' SHAHID JAMIL KHAN, J. --- This revision petition is filed against judgment and decree dated 24.05.2014 passed by Additional District Judge, Rawalpindi, Camp at Murree.
2. Facts briefly are that a suit for declaration with permanent and mandatory injunction was filed by respondent No, 1 regarding a passage (described properly in the suit). The suit was contested by the petitioners through written statement. Issues were framed on divergent pleadings, evidence was led and the suit was dismissed vide judgment and decree dated 17.02.2010 by Civil Judge, Murree.
' In appeal an application under Order XLI, Rule 27 of CPC was moved by respondent No, 1 for production of additional evidence. This application was resisted by present petitioners on the ground that no such application was filed before the Trial Court. The application was allowed by Appellate Court vide judgment dated 24.05.2014 and case was remanded for deciding the suit afresh, with direction to allow the respondent/appellant to produce the documentary evidence.
The judgment dated 24.05.2014 is assailed hereby.
3. It ' is reiterated by learned counsel for petitioners that application could not be accepted, when it was not moved before the Trial Court first. It is argued that order of remand is against the spirit of Order XLI, Rule 27 of CPC.
4. Learned counsel for respondent No, 1 has supported the impugned judgment and submits that the document sought to be produced, as additional evidence, was a judgment and decree regarding the same passage, therefore, the Appellate Court was justified to allow the application.
5. Heard. Record perused.
6. Before any deliberation, it is imperative that the provisions of Order XLI, Rule 27 of CPC be examined, which are reproduced for quick reference:---.
"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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
(emphasis supplied)
7. For production of additional evidence; Trial Court, permission is to be sought under Rule 2 of Order XIII CPC after showing good cause to the satisfaction off Court. Rule 2 of Order XIII, CPC is also reproduced hereunder--- "Effect of non-production of documents.---No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-roduction thereof' and the Court receiving any such evidence shall record the reasons for so doing.
(emphasis supplied)
8. After examining both the provisions in juxtaposition, it is revealed that procedure for production of additional evidence is provided under separate Rules (ibid). Language used by Legislature, in both the Rules, confirms that production of additional evidence is discouraged as a rule and permission for its production is an exception. The permission can be granted only on showing good cause for its non-production to the satisfaction of Court. Trial Court is required to satisfy itself on good cause; why production of documentary evidence was prevented earlier. Whereas under Order XLI, Rule' 27, the Appellate Court is required to record reasons for admission of the application for production of additional evidence subject to fulfilment of conditions mentioned therein. Rational behind discouraging production of additional evidence is enshrined by Apex Court in Syed Muhammad Hassan Shah and other v. Mst. Binat-eFatima and another (PLD 2008 S.C. 564) holding; "additional evidence cannot be allowed in order to allow a party to patch up the weaker part of its case or fill up omissions".
9. If Appellate Court allows such additional evidence, on fulfilment of conditions under clause (a) and (b) of Sub-rule (1) of Rule 27 of Order XLI, then it is mandatory for Appellate Court to decide the case itself. Words "in the Appellate Court" used in the Sub-rule and caption of the Rule 27 also suggest that production of additional evidence is allowed for proceedings in the Appellate Court.
Appeal is a continuation of proceedings, any error, misreading or non-reading if found by the Appellate Court is required to be corrected in the appellate proceedings. The Appellate Court, therefore, was not justified to remand the case after accepting application for production of additional document.
10. For the reasons supra, the impugned judgment dated 24.05.2014 by the Appellate Court is set aside. Application for production of additional evidence shall be deemed pending before Appellate Court, to decide it afresh strictly in accordance with the provisions of Rule 27 of Order XLI of CPC, as interpreted (supra), after hearing both the parties.
11. Revision petition is allowed.
Case revision .