1. ' ABDUL RASHEED KALWAR, J.--- The applicant above named had moved an application under Order XLI, rule 27 read with section 151, C.P.C. On 16-9-2006, inter alia, he had prayed before this Court to allow him to produce Photostat copies of three documents as mentioned herein as under:--
(1) Declaration by respondents Nos.1 and 4 in favour of applicant and respondents Nos.2 and 3 dated 19-6-1984.
(2) Declaration by respondent No,3 in favour of applicant and respondent No,2, dated 8-7-1984.
(3) Lease deed by Municipal Committee, Hyderabad dated 28-7-1985.
2. ' The applicant had supported above application with his affidavit and thereby disclosed that he had filed an application under Order XIII, rules 1 and 2, C.P.C. Along with documents sought to be produced before trial Court, which was allowed by the trial Court by consent of other party, but due to mistake the documents were not exhibited, besides it he termed these documents relevant and necessary for proper decision of case and determination of real question between the parties.
3. ' Above application was resisted by the respondent No,1 by way of filing of counter-affidavit on 11- 12-2006, inter alia she has denied the contents of application under Order XLI, rule 27 read with section 151, C.P.C. And its supporting affidavit. She also placed her version in said counter-affidavit and termed that in view of the pleading and evidence of the applicant, the documents sought to be produced by applicant were irrelevant at that stage.
4. ' Before reverting back to the application, it is necessary to have glimps of the history of the case.
5. Mst. Asmat Parveen Abbasi, who is sister of the applicant had filed suit for declaration and injunction against the applicant and respondents Nos.2, 3 and 4 in the Court of IInd Senior Civil Judge, Hyderabad on 29-5-1999, which came to be numbered as Suit No,84 of 1999, with mainly following prayers:---
(a) That this Honourable Court may be pleased to declare that the plaintiff being the legal heir of the deceased Dr. Abdul Haque Kazi is entitled to inheritance and any alleged declaration of gift or declaration is illegal, void and nullity in the eyes of law.
(b) To issue permanent injunction against the defendants Nos.1 and 2 restraining them from gifting, mortgaging, selling, leasing or otherwise, alienating/disposing of the suit Property No,A/2 Unit No,3, Latifabad, Hyderabad, to any one in any manner directly or indirectly through their agents, servants, attorneys, associates and helpers etc. ' The applicant filed written statement on 18-8-1999 while respondent No,2 had filed his written statement on 28-7-1999. On pleadings, in all 10 issues were framed, but for the purpose of this order, Issues Nos.1 to 4 are referred to, as under, because these issues are only relevant in respect of present application:---
(1) Whether the plaintiff is entitled to inheritance of the property of late Dr. Abdul Haque Kazi as his daughter?
(2) Whether the alleged gift is illegal, mala fide and having no force in the eyes of law?
(3) Whether the defendants be issued permanent injunction from alienating the suit property in any manner?
(4) Whether the plaintiff and defendants Nos.3 and 4 have not surrendered their shares in favour of defendants Nos.1 and 2 voluntarily and with their own will, wish and consent?
6. ' The applicant had not filed such documents within seven days of framing of issues, therefore, he had moved application under Order XIII, rules 1 and 2, C.P.C. Before trial Court on 26-10-2000, which was allowed by consent of other side on 31-10-2000. Respondent No,1 (plaintiff) was examined on same day i,e, 31-10-2000, she also produced some documents. The applicant was examined on 14- 2-2001 and produced revised allotment order, but further examination-in-chief of the applicant was reserved due to adjournment application moved by applicant's counsel on the ground that applicant Advocate wanted to file proper application for production of original documents. On next day i,e, 15-12-2001 further examination-in-chief and cross-examination of the applicant was recorded, but no document was produced by him. The trial Court decreed the suit in favour of the respondent No,1 vide judgment, dated 13-2-2001 and decree, dated 14-3-2001. The applicant preferred Civil Appeal No,64 of 2001 against said judgment and decree before District Judge, Hyderabad on 7-4-2001, which was transferred to the Court of IVth Additional District Judge, Hyderabad, where it was dismissed on 7-3-2002. Finally the applicant filed above revision on 5-8- 2008.
7. ' On 24-11-2008 this case was fixed for regular hearing, but learned Advocate for the applicant pointed out that above application was pending and he had requested for disposal of this application before hearing the revision application in regular hearing. The learned Advocate for the respondents had opposed the proposition of the applicant's counsel saying that it was only meant for further delaying the disposal of the main revision application. The request of learned Advocate for the applicant was reasonable, therefore, the learned Advocates for the parties were allowed to advance their arguments on the application under Order XLI, rule 27 read with section 151, C.P.C.
8. ' Learned Advocate for the applicant argued on the following grounds:
(1) The documents sought were necessary for just decision of the case as whole case of the applicant hinges upon those documents.
9. (2). The documents though would not be exhibited but the Court can consider them for reaching just conclusion to meet the ends of justice.
(3) No doubt the documents have not been exhibited, but same are admitted documents, therefore, there was no need to exhibit such documents during trial. The Court is duty bound to consider such documents without depending upon the conduct of the parties to the suit.
(4) If this application is disposed of by the consent of other side, this Court shall consider these documents then his purpose shall be served and then he would not press the disposal of this application on merit.
(5) This Court is/has ample jurisdiction to entertain application under Order XLI, rule 27 read with section 151, C.P.C. In its revisional jurisdiction.
(6) He has relied upon PLD 1993 SC 336, PLD 2002 SC 615, 2006 CLC 721, 1993 CLC 1158, 1991 CLC 1606, 2008 SCM R 1639 and 2008 SCM R 1658.
10. ' Learned counsel for the respondent No,1 has strongly opposed the grant of application under Order XLI, rule 27 read with section 151, C.P.C. And he has drawn my attention towards text of rule 27 of Order XLI, C.P. He contends that this is not an occasion for making such application or invoking the powers of Court under the above mentioned provisions of law. Neither the lower Court has refused to admit the documents nor the Court itself has felt necessity of these documents. The applicant was granted ample opportunities by the trial Court to produce the documents, but he himself had chosen not to produce the same in evidence. No ground regarding these documents in the memo. Of revision application has been raised. The applicant, since after, recording of his evidence before the trial Court remained satisfied and had not shown his grievance as to non- production of the documents before the trial Court, Appellate Court or even at the time of filing of revision application. The documents as sought by the applicant to be produced are neither necessary nor relevant for the purpose of the case because in view of the pleadings of the applicant and his deposition available on record no useful purpose, would be served by allowing this application for production of Photostat copies of said documents. This application had been moved with ulterior motives and mala fide designs by the applicant in order to prolong, protract litigation and cause delay in disposal of the revision application. Learned Advocate for the respondent No,3 had adopted the same arguments of respondent No, 1.
11. ' Before venturing into the discussions about the merits and demerits of the case/application, it is necessary to refer to the provisions of Order XLI, rule 27, C.P.C.:--- "(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.
12. 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.
(c) Whenever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reason for its admission."
13. ' After being benefited from the above mentioned provisions of law, it is necessary to have guidance from the case-law cited by the learned Advocate for the applicant.
14. ' In the case of Ghulam Muhammad v. Muhammad Aslam reported in PLD 1993 SC 336 at relevant page No,340 as follows:--- "Upshot of the dismission on the point briefly stated is that under Order XLI, rule 27, C.P.C. Appellate Court is competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error is committed then in revision additional evidence can be admitted in a fit and proper case for clarification if that is essential for just decision of the case."
15. ' In the case of Ghulam Ahmad Chaudhry v. Akbar Hussain reported in PLD 2002 SC 615 at relevant page 620, placitum "E" as follows:--- "Likewise under the provisions of Order XLI, rule 27 High Court was fully competent to direct additional evidence for a just and proper determination of the issues even without the application by the parties. Power to allow additional evidence is always discretionary in nature and the exercise of discretion would depend on the facts of each case. No doubt as a general rule parties to a lis are not entitled to produce additional evidence but if the Appellate Court requires any document to be produced or any witness to be examined to pronounce judgment or for any other substantial cause, it can always do so after recording reasons."
16. ' In the case of Muhammad Ashiq v. Sameer Ashfaq reported in 2006 CLC 721 at relevant page No,724 as follows:--- "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."
17. ' In the case Muhammad Siddique v. Faqir Muhammad reported in 1993 CLC 1158 as follows:--- "In my view, this is eminently just and proper case for exercise of revisional jurisdiction of this Court to undo the wrong. Respondent No,1 was not at all entitled to the decree prayed for by him. The land in dispute stood redeemed under orders of competent authority and he was fully aware of it.
18. He successfully prevented this reality from being highlighted till it was ultimately blurted out by him to the written statement filed in this Court. The Courts below failed to read Mutation No,2018 in evidence, and thus, committed grave irregularity in the exercise of jurisdiction vested in them.
19. These judgments/decrees cannot be sustained.
20. ' It is the duty of this Court under section 115, C.P.C. Which enables it "to make such orders in the case as it thinks fit" to restore to the petitioners what legally belongs to them."
21. ' In the case Haq Nawaz Khan v. Muhammad Yaqoob reported in 1991 CLC 1606 at relevant page No,1611 as follows:--- "During the perusal of the file, Jamabandi pertaining to the years 1966-6.7 and 1961-62 also came to my notice. Both of these documents are attested copies and have been adduced in evidence, but both these documents have not been marked as exhibits. Now the question arises whether documents which have not been exhibited, can be read in evidence or not. It seems that these documents have not been marked as exhibits by the learned sub-Judge.
22. ' Mere non-endorsement by a Judge on the documents does not render them inadmissible. This is an omission on the part of the trial Court. According to Order XIII, rule 4 of the C.P.C. The documents placed on the record can be looked into while deciding the case. Moreover, if any such omission has been committed by the Court, then it is not due to the fault of the party concerned. In the circumstances, there could be no reason as to why such party should be penalized for the omission of the Court. This view finds support from PLD 1975 Lah.
23. 1170."
24. ' In the case Nazir Ahmad v. M. Muzaffar Hussain reported in 2008 SCM R 1639 relevant page 1643 as follows:--- "It means that the execution of agreement is admitted not disputed and it is well settled proposition of law that the admitted facts need not to be proved. The admission has been defined in Article 30 of the Qanun-e-Shahadat Order, 1984."
25. ' In the case Muhammad Nawaz v. Fateh Sher reported in 2008 SCM R 1658 relevant page 1666 as follows:--- "With regard to scope of revision, suffice it to say that when judgments and decrees have been passed with material irregularities or illegality, the jurisdiction of learned High Court cannot be restrained or curtailed in that event, so as to correct those judgments and decrees and to pass any judgment as the learned High Court thinks fit in the facts and circumstances of a given case in accordance with the provision of section 115 of the C.P.C. Of 1908."
26. ' For the purpose of disposal of this application, the Court has to look into the plea of applicant's and objections of the respondents strictly within four corners of provisions of Order XLI, rule 27, C.P.C. All other arguments, pleas and submissions would become irrelevant, if the above provisions of law are pressed into service in strict sense. From careful perusal of the Rule 27, it appears that sub-rule (1) in fact does not give permission for production of documents, but on the contrary it puts embargo on production of additional evidence whether oral or documentary before the Appellate Court. Clauses (a)(b) and (c) of aforesaid sub-rule (1) of rule 27, C.P.C. Are exceptions made applicable to the embargo imposed in sub-rule (1) of rule 27, C.P.C. Clause (a) provides for permission for production of documents, when the Court from whose decree, the appeal has been preferred, had refused to admit such evidence, which otherwise could have been admitted. This is not a case of applicant that lower Court or the Appellate Court had refused the applicant's plea for production of intended documents. On the contrary the trial Court had granted permission to the applicant under Order XIII, rules 1 and 2, C.P.C. For production of documents. Again the examination-in-chief was reserved and the matter was adjourned on the application of applicant by the Senior Civil Judge for the production of the documents yet the applicant's counsel could not get produced the same, till disposal of the suit. No efforts have been shown on the part of the applicant to bring those documents on record and get them exhibited. Neither such application was moved by the applicant before the Appellate Court nor any ground complaining against non- production of the documents was raised in the memo. Of appeal. The memo. Of revision application is also silent about any ground regarding production of such documents. Under these circumstances clause (a) sub-rule (1) of rule 27 of Order XLI, C.P.C. Is not attracted and it cannot be pressed into service at this stage.
27. ' Clause (b) of sub-rule (1) of rule 27 of Order XLI, C.P.C. Is specifically enabling provision for Appellate Court which can only require any document to produce or any witness to be examined for pronouncement of judgment or any other substantial cause. This D provision with no stretch of imagination can be pressed into service at the instance of any party to the. Proceedings. This is exclusively meant for the Court and Court has only jurisdiction to harness the powers envisaged in clause (b) of sub-rule (1) of rule 27 of Order XLI, C.P.C.To meet the ends of justice.
28. 'Clause (c) of sub-rule (1) of rule 27 of Order XLI, C.P.C. Is imposing condition on the Court that, if the Court exercised the discretion under the provisions of Order XLI, rule 27(a)(b), C.P.C. And thereby allowed additional evidence to be produced then Court would be bound to record reasons for such admission. From the language of clause (c) of sub-rule (1) of rule 27, C.P.C. It appears that the Court has to record reasons in case of allowing admission only. If the Court refuses, then no compulsion has been put upon the Court to record reasons for refusal. Furthermore, from the perusal of case-law cited by the learned Advocate for the applicant, no different interpretation of the F provisions of Order XLI, rule 27, C.P.C. Can be deduced. On the contrary, my above mentioned view is endorsed and fortified by the dicta IG laid by the Honourable Supreme Court of Pakistan and the High Courts in above mentioned citations. It is also needless to say that the provisions of Order XLI, rule 27, C.P.C. Are discretionary in nature and the Courts are always expected to use discretion judiciously, fairly and for the purpose of securing the ends justice. The law helps diligent, vigilant litigant. The conduct of the applicant all along had not been diligent and vigilant in pursuing cause of production of documents, for which reasons best known to him. The Court cannot allow this application at the cost of other side, which they bear in form of delay in disposal of the case, therefore, application under Order XLI, rule 27, C.P.C. Was not fit to be allowed.
29. ' All the above factual and legal reasons had persuaded the Court to dismiss the application under Order XLI, rule 27, C.P.C. Of the applicant vide short order, dated 24-11-2008 and these are the reasons for the same.