' MUHAMMAD NOOR MESKANZAI, J.---Through this judgment, I Would like to dispose of Civil Revision Petition No. 148 of 2012, whereby the petitioner has called in question the legality, validity and propriety of the order dated 15th May, 2012 passed by the Additional District Judge-I, Quetta.
2. Facts in brief, are that the petitioner filed a suit for declaration, cancellation of mutation of Inheritance No. 88 to the extent of Shamilat land, permanent injunction and consequential relief against the respondents Nos. 1 to 7, in the court of Civil Judge-III, Quetta. The suit was contested by the respondents. The trial Court after obtaining written statement framed the necessary issues.
Thereafter, the parties produced their evidence in support of their respective claims. The trial Court after fulfilling the legal formalities dismissed the suit vide judgment and decree dated 29th September, 2011. Feeling aggrieved of the judgment and decree referred to herein above the petitioner preferred Civil Appeal No. 119 of 2011, which is sub judice before the Additional District Judge-I, Quetta. Along with appeal, the petitioner filed an application under Order XLI Rule 27, C.P.C.
Seeking production of following additional evidence:--
(i) Revenue Record of jama bandi prepared in the year 1950-51.
(ii) Pedigree-table of the shamilat land in question.
3. The application was contested by the respondents. The learned appellate court after hearing the parties vide order impugned herein dismissed the application, hence instant revision petition.
4. Learned counsel for the petitioner contended that the appellate court committed material irregularity by dismissing the application as the documents sought to be brought on record were quite important and essential for just decision of the case. It was further stated that the appeal being the continuity of the suit confers a right upon a party to produce at any subsequent stage the evidence that was either not available or not in the knowledge of the parties at the. Time of producing its evidence. The learned counsel requested for acceptance of the petition, setting aside the impugned order and allowing the 'application for additional evidence with permission to the petitioner to place on record both the above referred documents.
' Learned counsel for the respondents strenuously opposed the submissions and stated that the petitioner has neither relied upon the document in question in his plaint nor the same were referred to and listed in the list of reliance. It was further stated that the document sought to be produced by the petitioner are neither necessary nor would help the Court to arrive at just decision of the case. The learned counsel for the respondents requested for dismissal of the petition.
5. I have considered the arguments advanced by the learned counsel for the parties and have perused the available record. The perusal of the record reflects that one of the document i.e. Pedigree-table sought to be produced by the petitioner has already been tendered in evidence i.e. Exh.d/2, as reflected from the observations of the appellate Court. So far as, the second document is concerned, it is pertinent to note that neither this document was relied upon nor the said document contains any reference in the plaint. The petitioner has further failed to show how this document is necessary for just decision of the case. The language of Order XLI Rule 27, C.P.C.
Reveals that it is coached with negative language and places an embargo upon the powers of the appellate court with regard to entertaining additional evidence unless three conditions are satisfied: (i) the evidence sought to be produced has been refused by the trial Court to admit which ought to have been admitted (ii) the appellate court requires any document to be produced or witness to be examined in order to enable itself to pronounce the judgment; and (iii) for any other substantial cause. As far as the first condition is concerned, this does not apply in this case as the document sought to be produced by the petitioner has not been relied upon as a piece of evidence nor the plaint contains any reference of the document. Furthermore; within the perspective of Order XLI Rule 27, C.P.C. It is inevitable for an applicant to show the document was tendered in evidence and the Court refused to admit the same without plausible, reasonable and viable justification. It should further be shown that the document sought to be brought on record ought to have been admitted. The document for the first time has been produced before the appellate Court. The reason mentioned in the application is of no avail because the document sought to be produced seems to have been obtained from the Revenue Record and such Revenue Record is/was always available and secondly the said document, according to the observations of the appellate court appears to have been tampered with, which requires another enquiry, thus, in the garb of this application, another protracted trial would start in the appellate jurisdiction which is neither warranted nor advisable. The law stands settled on the subject that if proper explanation is not offered for not tendering the document in evidence before the trial Court, the appellate court would be reluctant to entertain the request for production of evidence. Reliance is placed on the judgment titled as 'Muhammad Ramzan and others v. Niaz Ali and others' reported in 1988 SCMR page 1652, relevant at page 1654. Relevant observations therefrom are reproduced hereinbelow:-- "It is also contended that the learned High Court was not right in rejecting their prayer for additional evidence.This contention is also without any merit, for, no explanation has been offered why the evidence which was sought to be produced in the High Court for the first time was not tendered before the trial Court".
6. As far as the second condition is concerned, this condition is lacking. Since the material already available on record has not been held/treated insufficient by the appellate Court to warrant a decision of the case on merits. The appellate Court rejected the request meaning thereby the document sought to be produced is not required by the appellate Court to enable it to pronounce judgment, in such a situation,. The provisions of Order XLI Rule 27, C.P.C. Are not attracted. In this regard reliance is placed on the judgment titled as 'Sm. Krishna Subala Bose and others, v.
Dhanapati Dutta and others' reported in AIR 1957 Calcutta 59, (relevant observations at page-61) wherein it has been observed as under: "Additional evidence may be taken in appeals only under Order XLI R.27. As the document was not tendered at the trial, R.27(1) of Order XLI does not apply. So R.27(2) is the only part of the rule that can be invoked. It applies only where the appellate Court needs the additional evidence for being able to pronounce judgment or for any other substantial cause."
7. As far as the third contention i.e. Any other substantial cause is concerned, this again requires that the evidence must be required by the court itself and this power is exercisable in the interest of justice and not for the purpose of allowing the patching up of a weak case or to allow to fill-in the gaps. I have no doubt in my mind that by requiring additional evidence within the domain of Order XLI, Rule 27, C.P.C., it is the judicial wisdom of the Court that is to prevail and not the wish and whim of a particular party. Reliance is placed on the case titled as 'Bashir Ahmed v. Ahmad-ul-Haq Siddiqui' reported in 1985 SCMR 1232, relevant observations therefrom read as under:-- ""Rule 27 of Order XLI, C.P.C. Does not envisage filling up of the lacunas left by a party in the evidence before the trial Court. Additional evidence under the above rule may be allowed to be recorded if the appellate Court itself so requires. Additional evidence cannot be allowed in order to enable a party to patch up the weaker part of its case or to fill up omission or to enable it to raise a new point. It can be allowed only if it is required by the appellate Court itself on the basis of its own appreciation of the evidence already on record."
' We have perused the judgments on this point which were relied upon before the Division Bench by the parties, namely, Messrs Muhammad Siddiq Muhammad Umer and another v. Australasia Bank Ltd. PLD 1966 SC 684, Khan Iftekhar Ahmad v. Messrs Ghulam Nabi Corpn. PLD 1971 SC 550 and Secretary to Government of West Pakistan and another v. Gulzar Ahmad PLD 1969 SC 60, as also the earlier judgment delivered by this Court in the case of Muhammad Ikhlas v. Muhammad Ismail PLD 1983 SC 466 and are satisfied that in the facts and circumstances of this case the view taken by the learned Judges in the High Court refusing permission to faulted."
8. At this premature stage no interference is called for. Perhaps, at this juncture any interference would amount to pre-empt the powers of the appellate court which is neither aim of law nor the requirement of justice.
' For the foregoing reasons, I am of the considered opinion that the appellate court after attending each and every aspect of the case has rightly passed the impugned order and the same is neither open to any E exception nor it suffers from any illegality, irregularity, perversity, impropriety and invalidity. Thus, the petition has no force, which is accordingly dismissed leaving the parties to bear their own costs.