight that the original could not be brought on the record in the trial Court. The learned counsel for the appellant has also argued that the High Court has committed an error in holding that the additional evidence can be permitted to be adduced only if the Court is not capable to pronounce the judgment in absence of such additional evidence; the learned counsel has contended that the bare reading of Order XLI, rule 27, C.P.C., would reveal that the additional evidence can be allowed at appellate stage for any sufficient reason irrespective of the fact whether such Court was capable of pronouncing the judgment or not. The learned counsel has referred to rule 27(b) of Order XLI, C.P.C., in support of his contention. He has also submitted that there is no dispute with regard to the genuineness of the agreement in question because the photostat copy of the same was filed alongwith the pleadings and an issue regarding same had also been framed.

4. Ch. Muhammad Sabir, Advocate, the learned counsel for respondent No. 1, has controverted the arguments advanced on behalf of the appellant. He has argued that irrespective of the genuineness of the document, the same was rightly excluded being admitted in evidence because the document was not relevant and the same would not affect the merits of the case in any way.

5. After giving due consideration to the matter, we are of the opinion that as the photostat copy of the document in question was already on the record and an issue on the execution of the agreement has already been framed, the discretion exercised by the. District Judge in allowing the production of the agreement was not violative of law on the point. The High Court has ignored the important aspect of the matter that the Appellate Court can allow the additional evidence irrespective of the fact whether it was capable of pronouncing the judgment without such evidence or not. Hence the order of the High Court is set aside and that of the first Appellate Court is restored with the amendment that the said agreement would be brought on the record on payment of Rs. 1,500 as costs by the appellant, herein, to the respondent, the appeal is accepted in terms as indicated above. H.B.T./50/SC(AJ&K) Appeal accepted.