' M. SOHAIL IQBAL BHATTI, J.--- This civil revision is directed against the order, dated 10.12.2013 passed by learned Additional District Judge, Jehanian through which the learned Additional District Judge partially allowed the application under Order XLi, rule 27, C.P.C. And under Order VI, rule 17 read with Sections 107 and 151, C.P.C. For production of additional evidence and amendment of written statement.
2. Facts of the case are that respondent No, 1/Muhammad Rafique filed a suit for declaration against the petitioners and respondents Nos.2 to 5 for cancellation of gift mutations Nos.824 825 and 826 on the ground that the predecessor in interest of the parties was on death bed at the time of mutations, which were entered but remained un-attested by the revenue officer. The petitioners and the proforma respondents filed a contesting written statement, resisting the pleas of respondent No,1 /Muhammad Rafique/Plaintiff. The petitioners also filed two other different suits for declaration that valid gift mutations were entered in their favour. The learned Civil Judge 1st Class, Jahanian through a consolidated judgment and decree dated 30.07.2010 decreed the suit in favour of Muhammad Rafique/respondent No,1 and dismissed the suits filed by the petitioners.
3. An appeal was preferred by the petitioners against the above said judgment and decree and during the pendency of the appeal, the petitioners filed an application under Order XLI, rule 27 for production of certified copies of mutations No,703, 749, a cheque No,37780401 dated 10.03.2005 and a copy of Khasra Gardawari as an additional evidence and under Order VI, rule 17, C.P.C. For amendment in the written statement. The application was contested through filing of written reply by the respondent No,1/Muhammad Rafique. During the pendency of the above said application another application under Order VI, rule 17, C.P.C. Read with Sections 107 and 151, C.P.C. For amendment of the above said application was filed, which was also contested by the respondent No,1/Muhammad Rafique through filing of written reply.
4. The learned Additional District Judge dismissed the application to the extent of amendment in written statement and production of Cheque No,37780401 whereas accepted the application to the extent of production of certified copies of mutation No,703, 749 and copy of Khasra Girdawari through impugned order dated 10.12.2013.
5. Through this civil revision, the petitioners have challenged the legality of impugned order dated 10.12.2013.
6. The learned counsel for the petitioners has argued that the predecessor in interest of the parties purchased the land in the name of respondent No,1/Muhammad Rafique and paid an amount through cheque No,37780401, dated 10.03.2005. It is further argued that as the predecessor in interest Muhammad Hayat paid the amount of land measuring 12 Kanals purchased in the name of Muhammad Rafique/respondent No,1, so the gift mutations were validly executed in favour of petitioners and that is why the respondent No,1 was given less land than the petitioners.
7. The learned counsel for the petitioners further argued that the documents mentioned in the application under Order XLI, rule 27, C.P.C. Are public documents and also admissible in evidence.
To strengthen his arguments, the learned counsel for the petitioners has placed reliance on 2007 SCM R 1117 (Ghulam Zohra and 8 others v. Nazar Hussain throuRh Legal Heirs) and 2007 SCM R 231 (Ghulam Muhammad v. Mian Muhammad and another).
8. On the other hand, the learned counsel for the respondents Nos.1 and 2 vehemently opposed the revision petition and also supported the impugned order. He further argued that the documents mentioned in the application are not relevant to the present case and plea regarding amendment in written statement has already been mentioned in para 14 of the written statement. He further argued that the provision of Order XLI, rule 27, C.P.C. Could not be pressed to fill in the lacunas in the case.
9. I have heard the arguments advanced by learned counsel of the parties with anxious consideration and perused the record.
10. The perusal of application under Order XLI, rule 27, C.P.C. And under .Order VI, rule 17 read with Sections 107 and 151, C.P.C. Clearly reveals that the proposed amendment is clearly mentioned in the para 14 of the written statement but in the evidence the same has not been pressed. After framing of issues the petitioners could have filed an application for recasting of issues in accordance with their pleadings. As regards to the production of documentary evidence as additional evidence; the petitioners have failed to give any justification that as to why the same documents were not produced during the trial of the suit even the written statement was filed in the year 2008 and neither these documents were attached with the written statement to specifically deny the claim made by the respondent No,1 nor these were mentioned.
' It would be expedient to refer to the provisions of Order VI, rule 17, C.P.C. Which reads as under;- ' Rule 17 -- Amendment in pleadings.
"The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just and all such amendments Mall be made as may be necessary for the purpose of determine the real questions in controversy between the parties."
11. The bare perusal of above referred provision of law clearly reveals that the proposed amendment should only be allowed in such manner and on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties, but in the present case, the petitioners have filed application under Order VI, rule 17, C.P.C. To introduce a new plea which do not relate to the controversy raised in the plaint as well as in the written statement.
12. I am of the opinion that the suit titled Muhammad Rafique. v. Muhammad Munir etc. Is a suit for declaration where the plaintiff Muhammad Rafique has challenged the validity and originality of the gift mutations and purchase of land earlier in year 2005 do not relate to the present case, therefore the proposed amendment is not necessary to determine the real controversy regarding validity and originality of the gift mutations challenged in the plaint.
13. It would be expedient to refer to the provisions of Order XLI, rule 27, C.P.C. Which is reproduced as under;- Rule 27 --- 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 appear is preferred has refused to admit the evidence which or to have been admitted, or
(b) The appellate court requires any document to be produced or any witness to be examine to enable it to pronounce judgment, or for any other substantial cause,
(c) Where-ever additional evidence is allowed to be produce by an appellate court; the court shall record the reasons for its admission."
14. The wording employed in above referred provision of law is couched in negative language and impose the conditions mentioned in the Clause (a) and Clause (b).
Clause (a) is not applicable to the present case but to the extent of Clause (b), suffice it to say that it is the discretion of the appellate court to require any document to be produced or any witness to be examined for the purpose of enabling it to pronounce judgment. The appellate court in the present case has rightly observed that acceptance of the application to the extent of production of cheque and the amendment in written statement would open the Pandora box.
The cheque which relates to year 2005, is not required by the appellate court to decide the appeal on merits rather the production of the same cheque would result into introducing a new cause of action which may change the nature of the entire litigation.
15. It is correct that application for amendment may be filed at any stage in the interest of justice but while allowing such amendment the consideration for the court should be that no such amendment should be allowed which is aimed at changing the complexion of the case altogether or would introduce a new case based on new cause of action.
16. With due deference to the judgments referred by the learned counsel for the petitioners, I am of the humble opinion that the judgment 2007 SCM R 1117 (Ghulam Zohra and 8 others versus Nazar Hussain through legal heirs) is not applicable in the present case rather the Honourable Supreme Court has held that appellate court could admit additional evidence if same would promote ends of justice. As far the reliance upon 2007 SCM R 231 (Ghulam Muhammad v. Mian Muhammad and another); the ratio of the above said judgment do not provide that the documents irrelevant or changing the nature of the case could be produced in additional evidence.
17. In my humble opinion, the case law referred by the learned counsel for the petitioners is of no help to the petitioners as in the above judgments, the august Supreme Court of Pakistan has not laid down the dicta that additional evidence is to be accepted in each and every case and also that through additional evidence, new facts be introduced which may change the entire complexion of the case.
18. This proposition could hardly be disputed that the principle Object behind all legal formalities is to safeguard paramount interest of justice but at the same time which is equally important to bear in mind the well known maxim that equity follows the law; in cases where the law clearly applies; it has to be given full effect howsoever harsh it might appear to be. Normally legal technicalities and formalities should not be allowed to stand in the way of justice unless they present a hurdle which might lead to unsettlement and uncertainty of law.
19. For what has been discussed above, I am of the opinion that the learned Additional District Judge while passing the impugned order has not committed any jurisdictional error or material irregularity. Resultantly, this civil revision is dismissed.