This is an appeal against the decision dated 29-9-1977 of Punjab Labour Court No. 7, Gujranwala.
2. Sheikh Mazhar Hussain, respondent was appointed as Assistant Accountant against a permanent post on 27-1-1968. He joined service on 6.2-1968. His services were terminated vide letter dated 22-5-1.975 with effect from 15-2-1975. According to his own admission, he learnt about the termination of his services in June 1975.
3. The respondent filed a petition under section 25-A of Industrial Rela--tions Ordinance, 1969 on 4- 8-1976 for re-instatement with back benefits before the Labour Court, which accepted the same by re-instating him with back benefits.
4. Aggrieved by the above decision, the appellant has preferred this appeal. During the pendency of the appeal, the appellant filed an application under Order XLI, rule 27 for permission to produce additional evidence in appeal in order to show that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable as there were less than 20 persons employed in the organization and instead West Pakistan Shops and Establishment Ordinance, 1969, was applicable. This point was neither taken in the written statement nor in the memorandum of appeal filed by the appellant. The said point was taken for the first time when the appeal was argued.
5. Now the point for determination is as to whether the additional evi--dence in appeal can be allowed or not. At this stage it will be convenient to reproduce order XLI, rule 17, C. P. C., which reads as under :----
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. Hut if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its admission.
6. It is well established that the admission of evidence should not be ordered to supplement the evidence of the party or make up the weakness of its case and fill up the omissions. The true test is whether the Appellate Court is able to pronounce judgment of the materials before it without taking into consideration the additional evidence sought to be adduced. If the Court can deliver judgment, the additional evidence should not be admitted. The legitimate occasion for the exercise of the discretion under this rule is net whenever before the appeal is heard a party applies to adduce evidence, but when on the examination of the evidence as it stands some inherent lacuna or defect becomes apparent to the Court. Thus where the purpose for which the evidence was required was to find out whether the person who had presented the plaint had been authorised to do so and as to whether the suit bad been competently instituted the requirement was held to be genuine.
7. The Appellate Court should not, ordinarily, allow new evidence to be adduced in order to enable a party to raise a new point in appeal nor should it allow this provision to be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case.
8. Where the case could be decided on the evidence on the record, the rule should not be made use of for admitting additional evidence. The mere-discovery of fresh evidence subsequent to the decision of the lower Court is no ground for its admission in appeal.
9. In the instant case as already mentioned above the fact, that there were less than 20 persons employed in the organization, was known to the appellant. This is not a case where the Labour Court had refused to admit the above evidence, which ought to have been admitted. Therefore, sub---clause (a) of rule 27 (1) is not applicable.
10. The learned counsel for the appellant, however, cited a judgment of the Tribunal in the case, Tube-well Employees' Union Scarp No. IV v. Secretary to Government of Punjab, Irrigation Department, Lahore (1976 P LC 476) wherein additional evidence was allowed as it went to the root of the matter. In that case the locus standi of the appellant Union was challenged, because it was not a Collective Bargaining Agent and as such was not competent to raise the industrial dispute. In other words, the additional evidence was allowed in order to find out whether the appellant Union was competent to raise the industrial dispute; and that the petition had been competently instituted. But in the instant case the position is quite different, because the competency of the respondent to file the petition was not challenged and, therefore, this ruling is not applicable.
11. The learned counsel for the appellant also relied on the judgment of the Supreme Court in the case, The Secretary to the Government of West Pakistan, Communication and Works Department and another v. Gulzar Muhammad (PLD 1969 SC 60), wherein it was observed :- "Normally where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. The appellant resorting to the last course must disclose as to why he could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. In an appeal it is now welt settled that additional evidence should not be admitted in order merely to enable one of the parties to litigation to fill in gaps in the evidence."
12. The above ruling, in fact, goes against the appellant, because in the instant case the appellant is trying to fill in gaps in his evidence, which should not be allowed. In the case, Syed Jahanzeb Shah and 2 others v. Haji Abdur Rehman and 4 others (PLD 1973 Pesh. 19) it was held that the Appellate Court has jurisdiction to take additional evidence to remove some inherent lacuna or defect hindering administration of justice. But this discretion must be exercised with care so that indifferent litigant is not afforded opportunity to fill up lacunas in his case. This case again goes against the appellant, because in the present case it is not that there is some inherent lacuna or defect which is hindering the due administration of justice, but in fact the appellant wants to fill up lacunas is his case in spite of the fact that the additional evidence, which he is trying to adduce, was in his knowledge when the case came up before the Labour Court:
13. The learned counsel for the appellant, further relied in the case, Sant Bux Singh v. Ali Raza Khan and others (AIR 1946 Oudh 129), wherein it was observed :- "No doubt an Appellate Court has under Order XLI, rule 27 the power to admit additional evidence in appeal but this is not the general rule. The general rule is that parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in` the Appellate Court. It follows that additional evidence shall be admitted only in exceptional cases where refusal to do so might result in injustice. No party to an appeal can as of right ask for admission of additional evidence. It is a matter to be determined by the Appellate Court whether additional evidence should or should not in the circumstances of any particular case be allowed to be produced. One of the factors which the Court should in such cases take into consideration is the bearing which the evidence sought to be adduced is likely to have on the matters in controversy in the appeal. If the evidence sought to be adduced has only a slight or remote bearing on the questions in con-- troversy, it should not be admitted. It is only in cases where it turns the scale in favour of one party, or is likely to materially affect the decision of any point arising in the appeal, that such evidence should be permitted to be adduced. The fact that the existence of a document was not known to the party to the appeal while the suit was in the trial Court will not by itself justify the Appellate Court in allowing it to be produced in appeal."
14. In the above case also the fact that the existence of certain document was not known to the party while it was in the trial Court, the said party was not allowed to produce it in the Appellate Court as additional evidence and the application for producing it was rejected. In the instant cage the facts are quite different. It was within the knowledge of the appellant that there were less than 20 employees working in his organization and even then he neither took this objection in the written statement nor in the memorandum of appeal. It was only prior to the hearing of the arguments in the appeal, an application for additional evidence was submitted. The appellant has not been vigilant and at this belated stage he cannot be allowed to fill up lacunas in his case.