' The facts giving rise to this civil revision are that the petitioner, Amirud-Din, filed a suit against the respondent, Ahmed, for possession of 9 marlas of land bearing Khasra No, 804/1, situate in Halqa Mauza Hasnana, Tehsil and District Jhang. The suit was resisted by the respondent contending that he was owner of the said land as he had purchased it from one Ghula Muhammad. On the framing of necessary issues by the Civil Judge, who was seized of the suit, the parties produced evidence in support of their respective contentions. Thereafter, the respondent made an application to produce six registered sale deeds, marked 'DA' to 4DF' by way of additional evidence with a view to showing that the plaintiff had already transferred the whole of his share in the land of the said Khasra Number. The respondent was not allowed to produce additional evidence and, on the basis of the evidence and other material on the record, the learned Civil Judge decreed the suit in favour of the petitioner. The judgment and decree of the learned trial Court were -challenged by the respondent by means of an appeal to an Additional District Judge. Before the learned appellate Court, the respondent made an application for permission to produce the aforesaid documents as additional evidence. His prayer was granted by the learned Appellate Court on payment of Rs, 100 as costs and, after setting aside the judgment and decree of the learned trial Court, the learned Additional District Judge remanded the suit to the learned trial Court with the direction that he shall decide the suit afresh after receiving the said documents in evidence and also recording the petitioner's evidence in rebuttal thereof. Feeling aggrieved by the remand order passed by the learned Appellate Court, the petitioner has come up in revision to this Court.
2. Learned counsel for the petitioner contended that before taking appeal to the learned Additional District Judge, the respondent had filed a revision petition before the learned District Judge against the order of the trial Court whereby the said Court had refused to receive additional evidence of the respondent but the revision petition was eventually withdrawn by the respondent and, therefore, the respondent was debarred from re-agitating the plea raised in the revision petition in connection with the appeal preferred by him. He cited Mst. Sahib Khatoon and another v. Khan Muhammad and another (1), Messrs Khan Mahal Cinema v. The District Magistrate and another (2), Fazal Hussain Shah v. Sakhi Muhammad (3), Ch. Zulfiqar All v. Mian Akhtar Islam and another (4), Muhammad Nawaz and 4 others v. Allah Wasaya and 6 others (5), Messrs Canisons Industries Ltd., Karachi v. Mlrza Akhlaque Ahmed (6), Mst. Iqbal Begum v. Sh. Asghar Pervez and others (7), and Abdul Rashid v. Ghulam Maula (8), to support his submissions.
3. It was also urged by the learned counsel for the petitioner that the respondent had not furnished any good explanation for not producing the documents in question before the learned trial Court, when the case was at the stage of evidence, and, therefore, he could not be allowed to produce them in evidence before the appellate Court. For, this proposition, he placed reliance on Allah Ditta v. Ghulam Rasool (9), Nur Muhammad and another v. Khushi Muhammad and 6 others (10), State of U. P. v. Manbodhan Lal Srivastava (11), Malik Fazal Din v. Malik Muhammad Sharif etc. (12), Ghaus Bakhsh v. K. S. Muhammad (13), Parsotim Thakur and others v. Lal Mohar Thakur and others (14) and Abdul Aziz v. Meehan Khan (15). {{FOOT NOTE}}
(1) 1979 CLC 373 (2) PLD 1973 Note 27 at p. 36
(3) PLD 1980 Azad J & K 43 (4) PLD 1967 SC 418
(5) 1980 SCMR 181 (6) PLD 1974 Kar. 339
(7) PLD 1978 Lah. 1252 (8) 1979 CLC 481
(9) PLD 1975 Lah. 138 (10) PLD 1975 Lah. 515
(11) PLD 1958 SC (Ind.) 110 (12) 1981 SCMR 548
(13) PLD 1976 Kar. 169 (14) AIR 1931 P C 143
(15) PLD 1979 B 38 {{FOOT NOTE}}
4. In reply, it was argued by the learned counsel for the respondent that the revision petition had been withdrawn by the respondent with the permission of the provisional Court and, therefore, the respondent was not precluded from assailing before the appellate Court the order of the learned Civil Judge whereby he had refused to receive the documents in dispute as additional evidence. As for the respondent's failure to produce the said documents at the stage of evidence, it was explained by the learned counsel that the respondent was not a party to the said documents and, therefore, was not aware of the same before he had made application for producing them as additional evidence. It was also submitted by heir that since the documents in question has lot of bearing on the subject matter of the suit, the learned Appellate Court was justified in allowing their production as additional evidence. In this connection, he invited my attention to Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (1).
5. The order of the learned District Judge, dated the 21st February, 1978, allowing the withdrawal of revision petition reads as follows :- "This revision petition is directed against the order dated 7-12-1977 of Mr. Shoukat Iqbal Sikka, Civil Judge, Jhang, whereby the application for permission to produce additional evidence preferred by the defendant-petitioner was dismissed.
' The petitioner withdraws from the revision petition since he wants to submit a fresh application in the trial Court. The statement of his learned counsel has been recorded. I, therefore, in view of his statement dismiss the revision petition as withdrawn. No order as to costs."
' This shows that the learned District Judge had not allowed the respondent to make another revision petition. I am, therefore, unable to agree with the learned counsel for the respondent that the respondent had withdrawn the revision petition with the permission of the learned District Judge.
6. As for the authorities cited by the learned counsel for the petitioner in regard to the withdrawal of the revision petition by the respondent, in the case of Mst. Sahib Khatoon and another it was held that the parties to a revision petition could enter into a compromise. In the case of Messrs Khan Mahal Cinema it was held that where a suit is withdrawn without permission to file a second suit a fresh suit in respect of the subject-matter of earlier suit is barred. In Fazal Hussain Shah's case it was ruled that where a suit is dismissed on the basis of withdrawal in terms of compromise it shall be deemed to have been dismissed on merits and the decree passed would be a consent decree.
In the case of Ch. Zulfiqar Ali, it was held that where a revision petition is dismissed in limine the order passed thereon constitutes the rejection of contention raised in the grounds of revision. In the case of Muhammad Nawaz and 4 others the view expressed was that where a petition for Special Leave to Appeal made to the Supreme Court is withdrawn at the request of the petitioner and not on account of any permission, a fresh petition is barred under Order XXXVII, rule 1, of the Supreme Court Rules 1956, read with rules 1. 2 and 3 of Order XXIII of the Code of Civil Procedure. In the case of Messrs Ganisons Industries Ltd., Karachi, it was held that if a revision petition is dismissed in default, it cannot be restored as there is no provisions in the Code of Civil Procedure for restoration of such petition. In case of Mst. Iqbal Begum, an order passed by the learned {{FOOT NOTE}}
(1) PLD 1966 SC 684 {{FOOT NOTE}} ' Additional District Judge in exercise of revisional power was upheld by the High Court in a writ petition. It was held that such a finding of the Additional District Judge cannot be questioned by means of another revision petition. In the case of Abdul Rashid; it was observed that where a revision petition is not filed against an order of trial Court rejecting objection before the trial Court that court-fee having been deposited late the plaint was liable to be rejected under Order VII, rule 11 of the Code of Civil Procedure, it will be assumed that the defendant was not dissatisfied with the said order.
7. In none of the precedent cases cited by the learned counsel for the petitioner it was ruled that if a revision petition against an interlocutory order, made in a suit is withdrawn, the point agitated therein cannot be canvassed in appeal against the decree passed in the suit. These authorities might have been of some help to the petitioner if the respondent had made a fresh revision petition against the order of the trial Court which was assailed in the revision petition withdrawn by him but instead of filing such a revision petition he had preferred an appeal against the decree passed in the suit, and alongwith the appeal he made an application for permission to produce additional evidence before the appellate Court. His appeal was a remedy independent of the revision petition. It was discretionary with the learned District Judge to entertain the revision petition of the respondent but he could file the appeal as a matter of right. The appellate Court could allow additional evidence under Order XLI, rule 27 of the Code of Civil Procedure even if the petitioner had not made a request in the matter. The order of the learned Appellate Court shows that it had permitted the respondent to produce additional evidence due to the reason that the recording of such evidence was desirable for the proper decision of the case. This is evident from the following observations appearing in the judgment of the learned Additional District Judge: "Admittedly the documents sought to be brought on the record so as to form part of the same are the certified copies of the registered sale-deeds executed by the plaintiff Amir Din in favour of different persons. They are also admissible per se under section 74 read with section 76 of the Evidence Act. It also appeal to reason that at the relevant time when the written statement was filed the defendant appellant might not be in the know of the existence of these documents for he was not a party to the documents. It is equally true that the documents sought to be brought on the record touch the very root of the case and for that reason they have great importance and impact upon the fate of the suit. The possibility of their fabrication in the ordinary circumstances stands completely ruled out. The Court of law has to do substantial justice and the technicalities of law should not be permitted to prevail upon the noble cause of justice."
8. It may also be pointed out that the order assailed in the revision petition was made by the learned trial Court on the application of the respondent submitted on 22nd August, 1977. That application was rejected by the said Court inter alia for the reason that it was vaguely prayed therein that the respondent may be allowed to produce additional evidence and the precise nature of such evidence was not indicated. The petitioner withdrew the revision petition to submit a fresh application to the trial Court for permission to produce additional evidence. This means that while withdrawing his revision petition, the respondent did not express satisfaction over the order of the learned trial Court which was challenged by filing the said petition. After withdrawing the petition in question, the respondent made another application on 21st February, 1978, for placing the documents in question on the record by giving their necessary particulars. His second application was also rejected by the trial Court on 15th March, 1978 but the order of the trial Court on the second application was not assailed by the respondent by means of a revision petition. It would, therefore, appear that the order of the learned Additional District Judge in connection with the appeal was not the order involved in the revision petition withdrawn by the respondent but another order by which the trial Court had declined to receive the documents in question in evidence.
9. In view of all this, the withdrawal of the revision petition by the respondent did not debar the learned Appellate Court from allowing the production of the documents in question as additional evidence.
10. Now I proceed to consider the contention of the learned counsel for the petitioner that since the respondent had failed to place on record the documents in dispute at the stage of evidence he could not be allowed to fill in the lacuna in his case by producing the said documents at the stage of appeal. The cases of Allah Dina, Nur Muhammad and another, State of U. P. Malik Fazal Din, Ghaus Bakhsh, Parsotim Thakur and others and Abdul Aziz cited by learned counsel for the petitioner, are on the point that a party cannot produce additional evidence at the stage of appeal to fill in gaps in his evidence but, as ruled in the cases of Malik Fazal Din, Guaus Bakhsh, State of U. P.
And Parsotim Thakur and others, relied upon by the learned counsel for the petitioner, and in the case of Messrs Muhammad Siddiq Muhammad Umar and another, cited by learned counsel for the respondent, the Appellate Court can allow the production of additional evidence if it feels that the recording of such evidence is necessary for the proper administration of justice. In the present case also, the learned Additional District Judge was of the view that since the documents in question go to the very root of the case they "have great importance and impact upon the fate of the suit." In other words, he permitted the production of the said documents not with a view to allowing the respondent to improve upon his case but for the 4, correct and just decision of the case. It was explained to the learned Additional District Judge that initially the respondent was not aware of the documents and as soon as he came to know of them, he sought permission of the trial Court to produce them in evidence. The petitioner filed an affidavit in support of his plea to which there is no counter affidavit. Admittedly, the petitioner is not a party to said documents. If the said documents would reveal that by making the transactions recorded therein, the petitioner had parted with the land in question, they would be of great help in doing real justice in the case. While allowing the respondent to produce the documents in question, the learned Additional District Judge had, with a view to compensating the petitioner for the inconvenience caused to him, awarded Rs, 100 as costs to the petitioner and had also directed that he shall be at liberty to produce evidence in rebuttal of the said documents. In the circumstances of the present case, therefore, no legitimate exception can be taken to the impugned order of the learned Additional District Judge.
9. Resultantly, the revision in hand fails. It is, therefore, dismissed, but the parties are left to bear their own costs.