ZAFAR AHMED RAJPUT, J.---Impugned in this petition is the order dated 15.01.2014 passed by the learned Additional District Judge, Kamber in Rent Appeal No,01 of 2012, whereby the application under Order XLI, Rule 27, C. P. C , filed by the respondent No,1, was allowed.
2. Brief facts of the case are that the respondent No,1/applicant filed Rent Application No,1 of 2011 against the petitioner/opponent in respect of two shops and one garage, constructed over an area ad measuring 3000 sq. Ft, out of Survey No,39, (total admeasuring 13915), situated in Katia Bazar, Taluka Nasirabad, District Kamber Shahdadkot ("the subject premises") on the grounds of default and personal bona fide requirement. The rent application was resisted by the petitioner by filing objections, denying the existence of relationship of landlord and tenant between the parties and claiming that the subject premises is his ancestral property, which is different from the property mentioned by the respondent No,1, in the rent application. The learned Rent Controller vide Order dated 27.07.2012 dismissed the rent application after framing an issue on the existence of relationship of landlord and tenant between the parties by holding that the respondent No,1 failed to establish that the property was ever rented out to petitioner under any verbal rent agreement.
The said order was assailed by the respondent No,1 in Rent Appeal No,1 of 2012 wherein he filed an application under Order XLI Rule 27, C.P.C. For production of following documents as additional evidence at appeal stage before hearing the main appeal:
1. True copy of Form-H, Deh Nasira bad (Katia Bazar) dated 10.03.2012.
2. Certified copy of order dated 07.11.1995 in Civil Revision No,65/1994 passed by Honorable High Court.
3. Certified copies of Judgment and Decree dated 26.05.2011 and 27.05.2011, respectively, passed by this Honorable Court.
4. Original verified retirement notification No,A-11/2-481 by Section Officer-11, Irrigation and Power Department Government of Sindh at Karachi.
5. Duplicate copy of Legal Notice dated 23.02.2011.
6. Map of above property.
' Learned Appellate Court, after hearing the parities, allowed the application holding that these documents are necessary to establish the ownership of respondent No,1 in respect of subject premises and in consequences thereof he set aside the Order dated 27.07.2012 and remanded the matter with direction to respondent No,1 to produce the additional evidence before the trial Court vide Order dated 15.01.2014. It is against this Order, the instant Constitutional Petition has been preferred by the petitioner/opponent.
3. I have heard the learned counsel for the parties and perused the material available on record.
4. Learned counsel for the petitioner has mainly contended that the impugned order is illegal being against the facts and law and it is a result of misreading and non-reading of the evidence on record, which amounts to miscarriage of justice. It is further contended that not a single document sought to be produced by the respondent No,1 as additional evidence establishes the ownership of the respondent No,1 with regard to subject premises or the relationship of landlord and tenant between the parties or otherwise relevant to the controversy in any manner between that parties.
5. On the other hand, learned counsel for the respondent No,1 has contended that the listed documents are material and necessary to establish the ownership of respondent No,1 and the same were not produced by the respondent No,1 before the trial Court and in ultimate result thereof, the trial Court dismissed the rent application holding that the respondent No,1 failed to show his ownership in respect of subject premises; therefore, there exists no relationship of landlord and tenant between the parties.
6. Before dilating upon the issue raised in this petition, I would like to observe here that the provisions of under Order XLI, Rule 27, C.P.C. Is couched in negative language prohibiting the parties to adduce additional evidence whether oral or documentary at appellate stage but with two exceptions; firstly, that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted and, secondly, that Appellate Court requires any document to be produced enabling it to pronounce judgment or for any other substantial cause, it may allow such evidence to be produced. It is, however, not a matter of right of appellant to produce additional evidence in Appellate Court except when it was prayed in trial court and refused. Further the Court must be convinced as to why the evidence was not produced in original/trial Court, and how for is genuine and justified in resolving the real controversy between the parties. In absence of reasons for not adducing the evidence before trial Court, a party to litigation cannot be allowed to fill-up the lacuna of his case at late stage i,e, appeal.
7. Now reverting to the case in hand it appears that the learned Appellate Court allowed the application of the respondent No,1 holding that the listed documents are necessary to establish the ownership of the respondent No,1. I am afraid, perhaps the learned Appellate Court did not even examine the listed documents sought to be produced as additional evidence by the respondent No,1, as none of the documents establishes the ownership of the respondent No,1 coupled with the fact that the documents mentioned in the list at Sr.No,1 has already been produced by the respondent No,1 before the trial Court in his evidence which has been considered by the learned trial Court in its judgment.
8. Another fact of the matter is that the learned Appellate Court, while passing the impugned order did not consider the fact as to .Whether the documents are relevant to the actual controversy between the parties in rent case and whether it advance the case of respondent No,1 in any manner. It has also not been examined by the learned Appellate Court that despite the ample opportunity was available to respondent No,1 in trial Court to produce alleged documents in support of his claim but he failed there and no plausible explanation have been assigned by him in this regard. Under such circumstances no case could be remanded merely to provide an opportunity to a negligent to fill in gaps left by him in its case.
9. In view of above facts and reasons, I am of the view that the Appellate Court was not justified to allow the application for production of additional evidence and failed to decide the matter pending before it with conscious and independent mind. I; therefore, allow the instant petition and setting aside the impugned Order direct the Appellate Court to decide the appeal expeditiously and preferable within a period of three month hereof strictly on merit in accordance with law.
10. M.A. No, 263 of 2014 stands dismissed being infrastructure.