SAFDAR SALEEM SHAHID, J.---This revision petition is directed agains t the order dated 30.11.2012, whereby the learned District Judge, Hafizabad, dismissed the application of the petitioners for additional evidence.
2. Brief facts of the case are that respondents Nos.1 to 5 filed a suit for declaration against the petitioners and respondents Nos.6 to 8 alleging that Mst. Amin Bakht was owner of land measuring 105-kanal and 8-marlas, situated at Jandraka, Tehsil Pindi Bhattian, District Hafizabad. The said Mst. Amin Bakht died on 26.03.2000.
According to the plaint, the petitioners procured sale mutation No.2670 regarding the land owned by Mst. Amin Bakht and also got included therein the land measuring 105-kanal and 7-ma rlas owned by Zamurd Fatima respondent No.5, who was of unsound mind, in collusion with respondents Nos. 6 to 8. This mutation was incorporated in the register on 01.02.2000. However , the revenue officer (respondent No.7) rejected the said mutation on 13.07.2000, but the appeal preferred by the petitioners was accepted and mutation No.2670 was attested on 23.10.2001. The said mutation was challenged in the suit. The petitioners contested the suit by filing written statement and it was alleged that Zamurd Fatima was not of unsound mind and that the suit was not maintainable. The learned trial Court framed issues, recorded evidence of the parties and after hearing the arguments partially decreed the suit in favour of respondents Nos.1 to 4 and to the extent of respondent No.5 the suit was taken' off. The present petitioners preferred an appeal against the judgment and decree dated 31.03.2012.
During the pendency of appeal the petitioners filed an application for additional evidence. The learned District Judge, vide order dated 30.1 1.2012 dismissed the appeal of the petitioners.
3. The learned counsel for the petitioners argued that the witnesses required to be summoned were either marginal or official witnesses who were associated with the proceedings of mutation in question. The said witnesses were duly mentioned in the list of witnesses which was presented before the Court along with diet money as their statements are necessary to resolve the controversy . Spirit of Order XLI, Rule 27, C.P.C. is very much clear , relevant portion of which is being reproduced as under:- "(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 appeal is preferred has refused to admit evidence which ought to have been admitted, 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 arty other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."
4. Learned counsel for the petitioners has relied upon the cases reported as Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811), Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778 ), and Hassan and another v . Hussain ( 1996 CLC 650 ).
5. Out of the above referred three citations, two relates to the inheritance matters and in the third case Hassan and another (supra), vires of a mutation in the revenue record was challenged on the ground that the same was collusive, therefore, void and ab initio. The legislation in its wisdom enacted Order XLI, Rule 27, C.P.C. with a view to enable the appellate Court to record additional evidence which in its view is necessary to enable it to pronounce judgment. The Court has to pronounce a judgment in accordance with law with a view to achieve justice and the afore-referred enabling provision has a nexus with the ultimate purpose i.e. a just decision. The additional evidence which is sought to be adduced should have a direct bearing on the point in issue and the test whether a permission should be granted or not is as to whether a just decision could be arrived at without the additional evidence which is sought to be produced.
6. In the case of Mst. Fazal Jan (supra) suo motu power under Order XLI, Rule 27, C.P.C. was upheld, as in absence of that exercise it would have led to miscarriage of justice. In the case of Zar Walt Shah (supra), the Hon'ble Supreme Court has justified the exercise of this power with a view to supp ort substantial justice and it was observed that concept of bar against filling the gaps was no more available and the law including the precedent law on Islamic principles, which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence.
7. Learned counsel for the respondents, on the other hand, resisted the arguments on the ground that when the learned Civil Judge refused to summon the witnesses. By that time the petitioners did not avail the remedy , by filing appeal before the appellate forum. Now this remedy is not available to the petitioners at appeal stage, but in order to fill in the lacunas the petitioners moved application before the appellate Court, which has rightly been dismissed by the learned District Judge.
8. Arguments heard. Record perused.
9. The spirit of the Order XLI, Rule 27, C.P.C. is to provide an opportunity of fair trial to the parties. The request for additional evidence can only be refused if it has been filed to introduce some new witnesses and to fill in the lacunas, but if already under the order of the Court the list of witnesses is submitted within time in the Court and the diet money is also deposited in the Court, with the order of the Court, then this presumption cannot be drawn against the applicants irrespective of the fact that at what stage they filed the application for additional evidence.
The names of the witnesses have been mentioned in the list submitted in the Court, at the proper time as directed by the Court and now it is for the Court to summon the official witnesses, as the private parties are not in a position to summon them at their own. That is why their diet money is to be deposited. The parties are to follow the orders/instructions of the Court regarding submission of list of witnesses and diet money . As per record the petitioners had submitted the notices and deposited the diet money . It was objected by the respondents' side that it (diet money) was deposited very late. Rule is that list of witnesses is submitted with the plaint and written statement or when the issues are framed and the Court directs, whereas at the evidence stage when summoning process is issued for the official witnesses, the application is filed with the Court, where Court allows it and the same is sent to Nazir , who according to settled schedule fixes the diet money , which is to be deposited by the party , who is requesting for the summoning of the official witnesses. Official witnesses, if allowed to be summoned by the Court, and if they do not turn up to record their evidence, unless not given up by the party , their evidence is to be recorded by the Court, the Court may adopt other means for summoning of the witnesses; or Court has to specifically mention the reasons that why the official witnesses are not being recorded. This procedure having been adopted by the petitioners, there is no ground to consider that this could be an afterthought effort to file the application for additional evidence. In a case reported as Muhammad Dawood v. Superintending Engineer , Operation Circles, WAPDA, Quetta and 2 others ( 1990 SCMR 1252 ), the Hon'ble Supreme Court held as follows:- "We have gone through the original record of the case in the presence of the counsel for the parties and find that one of the witnesses, in fact the main witness in the case having custody of all the record, had been summoned through the Court for which the process fee and diet money had been deposited and the note of Ahlmad shows that the process had issued to him for 21.11.1983. However , we do not find any note as to what happened to :hat summons and what was the reason for non-service or non-appearance of the official witness. On the facts and in the circumstances of the case, it would be too much to burden the plaintiff with the responsibility of producing the official witness and getting produced the official record. The plaintiff, it appears had done all that was legally within his power or was his responsibility . It was, therefore, a case where the presence of the official witness should have been secured and the trial Court having not done it, the High Court should have attended in more meaningful manner to the application for producing additional evidence and the circumstances in which it was filed."
In this regard further reliance is placed on the cases reported as Mst. Bashir Bibi v. Aminuddin and 9 others (1972 SCMR 534), Hakim Habibul Haq v. Aziz Gul and others (2013 SCMR 200), Abdul Ghani and another v.
Mst. Nur Jahan and others (1989 MLD 3055 ), Muhammad Younas v. Pirzada M.A. Qureshi and others (1993 MLD 336), Muhammad Nazar Qureshi Hashmi v. Shaukat Ali and 3 others (PLD 1994 Lahore 374), M.S. Rawalpindi General Hospital v. Raja Muhammad Fareedon and 3 others (2005 MLD 1057 ),Saleem-ud-Din and others v. Government of the Punjab through Secretary Education and others (2009 MLD 635), Haji Muhammad Riaz-ul-Hassan and 9 others v. WAPDA through Chairman, WAPDA, Lahore and 4 others (2011 CLC 1916 ), Shahida Parveen and others v. Rizwana Shaheen and others (2012 CLC 548) and Asifa Ayaz Toosy v . Additional District Judge and others ( 2019 CLC 362 ).
10. The appeal filed by the petitioners is in continuation of the suit and is still pending before the learned District Judge. The learned District Judge has not correctly appreciated the wisdom of Order XLI, Rule 27, C.P.C. and has committed an error while disallowing the application. Since the case of the petitioners is solely regarding the revenue record, therefore, the revenue officers/ officials are in a way necessary witnesses to enable the Court to reach at a right conclusion.
11. Another aspect of the proposition, that with the acceptance of the application under Order XLI, Rule 27, C.P.C., the case will be re-opened, is not a correct view. As it is mentioned in the above paragraph that appeal is continuation of the suit. Furthermore, it is not a de novo trial. All the remaining witnesses have been recorded by the Court. No need to examine them. Neither it is the spirit of the Order XLI, Rule 27, nor, it is the desire of the petitioners. In addition to the already evidence, the application for recording of additional evidence is filed and the purpose behind is to enable the Court to reach at a right decision. Reliance in this regard is placed on the cases reported as Amir Khan v. Muhammad Taj (2017 CLC Note 94), Muhammad Yasin v. Judge. Family Court, Shakargarh and another ( 2017 MLD 2010 ) and Ameer Abbas Sial v . Province of Punjab ( 2020 CLC 792 ).
12. In the circumstances, this revision petition is allowed and the order dated 30.11.2012 passed by the learned District Judge, Hafizabad, is set aside. Resultantly , the application of the petitioner s for additional evidence stands accepted. The learned appellate Court shall summon the witnesses, record evide nce and then proceed with the appeal in accordance with law . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.