JAWAD HASSAN, J.---Through this constitutional petition, the Petitioner has called in question judgment and decree dated 25.10.2016 (the "impugned judgment") passed by the Respondent No,1, whereby he modified the impugned order dated 23.10.2014 and remanded the matter to the Guardian Court/Trial Court to provide an opportunity to the Respondent No,2 for the production of additional evidence.
2. Facts for the disposal of this constitutional petition are that petition filed by the Petitioner under section 25 of the Guardians and Wards Act, for the custody of minors Ahad Naeem and Abdul Raffay was dismissed vide order dated 23.10.2014, whereas that of filed by the Respondent No,2 for custody of Zaid Bin Naeem was accepted and custody of minor was handed over to the father immediately and meeting schedule accordingly was chalked out in the following manner:- "The custody of the minors on interim basis shall be handed over to the respondent by the petitioner after school/Academy hours on every Friday of Calendar month and respondent shall return the custody of the minors to the petitioner on Sunday at 6:00 pm. The minors shall be given into custody of the respondent on 2nd Day Eid. from 10:00 am to 6:00 pm. The respondent shall also be entitled to meet with the minors on birthdays of the minors and her own and for the same custody of the minors shall be handed over to the respondent from 4:00 pm to 7:00 pm. The custody of the minors shall be handed over the respondent during Winter Vacations for one week and for Summer Vacations for one month. Handing and taking over of the custody of the minors shall be conducted through bailiff of the court. The respondent is directed to furnish surety bond in the sum of Rs,5,00,000/- each for the satisfaction of the court for these meetings. Fee of bailiff is fixed as Rs,300/-."
Subsequently, the learned Guardian Judge-I, Lahore on the application filed by the Petitioner with the concurrence of the parties, the interim visitation schedule was modified to the extent that the mother/Petitioner would be held entitled for the visitation schedule with her two sons namely Zaid Bin Naeem and Abdul Raffay Naeem on each 2nd and 4th Sunday of every month. Visitation venue was to be McDonalds near Expo Center and timing of visitation was to be from 5.00 p.m. to 8.00 p.m. It was also added that the meeting shall be arranged outside the court premises. The said order was applicable subject to furnishing surety bond once at the start of the schedule to the tune of Rs,10,00,000/- with one single surety and if required the interference of Bailiff was also allowed to the parties subject to their filing application in the Court.
3. The Respondent N.2, being aggrieved filed an appeal before the Additional District Judge, Lahore, who allowed the same vide judgment dated 25.10.2016 and modified the impugned order to the extent that the Respondent No,2/Appellant be provided an opportunity for producing additional evidence before leaned Guardian Court/Trial Court before final adjudication of issue under examination so the impugned order dated 23.10.2014 to the extent of meeting schedule is liable to be modified by the learned Guardian Court/Trial Court after considering the additional evidence adduced by the Respondent No,2 regarding progress and improvement of minor in education, so that it may not affect the performance of minor. The Petitioner being dissatisfied has filed this constitutional petition to set aside the above said judgment.
4. Arguments heard and record perused.
5. It is reflected from perusal of the record that the Petitioner is aggrieved of order dated 25.10.2016 passed by Respondent No,1, whereby he modified the order of learned Guardian Court in the terms mentioned supra and remanded back the matter to the Guardian Court with the direction to provide an opportunity for producing additional evidence before final adjudication of issue under examination. The said remand order was passed on a pending application of the Respondent No,2 for seeking production of additional evidence regarding welfare of the minor Zaid-bin-Naeem and his progress in studies.
6. It is the case of the Petitioner that remand order has been passed in an arbitrary manner without adverting to the facts and circumstances of the case. He has argued that remand order is nothing but an act to prolong the case proceedings and also to bring the children out of minor age. From the perusal of record it reveals that the learned Additional District Judge has not made mention in the impugned order that which document the Respondent No,2 intends to produce before the learned Guardian Judge as an additional evidence. The Appellate Court remanded the case outcome of which they unable to finally determine. For example, cases may be remanded when the Appellate Court decides that the Trial Judge has committed error, excluded admissible evidence, or ruled improperly on a motion. The Respondent No,2 in appeal before the learned Additional District Judge has challenged the meeting schedule of the minor with the mother (Petitioner) by contending that the learned Guardian Judge has not considered the welfare of the minors while chalking out the meeting schedule as while adopting the impugned meeting schedule, the education of the minors will be adversely affected. During the pendency of appeal, the Respondent No,2 had submitted two applications; one for seeking amendment in the pleadings which was disposed of being filed without any justification. The other was filed for production of additional evidence regarding welfare of the minor Zaid-bin-Naeem, his progress in studies and chalking out a meeting schedule. The said application was vehemently contested and opposed by counsel for the Petitioner who prayed for dismissal of the said application. The learned Additional District Judge, Lahore observed that there is sufficient material regarding the progress and improvement of minor in education which seems to be of paramount consideration for disposal of custody matters and chalking out the impugned meeting schedule. The learned Additional District Judge has failed to observe and appreciate that when the documents were in existence at the time of trial as to why the said documents were not produced during the trial, therefore, it would not be justified to grant the permission to produce the said documents as additional evidence at the stage of appeal. The Respondent No,2 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 Respondent No,2, it would inevitably have the effect of reopening the controversy.
The Provision of Order XLI Rule 27 of 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 brought into use in the circumstances when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. Further that the Respondent No,2 requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial purpose. 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 Respondent No,2 to fill up the lacunas in the evidence. The said provision has to be exercised cautiously and sparingly if prima-facie, the Respondent No,2 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 Appellate Court. But if 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
(a) 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) as under; "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 S. 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 Respondent No,2 wants to produce on record additional evidence regarding welfare of the minor Zaid-bin- Naeem and his progress in studies. There is no specific mention of any document which the Respondent No,2 intended to produce as an additional evidence and failed to mention its relevance. 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 the apex 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 8 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 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 A 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].
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.
10.It is a settled principle of law that remand should only be resorted to where it is absolutely necessary for a fair and proper adjudication of a case. Unnecessary remand results in undue delay and hampers inexpensive and expeditious justice. Reliance is placed upon Messrs Shah Nawaz Khan and Sons v. Government of NWFP and others (2015 SCM R 945). The power of remand should not be exercised lightly but sufficient care should be taken in remanding the case. Reliance is placed upon Rehman Shah and others v. Sher Afzal and others (2009 SCM R 462), Habib Ullah v.
Azmat Ullah (PLD 2007 Supreme Court 271) and Mst. Muhammad Dervaish Al-Gilani and 14 others v.
Muhammad Sharif and others (1997 SCM R 524). Remand of the case should be ordered in exceptional circumstances. Reliance is placed upon Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui (2010 SCM R 1119).
11.In view of the above, the Petitioner has succeeded to prove that the learned Additional District Judge, Lahore while allowing the appeal and remanding the case for producing additional evidence by Respondent No, 2, has committed error and failed to follow the above referred dictum of Hon'ble Apex Court and relevant law on the subject.
Resultantly, the instant petition is allowed and impugned order is set aside. So far as amendment in the meeting schedule is concerned, the aggrieved party may approach the concerned Guardian Judge for chalking out fresh meeting schedule according to the consensus of parties. No order as to costs.