MIRZA VIQAS RAUF, J. This petition in terms of Section 115 of the Code of Civil Procedure (V of 1908)
(hereinafter to be referred as "C.P.C.") is directed against the judgment and decree dated 27.01.2012, whereby the learned Additional District Judge, Talagang, while dismissing the appeal preferred by the petitioners, affirmed the judgment and decree dated 13.01.2010, passed by the learned Civil Judge, Talagang, District Chakwal.
2. Facts in brief necessary for adjudication of the instant petition are that a suit for declaration was instituted by the respondents averring therein that they are owners of suit land, being legal heirs of Habib Khan, and the Mutation No.5242, dated 13.12.1995 is based on fraud and misrepresentation.
As per facts contained in the plaint, Habib Khan was the original owner of the suit land, who had two wives namely Sat Bhrai and Bakhat Bano. Sat Bhrai died during the life time of Habib Khan from whom he had three children i.e., respondents Nos.1 to 3, whereas, from Bakhat Bano, he had petitioners Nos.1, 2, 3 and 15. Habib Khan died on 25.12.1955, whereas, one of his son namely Hayat died in his life time on 05.10.1955. It is asserted that at the time of opening of inheritance and while attesting Mutation No.5242, Hayat was shown as 'alive', whereas, it was not so.
3. Suit was contested by the petitioners, being defendants, who submitted their written statement controverting the facts contained in the plaint.
4. From the divergent pleadings of the parties, multiple issues were framed by the learned trial court, whereafter, evidence of both the sides was recorded. Suit; was finally decreed vide judgment dated 13:01.2010, against which an appeal was preferred by the petitioners before the learned Additional District Judge, Tala Gang. During, the pendency of the appeal, an application under Order XLI, Rule 27 of "C.P.C." was moved by the petitioners seeking permission to produce additional evidence. The learned Additional District Judge through judgment dated 27.01.2012 dismissed the application as well as the appeal preferred by the petitioners.
5. Though instant petition is still at pre-admission stage, but with the concurrence of learned counsel for the Parties, the same is treated as pacca case and decide as such.
6. Learned counsel for the petitioners, at the very outset, while drawing the attention of this Court to the impugned judgment submitted that the same is not tenable under the law, as the learned appellate court has not only decided the application for additional evidence; but also decided the appeal. He added that such a course is not permissible under the law, and the impugned judgment on this score alone is not tenable. In support of his contentious, learned counsel has placed reliance on Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232), Mst.
Imtiaz Begum vs. Mst. Sultan Jan and others (2008 SCMR 1259) and Pineen Khan vs. Muhammad Anwar and others (2011 CLC 550).
7. Conversely, learned counsel for the respondents submitted that it is not the requirement of law that in all eventualities, the learned appellate court should decide the application for additional evidence separately. He added that the impugned judgment cannot be set-aside merely on this ground. In order to supplement his contentions, learned counsel has placed reliance on Sultan Ali alias Sultan through L.Rs. and others v. Rasheed Ahmad and 45 others (2005 SCAM 1444).
8. After having heard learned counsel for the parties at considerable length and perusing the record, I am of the considered opinion that the question as to whether an appellate court is obliged to first decide the application for additional evidence before adverting to the merits of the appeal is of foremost importance. It would thus, be apt in the first instance to attend the above question, instead of dilating upon the merits of the case, lest it prejudice the case of any of the sides.
9. It is evident from the record that suit was initially decreed vide judgment dated 13.01.2010. The petitioners assailed the said judgment and decree before the learned appellate court through an appeal, which was accepted vide judgment and decree dated 10.07.2010. Feeling aggrieved, the respondents filed Civil Revision No.933 of 2010, which was accepted by this Court vide judgment dated 13.09.2011, and the matter was remanded to the learned Additional District Judge, Tala Gang with the following observations: "8. In this matter the oral as well as documentary evidence of both the parties have been recorded by the learned Civil Judge. After considering the entire evidence learned Civil Judge decided the controversy through judgment dated 13.01.2010. The learned first appellate court without first recording the reason that the available evidence on the record is insufficient for enabling the appeal to be decided by the learned first appellate court in accordance with jaw, remanded back the case to the learned Civil Judge. The learned first appellate court also did not even refer to the .admission made by DW-1 in her cross examination, specifying the respective, dates, on which her brother and father died. It is settled principle of law that provisions of Order XLI, Rule 27 cannot be used in a mechanical manner. That remand order cannot be passed in such situation until and unless it comes to the conclusion that the evidence available on the record is insufficient to enable the appellate court to decide the matter, The judgment referred to as 1996 SCMR 598 is also relevant on the point that the application for additional evidence is not to be considered with favour after seven years of the litigation because the parties are likely to have interpolated with the record in the meanwhile the litigation in this case commenced in the year 2001 before Civil Court at Talagang and the judgment and decree was passed by the learned civil Judge on 13.01.2010. The remand order therefore passed by the learned appellate court is set aside. The appeal preferred by the respondents shall be deemed to be pending and is directed to be heard by the learned Additional District Judge, Talagang who after hearing the arguments and considering the evidence on the record shall decide the matter. The learned Additional District Judge, Talagang shall also consider the application moved by the respondent No. 2-A and shall pass an appropriate order on the said application. If the learned Additional District Judge comes to the conclusion that the evidence available on the record is insufficient for enabling him to decide the controversy only then he will consider the recording of additional evidence in the matter. This civil revision is accordingly accepted. Since it is an old matter, therefore, the learned Additional District Judge shall decide the appeal of the respondents within a period of four months positively from the date 27th September, 2011 on which date the parties shall appear before the learned Additional District Judge without any further orders."
10. In post-remand proceedings, the learned Additional District Judge through the impugned judgment not only decided the application for additional evidence but the appeal as well.
11. It is an oft-repeated principle of law that whenever some miscellaneous application is pending before the Court, it shall decide the same in the first stance before finalizing the lis and passing the final order/judgment. Failure to decide the miscellaneous application before passing the final verdict would render the same nullity in the eye of law.
12. In the case of Mst. Umari and another v. Faqir Muhammad and another (PLD 1983 Lahore 349), a learned Single Bench of this Court while dealing with a similar proposition held as under: "2. The point canvassed by the learned counsel for the petitioners in this revision is that the District Judge had failed to exercise jurisdiction vesting in him in deciding the main appeal without deciding the said application. The point submitted by the learned counsel for the respondents in reply is that Order XLI, Rule 27, C.P.C., which is reads as below: "27.-(1) The parties to an appeal shall not be entitled to produce to 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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reasons for its admission." provides only for suo motu exercise of powers by the Appellate Court and no party has any right to file an application and, therefore, the impugned judgment and decree of the District Judge without adverting to and deciding the said application was valid.
I am afraid, I cannot accept this contention. Even a party can avail of the benefit of Order XLI, Rule 27, C.P.C. and submit to the Court a. application for production of additional evidence. No doubt exercise of the power is not dependent upon filing of such an application by a party to a suit and a Court can suo motu exercise that jurisdiction when circumstance exist warranting exercise of the same, but it is axiomatic that an application under Order XLI, Rule 27, C.P.C. can also be filed before a Court for reception of additional evidence. The wording of Order XLI, Rule 27, C.P.C. do not sustain the interpretation that power is merely suo motu and no application can be filed by a party to that suit for reception of additional evidence. The words "The parties to an appeal shall not be entitled to produce additional evidence..." contemplate the parties wanting to produce evidence which can be done by them only by filing an application to the Court for that purpose.
Further one of the conditions on which production of additional evidence can be allowed is that the Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted. The Court of appeal cannot in all circumstances itself come to know of evidence wrongly disallowed by the trial Court so as to enable it to exercise its suo motu powers and admit such evidence. In some of the cases, such a circumstance may remain concealed from view of the Court and in that contingency it will have to be pointed out to the Court by a part to the suit by means of an application. Furthermore although the appellant Court can allow production of additional evidence when it itself require that evidence to enable itself to pronounce a judgment, which otherwise it is not in a position to pronounce, it can also allow further evidence to be produced if it requires the same for any substantial cause other than one of enabling it to pronounce a judgment. Under this head, fall the cases in which though the Court is in a position to pronounce judgment, and it cannot strictly say that it requires additional evidence to enable it to pronounce all judgment, but still it considers that in the interest of justice something which remains obscure should be clarified or elucidated so that it can announce its judgment in a more satisfactory way as in case of Ajibar Biswas and another v. Golam Ali Dajadar (PLD 1968 Dacca 546) and in case of Amir Baksh and another v. Khuda Yar (PLD 1960 Lah. 256) and case of Sh.
Khurshid Ahmad v. Abdul Aziz (1979 SCMR 384). Under this head fall also the case of a next friend of a minor who is careless in producing evidence before trial Court on behalf of the minor and Court requires the additional evidence to protect the interest of the said minor as in case of Muhammad Ali and another v. Abdul Khaliq and another (PLD 1958 Lah.226). Other cases held included in this category are those in which the said evidence was not available to the party at the trial stage and that he could not have got it with due diligence and when such evidence, apart from being of unimpeachable character was so material that its absence would have resulted in miscarriage of justice a in case of Taj Din v. Jumma and 6 others (PLD 1978 SC (AJ&K) 131). Who can dispute that these circumstances and others in which the appellate Court may feel the necessity of getting relevant additional evidence cannot dawn on the mind of the appellate Court themselves and these have to be placed before the Court by means of an application for permission to file additional evidence duly supported by an affidavit. It is, therefore, inherent in the language of this rule that a party to an appeal has a right to file an application for permission to adduce additional evidence. Last but not the least, the word 'allow' in the sentence, "the appellate Court may allow such evidence or document to be produced or witness to be examined" visualizes a party who is an aspirant to production of additional evidence and who is allowed the same and the efficacious method for a party to point out to the Court that circumstance, Were such that it should be allowed the same is by an application to the Court. It cannot be, therefore, said that no application lies under Order XLI, Rule 27, C.P.C. and the power under it is only suo motu.
The learned counsel for the respondent has, however, relied upon case of Muhammad Qasim v.
Additional District Judge and others (PLD 1982 Lah. 14), in which I had held that power of appellate authority to allow additional evidence under section 15(3) of Punjab Urban Rent Restriction Ordinance, 1959, was of its own motion and suo motu only and no party had been given a right to file an application and, therefore, Additional, District Judge, as appellate authority was not bound to decide such an application and failure to advert to and decide the same did not amount to failure to exercise jurisdiction vesting in the said appellate authority. That decision, however, was based on the peculiar wording of said section 15(3) of Punjab Urban Rent Restriction Ordinance, 1959: It reads as below "The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller."
It is clear from the perusal of that provision that so far as further enquiry is concerned; the wording of the relevant portion of said subsection excludes any right on the part of a party to an appeal to pray for production of additional evidence as the power to make further enquiry in the matter is confined to the situation of the appellate authority itself feeling the necessity of making further enquiry and the words "make further enquiry as it thinks fit are clearly relatable to appellate authority alone and not to a party, If the intention of the law-giver had been to permit parties to file an application, then instead of the words "after making such further enquiry" words would have been "after allowing such further evidence." That case is, therefore, clearly distinguishable because of the wording of said section of Punjab Urban Rent Restriction Ordinance, 1959. It is the language of the particular section of the Statute which determines the matter. For instance, section 3-A of Industrial Relations Ordinance, 1969, which reads as below:- "The Tribunal may, on its own motion at any time, call for the record of any case or proceeding under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purposes of satisfying itself on the correctness, legality or propriety of such order, and may pass such order in relation thereto as it thinks, fit; ...," was held In case of Jannat Textile Mills Ltd. v. Sindh Labour Appellate Tribunal, etc. (PLD 1979 Kar.
725) to be suo motu only and application filed thereunder was held to be incompetent. The instant case, however, is not of that type, The language in which Order XLI, Rule 27, C.P.C. is couched does not exclude filing of an application by a party to the case before the appellate authority to allow additional evidence to be produced. Rather the said wording explained earlier, contemplates that even a party may file an application to the appellate Court for reception of such additional evidence.
In my view, therefore, the application under Order XLI, Rule 27, C.P.C. filed by petitioners before the appellate Court for production of additional evidence was competent and the Court was under a legal obligation to decide the same and failure of the District Judge to advert to and decide the same and failure of the District Judge to advert to and decide the same amounted to failure to exercise jurisdiction vesting in him and District Judge had acted in exercise of his jurisdiction illegally and with material irregularity in deciding the main appeal and in passing the impugned judgment and decree without deciding the said application under Order XLI, Rule 27, C.P.C.
Therefore, in exercise of my jurisdiction under section 115, C.P.C. I set aside the impugned judgment and decree of the District Judge and remand the case to him with the direction that he should first decide the application under Order XLI, Rule 27, C.P.C. and if he decides the same in favour of the petitioners, then proceed to receive the said additional evidence and the decide the main case afresh. The parties will bear their own costs."
13. To this effect, one can seek guidance from the judgment of the Hon'ble Supreme Court of Pakistan in Muhammad Umar's case (supra). The relevant extract from the same is reproduced below: "6. The same point has been urged before us. The learned Civil Judge while dismissing the suit of the petitioner mainly relied upon the order of the Deputy Land Commissioner whereby the land allotted in the name of the petitioner was cancelled. But this order of cancellation was set at naught by the Land Commissioner. As per the record, the petitioner sought to produce the same vide application made under Order XLI, Rule 27, C.P.C., and we think that once the Appellate Court was seized of the matter, i.e. the application under Order XLI, Rule 27, C.P.C., it ought to have adjudicated upon the same before disposing of the appeal. In support of his case, the learned counsel for the petitioner had rightly relied upon the decision of this Court reported as Amina Begum v. Ghulam Dastgir (PLD 1978 SC 220) wherein it was held:-- "Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mold the relief according to the altered circumstances in the larger interest of justice."
Further, we do not find any negligence on the part of the petitioner in bringing to the notice of the trial Court the order of the Land Commissioner. The order of the Land Commissioner could not be brought on the file of the trial Court because the same was under review before the Commissioner and the final order was passed by him on 15-10-1987 when the matter stood decided in the trial Court."
Reference to the above effect can also be made to Muhammad Yousuf and 12 others v. Abdul Khaliq and others (1991 SCMR 1981).
14. So far the judgment in Sultan Ali's case supra, heavily relied upon by the learned counsel for the respondents is concerned, with all reverence, suffice to observe that the said judgment was rendered by a Bench comprising of two Hon'ble Members, whereas, later on a larger Bench of the Hon'ble Supreme Court of Pakistan in the case of Mst. Imtiaz Begum v. Mst. Sultan Jan and others (2008 SCMR 1259) reiterated the principles laid down in Muhammad Umar's case supra. It is trite law that if there is some judgment rendered by a Bench on a specific point, that shall have binding effect in future on the Bench comprising of equal number of Judges. A Bench comprising of same number of Judges are less than those, who have already expressed their view in the previous judgment, cannot deviate from the previous judgment. Reference to this effect can be made to Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 284) and Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others (2010 SCMR 1495).
15. Furthermore, in the case of Muhammad Azam v. Muhammad Abdullah through L.Rs. (2009 SCMR 326), the Hon'ble Supreme Court of Pakistan again reiterated the principles laid down in Muhammad Umer's case supra: "3. We have heard the arguments of learned counsel for the parties and perused the record. As mentioned above appellant purchased suit-land through registered sale-deed, dated 13-6-1979 and respondent had filed suit for possession through pre-emption regarding the same. The suit brought by respondent was decreed and appeal filed by appellant was dismissed. He (appellant) filed Revision Petition No.83-D of 1990 which was partly allowed and suit, to the extent of 1 Kanal, 7 Marlas, was dismissed. The case of appellant is that respondent/plaintiff had instituted suit on the ground that he is co-sharer in the Khewats in question. Also that appellant is also co-sharer in the said Khewats, therefore, he has no superior right qua the vendee/appellant. Learned counsel for the appellant submits that he had filed application (C.M.No.370/C of 1990) for production of additional evidence before the High Court whereupon notice was issued to respondent and High Court observed that the same would be decided along with main case (Civil Revision No.83 of 1990) but the High Court did not dispose of his application before decision of the main case.
Further submits that appellant intended to bring on record Register "Haqdaran Zamin" for the years 1965-1966 to 1985-1986 and copies of mutations to prove his case, therefore, his case has been prejudiced. He contended that appellant had submitted similar application before Appellate Court but the same was rejected illegally, therefore, he has prayed for acceptance of this appeal and to remand the case to learned High Court for decision afresh after disposal of his application for production of additional evidence. He has relied upon the cases of Muhammad Umer v.
Muhammad Qasim 1991 SCMR 1232, Muhammad Yousaf v. Abdul Khaliq 1991 SCMR 1981 and Imtiaz Begum v. Sultan Jan 2008 SCMR 1259. Learned counsel for the respondent submits that appellant had not produced copies of documents in Appellate Court and that there was no ground for granting permission to produce additional evidence. Further submits that learned High Court has rightly ignored the application filed by appellant. We have considered the submissions made by learned counsel for the parties with care. We have examined the record of learned High.
Court, according to which appellant had filed application (Civil Miscellaneous Application No.370/C of 1990) for production of additional evidence on 23-1-1990. Notice was issued to the respondent and it was observed that this application shall be decided along with main case (Civil Revision No.83 of 1990). However, the learned High Court decided the revision petition brought by appellant without taking into consideration documents in question and without disposal of said application for additional evidence. As such we find that case of appellant has been prejudiced.
Even otherwise the case of appellant is that he is co-sharer in the Khewats in question, therefore, it was in the interest of justice that High Court should have decided his application before final adjudication of the case."
A learned Division Bench of this Court in case Abdul Jabbar Shahid and others v. National Bank of Pakistan and others (PLD 2019 Lahore 76) has also adopted the above view in the following manner: "22. Before proceeding further it is apposite to state here that judgment debtors Nos.1 and 2 (appellants of FAO. No.290 of 1995) along with their objections also filed an application under section 5 of the Limitation Act for condonation of delay. The learned Chairman Banking Tribunal in para 3 of his impugned order dated 8.11.1995 had mentioned about application under section 5 of the Limitation Act yet he did not pass any final order for its disposal. It means that the application under section 5 of the Limitation Act remained undecided. It is settled principle of law that non- disposal of the miscellaneous applications while deciding the main case vitiates the final order. In this regard reference may be made to the cases of Rehmat Ali Kohar v. Mst. Sardaran Bibi and 15 others (PLD 1986 Lahore 283), Muhammad Umar v. Muhammad Qasim and another (1991 SCMR 1232), Pak Carpet Industries Ltd v. Government of Sindh and 2 others (1993 CLC 334), Khair Deen v. Rehm Deen and 4 others (1996 CLC 1731) and Azra Manzoor Qureshi v. Faysal Bank Limited and 2 others (2005 CLD 1417). Thus, the impugned order dated 18.11.1995 is liable to be set aside on this score also."
16. After having an overview of the principles laid down herein-above, it can safely be inferred that in case of pendency of some miscellaneous application, it is incumbent upon the court to first decide the application and then advert to the merits of the case. The primary object is that a lis should be buried in all respects as per canons of justice and by deciding the miscellaneous application in the first instance, allowing parties to retrace the steps fairly and equitably. Allowing a court to decide the application for additional evidence alongwith the appeal would amount to give a premium to decide such application in negative. The joint decision of the miscellaneous application and appeal would not be even possible, if the court ultimately reaches at the conclusion that the application has due force and it is to be accepted. It would thus be in all fairness that the court should first decide the miscellaneous application and then pass final order/judgment qua the lis.
17. For the foregoing reasons, this petition is accepted and the impugned judgment and decree dated 27.01.2012, passed by the learned Additional District Judge, Tala Gang is set-aside. As a sequel whereof, the appeal as well as application under Order XLI, Rule 27 of "C.P.C." shall be deemed pending before the learned Additional District Judge, Tala Gang, who shall first decide the application for additional evidence and thereafter advert to the merits of the appeal through a separate judgment strictly in accordance with law.
18. Parties to appear before the learned Additional District Judge, Tala Gang on 27.01.2022. Needless to observe that it is expected from the court, seized with the matter, to take all necessary steps for early conclusion of the appeal, which shall preferably be decided within two months from the first appearance of the parties before the said court. No order as to costs.