1952 (PLP)

Date of hearing : 3rd April, 1979. This is a revision petition calling in question order by a learned lower appellate Court permitting the respondents under Order XLI, rule 27, C. P. C. to adduce additional evidence in the form of document, namely. death entry. The learned District Judge when concluding the detailed discussion on the controversy raised before him, observed as follows :‑ "The document if admitted will no doubt be a very compendious piece of evidence cutting short all oral evidence and fixing unmis takably a single date as of the death of the lady. It will remove all doubts leaving it not to the Court to make surmises as to whether she died in the year 1945, 1946, 1917 or 1948. All probabilities or in other words conjectures will be done away with by one stroke of pen. It will mean that it has its own importance. All rules of procedure have been designed to help to come to truth with a view to administer justice rather than hinder it on technical points." Learned District Judge also in this behalf relied on Messrs Muhammad Siddlq Muhammad Umar and another ,. The Australasia Bank Ltd. (P L D 1966 S C 684).

2. Learned counsel for the petitioners has vehemently contended that the permission should ‑not have been allowed because : (i) the application was highly belated ; (ft) that the learned trial Court, near the close of the trial, had permitted additional evidence and both the parties had availed of this opportunity‑The respondents had not then produced the disputed death entry ; (iii) that the evidence on record was enough for decision ; (iv) that the document sought to be produced is tainted with fraud and forgery ; and (v) that it was an independent admission between the parties (regardless of the earlier compromise in suit) as to what was the time of the death of Mst. Malukan regarding which dispute had arisen.

3. As explained in the impugned judgment the entire controversy about the death entry arose out of the conduct of the petitioners them selves. Nearly within a month before the decision of the suit they came out with so‑called documentary evidence in the form of a certificate to the effect that there was no death entry qua Mst. Malukan. 1t was obtained by them on 11th May, 1977. The date of its production is not known but it must be on or b.‑fore 25th August, 1977, when the suit was finally decided. If the petitioners thought, as the learned counsel now contends, that oral evidence was sufficient to render a decision in this case then it remains unexplained as to why did the petitioners feel necessity of producing a documentary piece of evidence. This would support the supposition of the learned District Judge in the impugned order that documentary evidence in the circumstances of this case was necessary to pronounce the judgment. If they could produce a piece of evidence after the close of the evidence of both the parties and nearly 13 years after the institution of the suit, it would not be fair for the petitioners to deny a similar opportunity to the other party. The expla nation accepted by the learned District Judge offered from the respon dent's side that this certificate had misled them and further that the gap of long period regarding the year of the death entry now sought to be produced and the year qua certificate, is such that it would have been indeed very difficult and a time consuming exercise to search the entry‑the gap was from 1941‑1945 to 1947. The finding and reason ing of the learned District Judge accepting the explanation for delay is not such which should be set aside or controverted in revisional juris diction of this Court. It does not suffer from any infirmity, legal or otherwise. Thus the arguments of the learned counsel qua late stage at which the additional evidence has been permitted including those relating to the opportunity before the learned trial Court have no sub stance. As discussed above the other evidence on record being purely oral, led from such parties regarding whom it might be difficult to place implicit reliance on their statements, the learned District Judge rightly felt that the production of documentary evidence from both the sides‑The petitioners had produced it near the close of the trial and the respondents wanted to produce it during the hearing of the appeal, would clear many doubts and would avoid the Courts making unneces sary surmises and conjectures and thus would contribute towards the understanding of the correct position in the case‑pronouncement of judgment.

4. All the conditions for production of additional evidence were satisfied in this case. No justification is made out for interference with the well‑reasoned impugned order and this petition merits to be dismissed.

5. The last legal arguments of the learned counsel with regard to the alleged compromise and its effects as also regarding statements then made and attitude adopted by the parties during the so‑called compromise, the learned District Judge has observed that the matter had ended by the decision on revision filed by the respondents (deci ded by his learned predecessor) on the question of compromise. The approach in this behalf is unexceptionable.

6. Learned counsel also expressed an apprehension that the learn ed District Judge has in the impugned order decided the question of value to be attached to the death entry sought to be produced by the respondents. The apprehension is unfounded. Powers have been B exercised under Order XLI, rule 27, C.P.C. The additional evidence has been admitted but the learned District Judge has taken due care in sensing case to the learned trial Court and directing the said Court to admit the evidence under Order XLI, rule 29 (read with rule 2 8). The learned judge has justifiably directed the learned trial Court, as follows :‑‑ "He will obviously allow the respondents (the petitioners herein) to produce evidence in rebuttal thereof and then submit the pro ceedings to this Court for final decision on the appeal." All questions relating to the genuineness and/or value of the additional evidence in the form of the document have been left open.

7. With the above clarification I find no justification to interfere with the impugned order. This petition accordingly is dismissed in limine. M. Y. H. Petition dismissed.