CHAUDHARY MUHAMMAD TAJ,J.---This appeal, by leave is directed against the judgment and decree passed by the High Court on 21-3-2003 whereby the appeal filed by the respondents was accepted by setting aside the concurrent findings recorded by the subordinate Courts and the case was remanded to the District Judge, Kotli with a direction to allow them to produce additional evidence.
2. The facts necessary for the disposal of this appeal are that two suits, one on behalf of the appellant the other by the respondents, were filed in the trial Court. Both the suits were consolidated. After conclusion of the proceedings, the suit filed by the appellant was decreed while that of the respondents was dismissed. An appeal filed with the District Judge on behalf of the respondents also failed. However, a further appeal before the High Court was accepted and the case was remanded to the District Judge to decide the same on merits after allowing them to adduce additional evidence. This appeal challenges the aforesaid judgment and decree.
3. Mr. Muhammad Yunus Tahir, the learned counsel for the appellant, contended that the High Court has failed to appreciate the facts on record and thus proceeded to disturb the findings of facts concurrently recorded by the subordinate Courts. It was also argued that the additional evidence was allowed without looking into the relevant law. The point was elaborated by the learned counsel while advancing argument that the point on which the additional evidence was allowed, there was an issue framed by the trial Court where both the parties were provided full opportunity of producing the evidence and thereafter the same was resolved keeping in view the evidence on record. The District Judge after appreciating the facts and law also concurred with the judgment passed by the trial Court. So there was no occasion to allow the additional evidence to patch up the lacuna or weaknesses of the case.
4. Raja Tariq Pervez Nawabi, the learned counsel for the respondents, while controverting the arguments addressed on behalf of the appellant, argued that the real controversy between the parties was measurement of the land in dispute and to resolve the same it was necessary that additional evidence may be allowed to produce in order to enable the Court to pronounce the judgment satisfactorily.
5. We have heard the learned counsel for the parties and also gone through the record. The dispute relates to the ownership of the suit land. The appellant has filed suit for possession while respondents claimed in their suit that settlement department had made a wrong measurement of the land on account of which Khasra No,2393 measuring 3 Kanals, and 13 Marlas has wrongly not been entered in their name which falls in their possession. The suits were consolidated. The issues were framed keeping in view the pleadings of the parties and after providing them opportunity of producing evidence and hearing them the trial Court decreed the suit filed on behalf of the appellant while dismissed that of the respondents. An appeal filed on behalf of the respondents before the District Judge also met the same fate. A further appeal filed on behalf of the respondents in the High Court was accepted and the case was remanded to the District Judge to decide the same on merits after allowing them additional evidence.
6. The learned counsel for the appellant laid a stress that there was no _occasion for allowing additional evidence when it was the basic controversy between the parties and an issue on the subject was also framed. The parties also availed the opportunity of producing evidence on the issue. A perusal of the record shows that this aspect of the case escaped the attention of the learned Judge in the. High Court. After consolidation of the suits the trial Court framed issues. Issue No,1 related to the aforesaid controversy. The parties led their respective evidence and the case was decided on the basis of evidence on record.
7. The law of production of additional evidence in Appellate Court is found in rule 27 order XLI of Civil Procedure Code which is reproduced:- "27. Production of additional evidence in Appellate Court.----(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.
But 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 reason for its admission."
8. A perusal of the aforesaid provisions of law reveals that the appeal is a re-hearing as such Appellate Court does not ordinarily record fresh evidence. However, the Appellate Court is empowered under this rule which is an exception to the principle provided the provisions of rule are attracted. In accordance with rule 27 referred to above, the additional evidence can be allowed only where: (i) the trial Court has improperly refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or (iii) the Appellate Court requires such evidence for any other substantial cause. The additional evidence cannot be allowed in order to allow the parties to patch up the weaker parts of its case or fill up omissions or to enable it to raise new point. The party to the appeal may move the Court for additional evidence but it can only be allowed if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on record. This clause is attracted if some inherent lacuna or defects become apparent. The test is whether the Appellate Courts can pronounce judgment satisfactorily without taking into consideration the evidence sought to be produced. We would seek guidance from different jurisdictions. The learned Judges in a case reported as Parsotim Thakur and others v. Lal Mohar Thakur and others (AIR 1936 PC 143) while determining certain principles held in the following words:-- ''The provisions of S. 107 as elucidated by O.XLI, R.27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R.27, C 1 .(1)(b) it is only where the Appellate Court "requires" it (i,e, finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. The legitimate occasion for the exercise of . This discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent In another case titled Sir Mohammad Akbar Khan v. Mt. Motai a.Nd others (AIR 1948 PC 36), the Privy Council reiterated the above view with elaboration in the following words:-- "12. Their Lordships can dispose of the third point shortly. The power of an Appellate Court to admit further evidence under O.XLI, R.27(1)(b) is confined to cases in which the 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. As pointed out by this Board in 58 I.A. 254, the power only arises where the Court requires the further evidence for one of the two causes specified. The document which the learned District Judge allowed to be given in evidence in this case was a copy of a mutation from the settlement record of 1883-84 of the village of Mardan, and it was suggested that document would help the case of the appellant. But the document in question was a copy of a public document which the appellant could have put in evidence at the trial. It was certainly not required to enable the learned District Judge to pronounce judgment, nor does there appear to have been any other substantial cause for which the Judge required the document. Their Lordships agree with the view of the Court of the Judicial Coiomissioner that the effect of the remand order was "to allow the plaintiff to fish out evidence in order to prove his case and make up the lacuna which, at the present moment, exists". Their Lordships agree that the remand order was not justified." The Supreme Court of Pakistan while dealing with the point in a case reported as Mst. Babara and others v. Abdul Akbar and others (1973 SCM R 335), observed as follows:-- The two precedent cases noticed above are clearly distinguishable. In those cases the witnesses were present in the trial Court but the trial Court had declined to record their statements because it considered that to be unnecessary. In the instant case there is nothing to show that the petitioners had applied in the trial Court for the comparison of the thumb-impression of the deceased on the disputed documents with his thumb-impression on Exhs.D.W.1/1 and D.W.1/2. Having failed to examine the expert evidence in the trial Court they had no right during the proceedings in the First Appellate Court. Even then there was no formal application. Such being the case, it is too late now to complain about the lost opportunity." The proposition was also debated before this Court in a case reported as Taj Din v. Jumma and 6 others (PLD 1978 SC (AJ&K) 131) where the same was resolved in the following manner:- We have examined the evidence and considered the arguments submitted by the Advocates for the parties and are of the view that legitimate occasion for the admission of additional evidence by the Appellate Court, under Order XLI, rule 27, C.P.C., is when on appreciation of evidence , as it stands, an inherent defect or lacuna becomes apparent or 'where the discovery is made afterwards by a party an application is made to supply the defect. But even then the provisions of rule 27, Order XLI, C.P.C. Impose strict conditions so as to prevent a litigant from being negligent in producing evidence at the time of the trial. A litigant, for permission to adduce additional evidence at the stage of appeal, has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced 'at the time the question was being tried or it has come into existence after completion of the trial. Where, therefore, a party has been negligent in producing evidence at the time the issue was being tried and a lacuna had been left and it is not shown as to how the absence of the proposed evidence would result into failure of justice. A prayer for additional evidence in these circumstances obviously would not be granted.............................................................................................................................
9. In the present case the parties were vigilant about the controversy. They were provided opportunity to produce evidence in support of their respective claim which was availed by them.
Therefore, there was no occasion to allow them further opportunity to patch up the lacuna or omissions. The rule is not attracted. Therefore, the order passed by the High Court is set aside by accepting the appeal. Since there was no resolution on merits by the High Court, therefore, the case is remanded to the High Court to decide the same afresh after hearing the parties on merits.
The point raised by Mr. Muhammad Yunus Tahir that the High Court illegally set aside the concurrent findings recorded by the subordinate Courts in the circumstances of remanding the matter to the High Court is not decided to avoid prejudice to any of the parties.