' YAHYA AFRIDI, J.--- This revision petition is directed against the judgment and order dated 28-2- 2011 passed by learned Additional Sessions Judge-I, Kohat, whereby the application of the present petitioner under Order XLI, Rule 27 of Code of Civil Procedure, 1908 ("CPC") was dismissed.
2. The brief and essential facts leading to the present revision petition are that Mohsin Ali Shah, the present respondent, filed a suit for possession exercising his right of pre-emption regarding the suit house purchased by the present petitioner. During the trial, the present petitioner produced Muhammad Anees Khan, the Record-keeper, College Town Sub-Division Sangota, Kohat, who appeared as D.W.1 on 3-3-2010. While rendering his testimony, the said witness produced the attendance register of 3-3-2006 and assertions regarding the attendance of the staff were also narrated during his examination-in-chief. While the extract of register of 3-3-2006 was produced in evidence as Exh.D.W.1/1.
3. During the-pendency of the trial, the present petitioner filed an application for re-summoning Muhammad Anees Khan again for seeking further clarification regarding a certificate issued by AMO PESCO, College Town, Kohat dated 24-6-2009. The said application was decided by the trial Court vide order dated 16-6-2010, with observations that; "1 perused the record, which reveals that D. W.1 in his statement has already produced the register of attendance, the copy of which is Exh.D.W.1/1, therefore it is not necessary to re-summon D. W.1 for the purpose of verification. However, the learned counsel for the defendant is directed to highlight this aspect of the case during the course of the arguments. With this observation the instant application is disposed off."
4. The petitioner did not impugn the said decision and finally, the trial Court vide judgment and decree dated 23-7-2010 accepted the case, in favour of Syed Mohsin Ali, the present respondent.
Aggrieved thereof, the present petitioner impugned the same in appeal. During the pendency of the said appeal, the present petitioner, the appellant before the appellate court, again moved an application before the appellate court seeking to produce additional evidence before the appellate court under Order XLI, Rule 27 of C.P.C. The appellate court vide impugned order dated 28-2-2011 dismissed the said application, as it refrained from exercising its jurisdiction to recall the said witness in the impugned judgment on the ground that; "... At present if the application of the defendant for summoning Muhammad Anees along with record is accepted it would be amounting to fill up the lacuna in the case of the appellant."
5. The learned counsel for the petitioner vehemently argued that Order XLI, Rule 27 of C.P,C.
Provided powers to the appellate Court to allow additional evidence during the appellate stage, which was refused on grounds "alien" to the clear provisions of the law; that crucial fact going to the root of the matter would have been explained in case the said application was allowed; that the said application was not to improve or remove any lacuna in the case of the petitioner.
6. The valuable arguments of the learned counsel for the petitioner heard and the available record of the case thoroughly considered.
7. The provisions of Order XLI, Rule 27 of C.P.C. Provides that; "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."
' This takes us to the provision regarding recall of a witness already examined by the trial Court. The relevant provision in this regard is provided in Order XVIII, Rule 17 of C.P.C., which reads; "17. Court may recall and examine witness..--- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit."
' The aforementioned provisions of C.P.C. Relating to recalling a witness by the trial Court and allowing additional evidence before the appellate court are an exception to the general rule of not allowing the same.
' The rationale behind said provisions is to ensure that parties produce their evidence in one go and not in piecemeal, yet provide discretion to a court of law, to allow evidence to be produced only in order to render compete justice. Surely, this clear and vast authority with the court of law should not be exercised to allow one party to improve his case or to provide a second chance to him to fill up the lacunas in the case.
' Reliance in this regard may be placed on the age old judgment of the Privy Council in case titled Parsotim Thakur v. Lal Mohar Thakur (AIR 1931 PC 143), wherein it was held that; ' It is only when 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. This is the plain grammatical reading of sub-clause. The legitimate occasion for the exercise of discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence but 'when one examining the evidence as it stands some inherent lacuna or defect becomes apparent'. .... They will only add that the power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case."
' The 'ratio decedendi' of the above judgment has been respected and affirmed by the superior courts of the sub-continent even up till now. Bashir Ahmad's case (1985 SCM R 1232), Abdul Hamid's case (1998 SCM R 671), and. Ghulam Ahmad Chaudhry's case (PLD 2002 SC 615) are cases in point.
' The crucial certificate, which 'was required to be verified by Muhammad Anees (D.W.1), was signed and noted by one "AMO PESCO College Town, Kohat" and was dated 24-6-2009. The said certificate predates 3-3-2010, when Muhammad Anees was produced as D.W.1. Hence, the petitioner had with him the said certificate, when Muhammad Anees was examined as a witness. By not verifying the contents of the said certificate from the said witness when he was produced, was a lapse on the part of the petitioner. Thus by allowing the petitioner to produce additional evidence of calling the said witness again would surely be providing him with an opportunity of improving his case and filling up the lacuna in his case, as correctly observed by the appellate court in the impugned decision.
8. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Code of Civil Procedure, 1908 has been dilated upon by the august Supreme Court in Shumail Begum v. Gulzar Begum (1994 SCM R 818) and more recently in Muhammad Idrees v. Muhammad Parvez (2010 SCM R 5) and held that:- "The High Court in exercise of its revisional jurisdiction under section 115, C. P. C. Unless such findings suffer from controversial defects, illegally or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26. With regard to section 115, C.P.C. It is observed by the Privy Council as under:---
(i) This section empowers the High Court to satisfy itself upon three matters:--
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
' Keeping in view the above guiding principle regarding exercise of revisional jurisdiction, this Court considers that the court below had the jurisdiction to adjudicate upon the matter and that while exercising the said jurisdiction it has applied its conscious mind and rendered its finding on the issue, which this court does not find as arbitrary, capricious or out rightly absurd, so as to warrant interference.
9. Accordingly, for the reasons stated hereinabove, the present revision petition is devoid of legal merit and is thus dismissed, in limine.
No order as to costs.