C.M. No, 898-C and 108-C of 2011 I propose to dispose of C.M. No, 898-C of 2011 in Civil Revision No, 535-D of 1999 and CM No, 108-C of 2011 in Civil Revision No, 536-D of 1999, as in both these petitions, production of additional evidence is prayed for.
2. First appeal i,e, Civil Appeal No, 7-13 of 1999 was decided by a learned Additional District Judge, Kot Addu, camp at Muzaffargarh, on 09.07.1999. The findings arrived at by the said first appellate Court were challenged in Civil Revision No, 535-D of 1999. Once it was heard and the judgment was reserved, but before the judgment was announced, C.M.No, 898-C of 2011 was filed from petitioner's side under the provisions of Order XLI Rule 27 read with Section 151 of CPC for additional evidence and rehearing of the case.
3. It is the contention of the petitioner in the CM that after completion of arguments in the revision petition in this Court, the issuance and existence of under-mentioned documents, which in his opinion, have material bearing upon the facts of the case, came to his knowledge :-- "1. Application of the contractor of Trimmu Barrage (Indical/Same).
2. The letter of the S.E to the Chief Engineer 3.Irrigation dated 27.01.1998 recommending the rebate.
3. The Notification dated 16.7.1998 (which further clarifies the position)
4. Decision of S.E Heveli Canal Circle Multan dated 14.8.1998 in Arbitration." and, thus, the acceptance of such documents in additional evidence was prayed.
4. The contention, as has been raised by the petitioner, has, seriously been opposed by the learned Law Officer with the assertion that the concept of production of additional evidence as provided under Order XLI Rule 27, CPC is not meant for revisional jurisdiction as it is provided only in Order XLI, which regulates the proceedings of appeals from original decrees.
5. In support of the CM., the learned counsel for the petitioner has reiterated the version taken in the CM and with the help of the cases reported as Haji Muhammad Zaman vs, Zafar Ali Khan and others (PLD 1986 Supreme Court 88), Ghulam Muhammad; and another vs. Muhammad Aslam and, others (PLD 1993 Supreme Court 336) and Ghulam Muhammad vs. Mian Muhammad and another (2007 SCM R 231), has contended that even in revisional jurisdiction, this Court has ample powers to allow production of additional evidence.
6. I have considered the arguments of the learned counsel for the petitioner, as well as, the learned Law Officer and after going through the record, I am of the view that the contention of the petitioner has no force.
7. In view of the provisions of Order XLI Rule 27, CPC, only if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 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 appellant may be allowed to produce such additional evidence or to cause the production of witnesses to be examined, and the Court allowing such additional evidence is bound to record the reasons for such admission of additional evidence.
8. In the case, in hand, although all the documents intended to be produced in additional evidence relate to the period prior to the date of decision by the learned first appellate Court, which is 09.07.1999, but till such date, when the first appeal was pending before the first appellate Court, neither any effort was made by the petitioner nor the first appellate Court felt any requirement to ask for production of any additional evidence.
9. Even otherwise the provisions of Order XLI Rule 27 CPC are strictly applicable to the proceedings to be carried out in appeals against original decrees. Section 115 CPC itself is a complete code which provide no mechanism to enable any party in such revision petition to pray for the production of additional evidence in revisional jurisdiction.
Keeping in view the contents of Section 115 CPC it can safely held that the revisional Court can revise and correct the orders passed by the subordinate Courts but cannot correct the errors made by the parties to the case CM under discussion is essentially intended to put a cover on the omission of the revision petitioner before the first appellate court in not moving that Court for production for additional evidence.
10. Although in the CM., it has been noted that after the arguments in the revision petition the documents intended to be produced in additional evidence came to the knowledge of the petitioner but neither any particular point of time has been given as to when the petitioner gained such knowledge nor any source of such information has been provided. It is a vague assertion and the errors it made by a party to appeal cannot be corrected by the revisional Court. The revision petition is not meant to fill up the leacunae left by the parties to the lis.
11. In Ghulam Muhammad's case (PLD 1993 Supreme Court 336) para-9 of the same would be relevant for the present purpose which is reproduced herein below.
9. Upshot of the discussion on the point briefly stated is that under Order XLI Rule 27, CPC 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."
From the perusal of the above findings of the apex Court it is thus clear that if in exercise of the jurisdiction vested in the first appellate Court under the provisions of Order XLI Rule 27 CPC the appellate Court acts illegally or with material irregularity and on that account some factual error is committed only then in revisional jurisdiction additional evidence can be admitted in a fit and proper case for clarification if that is essential for just decision of the case.
12. As noted earlier the revision petitioner has never opted before the first appellate court to invoke its jurisdiction under the enabling provisions for additional evidence thus no question of any illegality or irregularity on the part of the first appellate court in dealing with such prayer arises therefore the revisonal court is denuded from Taking into consideration the import of the documents now intended to be produced in additional evidence for the first time at revisional stage. I am fortified by holding this by an authoritative judgment of the Hon'ble Supreme court of Pakistan in the case of Mohabbat v.Asadullah Khan etc. (PLD 1989 SC 112).
13.Similarly in Ghulam Muhammad's case (2007 SCM R 231) it was held with regard to only public documents authenticity and genuineness of 2which could not be doubted to be brought on record even in revisional jurisdiction. The documents intended to be produced in the case in had are not public documents of such character which can per-se be entertainable in evidence without first introduction of the relevant witnesses to be in the witness-box . I am afraid this practice cannot be permitted in revisional jurisdiction to allow the examination of witnesses and then through such witnesses the production of documents.
14. With reference to the case of Mst,. Faxal Jan vs. Roshan Din and 2 others (PLD 1992 Supreme Court 811) it is the contention of the learned counsel for the petitioner that suo motu exercise of power as provided in Section 115 CPC are justified in circumstances.
Again the argument of the Learned counsel for the petitioner is not convincing one as for exercise of suo motu power under Section 115 of CPC it is always the opinion of the court to be based on some reasoned order that some extraordinary direction can be issued whereas in the present case it was never felt by the Court itself that in the case production of additional evidence is required in order to arrive at just decision for exercising the suo motu power and it is no party's right to agitate in order to fill up the gaps of its case.
15.The peroration of the above discussion is that the applications under consideration are not maintainable and the same are dismissed.
16.The office is directed to fix Civil Revision No, 535-D of 1999 as well as Civil Revision No, 536-D of 1999 for arguments on any date according to the convenience of the schedule.