MUHAMMAD SHAN GUL, J :- Through this judgment the titled First Appeal against Order is sought to be decided.
2. Facts in brief giving rise to the present appeal are that respondent, Mst. Tahira Parveen, filed a suit for possession through partition of property measuring 12 marlas situated at Chak No.88/10-R, Tehsil and District Khanewal along with a constructed room, kitchen and wash room with bounded area which had allegedly been taken in possession by the appellant, Muhammad Aslam, on 28.07.2005. She also filed an application for temporary injunction and maintained that the suit land was originally owned by Sher Muhammad (deceased), predecessor-in-interest of the appellant, Muhammad Aslam, who transferred the land through gift (Tamleek ) to respondent-Mst. Tahira Parveen and her mother Mst. Zuhran Bibi and upon a statement of deceased Sher Muhammad, suit filed by Mst. Tahira Parveen was decreed vide judgment and decree dated 31.10.1989. The said judgment and decreed was challenged by the appellant by means of an application under Section 12(2), CPC, which was dismissed vide order dated 28.6.2005. A revision against the same was also dismissed on 15.6.2006.
3. The suit out of which the present FAO emanates was contested by the appellant and the learned trial court after recording evidence of the parties partially decreed the suit of the respondent vide judgment and decree dated 22.6.2015.
4. Both parties were aggrieved of the judgment and decree dated 22.6.2015 and, therefore, preferred their separate appeals before a District Judge. During the pendency of such appeals, the appellant filed two applications, one for production of additional evidence and the other for seeking amendment in the written statement but a learned Addl. District Judge without deciding such applications dismissed the appeal filed by the appellant while partially allowing the appeal filed by the respondent vide judgment and decree dated 21.11.2016.
The appellant challenged this judgment and decree by way of civil revision No.397/2017 and since the applications had been left undecided the matter was remanded to the learned Addl. District Judge for its decision on merits.
That in post-remand proceedings, a learned Addl. District Judge, Khanewal, dismissed the application of the appellant for production of additional evidence vide order dated 04.6.2020 and this is what has caused offence to the appellant who has filed this t Appeal against Order against dismissal of his application filed under Order XLI, Rule 27, CPC.
5. Learned counsel for the appellant contends that what has weighed with the learned Addl. District Judge in refusing his application for production of additional evidence is mere delay and which by itself is no ground for disallowing a party to lead additional evidence. He has relied on "Commissioner Multan Division, Multan and others v. Muhammad Hussain and others" (2015 SCMR 58) and "Muhammad Sarwar and others v. Rehmat Ali and others" (2005 CLC 1719 ), to maintain that delay should never be a factor in allowing or disallowing an application for production of additional evidence and that as long as additional evidence sought to be produced was authentic and there was no fabrication then the same ought to be allowed to be brought on record. Submits that his entire additional evidence consists of certified copies of official documents, a list of which is appended at Page-60 of this appeal.
6. On the other hand, learned counsel for the respondent has opposed this FAO and submits that the appellant cannot be allowed to fill up lacunas in his case or be allowed to transform a weak case into a good one and that too, so late in the day. He says that what triggers Order XLI, Rule 27, CPC, into play is the aspect of substantial cause and since the appellant' s application for production of additional evidence is absolutely silent about the reasons prevailing with the appellant in not relying on these documents during the trial before the trial court or even much thereafter , the application filed by the appellant only merited to be dismissed and this First Appeal against Order , likewise, should be dismissed as well.
7. Heard. Record perused.
8. It may be mentioned here that for Order XLI, Rule 27, CPC, to be brought into operation, the documents sought to be produced by way of additional evidence should be necessary for the appell ate court to pass a judgment or even when there is any other substantial cause necessitating the filing of such an applica tion and the subsequent placing on record of additional evidence.
9. I have perused the application filed by the appellant before the appellate court praying for being allowed to bring on record additional evidence. In the entire application not a single word has been mentioned with reference to the reasons prevailing with the appellant for deeming these documents to be essential so late in the day or why these are necessary now and not before when the suit was filed. Likewise, there is no mention whatsoever about what stopped the appellant earlier , during the course of trial, to prefer such an application and what has compelled him now to move such an application. Nay , no reason whatsoever is forthcoming from the side of the appellant.
10. The above should be measured in the context of the fact that the appellate court has explicitly ruled that, "the court is able to pronounce a judgment without these documents which the appellant wants to bring on record through additional evidence." The appellant has not even alluded to any circumstance on account of which these documents were not availabl e earlier or why he could not secure such documents earlier and why he did not deem it expedient or essential to bring these documents on record. In the face of a categorical observation expressed by the appellate court itself about being in a comfortable position to decide the matter without the crutches of such additional evidence and in the presence of the fact that the appellant has not mentioned any reason whatsoever for bringing additional evidence on record now, it is clear that the court seized of the appeal can very well pass a judgment on the basis of the evidence already placed before the appellate court and that the production of additional evidence is gratuitous and uncalled for. Likewise, the appellant has not even distantly mentioned as to why these documents are necessary for a proper decision of the matter .
11. The application of the appellant is completely silent about his conduct in contu maciously causing delay in the matter and does not at all reveal anything about the aspect of availability of such documents considering that these are all official documents which could have been quite easily procured earlier and which, in any case, can be summoned by the appellate court itself if the appellant were to satisfy the court about the necessity for having such documents on record. The appellant not having uttered a word about the necessity for producing such documents or about reasons prevailing now with the appellant in trying to bring these docum ents on record, there is no way that any help can be extended in favour of the appellant. The counsel for the appellant was even asked in the open Court about why he had filed this application and what had prompted him to do so at this stage but the appellant' s counsel kept silent and said that since there was no reason he had not mentioned any such reason in the application filed under Order XLI, Rule 27, CPC. While honesty on the part of the counsel for the appellant is appreciated, it does not mean that the appellant should be rewarded for his honesty by allowing his application which has to stand on its own base and can only be allowed if the postulates of Order XLI, Rule 27, CPC are fulfilled.
12. Since the appellant has not mentioned why these documents are essential; since the appellant has not mentioned as to why these were not sought to be produced earlier and since the appellant has not cited any reason why these were not relied upon or produced at the time of trial, his applica tion comes across as mere bald rhetoric and does not at all reveal why production of these documents is neces sary now. Likewise, there is no narrative in the application filed by the appellant about what stopped him earlier in relying upon these documents or in having them produced before the trial court and what has compelled him now to do a volte-face and insist on the production and placement of such documents on record.
13. It may also be mentioned here that besides the ground of these documents being necessary for an appropriate adjudication of the matter not being attracted or even the ground of these additional documents having not been produced earlier as a result of some substantial cause and which substantial cause allows the appellant to file such a request not having been made out, it is also a fact that no such application was ever filed before the trial court and it cannot be said even tentatively that the appellant was wrongly refused permission to bring on record any evidence.
14. However , most conspicuously the application filed by the appellant mentions no ground whatsoever , alludes to no reason whatsoever and likewise provides no other substantial cause for being allowed to produce such documents at this belated stage. The suit was filed in 2007 and it took the appellant six years to file a written statement. Ever since, the appellant is only trying to parry the trial, prolong it by one means or another and ensure that no final decision is passed. Additionally , some documents in the list of the documents that the appellant so wants to produce by way of additional evidence, are already placed on the case file as Exh.P/17 and Exh.P/18 and if the appellate court considers other documents as being necessary , the appellate court can very well call for such documents itself. The appellant never tried to produce these documents where they were so meant to be produced and which is before the trial court. No attempt was ever made on the part of the appellant and this casts doubts on the sincerity of approach on the part of the appellant. The documents were in existence even then! Even otherwise, all documents sought to be produced by the appellant by way of additional evide nce are official documents and within an arms reach of the appellate court and if the appellate court considers these necessary , which it does not, it can call for them itself.
15. Most of all, it is trite that the facility of allowing additional evidence to be brought on record is not meant to allow a litigant to fill up a lacuna in his case or to make good his omission in the trial especially and particularly when no ground whatsoever is taken in the application filed for such a purpose.
16. Inadvertence of a competing party , ignorance of law, second opportunity to adduce evidence and negligence of a competing party are not recognized and acknowledged grounds for allowin g an application for additional evidence. As has been noted above, the requirement of additional evidence must be the requirement of the court and not of a party and the Hon'ble Supreme Court of Pakistan in "Amanullah and others v. Mst. Ghulam Janat and others" (1989 SCMR 547) has held so. A party that had the opportu nity but elected not to produce evidence, cannot be allowed to give evidence that could have been given in the court below . The discretion given to an appellate court under Order XLI, Rule 27, CPC, is judicial in nature and stands structured by the limitations and conditions specified in the provision itself. The appellate court has to record reasons for allowing additional evidence to be produced. These reasons should be factual and must lead to an inference of necessity . Kindly see "Abdul Samad Khan v . Jiwan" ( 1989 MLD 3082 ). In the present matter , no reasons, not even one has been cited!
17. The Hon'ble Supreme Court of Pakistan in "Abdul Rasheed v. Syed Fazal Ali Shah" (2016 SCMR 2163 )
(which is the predominant view prevailing in Pakistan) has categorically held that, "a court was not required to fish evidence for a party so as to fill up a lacuna of the case particularly in a matter where the party itself was delinquent to prove its own case ." This judgment is clearly attracted to the facts of the present case.
18. In "Shakoor v. Province of Punjab through Collector and others" (PLD 2013 Lahore 17), it has been clearly held that, "where a party had the opportunity to produce evidence but elected not to produce such evidence could not be allowed to produce evidence that could have been produced in the trial court." It has also been held in the said judgment that, "a party to an appeal could not be allowed to produce additional evidence to patch up weaker parts of its case or to fill up an omission and that permission to produce additional evidence could not be claimed as of right and rather it was the appellate court which, in its discretion, could permit bringing on record additional evidence subject, of course, to the limitations and conditions laid down in Order XLI, Rule 27, CPC itself."
It has also been held in the said judgment that, "necessity to produce additional evidence would arise only if the appellate court requires such evidence for pronouncing a judgment and not otherwise and where the appellate court did not find it necessary to allow such application then the High Court could not interfere with such order particularly when the entire appeal was not before the High Court. " It has been held in the said judgment as follows:- "In order to address this issue I would like to refer to the scope of an application filed under Order XLI, Rule 27, C.P.C. Section 107 C.P.C. enables Appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27, C.P.C. Principle to be observed ordinarily is that the Appellate Court can neither travel outside the record of the Trial Court nor take evidence on appeal. However , section 107(d) C.P.C. is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course to be exercised judiciously and sparingly . Privy Council in the case of Kessowji Issur v.GIP Railways (1907) ILR 31 Bombay 381) while examining the scope of Order XLI, Rule 27 C.P.C. has held that this rule alone can be looked to for taking additional evidence and that the Court has no jurisdiction to admit such evidence in cases where this rule does not apply . Order XLI, Rule 27, C.P.C. envisages certain circumstances when additional evidence can be adduced. In the instant case, it is not the case of the petitioner that the first situation is attracted because the learned Trial Court never refused to admit the additional documents in evidence. In second circumstance, the Appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment", has been subject to several decisions of superior Courts wherein it has been held that when Appellate Court finds itself unable to pronounce judgment owing to lacuna or defect in the evidence as it stands, it may admit additional evidence but a party to the appeal cannot be allowed to produce additional evidence so as to patch up the weaker parts of its case or fill up omission. In this regard reliance may be placed on the cases of Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684), The Secretary of the Government of West Pakistan, Communication and Works and another v. Gulzar Muhammad (PLD 1969 SC 58), Messrs Muhammad Siddiq Muhammad Uma r and another The Australasia Bank (Ltd), Muhammad Yousaf v. Mst. Maqsooda Anjum and others (2004 SCMR 1049 ) Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304 ). The ability to pronounce a judgment is to be understood as ability to pronounce a judgment satisfactory to the mind of the court delivering it. It is only lacuna in the evidence that will empower the court to admit additional evidence. This view finds support from the cases of Subba Naidu v. Ethirajammal and other s (AIR 1916 M. 966), Bur Singh v. Santa Singh and others (AIR 1938 Lahore 161), The Municipal Corporation of Greater Bombay v. Lal Pancham and others (AIR 1965 SC 1008), and Qalandar v . Muhammad Zarian and another ( 1980 CLC 1417 )."
19. On the other hand, the judgments relied upon by the counsel for the appellan t are indeed distinguishable on account of the peculiar facts and circumstances of the instant case because both judgments relied upon by the counsel for the appellant do not even remotely hold that an appellant who fails to cite any reason in preferring an application for production of additional evidence and an appellant who does not allude to reasons which stopped him from bringing forth such additional evidence earlier and an appellant who still does not opt to reveal why such additional evidence is necessary should be encouraged and his application be allowed.
20. There is no merit in this appeal and the same is hereby dismissed .