C.M. No. 1-C/2014 ' IBAD-UR-REHMAN LODHI, J. --- Through the present civil miscellaneous, moved under the provisions of Order XLI, Rule 27, CPC read with Section 151, CPC, the revision petitioners seek permission to adduce additional evidence.
2. The same has been contested by the respondent by maintaining that the present one is 3rd application in series seeking same relief. The earlier one was moved before the learned Trial Court under the provisions of Order XVIII, Rule 2 (Proviso), which was dismissed on 19.07.1999 and a revision petition filed against such dismissal was dismissed by the learned Addl. District Judge, Lahore on 01.06.2000. The revisional order was challenged through Constitutional petition i.e. W.P.
No. 20745/2000 and the same was dismissed by this Court on 30.09.2002. Second attempt was made on behalf of the petitioners to !Pad additional evidence was again unsuccessful, when another application moved on 25.10.2003 in this regard was dismissed by the learned Trial Court on 04.12.2003. This time the findings of the learned Trial Court we there further challenged.
3. In system, this has become a tendency which is being increased day by day that the parties in revisional jurisdiction make the prayer for production of additional evidence. The competence of the parties to ask for such relief and the jurisdiction of revisional Court in this respect has not so far been satisfactorily answered.
4. The learned counsel for petitioners, although in support of his contentions for production of additional evidence at revisional stage has placed reliance on Mohabbat v. Asadullah Khan and others (PLD 1989 Supreme Court 112) and Ghulam Muhammad v. Mian Muhammad and another (2007 SCM R 231), which would be discussed, in detail, in the latter part of the order, however, even after going through the same, the controversy on she point in issue does not seem to have been finally resolved.
' In Mohabbat's case, it was a pre-emption matter and a learned Single Judge of erstwhile Peshawar High Court on the point as to whether the pre-emptor had a superior right gave his findings, but the vendees in the said case by placing reliance on an unpublished judgment of a learned Division Bench of High Court argued that according to the relevant Jamabandi all the Khasra numbers situate in one Khata and as the pre-emptor did not establish his superior right with respect to some of the Khasras, the vendees remained as owners in the Khata and no superior right could be claimed as against the petitioners-vendees on the basis of contiguity and for this proposition reliance was placed on an unpublished judgment of the learned Division Bench of High Court rendered on 05.05.1970 in C.R.No. 02/1963 (Muhammad Sharif etc. v. Pir Bakhsh Khan).
' On the other hand, on behalf of the pre-emptor reliance was placed on an unpublished judgment of a learned Division Bench of the same High Court rendered on 17.06.1971 in RSA No. 183/1971 (Hafiz Ghulam Khawaja v. Qazi Abdul Latif, etc.) to support the assertion that the vendees could not claim superior right under such circumstances. As the learned Single Judge was of the opinion that the latter authority did not correctly lay down the law, he referred on 21.05.1975 a question after formulation to a Larger Bench, which was heard by a Bench of three Judges and Mr. Justice Qaiser Khan added his separate note. While hearing the revision, the learned Judge recorded the statement of Patwari as additional evidence and the learned counsel for the appellant before the Hon'ble Supreme Court of Pakistan objected to such process adopted by the learned Revisional Judge in recording additional evidence particularly, when there was no request by the counsel for the respondent nor was any such request made at the appellate stage and by contending that the learned Single Judge misdirected himself as if he was exercising the power of an Appellate Court and it was stressed that the revision was not a continuation of the suit like an appeal and, therefore, no additional evidence could be recorded on the merits of the case. Such contentions although noted by the Hon'ble Supreme Court of Pakistan in the reported judgment, but except the second last paragraph of the judgment (side line F), it was not answered in an authoritative manner. The second last paragraph however is reproduced herein below for ready reference:- "Even if technically Order XLI, Rule 27, C.P.C. Did not apply to the revision as it was not a continuation of the suit, I have no hesitation in holding that the High Court could in the exercise of its inherent jurisdiction under Section 151, C.P.C. Admit such evidence for clarification in the ends of justice."
' The careful reading of the above findings leads one to conclude that the concept of additional evidence under Order XLI, Rule 27, CPC is alien to the revisional jurisdiction, however in exceptional circumstances by exercising power under Section 151, CPC and that too for a limited purpose only in order to clarify something such process can be adopted.
5. In Ghulam Muhammad's case (Supra), the question as was argued by the learned counsel for appellant in the reported case, as reproduced in para 4 of the reported judgment was to the effect that the additional evidence which was permitted at revisional stage was violative to the provisions of Order XLI, rule 27, CPC. Such contention was answered in para 8 of the reported judgment by holding that the documents received in additional evidence were public documents and their authenticity and genuineness could not be doubted and the same were admitted to be brought on record in view of the provisions contained in rule 27(1)(b) of Order XLI, C.P.C., which empowered the "Court" to allow production of additional evidence by giving an impression that the word "Court" includes, the revisional Court, also but the reading of such rule would clearly indicate that such power to allow production of additional evidence is only restricted to the "Appellate Court" only and not the revisional Court.
6. To examine as to what are the powers of Appellate Courts and revisional Courts, one has to compare the provisions of Section 107, read with Order XLI, rule 24, CPC and Section 115 of the same Code to identify the distinctive powers of appellate and revisional Courts and the allied power to be exercised by Courts exercising such separate jurisdictions while dispensing justice.
' In view of Section 107, CPC, the Appellate Court has the powers:---
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken and the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by Code of Civil Procedure on Court of Original Jurisdictions in respect of suits instituted therein.
' Whereas, in view of Order XLI, rule 24, CPC, where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding the fact that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
7. To the contrary, a revisional Court under Section 115, CPC is competent after calling the record of any case, which has been decided by any Subordinate Court to exercise the revisional jurisdiction in cases, where it appears that the Subordinate Court has not exercised a jurisdiction vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material .Irregularity and the revisional Court in such eventuality, may make such order in the case, as it thinks fit.
8. No power to determine the suit finally or to take additional evidence etc. Has been provided to the revisional Court like the Appellate Court.
9. It would be beneficial to examine the manner of taking evidence and examination of the witnesses as provided in CPC and for that purpose this Court has to examine the provision of Order XVIII, CPC carefully.
' In view of rule 2 thereof, which deals with the production of evidence it has been added by means of explanation by this Court that the Court of its own accord or on the application of any party, for reasons to be recorded in writing, may direct any party to examine any witness at any stage.
' Rule 5 of the said Order has specifically been framed to provide the manner of taking evidence in appealable cases.
' Rule 12 thereof provides a power to the Court recording evidence and examining witnesses to record such remarks as it thinks material respecting the demeanour of any witness while under examination.
' By virtue of rule 13 thereof, no much importance has been given to the evidence in un-appealable cases and it is not necessary to take down any evidence of the witnesses in writing at length by the Trial Judge himself in such cases, but the Judge, as the examination of each witness proceeds, shall make a memorandum of the substance of what he deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.
' Order XLI, CPC deals specifically with appeals from original decrees and rule 27 thereof provides a power to the "Appellate Court" to grant permission for additional evidence.
' Rule 28 thereof provides a mode of taking such additional evidence, which may either be taken by the Appellate Court itself or a direction be issued to the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the "Appellate Court".
' Whereas by virtue of rule 29, it is the duty of the "Appellate Court" where additional evidence is directed o allowed to be taken to specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.
10. The brief resume of different rules of Order XVIII and Order XLI, CPC do reveal that the power to allowed additional evidence is confined only either to the Trial Court or the Appellate Court.
11. Had the intention of the Legislature been to give the power to the revisional Court to permit the recording of additional evidence, it would not be difficult for such Legislature to add suitable provision in Section 115, CPC providing such powers to the revisional Court, which has not been done.
' The plain reading of Section 115, CPC would clearly give a picture that a revisional Court after calling the "record" of any case would decide the illegality, irregularity or jurisdictional defect in the proceedings carried out before the subordinate Courts. The word "record" used in Section 115 CPC is of much significance, which although has not been defined in Civil Procedure Code, 1908; however, in order to better understanding the meaning of such term, we have to consult the legal dictionary.
In Black's Law Dictionary, Sixth Edition, the term "record" has been defined in the following manner:- -- ' Record: A written account of some act, Court proceeding, transaction, or instrument, drawn up, under authority of law, by a proper officer, and designed to remain as a memorial or permanent evidence of the matters to which it relates.
(ii) The term "records" means accounts, correspondence, memorandums, tapes, discs, papers, books, and other documents or transcribed information of any type whether expressed in ordinary or machine language.
(iii) Complete record. Such encompasses clerk's record, record of proceedings and all evidence.
(iv) Court record of proceedings. The official collection of all the trial pleadings, exhibits, orders and word-for-word testimony that took place during the trial.
(v) Judicial record. A precise history of civil or criminal proceeding from commencement to termination.
' The record of a case decided by the subordinate Court necessarily includes the evidence produced by the parties and examination of the witnesses. Similarly, when a person makes an application under Section 115, CPC to the revisional Court, he is bound to furnish, in support df such application, the copies of pleadings, documents and order of the subordinate Court and the revisional Court in such eventuality would not ordinarily call for the record of the subordinate Court.
The joint reading of the above provision of CPC, clearly indicates that the Appellate Court would have a vast and wide power, where in fact the suit is reopened and the Appellate Court is competent to cause addition in the record already maintained by the learned Trial Court, whereas, in comparison thereof, the revisional Court would restrict itself to examine the legality or irregularity in the proceedings carried out by the learned Trial Court by examining the record maintained by the learned Trial Court. The revisional Court would have no power to cause any addition in already maintained record of the case.
12. In the case of Muhammad Khan v. Mukhtiarkar Revenue, Kot Ghulam Muhammad, District Mirpurkhas and others (PLD 2009 Karachi 352), it has been held that additional evidence of the nature, which is being sought to be produced and/or brought on record cannot be allowed in revisional Court with the intent to fill in the lacuna. Scope of Order XLI, rule 27, CPC is limited to the extent of appeal and it could not allow to be extended while exercising the revisional jurisdiction.
' From Indian jurisdiction, this Court can refer the view taken by D.K. Seth, J. In Allahabad High Court in the case of Km. Rakhi and another v. 1st Additional District Judge, Firozabad and others (AIR 2000 Allahabad 166), which held that a revisional Court is concerned with records and confined within the same and it could not look into the material besides the record.
' In the case of Mohd. Sabir v. Mohd. Hussain (1979 All LJ 1065), although it has been held that additional evidence can be accepted even in revision, but the background in which such observation was made does not permit to conclude that it will be in the power of the revisional Court to allow additional evidence, for, in the reported matter, a compromise arrived at in-between the parties at revisional stage was allowed to be brought on record in written shape in order to avoid the delay in final conclusion of the settled issue in-between the parties. The compromise deed brought on record with the consent of the parties can in no way be treated as a piece of "evidence" or "additional evidence".
13. The net result of the above discussion is none else but a conclusion that additional evidence can only be allowed by an Appellate Court and revisional Court, in no circumstances, is competent to allow the production of additional evidence of any kind.
14. With these observations, this C. M . Is dismissed.
15. The office is directed to fix the main case on 21.01.2015.
C.M. Dismissed.