' SHAHNAWAZ TARIQ, J.--- Through this common order I would like to dispose of C.M.A No,303 of 2013 and C.M.A No,3226 of 2014 filed by applicants.
2. In C.M.A. No,303 of 2013, applicants have agitated that interlocutory application filed by them under Order XLI, Rule 27 read with section 151, C.P.C. For permission to adduce additional evidence before the appellate Court which was not decided by the Appellate Court while deciding the main appeal. In C.M.A. No,3226 of 2014, applicants have prayed to permit them to produce additional evidence as three daughters of the applicant No,1 are eye-witnesses of all the relevant facts.
3. Precisely, facts pertaining to instant civil revision application are that respondent No,1, Muhammad Aslam, filed Suit No,557 of 2005 for declaration, possession, mesne profit and permanent injunction against respondents. While applicants No,1, Mst. Asia Begum, filed civil suit No,441 of 2006 for declaration and cancellation of lease deed. The respondent No,1 has stated that he is owner of House No,624, Abdullah Shah Colony, admeasuring 89.55 Sq yards by virtue of lease deed dated 2-12-2004. He also stated that he has been residing in disputed house where his Nikah was performed and children were born. Applicants in their suit have denied the claim of the respondent No,1 and stated that applicant No,1 has been residing in House Nos.624 and 625, sector 48-A, Shah Noorani Basti, admeasuring about 100 sq yards since 1983. It is further averred that the eldest daughter of applicants Nos.1 and 3 was married with the respondent No,1 and out of love and affection for their daughter, they temporarily accommodated the respondent No,1 and his family by providing them suit plot along with its construction. After some time when applicants asked respondent No,1 to vacate their house, the respondent No,1 and his wife declined their request with intention to devour their property. Applicant No,1 filed Civil Suit No,360 of 2004 which was disposed of in view of statement filed by the respondent No,1 .
4. The trial Court vide order dated 5-10-2006 consolidated Civil Suits Nos.557 of 2005 and 441 of 2014, and Civil Suit No,557 of 2005 filed by the respondent No,1 was treated as leading suit. In the light of divergent pleadings of consolidated Civil Suits Nos.557 of 2005 and 441 of 2014, the learned trial Court framed following consolidated issues:---
(1) Whether defendants Nos.1 and 3 were originally unauthorized possession holders of the above disputed property or illegally occupied?
(2) Whether defendants Nos.1 and 3 provided facility of accommodation of one room to Muhammad Aslam and his wife for some time?
(3) Whether the plaintiff was residing in/holding possession of suit property before lease executing in his favour?
(4) Whether the plaintiff and his wife got fraudulently leased out of title documents from the Assistant Director Katchi Abadi in respect of house bearing No, 624, Abdullah Shah Noorani Colony?
(5) Whether the plaintiff was dispossessed by the defendants Nos. 1 and 3 forcibly from the suit property?
(6) Whether the lease deed of December, 2004 is liable to be cancelled?
(7) Whether the plaintiff is entitled for possession and mesne profit at Rs,2000 per month?
(8) What should the decree be?
5. The respondent No,1 /plaintiff examined himself as Exh.P/1 and produced documentary evidence as Exhs.P/1-A to P/1-M. Mst. Ambreen and Mst. Noreen as Exh.P-2 and Exh.P-3. Applicant No 1/defendant No,3 was examined as Exh.DW-1. Applicant No,3 was examined as Exh.D/2 and Abdul Mateen as Exh.D/3.
6. After recording evidence of the parties, the learned IInd Senior Civil Judge, Karachi East vide consolidated judgment dated 12-3-2009 and decree dated 14-3-2009 decreed Civil Suit No,557 of 2005 filed by respondent No,1 and dismissed Civil Suit No,441 of 2006 filed by the applicant No,1.
Applicants challenged the judgment and decree of the trial Court by filing Civil Appeal No,60 of 2009. Applicants thereafter filed an application under Order XLI, Rule 27, C.P.C. Before the appellate Court seeking permission to adduce additional evidence. The learned 1st Additional District Judge, Karachi East ultimately dismissed civil appeal filed by the applicants vide judgment dated 22-7- 2011 and maintained the judgment and decree passed by the learned trial Court. However, the learned appellate Court left the interlocutory application under Order XLI, Rule 27, C.P.C. Pending on record and did not dispose of the same. Through instant revision application applicants have agitated concurrent findings of both Courts below including the factum of pendency of their application under Order XLI, Rule 27, C.P.C. For additional evidence. The respondent No,1 through his counsel has filed counter affidavit challenging the maintainability of application under Order XLI, Rule 27, C.P.C. Filed by applicants.
7. Mr. Muhammad Arshad Mughal, learned counsel for applicants contended that the eldest daughter of applicants Nos.1 and 3 was married to the respondent No,1 and due to love and affection they provided the disputed plot along with its construction to the respondent No,1 and his family to reside near to their house. The respondent No,1 after marriage resided there for five or six months only and then shifted to some other place. He further contended that the respondent No,1 in collusion with his wife used identity cards and other documents of the applicants and fraudulently obtained lease deed dated 2-12-2004 of house in question in his name. Applicants are in peaceful possession of house in question and the respondent No,1 with the help of local police tried to dispossess applicants, therefore, applicant No,1 filed Civil Suit No,360 of 2005 for permanent injunction which was disposed of on the undertaking of the respondent No,l. He further submitted that during pendency of civil appeal before the court of learned appellate Court, applicants filed an application under Order XLI, Rule 27 read with section 151, C.P.C. For permission to adduce the additional evidence which was very essential to resolve the dispute as the respondent No,1 had committed misrepresentation and fraud while obtaining the impugned judgment and decree from the trial Court. The appellate court decided the main appeal without deciding the interlocutory application filed by the applicant as such they have been deprived from the legal remedy and impugned judgment is liable to be dismissed. He relied upon 2009 SCM R 326, Muhammad Azam v.
Muhammad Abdullah through legal heirs.
8. In support of C.M.A. No, 3226 of 2014, learned counsel for the applicant has contended that applicants may be permitted to produce additional evidence as the three daughters of the appellant No,1 are also eye-witnesses of all relevant facts but statement of her only one daughter namely Mst. Noureen Akhter was earlier recorded by the trial Court and such statement was recorded under pressure for want of the original documents of the house of Mst. Noureen which were wrongly retained by respondent No, 1.
9. Mr. Nasir Rizwan Khan, learned counsel for the respondent No,1 vehemently contended that both applications filed by the applicants are not maintainable, as the permission for additional evidence is discretionary in nature and appellate Court was not bound to permit the applicants to produce additional evidence. He further submitted that the civil appeal was decided by the appellate Court on merits covering all aspect of the controversy, therefore, mere pendency of the application for additional evidence will not vitiate the comprehensive findings of the appellate Court. He further contended that the applicants want to fill the lacuna of discrepancies of their evidence as they had not moved such application before the trial Court, therefore, both CMAs are liable to be dismissed. He relied upon 2009 SCM R 221, 2000 CLC 1272 and 2010 CLC 112.
10. I have heard learned counsel for the parties at length and perused the material available on record. Perusal of record reflects that respondent No,1 is son-in-law of applicants Nos.1 and 3 and allegedly they out of love and affection for their daughter had allowed respondent No,1 to reside in disputed house temporarily and the respondent No,1 after five or six months shifted from the disputed house to some other place. It is also alleged that the respondent No,1 and his wife used identity cards and other documents of the applicants to obtain lease of disputed house fraudulently. Admittedly, applicants are in possession of disputed house and the respondent No,1 has alleged that applicants have trespassed into the disputed house, meaning thereby that the respondent No,1 was not residing in the. Disputed house at the time of alleged trespass. Moreover, to thrash out the authenticity of above counterclaims of both parties, the learned trial Court has framed Issues Nos.2 and 4 respectively and parties have also lead their evidence in this regard.
11. Adverting to the merits of the instant revision application, undoubtedly, the applicants had filed application under Order XLI, Rule 27, C.P.C. For grant of permission to produce additional evidence before the learned appellate Court but same was neither decided prior to the passing of impugned judgment by the appellate Court nor even it was touched in the impugned judgment. As per contention raised by the learned counsel for the parties, the application for additional evidence remained undecided, and the learned appellate Court has passed the impugned Judgment and decided main appeal on merits. Both parties are close relatives and were residing in adjacent houses. They are disputed over the house in question and their respective claims were adjudicated by the Courts below on merits, but the pendency of the application for additional evidence moved by the applicants is fatal to the findings of the appellate Court passed in the impugned Judgment.
In case of Muhammad Azam v. Muhammad Abdullah through legal heirs (referred supra), the Hon'ble Supreme Court has observed that High Court decided the revision application without taking into consideration the documents in question and without disposal of application for additional evidence as such case of defendants have been prejudiced. The Hon'ble Supreme Court remanded the case to the High Court for decision afresh on merits and in accordance with law after dealing with the application for additional evidence.
12. In present case, undeniably, application under Order XLI, Rule 27, C.P.C. Filed by applicants before the appellate Court for permission to adduce the additional evidence remained undecided.
Admittedly, applicants had not filed application under Order XLI, Rule 27, C.P.C. For additional evidence before the learned trial Court but said application has been brought directly before the learned appellate Court and non-filing of such application before the trial Court will not debar applicants to prefer said application before the appellate Court if the proposed additional evidence is indispensable to determine the rights of the parties and even the factum of any delay in this regard will also not impose any embargo upon applicants from invoking such jurisdiction of the Court to meet the ends of justice. In case of Mohabbat v. Asad Ullah Khan and others, PLD 1989 SC 112, the Hon'ble Supreme Court has observed that a reference to Order XLI Rule 27, C.P.C. Makes it clear that where the appellate Court requires any witness to be examined to enable it to pronounce judgment, it may allow such witness to be examined, and the only rider placed is that it shall record reasons for doing so. The Hon'ble Supreme Court has further held that additional evidence can be admitted to rectify the error where the Court had acted illegally or with material irregularity in the exercise of its jurisdiction, and justifiably fell within the four corners of the observation of Supreme Court in Haji Muhammad Zaman v. Zafar Ali Khan and others, PLD 1986 SC
88. In case of Ghulam Muhammad and another v. Muhammad Aslam and others, PLD 1993 SC 336, the Hon'ble Supreme Court has observed that under Order XLI, Rule 27 C.P.C. 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.
13. Consequently, I am of the considered view that wisdom of the provision of Order XLI, Rule 27, C.P.C. Is to provide an adequate opportunity to the parties at the ligation to adduce additional evidence by producing necessary documents or witnesses which were either not available or could not be produced by the concerned party due to unavoidable circumstances but such production of documents or witnesses is essential to decide the controversy to meet the ends of justice. In instant case, the learned appellate Court while deciding the civil appeal on merits through impugned judgment had committed illegality as the application for additional evidence moved by the applicants remained undecided.
14. For C.M.A. No,3226 of 2014, applicants are at liberty to move same application before learned appellate Court and learned appellate Court will decide the same considering the peculiar circumstances of the controversy. Since parties have agitated their case to the extent of C.M.As.
Nos.303 of 2013 and 3226 of 2014, therefore, I have not explored the merits of both judgments passed by the two Courts below.
15. As sequel of the discussion made supra, I accept instant revision application and set aside the impugned judgment 22-7-2011 passed by the learned appellate Court and dispose of C.M.A. No,303 of 2013 and C.M.A. No,3226 of 2014. Consequently, case is transmitted back to the learned appellate Court with directions to decide civil appeal afresh purely on merits after affording adequate opportunity to the parties to argue the pending application under Order XLI, Rule 27, C.P.C. Moved by the applicants to adduce additional evidence. The respondent shall also be provided opportunity of rebuttal to the iota of additional evidence adduced by applicants. Parties are directed to appear before the Court of learned 1st Additional District Judge, Karachi East on 30-8- 2014 without fail. Parties are left to bear their own costs.