' MEHMOOD MAQBOOL BAJWA, J.---Suit for declaration and perpetual on injunction was instituted by the petitioners against the respondents claiming proprietary and possessory rights in respect of property subject-matter of the suit in negation of Mutation No, 471 attested on 7-4-1994. Suit was contested by the respondent legally as well as on facts.
2. Divergent pleadings of the parties resulted in casting of ten issues. After recording pro and contra evidence, learned trial Court granted decree in favour of the petitioners.
3. Being aggrieved by the said judgment and decree, the respondents preferred an appeal before the learned District Judge at Khanewal, in which application under Order XLI Rule 27 read with section 151 of The Code of Civil Procedure (Act V of 1908) was made for production of witnesses as well as documents mentioned in Para-2 of the application which though was contested by the petitioners but was allowed by the learned District Judge Khanewal on 26-10-2002. Order allowing the application for additional evidence has been called in question by the petitioners contending that no reason, whatsoever, was given by the respondents for non-production of oral as well as documentary evidence sought to be adduced by them. Further argued that the documents as well as particulars of witnesses were already in the knowledge of the respondents but no reasons whatsoever was ever given for their non-production at appropriate stage.
' Continuing the arguments, learned counsel for the petitioners contended that respondents failed to highlight the reason for non-production of documents in order to attract the provisions of law under which application was made.
' While making reference to Para-6 of the impugned order whereby reliance was placed upon "Zar Wall Shah v. Yousaf All Shah and 9 others" (1992 SCM R 1778), it was argued that respondents were obliged to give reasons for non-production of documents. Reliance was placed upon ratio enunciated in "Mustafa Kornai and others v. Daud Khan and others" 2009 SCM R 221. Seeking help from Ratio expounded in "Muhammad Anwar and others v. Mst. Ryas Begum and others PLD 2013 SC 255), it was submitted that since respondents failed to highlight any good cause for non- production of evidence earlier, therefore, order impugned suffers from jurisdictional defect and is liable to be set aside.
4. Repelling the arguments and defending the impugned order learned counsel for the respondents maintained that evidence, oral as well as documentary referred in Para-2 of the application is essential for just decision of the case and all the witnesses are public servants.
Submitted that respondents could not produce the certified copies of Revenue Record, authenticity of which being public documents cannot be questioned. Banking upon the rule of law enunciated in "Syed MUHAMMAD HASSAN SHAH and others v. Mst. BINAT-E-FATIMA and another" (PLD 2008 SC 564), it was submitted that since the documents sought to be produced are essential for the just decision and in order to resolve controversy, therefore learned appellate Court rightly allowed the application.
5. The petitioners instituted suit for declaration claiming ownership of the property subject-matter of the suit contending that transaction witnessed through Mutation No,471 dated 7-4-1994 is result of fraud and misrepresentation as the petitioners who are illiterate neither appeared before Halqa Patwari nor before Revenue Officer to get the Rapat entered and at the time of attestation of mutation. Further submitted that petitioners did not receive any sale price.
6. Perusal of Para-2 of the application for additional evidence suggests that respondents want to produce Hafiz Zafar Saleem, Tehsildar Khanewal, Rana Murid Hussain Patwari, Revenue Patwari serving in the concerned Halqa Patwari along with record of Mutation No,471 dated 7-6-1994 and copy of Rapat Roznamcha Waqiati No,279 dated 25-5-1994 in order to prove the genuineness of the transaction assailed by the petitioners.
7. Perusal of Para-6 of the impugned order suggests that learned District Judge while relying upon the case of "ZAR WALL SHAH v. YOUSAF ALI SHAH and 9 others" (1992 SCM R 1778) observed that concept of bar against filling the gaps and lacunas is no more available in the Pakistani jurisprudence.
8. Perusal of the case-law cited at bar by the learned counsel for the petitioners though suggest that application for additional evidence cannot be allowed in a routine and the party approaching the Court must satisfy that case is covered under the provision of Order XLI, Rule 27 of The Code of Civil Procedure 1908 but I may advantageously make reference to the dictums laid down in "Syed SHARIF UL HASSAN through L.Rs, versus Hafiz MUHAMMAD AMIN and others" (2012 SCM R 1258) in which it has been held that justice at no cost and at no stage would be allowed to fall prey of technicalities which may be ignored if they tend, to create hurdles in the way of justice. It was further held at para 1266 as follows:- "But it may not be lost sight of that it is not only misreading or non-reading of evidence which amounts to exercising jurisdiction illegally or with material irregularity. Failure to record additional evidence which is essential for just decision of the case also amounts to exercising jurisdiction illegally and with material irregularity. Failure to do so shall be failure to exercise jurisdiction vested. The District "Judge or for that matter the High Court in the circumstances should have stepped into correct the illegality by permitting examination of additional evidence. But where they failed, they failed to exercise jurisdiction vested. Judgments rendered in the cases of "Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal", "Abdul Majid and others v. Khalil Ahmad", Prem Singh Hyanki and another v. Deb Singh Bisht and another" and "Harry Young Lal v. Banjamin Cho Fook Lun and another", Mumtaz and 3 others v. Mian Khan", Ramzan Ali Ansari v. Ghulam Qadir and others" (supra) are, therefore, not applicable to the case in hand. Judgments rendered in the cases of A "Abdul Rashid v. Bashiran and another", "Syed Rafiul Qadre Naqvi v. Syeda Safia Sultana and others", "Ghulam Rasool through L.Rs, and others v. Muhammad Hussain and others" (Supra) having distinguishable facts and features are also of little relevance' to the case in hand.
Judgment rendered in the case of "Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patel and another" taking too narrow and pedantic view of the subject and situation has not moved us to the least. The fact is that we are for ahead of the stage, the Supreme Court of India was at, during the time it rendered the judgment cited above. Gone are the days when superior Courts declined to interfere with the findings of the fora a below even though it was erroneous. "
9. After dealing with the provisions of Order XLI, Rule 27 of The Code of Civil Procedure, 1908 and while allowing the appeal and setting aside the judgments and decrees of the High Courts and of District Judge, matter was remanded to the trial Court to decide it afresh after receiving the additional evidence.
10. Evidence, oral as well as documentary, particulars of which have been referred to earlier, keeping in view the relief sought for, is essential for just decision of the case.
11. Discretion was exercised by the learned District Judge according to settled provisions of law which is neither perverse nor arbitrary and as such is not subject to revisional jurisdiction of this court. Reliance is placed upon "Shahzada MUHAMMAD UMAR BEG V. SULTAN MAHMOOD KHAN AND ANOTHER (PLD 1970 SC 139) and "MALIK KHUDA BAKHSH AND ANOTHER V. SYED HAMID ALI SHAH (1981 SCM R 196).
12. Viewed from which ever angle, revision petition as laid and framed is not maintainable and as such is dismissed.
13. Appeal preferred by respondents titled "MUHAMMAD IQBAL ETC. V.
NAZIRAN BIBI AND OTHERS" was pending before the Court of learned District Judge Khanewal on 26- 10-2002 when the application for additional evidence was allowed, therefore, learned District Judge Khanewal is directed to decide the appeal expeditiously after requisitioning the relevant record but not later than 15th of January, 2014.
14. No order as to costs.