JAWAD HASSAN, J.---Through this constitutional petition, the Petitioner has called in question order dated 14.10.2017 (the "impugned order") passed by the Respondent No,1, whereby Petitioner's application for production of additional evidence was dismissed.
2. Facts for the disposal of this constitutional petition are that ejectment petition filed by the Respondent No,2 regarding property/Shop bearing No,III-S-141 situated in Main Bazar Town Committee, Khudian Tehsil and District Kasur, was allowed by the learned Rent Controller vide order dated 11.03.2010. The Petitioner being aggrieved filed an appeal along with an application seeking permission for producing additional evidence (certified copy of order passed by Settlement and Claims Commissioner, Lahore dated 19.07.1968 evidencing cancellation of PTD issued in favour of respondent) before the learned Additional District Judge, Kasur, which was dismissed vide order dated 11:07.2013. Subsequently, the Petitioner assailed the said order before Lahore High Court, Lahore by preferring an appeal SAO No,3/2013, which was allowed vide judgment dated 8.2.2017 and remanded the matter to the learned Additional District Judge, Kasur directing him to decide the pending application for production of additional documents along with the main appeal. In remand proceedings, the learned Additional District Judge, Kasur dismissed the application of the Petitioner vide impugned order dated 14.10.2017. Hence this petition.
3. Arguments heard and record perused.
4. It is reflected from perusal of the record that the Petitioner is aggrieved of order dated 14.10.2017 passed by Respondent No,1, as a consequence of judgment dated 8.02.2017 passed in SAO No,3/2013, which came up for hearing before the High Court, whereby it set aside judgment and decree dated 11.07.2013, passed by Additional District Judge, Kasur and remanded back the matter to the Appellate Court with the direction to decide the application of the appellant for production of additional evidence along with the main appeal.
5. The perusal of record reveals that ejectment petition was filed by the respondent Wali Muhammad (since died and substituted by his legal heirs) against the Petitioner on 18.03.2004 which was finally decided vide judgment dated 11.03.2010. Record reveals that during the entire proceedings of trial, the Petitioner did not give any reference to said order dated 19.07.1968 of the Settlement and Claims Commissioner Lahore Division and letter No,152 dated 9.9.2012 in his written reply filed in response to relevant ejectment petition. The record manifests that said letter dated 9.9.2012 was issued much prior to the filing of relevant ejectment petition and the Petitioner did not mention any plausible explanation or justification for his failure to produce the same at the time of recording of evidence during the proceedings of relevant ejectment petition nor it was specifically asserted by the Petitioner that the said documents were not available to him at that time. The learned Additional District Judge has rightly observed that when the documents were in existence at the time of trial and the Petitioner failed to explain as to why the said documents were not produced during the trial, it would not be justified to grant the permission to produce the said documents as additional evidence at the stage of appeal. The Petitioner cannot be permitted to adduce a new fact which was not agitated by him before learned trial court and if the said documents are allowed to be produced by the Petitioner it would inevitably have the effect of reopening the controversy. The Provision of Order XLI Rule 27 the Civil Procedure Code, 1908 (the "C.P.C.") deals with the matter regarding production of additional evidence at appellate stage and the said provision of law can be bring into use in the circumstances when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have admitted.
Further that the appellant requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial. The said provision is meant to promote substantial justice and must be exercised in the interest of justice and not for the purpose of allowing the Petitioner to fill up the lacunas in the evidence. The said provision has to be exercised cautiously and sparingly if prima-facie, the Petitioner on account of his negligence inadvertence of mistaken legal advice failed to produce such evidence at the stage of trial then said lacunas could be allowed to be fulfilled by invoking the provision of Order XLI, Rule 27, C.P.C. Order XLI, Rule 27, C.P.C. is reproduced below:--
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the
(2) 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
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, 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.
6. The Hon'ble Supreme Court of Pakistan has held in a recent judgment titled Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative Finance Corporation through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCM R 2067) has held that:-- "Power of Appellate Court to require any (additional) document or examination of witnesses enabling it to pronounce its judgment did not mean that the Court shall provide a delinquent with a chance to make up for his omission and fill up the lacuna of his case and allow additional evidence particularly in the circumstances when neither in the grounds of appeal a case for additional evidence had been set out nor any independent formal application had been moved for the purposes of producing additional evidence."
The parties to a civil litigation are not entitled to produce additional evidence, whether oral or documentary, in the appellate court, but for the three situations contemplated in Order XLI, Rule 27 of the C.P.C. Reliance is also placed upon Mst. Nasreen Akhtar v. Mohsin Ali (2011 CLC (Peshawar)
1206), wherein it has been held as under:-- "Provisions of Order XVIII, Rule 17, C.P.C. relating to recalling a witness by the Trial Court and allowing additional evidence before Appellate Court under Order XLI, Rule 27, C.P.C. were an exception to the general rule of not allowing the same. Rationale behind said provisions was to ensure that parties produce their evidence in one-go and not in piecemeal, yet provided discretion to a court of law to allow evidence to be produced only in order to render complete justice. Such clear and vast authority with the court of law should not be exercised to allow any party to improve his case or to provide a second chance to him to fill up the lacunas in the case.
Allowing party to produce additional evidence of calling witness again, would surely be providing him an opportunity of improving his case and filling up the lacuna in his case."
7. Under the scheme of C.P.C., whether oral or documentary, it is the trial court before which the parties are required to adduce their evidence. But in three exceptional circumstances, additional evidence can be adduced before the appellate court, as provided under section 107(1)(d) read with Rule 27 of Order XLI of the C.P.C. Relying on these provisions of the C.P.C., the apex Court held in categorical terms that the parties cannot be allowed to fill the lacunae in their evidence at the appellate stage. After going through the above said application, it appears that the Petitioner wants to produce on record certified copy of decision of appeal titled " Sheikh Muhammad Saeed etc. v. Abdul Karim etc." dated 19.07.1968 rendered by Mr. Muqarab Khan, Settlement and Claims Commissioner, Lahore Division, Lahore as the additional evidence. It appears that the application has been filed just to fill up the lacuna which is not permitted under law. It may be observed here that under Order XLI, Rule 27, C.P.C., the sufficient cause and reason must be shown for production of additional evidence at appellate stage as laid down by this Court in a case reported as Muhammad Sadiq v. Allah Ditta and 6 others 2017 CLC 1040 that:-- "6. According to admitted facts, the suit remained pending for almost 7 year's period before the trial Court. The appellant submitted no application for production of additional evidence, therefore, in the light of statutory provision of Order XLI, Rule 27, of C.P.C., there must be sufficient cause and reason for production of additional evidence at appellate stage. The examination of the contents of application referred to hereinabove and clearly speaks that no reason or justification has been advanced by the appellant in this regard by the available documentary evidence has not been produced at this stage of proceedings of recording evidence of the parties.
In another case reported as Salat and 15 others v. Wadi Hussain and 3 others [2014 SCR 1097], it has been held as under:-- "6. A perusal of the provisions makes it clear that additional evidence can be allowed by the appellate Court; (a) if the trial Court from whose decree an appeal has been filed, refused to admit the evidence which ought to have been admitted and; (b) the appellate Court itself requires that it is not possible to pronounce the judgment without bringing on record any document or witness to examine or the Court may allow the additional evidence on any other sufficient cause. The additional evidence cannot be allowed only to fill up the lacunas in the case of 9 a party but to enable the Court to pronounce the correct judgment which cannot be pronounced without bringing on record the document required to be brought on record by a party...."
8. It may be observed here that Order XLI, Rule 27, C.P.C. is very much clear that the additional evidence can be allowed if the Court considers that the same is required to reach the just decision of the case. The main factor involved for producing the additional evidence is the satisfaction of the Court. It cannot be allowed in routine just to fill-up the lacunas or cover-up the weaknesses of a party as laid down in a case reported as Muhammad Siddique v. Abdul Khaliq and 28 others [PLD 2000 SC (AJ&K) 20] in which it has been observed as under:-- "6. The parties to an appeal are not entitled to adduce any additional evidence but the same can be allowed if the Court from whose decree an appeal is preferred, has (i) refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause under Order XLI, Rule 27, C.P.C. which is an exception to the principle that the Appellate Court cannot record fresh evidence. Therefore, under the aforesaid rule, the additional evidence cannot be recorded unless the provisions of the aforesaid rule are attracted...."
Similar view prevailed in the case titled Zarait Ullah Khan v. Fazal Ahmed and 29 others [PLD 2004 SC (AJ&K) 35], in which it was held as under:-- "8. A perusal of the aforesaid provisions of law reveals that the appeal is a rehearing as such Appellate Court does not ordinarily record fresh evidence. However, the Appellate Court is empowered under this rule which is an exception to the principle provided the provisions of rule are attracted. In accordance with rule 27 referred to above, the additional evidence can be allowed only where; (1) the trial Court has improperly refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or (iii) the Appellate Court requires such evidence for any other substantial cause. The additional evidence cannot be allowed in order to allow the parties to patch up the weaker parts of its case or fill up omissions or to enable it to raise new point. The party to the appeal may move the Court for additional evidence but it can only be allowed if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on record. This clause is attracted if some inherent lacuna or defects become apparent. The test is whether the Appellate Courts can pronounce judgment satisfactorily without taking into consideration the evidence sought to be produced.
9. It may also be observed here that the additional evidence cannot be recorded unless the provisions of Order XLI, Rule 27, C.P.C. are attracted. The additional evidence can be allowed only where; (i) the trial Court has improperly refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or (iii) the Appellate Court requires such evidence for any other substantial cause, whereas, no such eventuality is available in the case in hand. Since the main appeal of the Petitioner has already been dismissed vide judgment dated 11.07.2013 and this Court in remanding the matter had directed the Appellate Court to decide the application of the Petitioner for production of additional evidence along with main appeal. The learned Additional District Judge, Kasur after carefully perusing the entire record has rightly come to the conclusion and dismissed the application through a well reasoned order.
10. Counsel for the petitioner has failed to point out any illegality or perversity in the impugned order by invoking constitutional jurisdiction of this Court. The writ petition being bereft of merit is hereby dismissed. No order as to costs.