MUHAMMAD AMEER BHA TTI, J. The petitioners have assailed vires of the judgment dated 23.04.2019 passed by the learned first appellate Court whereby the appeal so filed by the respondent for setting aside judgment and decree of the learned trial Court, culminated into remanding the case with a view to provide opportunity to the respondent for production of her documents while accepting her application for additional evidence under Order XLI Rule 27 C.P .C.; and thus stood allowed to bear result sought for by the respondent as such.
2. Succinctly , a suit for declaration concerning the land, as mentioned in head-note of the plaint, was instituted by the respondent against the present petitioners who, in turn, had also filed suit for permanent injunction to array the present respondent as defendant therein. Both the suits were inevitably consolidated and proceedings were taken up in the respondent' s suit. Learned trial Court after framing the consolidated issues permitted the parties to adduce their evidence as a result whereof the learned trial Court decreed the suit of the petitioners and obviously the respondent' s suit was dismissed by way of a consolidated judgment, which was eventually impugned before the learned first appellate Court.
Feeling dismayed by the outcome of appeal, the petitioners have opted to invoke the jurisdiction of this court; hence this revision petition.
3. The petitioners' main thrust hinges upon two counts to impugn the said judgmen t which they term as illegal and without lawful authority . Firstly , lack of jurisdiction to set-aside the judgment and decree of the learned trial court merely on the ground of recording of additional evidence and secondly , the permission granted by the learned first appellate Court to the respondent to produce the additional evidence by accepting her application under Order XLI Rule 27 C.P .C.
4. As regards the first premise agitated by the petitioners, the learned counsel for the respondent has shown grace to concede and concur therewith, when so confronted by this court and called upon to refer any provision of law empowering the learned first appellate Court to set-aside the judgment merely on the ground of recording of additional evidence. No provision exists in Civil Procedure Code to empower the appellate Court to set-aside the judgment of the trial Court merely on the ground of recording of further evidence. Learned first appellate Court should not have set-aside the decree of the trial Court and remanded the case for fresh consideration after recording the additional documentary evidence. It goes without saying that it was imperative for the learned first appellate Court to follow the procedure as envisaged under Order XLI Rule 28 of C.P.C., expedient to reproduce herein below:- "Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court".
Therefore, learned first appellate court should have itself recorded the additional evidence or directed the trial Court or any other Court subordinate to it to take such evidence and send the same to the appellate Court enabling it to decide the appeal. There was no legal justification to set-aside the judgment of the learned trial Court merely for having some additional evidence recoded by the Court below , therefore, to this extent; the judgment so impugned does not have any legal backing rather contrary; hence hereby out-rightly set-aside.
5. Taking the advantage, I deem it approp riate to explain here that in case the matter is referred to the learned trial Court or any subordinate Court to record evidence in terms of Order XLI Rule 28 C.P.C., the said Court acts as a Court not as a Commission.
6. Insofar as the other question for grant ing permission to the respondent/plaintif f to adduce further documentary evidence on the basis of an application under Order XLI Rule 27 C.P.C. is concer ned; the learned counsel for the petitioners submits that while exercising the power , the first learned appellate court was under legal obligation to assign cogent reasons which are conspicuously missing in the judgment impugned. Further submits that all the documents were in possession of the respondent/plaintif f since inception of filing of the instant suit, therefore, granting permission at this belated stage amounts to facilitating the filling of lacunas occasioned by her acts of omission, which has firmly been deprecat ed in various judgments by Hon'ble Supreme Court of Pakistan as well as this Court, therefore, while granting permission in this regard, the learned first appellate Court travelled beyond its jurisdiction. Thus, this part of the impugned judgment is also not sustainable in the eye of law and liable to be set- aside.
7. On the other hand, learned counsel for the respondent vehemently opposed submissions of learned counsel for the petitioners to maintain this portion of the impugned judgment in regard to the grant of permission to produce additional evidence sought to be produced through the application.
8. I have heard learned counsel for the parties and gone through the record as well as judgments relied upon by the learned counsel for the parties.
9. The judgment reported as Muhammad Tariq and others vs, Mst, Shamsa Tanveer and others (PLD 2011 SC 151) relied upon by the learned counsel for the petitioners underlines the ratio reproduced as follows:- "Suffice it to say that on the authority/power of this court to do complete justice and allowing additional evidence there cannot be any cudgel, however , such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases and obviously those where the founda tion of the plea is already there.
But we are not convinced, if these precedents can provide any support to the petitioners in the instant case, because the principles laid therein are relevant to the facts of those cases and not to the one in hand, especially when at the very outset the noted plea was not a part of the defence; no effort at any stage was made to seek amendment of the written statement, rather to the contrary the issue of superior right of the respondent was conceded before the appellate Court and it was not agitated in revisional jurisdiction of the High Court. It may also be stated that additional evidence can only be allowed by the Court when it is in consonance with, and within the scope of the pleading of the parties and not otherwise, but as mentioned earlier the plea till date is not part of the defence of the petitioner in written statement".
Ratio of the judgment is that there is no absolute prohibition in granting permission for additional evidence but parameters have been enunciated in terms that there must be link and reference of that plea in the pleadings to vindicate/substantiate thereof examining of missed documents is necessary .
10. In The Secretary to the Government of West Pakistan, Comm unication & Works Department and The Advisor , Town Planning vs. Gulzar Muhammad (PLD 1969 SC 60) Hon'ble Supreme Court enunciated the principle as under:- "The question now is as to whether that order of the High Court should be set aside upon the fresh materials now placed before this Court for the first time. Normally , where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. In the present case the appellant has adopted the last course without disclosing as to why it could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. But in an appeal it is now well settled that additional evince should not be admitted in order merely to enable one of the parties to the litigation to fill in gaps in the evidence. This Court, acting as a Court of ultimate jurisdiction, has undoubtedly the power to do complete justice, if necessary , even by admitting additional evidence, for there is no restriction on the powers of this Court to admit such evidence for the non-production of which at the initial stage sufficient ground has been made out. But even so this Court does not, as a rule, undertake an enquiry as a Court of first instance, nor permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant material before the High Court itself".
11. Following reference has been relied upon by the learned counsel for the respondent. Commissioner Multan Division, Multan and others vs. Muhammad Hussain and others (2015 SCMR 58), the relevant excerpt is as under:- "The additional documentary evidence proposed by the petitioners is authentic, consistent with the pleadings of the petitioners and directly relevant to the findings of ownership of the leased land given in the impugned judgment.
Such additional evidence facilitates resolution of the controversy between the litigating parties. This Court has held in Muhammad Tariq v. Sharma Tanveer (PLD 2011 SC 151) AND Messrs Bisvil Spinners (Pvt.) Ltd. v.
Pakistan (PLD 1992 SC 96) that additional evidence having the afore-going qualities is admissible on record. The jurisdiction of this Court to do complete justice between the parties also favours additional evidence to be admitted in order to meet the ends of justice. Applying the foregoing tests to the additio nal evidence proposed by the petitioners, their application bearing C.M.A. No.807-L of 2014 carries merit and is accordingly allowed."
12. In Syed Sharif ul Hassan through L.Rs. vs. Hafiz Muhammad Amin and others (2012 SCMR 1258 ), it was further articulated that:- "Failure to record additional evidence which is essential for just decision of the case also amounts to exercising jurisdiction illegally and with material irregularity . Failure to do so shall be failure to exercise jurisdiction vested. The District Judge or for that matter the High Court in the circumstances should have stepped in to correct the illegality by permitting examination of additional evidence".
13. The aforementioned view was also reiterated by Hon'ble Supreme Court of Pakistan in a case reported as Mst.
Resham Bibi and others vs. Ali Muhammad and others (2015 SCMR 1398 ). The relevant portion of judgment reads as under:- "We have heard the arguments and perused the record. There is no denial of the fact that the Application under Order XLI, Rule 27, C.P.C. was filed by the petitioner to which reply was also filed by the respondents, which was not attended to while deciding Revision Application. Indeed production of additional evidence is normally not encouraged at Revisional stage. However , then any official record sought to be relied upon has direct bearing on the merits of the case, the Court may examine the implication of such official record to arrive at a just and proper conclusion, moreso, when the learned counsel for the respondents has not shown any serious reservation in case order dated 17-2-1959 passed by the Deputy Commissioner (Claims), for whatever wor5th it may be and subject to proof of its authenticity is considered by the learned Revisional Court after the remand'.
14. Same dictum laid was down by Hon'ble Supreme Court of Pakistan in the case of Rana Abdul Aleem Khan vs. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067 ) wherein the august Supreme Court was pleased to hold that:- 'We are afraid that the power under the provisions of Order XLI, Rule 27 of the C.P.C. for allowing additional evidence available is not unfettered nor does the Appellate Court has the discretion to allow additional evidence per its own caprice, rather its (discretion) is structured/limited by the factors enunciated in the said provisions of law i.e., where the Court from whose decree the appeal has been preferred refused to admit any evidence which it ought to have admit. In this case, the petitioner never moved the Courts below to produce any evidence in the nature of examination of the Postman which was declined; that the Appellate Court requires any document or examination of witnesses enabling it to pronounce its judgment does 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 has been set out nor any independent formal application has been moved for the purposes of producing additional evidence'.
15. In Mst. Fazal Jan vs. Roshan Din and 2 others, (PLD 1992 SC 811), the Hon'ble Supreme Court went on to hold that:- "All the relevant documents were not brought on record. The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of the two higher appellate Courts. It seems that it was an appropr iate case for exercise of power under Order XLI, Rule 27, C.P.C. for bringing on record additional evidence. The suo motu exercise of this power would also have been fully justified in the facts and circumstances of the case".
16. From the minute examination of the record, it transpires that the respondent submitted a list of documents along with copies thereof at the time of filing of suit, however , the production and exhibition of some of those was somehow omitted at the time of recording of evidence, the propriety whereof has been sufficiently propounded in the application for additional evidence. It is manifestly clear from the record that all the documents had been specifically described in and attached with the plaint; hence they were inextricably integrated with the judicial record in hand. Realizing such omission/negligence on the part of learned counsel at the appellate stage, the instant application was moved. I am conscious about settled law that mere omission/negligence of counsel is not a good ground to grant permission to produce documents at the stage of appeal, nonetheless, I am of the considered view that when the courts obviously conclude that such omitted documents are necessary for the just decision of case, then justice should not be defeated at the altar of negligence of counsel, and this should not ordinarily prevail to frustrate the inalienable right of fair trial, in that, denying such right shall have the perforce of defeating the ends of justice. The paramount consideration to do substantive justice must take precede nce over technical reasons and for that purpose the courts of law ough t not to overlook the documents submitted by the parties along with pleadings, as such practice may end up with gross miscarriage of justice. When it is patently clear on the face of the record that those material documents can ostensibly be characterized as fundamental for the just and equitable outcome of a particular case and have already been articulated in the pleadings, duly relied upon, and handed over to the opposite party , like the one in hand, then the courts should not act as silent spectator on some poor presentation of a lawyer as it is the solemn duty of the courts to dispense justice.
17. The learned first appellate Court, after affording the even handed opportunity including submission of reply to the instant application, accepted it by recording effective reasons to regard production thereof as necessary for just decision of the case. Suffice it to observe that those reasons inter alia prevailing with him particularly included the authenticity of documents being official record for the purpose and also falling within the scope of plea set forth / averred in the plaint. Hence, in my view, the objection of learned counsel for the petitioners to the effect that no reasons were ascribed to allow such application has fallen apart. It is well within the domain of the appellate Court to do the complete justice and, if necessary , may permit the production of such additional evidence; provided the non-production thereof at initial stage is duly supported by reasonable ground, in order to meet the ends of justice.
In this case the official record specifically relied upon through the averments of the plaint in addition to the availability of all those documents duly attached therewith at the time of its filing, has direct bearing on the merits of the case; hence necessity has arisen to get them exhibited primarily with a view to arrive at a just and proper conclusion.
18. My view is further unequivocally augmented by the dictum laid down by Hon'ble Supreme Court of Pakistan in the supra cases of Commissioner Multan Division, Multan and others vs. Muhammad Hussain and others (2015 SCMR 58) and Syed Sharif ul Hassan through L.Rs. vs. Hafiz Muhammad Amin and others (2012 SCMR 1258 ), to allow the additional evidence in order to meet the ends of justice.
19. So far as the contention of the learned counsel for the petitioners that providing the opportunity to adduce evidence at appellate stage amounts to fill-in the gaps, does not persuade me in the presence of the law laid down by Hon'ble Supreme Court in a case reported as Zarwali Shah vs. Yousaf Ali Shah and 9 others (1992 SCMR 1778 ) wherein it was held as under:- "It is not necessary to admit any additional evidence in this Court. It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed docu ment/signatures, the Court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filling the gaps is no more available in the present Pakistan jurisprudence 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".
20. In view of the afore-going detailed account of discussion, I am of the consid ered view that the learned first Appellate Court has not committed any illegality or irregularity while exercising its power under Order XLI Rule 27 C.P.C.; and has rightly exercised its jurisdiction by allowing the application of the respondent/plaintif f to produce the documents mentioned in para No.2 of the application; hence to this extent the impugned judgment is maintained.
However , the other impugned portion of the judgment under consideration passed by the first appellate court to remand the case to the learned trial Court for just recording of evidence of the plaintif f/respondent, is hereby set- aside, as a result whereof, the appeal of the respondent shall be deemed to be pending adjudication before the learned first appellate Court who shall receive the documents permitted in the judgment and also grant permission to the petitioners/defendants to produce the necessary evidence in rebuttal thereto and then shall proceed to decide the appeal strictly in accordance with law .
21. The parties are directed to appear before the learned District Judge, Lahore on 13.02.2021 who shall take on this matter either himself or entrust it to any other Additional District Judge for adjudication in accordance with law.
No order as to costs.