' This civil revision is directed against the order dated 12.11.2009 passed by learned Additional District Judge, Khanewal, whereby he dismissed the application of the petitioner moved under Order XLI, Rule 27, CPC.
2. This revision petition arises out of a civil suit for declaration instituted by the respondents. It was set out in the plaint that the plaintiffs being inhabitants of village Batian, Miachannu are entitled to using a thoroughfare/common passage, measuring 7 kanals, 4 marlas bearing Khewat No. 198/191 Khatuni No. 330 Khasra Nos.43/6/1, 16/1, 45/4, 56/15/4 of village Batian, Tehsil Mianchannu District Khanewal. As a consequential relief, it was prayed by the plaintiffs/respondents that the defendants in general and the petitioner herein in particular be restrained from digging up the land, which would render the common passage impassable and block their excess to the same.
3. It goes without saying that the defendants entered appearance. Two independent written statements were filed: one, by the Province of the Punjab which took the plea that the land set aside for the thoroughfare/common passage belongs to the Federal Government, and the second by the petitioner herein, who traversed all the allegations made in the plaint, besides raising preliminary issues, one of them being that under Sections 91 and 92, CPC, permission was to be obtained from the Advocate General Punjab or the Collector of the District for that matter before instituting the suit.
4. The learned trial Court seized with the it framed as many as 10 issues arising from the divergent pleadings of the parties. They need not be reproduced. Suffice it to add that the suit of the plaintiffs was decreed by the learned trial Court vide judgment and decree dated 14.07.2008. Feeling aggrieved, the petitioner herein instituted an appeal to impugn the validity of the aforesaid judgment and decree dated 14.07.2008.
5. Almost a year after the institution of the appeal, the petitioner/judgment-debtor came up with an application under Order XLI, Rule 27, CPC seeking to produce additional documents, the details whereof have been set out in Paragraph No. 3 of the application.
6. As stated above, the aforementioned application made by the petitioner for production of additional evidence did not find favour with the learned Appellate Court seized with the appeal, which dismissed the same vide order dated 12.11.2009. Hence this revision petition.
7. Learned counsel for the petitioner reiterated what was spelt out in the grounds of revision. He argued that report dated 19.07.1997 prepared by the Assistant Commissioner, Mianchannu made it absolutely clear that the plaintiffs had an alternative path available to them an d that the alleged path-the subject matter of, the suit -had ceased to be used. He made the argument that subsequent events are invariably taken into consideration by the Courts, which generally mould the relief according to the changed circumstances. He stressed that the law on the subject has undergone a sea change. According to him, the view long held by the Courts that a party to an appeal is not to be allowed to fill up lacunas no long holds good. He placed reliance on the judgments reported as "Mst. Fazal Khan v. Roshan Din' (PLD 1992 SC 811), 'Ghulam Zohra and others v. Nazir Hussain through legal heirs' (2007 SCMR 1117), 'Syed Sharif-ul-Hassan -v. Hafiz Muhammad Amin and others' (2012 SCMR 1258), 'Hassan v. Hussain' (1996 CLC 650) and 'General Manager, Azad Kashmir Pogging and Saw Miles Corporation, Muzaffarabad v. Abdul Rehman and two others' (2013 CLC 1473) to fortify his submissions. It is pertinent to mention that the last of the afore-quoted judgments was delivered by the Supreme Court of Azad Jammu and Kashmir.
8. On the other hand, learned counsel for the respondents/decree-holders opposed this petition and supported the impugned order dated 12.11.2009 passed by the learned appellate Court. He also placed reliance on 'Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another'
(PLD 2008 SC 564) to strengthen his submissions. He controverted the arguments made by the learned counsel for the petitioner, pointing out that the petitioner has failed to show as to how the material sought to be produced by it would have .Decisive bearing on the outcome of the controversy in issue. He also argued that additional evidence is not to be allowed in routine unless it bears any relation to an issue framed by the learned trial Court. In his view, even the extracts from the revenue record are hardly of any relevance. As regards the alleged rent receipts allegedly issued by the District Administration, Khanewal, he was quite scathing in his remarks. He wondered how the District Administration can allow the petitioner to encroach upon a thoroughfare/public path, letting it annex it to its power plant, especially when it was the stance of the Provincial Government represented by the District Administration that the land covered by the thoroughfare in question belongs to the Central Government.
9. I have listened to the arguments of the learned counsel for the parties patiently and at length, besides going through the impugned order as also the documents annexed to the revision petition in terms of Section 115, CPC.,
10. Since the case of the petitioner rests on the interpretation and construction of Rule 27 of Order XLI, CPC, it would be useful to reproduce the same hereunder:-- '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.
11. To a layman and an ordinary student of law, the words used by the legislature in the afore- quoted rule may not present any difficulty. And yet, it has racked the best legal brains both in Pakistan and elsewhere. A great mass of case law has gathered round this rule. To begin with, it was analyzed by the Privy Council in the celebrated case of 'Parsotime Thakur and others v. Lal Mohar Thakur and others' (AIR 1931 Privy Council 143). The relevant paragraph therefrom reads as under:-- 'In their Lordships opinion this additional evidence ought not to have been admitted. If the respondents desired to give evidence as to the thumb impression they had ample opportunity to do so in the trial Court. The provisions of S. 107, Civil P.C., as elucidated by 0. XLI R. 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omission in the Court of Appeal.
Turning to the provisions of R. 27 Cl. (1) (a) has no application in the present case. Under Cl. (1) (b) it is only where the appellate. Court requires it, (i.e. Finds it needful that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for .Any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but: "when on examining the evidence as it stands some inherent lacuna or defect becomes apparent."
' It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing and under R. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.
' They will only add that the power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case.'
12. It seems that the law laid down by the Privy Council in the above-noted case was consistently followed by the Courts. However, a jarring note was struck in the case reported as 'Mst. Fazal Jan v.
Roshan Din and 2 others' (PLD 1992 SC 811). The facts of the case would set this precedent apart. It was noticed by the Hon'ble Supreme Court of Pakistan that the case was badly conducted by both the sides. That is why relevant documents could not be brought on the record. In this background, it was held by the apex Court that:- "The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omission from both sides. It was also the duty of the two higher appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI Rule 27, CPC for bringing on record additional evidence. The suo mote exercise of his power would also have been fully justified in the facts and circumstances of the case"
' Similar observations were made in the case reported as 'Hassan and another v. Hussain' (1996 CLC 650). The relevant portion may be reproduced advantageously, which reads as under: ' The legislature in its wisdom enacted Order XLI Rule 27, CPC with a view to enable the learned appellate Court to record additional evidence which in its view is necessary to "enable it to pronounce judgment or any other substantial Courts ". The Court has to pronounce a judgment in accordance with law with a view to achieve justice and the afore-referred enabling provision has a nexus with the, ultimate purpose i.e. a just decision. The additional evidence which is sought to be adduced shall have a direct bearing on the point in issue and the test whether a permission should be granted or not is as to whether a just decision could be arrived at without the additional evidence which is sought to be produced."
13. In a recent judgment reported as 'Syed Sharif-ul-Hassan through L. Rs v. Hafiz Muhammad Amin and others' (2012 SCMR 1258) the august Supreme Court of Pakistan took a dim view of the laid- back approach of the appellate Court which failed to exercise its jurisdiction, by disallowing an application moved by a parda nasheen lady who had pleaded with the appellate Court that her disputed thumb impressions on the disputed document be sent to the handwriting expert alongside her admitted thumb impressions for making comparison so as to get to the truth. Not only her application was disallowed by the appellate Court but the Lahore High Court Bahawalpur Bench also did not come to her rescue. Against this backdrop, it was observed as under:-- "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 in to correct the illegality by permitting examination of additional evidence. But where they failed, they failed to exercise jurisdiction vested.
"
14. In the case of Ghulam Zohra and others v. Nazir Hussain through legal heirs' (2007 SCMR 1117) it was held by the Hon'ble Supreme Court of Pakistan in a suit for pre-emption that:- "The Appellate Court would have done justice if it had come to the conclusion that the admittance of additional evidence would promote the ends of justice and the same was required in order to do complete justice between the parties. This must have prevailed as substantial cause for the Appellate Court to admit evidence as mentioned in sub-rule (b) Rule 27 of Order XLI, CPC. We are of the view that both the Courts, by not admitting the additional evidence have passed a decree in favour of a pre-emptor having no superior right. This was a bigger irregularity as compared' 'to the admission of additional evidence for which substantial cause was available."
15. In the case reported as 2013 CLC 1473 (supra) it was held by the Supreme Court of Azad Jammu and Kashmir that an appellate Court has ample powers to record additional evidence either suo motu or on an application of a party.
16. At first sight, it appears to be difficult to reconcile the views and the law laid down in the above judgments with the exposition of law by the Privy Council in the case of 'Lords Blanesburgh and Macmillan and Sir George Lowndes Parsotim Thakur and others v. Lal Mohar Thakur and others' (AIR 1931 Privy Council 143) but on deeper analysis, one can safely assume that all the judgments delivered by the superior Courts proceeded on their peculiar facts, but one strand runs through all of them. In every case where permission for additional evidence was allowed, it was the feeling of the Court concerned that it required additional evidence to ge,t to the truth and to arrive at a just conclusion. As a matter of fact, they are all consistent and in accord with the clear, unambiguous and unequivocal words used by the legislature in Clause (b) of Rule 27 of Order XLI, CPC. It would be worth the effort to take another look. At the relevant rule, which reads as under: ' But if 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, (emphasis added).
' To cut the matter short, an appellate Court has unconstrained and untrammeled powers to allow the additional evidence provided the same is required by it and it arrives at the conclusion after going through the entire record produced before it that the additional evidence either sought to be produced by a party or required by it would enable it to pronounce the judgment or the same would advance the cause of justice. In other words, if it is difficult, if not impossible for an appellate Court to announce the appellate judgment without the recording of additional evidence, it would be failing in its duty to shut it out on ground of refusing to allow the filling up of lacunas.
17. But this not to say that another view is not being expressed consistently by the Supreme Court of Pakistan that parties cannot be allowed to fill up lacunas or to patch up weaker parts of their cases. In this respect, reference may well be made to the judgment reported as 'Muhammad Yousaf v. Mst. Maqsooda Anjum and others' (2004 SCMR 1049), in which it was held as under: 'We are not impressed. It is well-settled that additional evidence cannot be received to fill up the lacuna or provide for deficiency in the case of a party. It is also well settled that the additional evidence is permitted if, the Court needs the same for purposes of disposal of the case. By requesting the Court to permit him to produce private documents as additional evidence, the petitioner was clearly trying to fill up a lacuna and provide for the deficiency in the case. This cannot be permitted. If petitioner's counsel has been negligent, as contended, the petitioner may have to proceed against the counsel concerned. However, this is not a good reason for grant of permission to adduce additional evidence.'
18. In the case of 'Sher Baz Khan and others versus Mst. Malkani Sahibzadi Tiwana and oth ers' (PLD 2003 Supreme Court 849) a Full Bench of the apex Court held as under: 'according to law, an unsuccessful party in a suit is not to be granted opportunity to fill up weaker parts of its case by producing additional evidence to the prejudice of the-, other party. He also had no satisfactory answer as to why these documents were not even relied under Order VIII read with Order VII, Rule 14, CPC as every party in a suit is required to mention the documentary evidence which it would like to produce in evidence in support of its case so that the adverse party had sufficient notice to meet the same.'
19. In the case of 'Nabi Bux and others v. Syed Mumtaz Ali Shah and another' (2000 MLD 1318) it was held as under: "In law a party to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court unless the appellate requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. Another ground for permitting additional evidence is that the Court of original jurisdiction has refused to admit evidence which ought to have been admitted."
' In the case of 'Muhammad Qasim and 6 others v. Muhammad Hussain and 8 anothers' (PLD 2001 Lahore 9) it was held as under: 'On the question of production of additional evidence this Court has always been holding that an additional opportunity for filling up gaps left in evidence at trial stage is not to be permitted.
Reliance is placed upon Said Rasool and 8 others v. Subedar Amir Zaman and 11 others 1987 CLC 1582 and Pardool and 7 others v. Sattar Khan 1988 CLC 22'.
20. Since the petitioner has invoked the revisional jurisdiction to make reference to the case of 'Muhammad Ramzan v. Fatima and 30 others' (PLD 2004 Lahore 17), wherein one comes across the following observations made by this Court in relation to the scope of revision vis-a-vis appeal and at times their interplay:-- 'Invocation of remedy of a revision petition or an appeal is regulated under the prescribed provisions Of law and each has its well defined legal parameters. Yet in certain cases their scope can overlap or can be genuinely mistaken or can even otherwise be confused. The object of both the remedies, however, is to bestow upon the litigant another tier to seek rectification of the orders/judgments/decrees 'assailed therein. Both the remedies are vehicles to access justice and to correct injustice or wrong occurring adjudication of a subordinate Court. The object of law providing various remedies is to safeguard a legal right and to cure damage done to such right.
Denial of any one remedy will be denial of the right sought to be enforced. The Court should, therefore, allow conversion of revision without a demur in absence of an insurmountable legal impediment. If a Court under law is the seat of revisional as well as appellate jurisdiction denial of conversion by such Court in absence of compelling reasons would amount to stifling the remedy otherwise guaranteed to a person under law.
' Conversion should not be taken to be bounty of the Court. In my opinion, it is the vested right of a litigation to avail of the remedy to which he is entitled either through direct institution or through conversion if he had invoked the wrong remedy or the wrong law.
21. As is evident from a, perusal of the impugned order dated 12.11.2009, what weighed with the learned appellate Court to reject the application moved by the appellant/petitioner herein was the fact that the petitioner had not taken any stance in its written statement that it was a tenant/lessee under the Provincial Government (mod of the documents sought to he produced by, it fell into this category). Secondly, it did not move any application at any stage for production of additional evidence before the learned trial Court. In short, the appellant was attempting to improve upon its stand.
22. It is indisputable that the petitioner's 'company did not move any application before the learned trial Court in terms of Order XIII, CPC seeking to produce additional evidence. These documents were also not annexed to the written statement filed by it nor were they relied upon by it in terms of Order VIII read with Order VII, Rule 14, CPC Therefore, clause (a) of Rule 27 of Order XLI, CPC was not attracted at all. Turning to clause (b) thereof, nowhere has it been observed by the learned appellate Court in the impugned order dated 12.11.2009 that it required further documents either to elucidate the controversy in issue or that without admitting them into evidence, it would be difficult for it to pronounce the appellate judgment. No doubt a party to an appeal is at liberty to make such an application for production of additional evidence but ultimately it is the requirement of the appellate Court alone, which would have the final say in such matters. Under no circumstances can its hand be forced to adopt a particular course. At this juncture, I deem it necessary to advert to the documents sought to be produced by the petitioner. The prime and foremost document is a report dated 19.071997 prepared by an Assistant Commissioner/Collector, Mianchannu. A cursory glance thereat says a lot about the mindset of the author. Since the author of the report was not examined by the petitioner in the trial Court, this report in itself would be inadmissible in evidence.
As regards the order dated 04.10.1999 passed in Civil Revision No. 656/1997, suffice it to say that this order was interim in nature and since all intermediate orders merged into the final order or judgment, this order or any observation made therein is of no help to the petitioner. Needless to say, the petitioner has to stand on its own legs. Significantly, the extracts from the revenue record sought to be produced by the petitioner hardly bear relation to the land set aside for the thoroughfare in question.
23. This brings me to the question whether the petitioner has been able to make out a case for a 'substantial cause' within the meaning of law to allow it the production of additional evidence. No such case has either been pleaded or substantiated.
24. The arguments of the learned counsel for the petitioner focused only on one thing. He emphasised that technicalities of law were to be disregarded and every party was to be allowed to lead any evidence as it comes by at any stage. He was at pains to explain that the current trend of the authorities is not favourable to the old view, which did not allow the parties to fill up the lacunas. With utmost respect to the learned counsel for the petitioner, it passes comprehension as to how the judgments relied upon by him were of any help to the petitioner. The observations made therein are to be read in the context and in the peculiar circumstances of those cases. It bears repeating that in all those cases, either the High Court or the Hon'ble Supreme Court of Pakistan formed the view that the documents sought to be produced as additional evidence were to have a decisive bearing on the just decision of the case. The relevancy of those documents to the controversy in issue also played no small a part. All these factors militate against the case of the petitioner.
25. For what has been stated above, the revision petition being devoid of merits is hereby dismissed.
(R.A.) .