2005 PLP 112 (MLD)

(b) Civil Procedure Code (V of 1908)

O.XLI, R.27

Additional evidence, production of

Party had no right to produce additional evidence in Appellate Court, except when it was prayed for in Trial Court and Trial Court had refused to grant such right without any rhyme or reason. M. Shamshir Iqbal Chughtai for Petitioners. Rao Muhammad Sadiq for Respondents. On 10-9-1991 Muhammad Akhtar Zaman and others successor -in-interest of Farman Ali Khan had filed a suit in the Court of learned Civil Judge. Khanpur with regard to the rendition of accounts (detail of which can be found in the heading of the plaint). According to the plaintiffs, their predecessor-in-interest had borrowed a loan for the construction of House No.521 Model Town, Khanpur from respondent No. 1, House Building Finance Corporation in the year 1991 (sic). The amount of Rs.1,00,000 (rupees one hundred thousand only) taken as loan was to be paid in the form of 180 instalments. According to the plaintiffs, their predecessor-in-interest namely Farman Ali Khan having expired on 5-11-1980, the plaintiffs completed and satisfied the loan and they had paid Rs.1,30,569 uptil 6-8-1990, so as per plaintiffs they having paid the full amount of loan, nothing was to be claimed from them by the defendants. It was, therefore, they filed the suit for rendition of accounts and for award of decree in favour of the plaintiffs with regard to the payment of excess amount which according to them was paid by them to defendants. The suit was resisted by filing a joint single written statement from all the defendants Nos. 1 to

3. According to the assertion of the defendants, the House Building Finance Corporation was entitled to charges and the rents with addition of profit on the instalment after every three years upon the amount of instalment, which was being paid by the loanee. They also claimed maintenance charges and other taxes. The issues were framed. From plaintiffs' side Muhammad Aslam, one of the plaintiffs, appeared as P.W.3. In the documentary evidence, plaintiffs produced Exh.P.1 and Exh.P.2. While no document was produced by the defendants. The learned trial Judge decreed the suit in favour of the plaintiffs holding that they were not liable to make more payment to the defendants and the appeal carried against the aforesaid judgment and decree met with failure from the learned Additional District Judge Rahimyar Khan on 4-11-2000. Hence, this civil revision.

2. The learned counsel appearing on behalf of the petitioner submits that an application under Order XLI, rule 27 of the C.P.C. was moved before the learned Appellate Court, but was wrongly dismissed by the aforesaid Court; that the findings are the result of misreading and non-reading of the evidence; that a local commission should have been appointed for the rendition of accounts but the learned Courts have failed to advert to this point and; that the plaintiffs had themselves admitted in their plaint that a few instalments had remained to be paid.

3. The learned counsel appearing on behalf of the respondents had replied that both the learned Courts below had concurrently rendered the findings of facts, which cannot be disturbed in this jurisdiction without pointation of misreading or non-reading of the evidence, for which defendants-petitioners have failed to show any such deviation; that the plaintiff had challenged the demand of the defendants, so in such case, the claim made by the defendants, was to be proved by the defendants in the Court, the failure was rightly observed to affect adversely the defendant's case. It has further been argued by the learned counsel for the respondents that the decision of the learned Appellate Court in not permitting the appellants to produce the additional evidence was legally justified because no party had got the right to make up deficiency in its evidence especially at the appellate stage; that no question of cross- examination was put to the statement of respondent No. 1, so legally that statement should have been considered to have gone unrebutted and; on behalf of the petitioners, no authorized officer had appeared to corroborate their version as contained in the written statement.

4. I have considered the arguments of both the learned counsel and have perused the record with their assistance.

5. The demand made by the petitioner was denied by the plaintiffs- respondents; therefore, it was the duty of the petitioners/defendants who were custodian of the record of the loan amount to produce all the necessary evidence in the case. There is no sufficient rebuttal to the case of the plaintiffs. Even they have failed to produce the statement of the payment of the instalments in the evidence. So the case of the defendants has become the case of no evidence, therefore, the concurrent findings of facts recorded by both the learned Courts below are held to be unexceptional. As regards the application to produce additional evidence at the stage of Appellate Court, suffice it to say that it is not the right of the party to produce it in the Appellate Court, except wren it was prayed in the trial Court and the learned trial Court had denied to grant such right without any rhyme or reason. There is no such prayer found having been made before the learned trial Court, therefore, the rejection of the prayer of permission to bring the additional evidence on record cannot be accepted at this stage. This civil revision does not point out any jurisdictional defect in the judgments of the learned Courts below and is dismissed without any order as to costs. H.B.T./H-40/L Revision dismissed.