SHAHID WAHEED, J.---Petitioner, Shakoor, through this civil revision has called in question the order dated 7-6-2012 passed by the learned District Judge, Toba Tek. Singh, whereby the application filed by the petitioner under Order XLI, Rule 27, C.P.C. For permission to produce additional evidence was dismissed.
2. Briefly the facts giving rise to this petition are that the petitioner instituted a suit for declaration claiming proprietary rights qua the disputed property and challenged the vires of order dated 8-2- 1996 with regard to allotment made in favour of respondent No,4, order dated 22-7-2002 and order dated 16-6-2005 passed by the Member Board of Revenue. Learned Trial Court vide judgment and decree dated 6-5-2011 dismissed the suit with cost. Feeling aggrieved, the petitioner preferred an appeal before the learned District Judge, T.T.Singh. During the pendency of the appeal the petitioner moved an application under Order XLI, Rule, 27 C.P.C. For permission to produce additional evidence i.e (i) Rapt Roze namcha Waqiati, (ii) copy of Fard Nilam, (iii) copy of register Haqdaran Zamin, (iv) copy of Khasra Girdwari and (v) Challan. The respondents resisted this application by filing a reply. Learned District Judge after granting opportunity of hearing to the parties dismissed the application vide order dated 7-6-2012. Hence this petition.
3. Learned counsel for the petitioner in support of this petition submits that the learned lower Appellate Court has failed to apply its judicial mind while passing the impugned order dated 7-6- 2012; that learned District Judge has exercised the jurisdiction-arbitrarily, 'illegally and in violation of the principle laid down by the Hon'ble Supreme Courts of Pakistan in the cases of Zar Wali Shah v.
Yousaf Wali (1992 SCMR 1778) and Mst. Fazal Jan v. Roshan Din and others (PLD 1992 SC 811).
4. Conversely learned Additional .Advocate General and learned counsel for respondent No,4 vehemently oppose this petition and support the order passed by the learned District Judge and contend that the petitioner has not disclosed any sufficient reasons for accepting the application under Order XLI, Rule 27, C.P.C.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly the petitioner instituted a suit for declaration on 2-11-2005 and the learned Trial Court after granting ample opportunities to the parties dismissed the gun vide judgment and decree dated 6-5-2011. The petitioner during the pendency of appeal moved an application under Order XLI, Rule 27, C.P.C. For permission to produce additional documentary evidence i.e (i) Rapt Rozenamcha Waqiati, (ii) copy of Fard Nilam, (iii) copy of iegister Haqdaran Zamin, (iv) copy of Khasra Girdwari and (v) Challan ("the additional documents"). It is maintained in the application that the additional evidence is essential for effective adjudication of dispute between the parties.
Learned counsel for the petitioner further submits that though the additional documents were available on the file of the learned Trial Court yet inadvertently could not be got exhibited: The ground urged in the application and canvassed by the learned counsel for the petitioner for production of additional documents sans merit as it is settled principle of law that a party that had opportunity, but elected not to produce evidence, cannot be allowed to give evidence that could have been given in the court below. In this regard assistance may be had from the case of State of U.P. v. Manbodhan Lal Srivastava (AIR 1957 S.0 912), Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 SC 849), Mustafa Kamal and others v. Daud Khan and others (2009 SCMR 221). Now a question arises, whether the additional documents are essential for effective adjudication of the disputes between the parties and the same could be allowed by the learned District Judge by invoking expression " to enable it to pronounce judgment" as used in clause (b) of Rule 27(1) of Order XLI, C.P.C. In order to address this issue I would like to refer to the scope of an application filed under Order XLI, Rule 27, C.P.C. Section 107 C.P.C. Enables Appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27, C.P.C. Principle to be observed ordinarily is that the Appellate Court can neither travel outside the record of the Trial Court nor take evidence on appeal. However, section 107(d) C.P.C. Is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under- the circumstances mentioned under the rule to permit additional evidence and parties are 'not entitled, as of right, to the admission of such evidence and the -matter is entirely in the discretion of the Court, which is, of course to be exercised judiciously and sparingly. Privy Council in the case of Kessowji Issur v. GIP Railways (1907)
ILR 31 Bombay 381) while examining the scope of Order XLI, Rule 27 C.P.C. Has held that this rule alone can be looked to for taking additional evidence and that the Court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order XLI, Rule 27, C.P.C. Envisages certain circumstances when additional .Evidence can be adduced. At this juncture it would be appropriate to reproduce. Rule 2.7, C.P.C. Of- Order XLI which read as under: "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.
' In the instant case, it is not the case of the petitioner that the first situation is attracted because the learned Trial Court never refused to admit the additional documents in evidence. In second circumstance, the Appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any Other substantial cause. The expression "to enable it to pronounce judgment", has been subject to several decisions of superior Courts wherein it has been held that when Appellate Court finds itself unable to pronounce judgment owing to lacuna or defect in the evidence as it stands, it may admit additional evidence but a party to the appeal cannot be allowed to produce additional evidence so as to patch up the weaker parts of its case or fill up omission. In this regard reliance may be pleaded on the cases of Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684), The Secretary of the Government of West Pakistan, Communication and Works and another v.
Gulzar Muhammad (PLD 1969 SC 58),Messrs A Muhammad Siddiq Muhammad Umar and another The Australasia Bank (Ltd), Muhammad Yousaf v. Mst.. Maqsooda Anjum.And others (2004 SCMR 1049) Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304). The ability to pronounce a judgment is to be understood as ability to pronounce a judgment satisfactory to the mind of the court delivering it. -It is only lacuna in the evidence that will Dempower the court to admit additional evidence. This view finds support from the cases of Subba Naidu v. Ethirajammal and others (AIR 1916 M. 966), Bur Singh v. Santa Singh and others (AIR 1938 Lahore 161), The Municipal Corporation of Greater Bombay v. Lal Pancham and others ('AIR 1965 SC 1008), and Qalandar v. Muhammad Zarian and another (1980 CLC 1417). But mere difficulty in coming to a decision is not sufficient for admission of evidence under Order XLI, Rule 27 C.P.C. The words "or for any other substantial cause" must be E read with word "require" which is set out at the commencement of the provisions so that it is only where, for .Any other substantial cause, Appellate Court requires additional evidence. It is under these circumstances such power may be exercised. In this regard assistance may be had form Parsotim Thakur and others v. Lal Mohar Thakur and others (AIR 1931 PC 143) and Seth Kunjilal Manakchandji. Bhawasar and others v.
Shankar Nanuram (AIR 1943 Nag 289), Ghulam Farid and 12 others v. Gahroo and 12 others (1972 SCMR 372) Muhammad Lal v. Mohko (PLD 1979 ,SC(AJ&K) 15), and Muhammad Siddique v. Abdul Khaliq and 28 others (PLD 2000 SC (AJK) 20). In the instant case the learned lower Appellate Court after appreciating the evidence available on record has declined the permission to produce additional documents. The learned first Appellate Court has exercised its discretionary power judiciously and by expressing cogent reasons. Hence, when first Appellate Court does not find necessity to allow the application, then, High Court in exercise of its revisional jurisdiction under section 115 C.P.C. Cannot interfere with such order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the Appellate Court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstance. In these circumstances precedents cited by the learned counsel for the petitioner are distinguishable and do not help the arguments canvassed by him.
7. In view of above, this petition lacks merit and is accordingly dismissed with no order as to costs..