QAZI JAWAD EHSANULLAH, J,- Petitioner Ainul Hassan has called in question the order dated 12.03.2022 of the learned District Judge Buner (at Daggar), whereby the pronouncement of the judgment on his application for production of additional evidence at appellate stage was put up by directing the parties to address arguments on the main appeal on the next date of hearing.
2. Learned counsel for petitioner submitted that in the appeal filed by petitioner before learned District Judge Buner, an application has been filed by his client asking permission of the court for production of certain additional evidence; arguments on said application have already been heard by the court below on 26.02.2022 and case was fixed for orders on said application on 11.03.2022; instead of announcing the order on application for production of additional evidence, the learned District Judge has opted to first hear arguments on the main appeal, which course according to learned counsel for petitioner was not permissible in law. He has placed reliance on various judgments of the superior courts including `Muhammad Din and others vs. Jamal Din and others' reported in 2007 SCMR 1091, 'Muhammad Umer vs. Muhammad Qasim and another' reported in 1991 SCMR 1232, 'Muhammad Mansha vs. Hashmat Ali and another' reported in 2010 YLR 1498, Azra Manzoor Qureshi vs. Faysal Bank Limited and 2 others' reported in 2005 CLD 1417 and 'MC., Peshawar vs. Messrs Malik Beverages' reported in PLD 1994 Peshawar 17.
3. Conversely, learned counsel appearing on behalf of the respondents stated that no adjudication either upon the application of petitioner for production of additional evidence or on the main appeal has yet been made, so no order as such has been passed by the learned appellate court which could be made subject of judicial review in the instant constitutional petition; that the case in hand was the one where petitioner was seeking the learned appellate court to invoke the provisions of Order XLI Rule 27(1)(b) of the CPC which provided the suo moto powers of the appellate court to order production of additional evidence at appellate stage and so learned appellate court has rightly held that this application could only have been taken up and considered when final arguments on appeal are addressed before it; that since the main lis was pending before learned appellate court, therefore, the writ petition was not at all maintainable against the --0 order which was interlocutory in nature. In support of his contentions, he has relied upon the judgments rendered in the cases of 'President, All Pakistan Women Association, Peshawar Cantt. vs. Muhammad Akbar Awan and others' reported in 2020 SCMR 260, `Rana Abdul Aleem Khan vs. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another' reported in 2016 SCMR 2067, Mst. Imtiaz Begum vs. Mst. Sultan Jan and others' reported in 2008 SCMR 1259, Whalid Mehmood vs. Collector of Customs, Customs Houses, Lahore' reported in 1999 SCMR 1881, 'Raja Habib Ahmad Khan vs. The Income-Tax Officer' reported in 1972 SCMR 556, Amjad Ali vs. Mst. Shaheen Bibi and others' reported in 2020 MLD 2011, The Inhabitants of Village Awan Patti Constituency No. 6 Tehsil and District Muzaffarabad, Azad Jammu and Kashmir vs. Azad Government of the State of Jammu and Kashmir through Secretary Physical Planning and Housing and 7 others' reported in 2020 CLC 1739, `Zaffar Mahmood Khan and 5 others vs. Azad Government of the State of Jammu and Kashmir, through Chief Secretary and 7 others' reported in PLD 2019 High Court (AJ&K) 44, Muhammad Gul vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others' reported in PLD 2019 Peshawar 184, Asim Ali vs. Hira Asim and others' reported in 2019 YLR 2153, Muhammad Sadiq vs. Allah Ditta and 6 others' reported in 2012 CLC 496 'SW Northern Gas Pipelines Limited through Deputy Chief Law Officer vs. Habib-ur- Rehman Hashmi' reported in 2007 YLR 66, 'House Building Finance Corporation and others vs. Muhammad Akhtar Zaman and others' reported in 2005 MLD 112, Capt. Naseemul Haq vs. Dr. Muhammad Farooqullah and another' reported in 2005 CLC 1010 and Muhammad Hayat and 3 others vs. Ahmed Yar and 5 others' reported in 2000 MLD 1699.
4. Arguments heard and record perused.
5. It is true that in the case-law relied upon by learned counsel for petitioner particularly the one reported in 1991 SCMR 1232, it has been held that an application for production of additional evidence was to be decided and adjudicated upon before disposal of appeal, however the facts and circumstances as obtained in the said precedent were altogether distinguishable from the present case. In the above noted case-law, there was an application for production of additional evidence filed before the appellate court which was altogether ignored and main appeal was decided on merits without adjudicating upon the miscellaneous application. So, it was in that very context that it was ruled that adjudication upon the miscellaneous application for production of additional evidence was necessary before deciding the appeal. As against that, in the present case the appeal of petitioner is still pending before the court below and all that has been done through the impugned order is that learned appellate court has deemed it appropriate to require learned counsel for the parties to address arguments on the main appeal so as to enable it to reach to a just decision on the main case as well as on the request of one of the parties to grant permission for leading additional evidence.
6. Besides, it is also of interest to note that powers of the appellate court to allow production of additional evidence are regulated by the provisions of Order XLI Rule 27, which reads as follows; "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, 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 reason for its admission."
7. A bare reading of the aforesaid provision of law clearly gives it to understand that there are two eventualities when an application for production of additional evidence at appellate stage can be considered. One is where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, which in this case is not attracted at all because admittedly petitioner has not submitted any such request or application before the trial court. The second eventuality which empowers the appellate court to consider and allow such application is that when the appellate. court itself required certain documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause production of additional evidence becomes indispensable. As far as the case-law goes, in situation where application for production of additional evidence is filed by invoking the provisions of Rule 27(1)(b) of the CPC, in such case alone it has been authoritatively held that application for production of additional evidence is to be decided first before deciding the main appeal. Whereas, when the suo moto powers of the appellate court are sought to be pressed into service for allowing a party to produce additional evidence, the law as it has developed on the subject is that such like applications of litigating parties could not be decided in isolation unless arguments on main appeal are heard. Reliance in this regard is placed upon the judgment rendered by Lahore High Court in the case of 'Said Rasool and 6 others vs. Abbas' reported in 1985 CLC 1205. For the facility of reference, relevant citation of the aforesaid judgment is reproduced herein below; "2. Learned counsel has contended that learned Additional District Judge has erred in the exercise of his jurisdiction in allowing the respondent's application by a separate order, without having heard the appeal at that stage. His argument, is that it could only be upon hearing the appeal that he may have allowed the additional evidence to be taken. In the same strain he also submitted that, at any rate, the additional evidence did not deserve to be allowed because it tantamounted to allowing the respondents to fill in the lacunas of his evidence and patch up the weaknesses of his case. This contention is clearly misconceived in so far as the present case fell under clause (a) of sub-rule (1) of rule 27 of Order XLI of the C.P.C. and not under clause (b) thereof which deals with the cases where the appellate Court may require the production of certain evidence to enable it to pronounce judgment and hence the appropriate order to allow its production could properly be passed only before the hearing of the appeal."
Similar view was followed by Lahore High Court in another case tilted as Wizam-ud-Din vs. Muhammad Ramzan and 2 others ' reported in 2005 MLD 1861 as well as this Court seized to decide the case of 'MA Saila Begum vs. Allah Nawaz' reported in 1990 CLC 1852.
8. Resultantly, for what has been discussed above, the instant writ petition is found to be without substance and the same is ordered to be dismissed with no order as to cost.