ABDUL HAMEED BALOCH, J. The petitioner/plaintiff assailed order dated 9th March, 2021 (impugned order) passed by Additional District Judge-III, Quetta, whereby the application under Order XLI, Rule 27, C.P.C. filed by the petitioner for producing additional evidence was dismissed.
2. Precise facts of the case are that the petitioner/ plaintiff filed a suit for specific performance and recovery of mesne profit/rent against the respondents/ defendants in the court of Senior Civil Judge-II, Quetta (trial court). The respondents/ defendant No. 1 as well as remaining respondents/ defendants filed their written statements and contested the suit on legal as well as factual grounds. The trial court framed issues, on which the parties produced pro and contra evidence. On conclusion the trial court vide judgment and decree dated 28th February, 2019 dismissed the suit.
Being aggrieved the petitioner/ plaintiff filed regular first appeal (RFA) before this court. Due to amendment in Civil Court Ordinance the pecuniary jurisdiction of appellate court was enhanced, as such RFA was transmitted to appellate court (Additional District Judge-III, Quetta), Quetta.
3. During pendency of appeal the petitioner/plaintiff filed an application under Order XLI, Rule 27, C.P.C. fox producing additional evidence. The learned appellate court after hearing arguments of the parties dismissed the application vide order dated 9th March, 2021, hence this revision petition.
4. The learned counsel for the petitioner/ plaintiff contended that the order of the appellate court is perverse, illegal and against the settled. principle of law. The appellate court has passed the order without any justification. Under Order XLI, Rule 27, C.P.C. the appellate court has vast power to receive any document or record evidence for just decision of the case. He placed reliance on Muhammad Younas v. Abdul Ghaffar 1998 MLD 1622 [Lahore].
5. Conversely the learned counsel for the private respondents vehemently opposed the contention of the petitioner stating that under Order XIII, Rule 1, C.P.C. the party should submit the document immediately after submitting of suit. The suit was filed in the year 2005 and instant application has been filed by the petitioner just to prolong the matter, prayed for dismissal of the revision petition.
6. Heard and perused the record. It would be appropriate to reproduce Order XLI, Rule 27, C.P.C., which reads as under: "Order XLI, Rule 27, C.P.C. Production of additional evidence in Appellate Court.-(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 any other substantial cause.
The Appellate Court may allow such evidence or document to be produced or witness to be, examined."
7. The provision of above referred rule is to do justice and not to fill up the lacuna of the case. It is settled principle of law that the parties to the suit must be vigilant while contesting the case. If any party is careless, failed to take necessary steps for production of evidence the party cannot be permitted under the garb of Order XLI, Rule 27, C.P.C. for production of additional evidence. The referred provision must be read conjointly with Order XIII, Rules 1 and 2, C.P.C. Under Order XIII, Rule 1, C.P.C., the party must produce the documentary evidence on first hearing. The word "shall" used in the referred rule, meaning thereby that the party is under legal obligation to produce all documentary evidence in their possession or power, on which they intend to rely. Whereas under Order XIII, Rule 2, C.P.C. the court shall receive the documentary evidence subject to satisfaction of court or showing good cause for non production of the same on last hearing, meaning thereby that the court is empowered to receive the document subsequently subject to showing good cause for non production of the document.
8. The power under Rule 27 of Order XLI, C.P.C. is to be exercised only if the court considers that it would not be able to pronounce judgment without further evidence and above referred provision cannot be used to benefit a party which has not been vigilant enough. For production of additional evidence/documentary evidence the party had to establish that the evidence to be produced was of unimpeachable in nature and its absence might cause miscarriage of justice, in spite of due care and diligent it could not be produced at trial court and such evidence came to existence or knowledge of appellant after completion of trial. The party who wants to produce additional documentary evidence must convince the court with proof. Additional evidence could not be allowed to be produced to cover up the weaknesses of a party. The record transpires that the petitioner/ plaintiff filed application for producing additional documentary evidence after more than fourteen (14) years of the institution of the suit. Reliance is placed on case Shtamand v. Zahir Shah, 2005 SCMR 348, wherein it was held: "4. We have carefully examined the contentions as agitated on behalf of petitioners in the light of provisions as contained in Order XLI, Rule 27, C.P.C. It is worth-mentioning that the suit was filed on 6-6-1994 and proper opportunity of hearing to lead evidence was afforded to the petitioners, who woke up from a deep slumber after nine years and moved an application for additional evidence.
Mr. Fateh Muhammad Khan, learned Advocate Supreme Court when asked pointedly that why the application for additional evidence was moved with inordinate delay, no satisfactory answer could be given except that the application could have been accepted by imposing cost. We have gone through the judgment of learned trial Court which is indicative of the fact that the sale-deed (Exh.P.W.2/1) dated 23-1-1932 has been taken into consideration and discarded for the reason that it had no nexus with the property in Question which was not mentioned therein. In such view of the matter the question as to whether the sale-deed was registered or 'otherwise would have no substantial bearing on the merits of the case. In fact the petitioners want to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in Order XLI, Rule, 27, C.P.C. The application for additional evidence cannot' be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at Appellate stage in the absence of any reasonable justification which is lacking in this case. In this regard we are fortified by the dictum laid down in cases titled Rehmatullah v. Fazal Baqi 1998 SCMR 670, Mad Ajab v. Awal Badshah 1984 SCMR 440, Nazeef v. Abdul Ghaffar, PLD 1966 SC 267 and Parsotim Thakur v. Lai Mohar Thakur AIR 1931 PC 143. "
The judgment relied by the petitioner is distinguished. Each case has its own peculiar facts and circumstances.
In view of above the instant revision petition is dismissed and order dated 9th March, 2021 passed by Additional District Judge-III, Quetta is upheld. No orders as to costs. However, the appellate court is directed to decide the appeal within two months without unnecessary adjournments.