AHMAD NADEEM ARSHAD, J.---Through this Civil Revision filed under section 115 of Code of Civil Procedure. 1908, the petitioner assailed the vires of order dated 13.09.2022, whereby, application for production of additional evidence was dismissed.
2. Shorn of unnecessary details, Respondent No.1/plaintif instituted a suit for recovery of Rs.3,039,075.74 along with mark-up a 18% i.e. Rs.455,861.30 on 11.06.2012 on the ground that the plaintiff was awarded the contract dated 22.09.2010 for the supply of Medical Gases to petitioner/ defendant w.e.f. 01.10.2010 to 30.06.2011; that respondent No.1 supplied Medical Gases to petitioner from time to time and a balance of Rs.3,039,075.74 along with its interest are outstanding against the petitioner. The suit was contested by the petitioner/defendant. The learned trial Court, after recording evidence of the parties, pro and contra, decreed the suit vide judgment and decree dated 11.04.2022. Feeling aggrieved, petitioner preferred an appeal on 12.05.2022 and thereafter moved an application under Order XLI, Rule 27, C.P.C., for production of additional evidence. The learned appellate Court dismissed the said application after getting its reply vide impugned order dated 13.09.2022. Petitioner assailed the said order through instant petition.
3. I have heard learned counsel for the parties at length and perused she record with their able assistance.
4. Perusal of record it appears that petitioner intends to produce 39 documents, (the detail of which has been given in the application). Respondent No.1 instituted the suit on 11.06.2012 almost 10 years ago and the evidence of the parties was concluded on 25.02.2022. The suit was decreed vide judgment and decree dated 11.04.2022. Against said judgment and decree the petitioner preferred an appeal.
During the pendency of said' appeal they moved above mentioned application on 05.07.2022.
Contention of the petitioner is that inadvertently these documents could not be produced before learned trial Court at the relevant time.
5. Order XLI, Rule 27, C.P.C. envisaged certain circumstances when additional evidence can be adduced. It would be appropriate to reproduced Rule 27, C.P.C. of Order XLI which reads as under: - "27. 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, of
(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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission".
Said Rule has been amended in the following terms vide Notification No.250/ Legis/XI-Y- 26 dated 23.10.2020."
27. Production of additional evidence in Appellate Court:-The Appellate court, after recording reasons, allow the parties To an appeal to produce additional evidence, whether oral or documentary:
(a) if the Court from whose decree the appeal has been preferred, has refused to admit evidence which ought to have been admitted.
(b) the Appellate court, on being satisfied that the additional evidence has been available but could not be as beyond the control of the party seeking its production; or
(c) the Appellate court itself requires any such evidence so as to enable it to pronounce a judgment."
6. Keeping in view the said provision of law, it appears that first situation is not attracted because the learned trial Court never refused to admit the said documents in evidence. In second circumstances, 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 general decision of superior Court wherein it has been held that when appellate Court finds itself unable to pronounce judgment owing to lacunas or defects 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 omissions. Petitioner did not furnish any reason that the documents were available but could not be produced for the reasons beyond his control. The scope of Order XLI, Rule 27, C.P.C. is limited as it contemplates very few circumstances or conditions in which the appellate Court may allow a party to the appeal to produce additional documentary evidence. Admittedly, the case of the petitioner does not fall under Rule 27, C.P.C., because there is no material on record which suggests that the additional evidence has been available but could not be produced for reasons beyond the control of petitioner. Petitioner failed to satisfy the Court with regard to non-production of said documents at relevant time.
7. Order XLI, Rule 27, C.P.C. does not envisage filling-up the lacuna left by a party in evidence before trial Court, as held by august Supreme Court of Pakistan in "Bashir Ahmad v. Ahmad-ul-Haq Siddique" (1985 SCMR 1232). In case titled "Muhammad Yousaf v. Mst. Maqsooda Anjum and others" (2004 SCMR 1049) the august Supreme Court of Pakistan held that additional evidence could not be received to fill-up lacuna or provide for deficiency in the case of a party. In case titled as "Shtamand and others v. Zahir Shah and others" (2005 SCMR 348) the august Supreme Court of Pakistan refused to allow the plaintiff' to produce additional evidence who filed application after nine years. In another case tilted as "Syed Muhammad Hassan Shah and others v. Mst. Binat-e- Fatima and another" (PLD 2008 Supreme Court 564) it was held that the power available under Order XLI, Rule 27, C.P.C. is not meant to cater the needs of a particular party but is available for exercise by the appellate Court to appropriate cases where need for taking additional evidence appears essential to the Court for just decision of the case. In a recent judgment of august Supreme Court of Pakistan in case tilted "Muhammad Siddique v. Gul Nawaz and others" (2021 SCMR 1480) held as under:- "As to the production of additional evidence, the powers of the appellate Court under Order XLI, Rule 27, C.P.C. are not absolute but are structured by the provisions of rule 27 itself and could only be exercised in cases where (i) the court whose decree is under appeal has refused to admit a piece of evidence which ought to have been admitted or (ii) the Appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or
(iii) for any other substantial cause and that too after recording reasons.
However, it is to be kept in mind that Rule 27 does not envisage providing of second opportunity to adduce evidence or to rectify the inadvertence or negligence of a party."
8. The petitioner failed to give any reasons for non-production of the said documents before the learned trial Court. There is no reasonable ground available to the petitioner for non-production of these documents during the trial of the suit. Permission to produce additional evidence be allowed if its deemed appropriate in the case. Petitioner failed to show any valid reasons to get permission to produce additional evidence. The only reason given by the petitioner is that inadvertently and due to non-availability of said documents he did not produce said additional evidence before the learned trial Court. Petitioner failed to produce said additional evidence before the learned trial Court at appropriate time. Discretion of Court should not be exercised in favour of a person who remained indolent for years and such person should suffer the consequences of his failure.
Petitioner failed to explain that why any step to produce evidence in question was not taken for so many years. In view of lack of vigilance on the part of the petitioner, it was not a fit case for exercise of powers by the Court in his favour under Order XLI, Rule 27, C.P.C. The said provision does not give unfettered discretion to the Court, to allow application for additional evidence. There must be some reasons for allowing said application.
9. I have seen no illegality, irregularity and misreading or non-reading of record on the part of learned lower appellate Court while passing the impugned order. Learned counsel for the petitioner failed to point out any illegality or irregularity and jurisdictional defect in the impugned judgment/order of the learned lower appellate Court.
10. For what has been discussed above, the instant Civil Revision is without any merits, hence, the same is hereby dismissed with no order as to costs.