MUHAMMAD MUZAMMAL KHAN, J.--- This judgment proposes to decide two civil revisions, one in hand and the other Civil Revision No.525 of 2001, as both these petitions arise out of consolidated judgments of the two Courts below, raise similar questions of law/facts and are inter same parties.
Both these revision petitions challenged judgments/decrees dated 11-4-1998 and 8-1-2001 passed by the learned Civil Judge and learned Additional District Judge, Lahore, whereby suit for declaration tiled by the petitioner was dismissed and the other for possession filed by the respondents was decreed and two appeals filed by the petitioners were dismissed respectively.
2. Succinctly, relevant facts are that land measuring 7 Kanals, 14 Marlas and 22 sq. Ft. Khata No.1364 of the Revenue Estate Ichhra, Lahore was jointly owned by Muslims and non-Muslims as per Revenue Record for the year 1941-42. One Din Muhammad son of Fazal Din was one of the co- owners in the joint Khata under discussion on whose death his share of land measuring 1 Kanal, 5 Marlas and 12 sq. Ft. Was inherited by his three sons, four daughters and two widows. One of the legal heirs of Din Muhammad namely, Mst. Muhammadi Begum, being his daughter became owner to the extent of 2 Marlas 45 sq. Ft. But instead, she sold land measuring 1 Kanal through different sale-deeds in favour of the respondents. Petitioner, who is purchaser of 15 Marlas of land out of evacuee share in the joint Khata, sold by the Settlement Department in an open auction in favour of Muhammad Yaqub Sethi, got additional 7 Marlas and 75 sq. Ft. Of land allotted under Settlement Scheme, dated 11-8-1970 being in possession of the same. Petitioner filed a suit for declaration to the effect that mutations sanctioned on the basis of alienations made by Mst. Muhammadi Begum beyond her entitlement may be annulled as she lost litigation in revenue hierarchy. It was prayed in the suit that Mutations Nos.2827 and 2897 touching Khasra No.7206 may be declared void, being in excess of entitlement and consequently Revenue Officer concerned may be directed to correct the Revenue Record.
3. Respondents being defendants in the suit contested the same by filing their written statement wherein they claiming themselves to be bona fide purchaser for consideration. Counter-defence of the respondents was that transfer of 7 Marlas and 75 sq. Ft. By the Settlement Department in favour of the petitioner was illegal/unauthorized.
4. Respondents on the other hand, tiled a suit for possession of land mentioned in their plaint, which according to them, remained in their possession till 1990 when their predecessor Muhammad Ashiq breathed his last. Respondents pleaded that petitioner encroached the suit-land unauthorizedly, hence they were entitled to possession of land measuring 1 Kanal, as per details given in their plaint.
5. Petitioner being defendant in the suit by the respondents, contested the same by filing his written statement, controverting the assertions in the plaint. The learned Civil Judge, cognizant of both the suits framed 28 consolidated issues arising out of controversial pleadings of the parties and after recording of their evidence, dismissed the suit for declaration filed by the petitioner and decreed the suit of the respondents for possession vide his judgment/decree dated 11-4-1998.
6. Petitioner aggrieved of' dismissal of his suit and decretal of suit by the respondents, filed two separate appeals, before the learned Additional District Judge, where he also moved an application praying permission to produce certain documents by way of additional evidence under Order XLI, rule 27, C.P.C. Learned Additional District Judge vide order, dated 30-11-2000 dismissed application of the petitioner under Order I, rule 10 and Order XLI, rule 27, C.P.C. And thereafter dismissed his both appeals vide judgment/decrees, dated 8-112001. Petitioner, thereafter, filed above referred two civil revisions wherein he again moved two distinct applications under Order XLI, rule 27 and Order XVIII, rule 2 read with section 151, C.P.C. Praying similar relief as was refused by the Appellate Court vide order, dated 30-11-2000. Both these civil revisions were admitted to regular hearing and after completion of record have now been fixed for hearing.
Respondents in response to notice by this Court appeared and were represented through their counsel.
7. I have heard the learned counsel for the parties and have examined the record, appended herewith. Besides the submissions of the parties touching merits of the case which included errors of law committed by Additional Commissioner (Revenue) who reversed well-reasoned order of the Collector/D.C. Lahore, directing review of disputed mutations, overlooking of provisions of section 7 of Evacuee Property Act, void nature of transfer of 7 Marlas, 75 sq. Ft. To petitioner by Settlement Authorities and share of vendor/purchaser of the parties in joint Khata, appellate Court decided application of the petitioner moved under Order XLI, rule 27, C.P.C. In isolation of the appeal through a separate order, dated 30-11-2000, whereas the appeal was decided later on 8-1-2001. Order disallowing permission to lead additional evidence to the petitioner, clearly demonstrates that first Appellate Court did not consider respective cases of the parties and opted to dismiss the application on the grounds that certified copies of the documents sought to be produced were not placed on record in spite of the fact that those form part of the public record, petitioner did not furnish any cogent reason for not producing those documents before the trial Court, all the documents were in the knowledge of the petitioner but were deliberately withheld and that the trial Court did not refuse to accept those documents. All the reasons, which weighed with the appellate Court while dismissing application under discussion, were given at random without keeping in view relevant provisions of law i.e. Rule 27 of Order XLI of the C.P.C. This provision of law is couched in negative language prohibiting parties to adduce additional evidence whether oral or documentary, at appeal stage but with two exceptions. Firstly, that the Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted and secondly that appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, it may ,allow such evidence to be produced. The provision under examination has its two parts, under the first the evidence should have been refused by the trial Court and under the second necessity of recording of evidence sought to be produced should have been felt by the Appellate Court itself. In the case in hand, petitioner was not refused permission to produce evidence by the trial Court, hence his case fell under sub-rule (b) of rule 27 of Order XLI of the C.P.C., under which the appellate Court should have felt the necessity of production of documents or examination of any witness or the same should have been felt by it for any other substantial cause. This determination could not be done while deciding application under this provision in isolation to the appeal because merits of the case were not brought to the notice of the Court and were not within its compass at that time.
Precisely, my humble view is that application for additional evidence should have been decided along with the appeal so that in case of necessity felt by the appellate Court, it may not feel itself handicapped in allowing such evidence to be brought on record. In other words, appellate Court emerges in a better position to decide whether the documents sought to be produced are needed for just/fair decision of the case or will be helpful for it, in administering justice to the parties when it decides both the appeal and application for additional evidence, simultaneously, at one time.
8. Petitioner claimed that fraud/forgery committed by the respondents was scrutinized by the Collector/D.C., Lahore and the documents in support of their claim could only be traced after decision by the trial Court and being relevant to the controversy, were necessary for proper administration of justice. He asserted that the documents sought to be produced were copies of public record and those could not be manoeuvred by him, subsequently. Petitioner prayed for withdrawal of C.M.1/C of 2001 moved by him before this Court under Order XLI, rule 27, C.P.C. And emphasized that by striking down appellate, order dated 30-11-2000, he may be permitted to produce documents mentioned in his petition, which was verbatim reproduction of the application filed before the Appellate Court.
9. From the above resume the Honourable Supreme Court in the case of Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811, wherein dispute of inheritance by an allottee was involved, it was graciously held that trial Court as well as Appellate Court were not denuded of powers to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions in evidence, from both sides. It was further held that, that was an appropriate case for exercise of power under Order XLI, rule 27, O.P.C. For bringing on record addit oral evidence even under suo motu exercise of jurisdiction. In another case of Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCM R 1778 it was mandated that trial Court should have collected more evidence for administration of justice but it failed to exercise a vested jurisdiction and the case was remanded by the Honourable Supreme Court to the trial Court for fresh decision with the direction that all the legitimate facilities would be granted to both the parties, not only to produce evidence but also to make necessary amendments in the pleadings. This Court in case of Abdul Haq v. Mst. Mughalani and 10 others 1999 YLR 1655 propounded that additional evidence can be led at any stage of proceedings and concept of bar against tilling gaps/lacunas was no more available in Pakistani Jurisprudence and law, including the principle of Islamic justice. The recent case-law by the Honourable Supreme Court on the subject under evaluation has been brought about in the case of Ghulam Ahmad Chaudhry v. Akbar Hussain (deceased) through his L.Rs. And another PLD 2002 SC
615. My own view in two earlier cases of Mst. Fatima Bibi and 5 others v. Ghulam Safdar and another 2004 M LD 742 and Mst. Naziran Bibi v. Abdul Sattar and 12 others 2004 M LD 815 was that legitimate prayer to produce copies of public record, involving no probability of tampering, should be decided along with the appeal, ignoring the old principles of filling of lacunas or filing of such applications at belated stage. All these aspects of the case were not kept in mind by the first appellate Court while disallowing application of the petitioner praying permission to produce additional evidence, on untenable reasons. Photo copies of the documents sought to be produced though could be considered, as per Article 164 of Qanun-e-Shahadat Order, 1984 yet certified copies of those were needed after the permission-prayed, at the time of recording of evidence. Similarly, non- production of this evidence before the trial Court was also explained and withholding of these documents by the petitioner, was merely imaginary. I with a view to remand the case to the said Court for its just decision again, deliberately avoided to comment upon the documents sought to be produced so that this matter be decided at the time of re-hearing of appeal and my finding in this behalf may not prejudice the appellate judgment. Since both the appeal and application of the petitioner under Order XLI, rule 27, C.P.C. Were decided in isolation to each other, against the spirit of law, both ,the judgments/decrees and orders in this behalf are not sustainable, being tainted with material illegalities/ irregularities, envisaged by section 115, C.P.C.
10. For the reasons noted above, C.M. No.1/C of 2001 is dismissed as withdrawn whereas both these revision petitions are accepted, impugned order, dated 30-11-2000 and judgment/decrees dated 8-1-2001 are set aside and both the cases are remanded back to the first appellate Court for fresh decision in light of the observations made above by hearing both the matters together. Parties are directed to appear before the learned Additional District Judge, Lahore, on 27-2-2006, where the cases shall be decided preferably within a period of two months. There will be no order as to costs.