AHMAD NADEEM ARSHAD, J. Through this civil revision, filed under Section 115 of Code of Civil Procedure, 1908, the petitioners assailed the judgment/order dated 17.01.2017 passed by the learned lower appellate Court whereby her application under Order XLI Rule 27, C.P.C., for production of additional evidence was dismissed.
2. Facts in brevity are that Respondents Nos.2 to 7 instituted a suit for declaration and challenged the vires of mutation No.380 dated 05.11.1997, mutation No.479/1 dated 20.03.1998 and mutation No.1069 dated 21.04.2003 whereby Mst. Sardaran Bibi transferred the suit property to her daughter Mst. Ilyas Akhtar-petitioner through Tamleek as well as subsequent mutations i.e. mutation No.1382 dated 24.05.2007, mutation No.1538 dated 22.06.2006, mutation No.157/1 dated 22.03.2009 and mutation No. 1572 dated 20.03.2009. Petitioners/defendents Nos. 1 to 3 contested the suit and the learned trial Court after full-fledged trial decreed the suit vide judgment and decree dated 28.03.2016. Feeling aggrieved, they preferred an appeal on 25.04.2016 and during the pendency of said appeal moved an application on 13.12.2016 under Order XLI Rule 27, C.P.C., for production of additional evidence. Respondents filed its contesting written reply. The learned lower appellate Court, after providing opportunity of hearing dismissed the same vide impugned judgment/order dated 17.01.2017.
3. Learned counsel appearing on behalf of the petitioners maintains that the evidence sought to be adduced by way of additional evidence is imperative for just decision of the case as the respondents-plaintiffs denied the execution of said mutations and the public documents are to be proved in accordance with law to establish petitioner's title which originated from the said oral as well as documentary evidence. Learned counsel for the respondents opposed this petition on the ground that petitioner's application praying for additional evidence do not fall within the ambit of Order XLI Rule 27, C.P.C.; that the petitioners should have produced the said evidence before the learned trial Court and having failed to do so, the Court cannot permit a party to fill-up the lacunas by way of additional evidence. He placed reliance on Asadullah Khan v. Abdul Karim (2001 AC 290), Defence Science and Technology Organization through Director General v. Arif Engineering International through Sole Proprietor (2021 CLC 103).
4. I have heard learned counsel for the parties at length and perused the record with their able assistance.
5. Petitioners maintained in her application that her real mother namely Mst. Sardaran Bibi gifted the suit property through impugned Tamleek mutations and handed over the possession to her and she accepted the offer of tamleek and got the possession of suit property which is still with her; that the impugned mutations were entered by Patwari in the Roznamcha Waqiati No.136 dated 20.12.1996 and Roznamcha Waqiati No.250 dated 03.02.1998 and Roznamcha Waqiati No.350 dated 12.04.2003, said mutations were checked by the then Qanungo and were sanctioned by the Revenue Officer, therefore, the said persons are essential witnesses to prove the valid execution of the impugned mutations; that the attesting witnesses/identifiers not only denied their presence at the time of attestation of mutation but also denied their signatures and thumb impressions upon the said impugned mutations despite the fact that their CNIC numbers were entered in the mutations, therefore, their signatures and thumb impressions available on the said mutations are required to be verified through comparison by expert; that revenue record such as copies of record of right and copies of Khasra Girdawaries which are public record and presumption of truth is attached are necessary to bring on record. She further maintained that respondents are influential persons who won over the witnesses of petitioners; that petitioners is real/sole daughter of Mst.
Sardaran Bibi; that the brothers of Mst. Sardaran Bibi got mutated the property of Mst. Sardaran Bibi by practicing fraud; that the petitioners is a Pardanasheen illiterate house-wife and did not know the legal hitches; that compulsively the petitioners had to go to Canada, therefore, she could not bring on record the relevant evidence; that the respondents instituted their suit in the month of July, 2010 and concluded their evidenoe on 06.10.2015, whereas she was given a very short period to produce her entire evidence despite the fact that being beneficiary she has to prove the sanctity of impugned mutations; that her valuable rights are involved; that list of witnesses as well as list of documents sought to be produced are attached with the application and prayed for acceptance of her application.
6. Respondents controverted the averments made in the application through contesting written reply by maintaining that the application was filed just to delay the proceedings of the case; that oral as well as documentary evidence as additional evidence cannot be permitted at this stage; that the documents sought to be produced were available to the petitioners but were not produced at trial stage and the petitioners wants to produce these documents without assigning any good reasons and prayed for dismissal of the application.
7. The Legislature in its wisdom enacted Order XLI Rule 27, C.P.C., with a view to enable the learned appellate Court to record additional evidence which in its view is necessary "to enable it to pronounce judgment or any other substantial cause". The Court has to pronounce a judgment in accordance with law with a view to achieve justice and the afore-referred enabling provision has a nexus with the ultimate purpose i.e. a just decision. The additional evidence which is sought to be adduced should have a direct bearing on the point in issue and the test whether a permission should be granted or not is as to whether a just decision could be arrived at without the additional evidence which is sought to be produced.
8. It is settled law that each and every case is to be decided on its own peculiar circumstances and facts as led down by the august Supreme Court of Pakistan in case titled Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) and Muhammad Idrees and others v.
Muhammad Pervaiz and others (2010 SCMR 5). It is also principle of general application that every procedure that promotes the administration of justice is permissible unless it is expressly prohibited. For reference H. M. Saya and Co v. Wazir Ali Industries Limited (PLD 1969 SC 65). The august Supreme Court of Pakistan in Bisvil Spinners (Pvt) Ltd. v. Pakistan through Secretary Ministry of Finance, Islamabad and others (PLD 1992 SC 96) led down the rule that any document i.e. genuine to the determination of a factual controversy, may be admitted on record at any stage of the proceedings, whether original or appellate, so that justice may be done.
Justice could not have been sacrificed on the altar of the technicality which does not go to the root of the cause, in so far as the fairness thereof is concerned. Obviously unjust and wrong decision which is also against the substantive law of the country shall be avoided by the Court. The Hon'ble Supreme Court of Pakistan in this regard in Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 SC 1051) held as under: - "Even if there would have been some force in the technical objection, justice could not have been sacrificed, at least in Supreme Court, on the altar of the technicality which does not go to the root of the cause, in so far as the fairness thereof is concerned. The Courts in Pakistan combine law and justice under the umbrella of Islamic jurisprudence; which provides harmonious solutions. One amongst other principles which operates is that an obviously unjust and wrong decision which is also against the substantive law of the country shall be avoided by the Court."
The Hon'ble Supreme Court of Pakistan in a case titled Ahmad Ashraf v. University of the Punjab (1988 SCMR 1782) observed that where the interest of the justice and the requirement of the Court in adjudicating on the matter - demand that such additional evidence is necessary should be recorded.
In case titled Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811) the Hon'ble Supreme Court of Pakistan upheld the suo-motu powers by observing that the trial Court was not denuded power to summon all the necessary revenue record and also to summon the Patwari so as to supply omission from both sides and held in the following terms:- "We summoned the record also but it is clear from its examination that the case was badly conducted not only from the petitioner's side but also from the respondent's side. All the relevant documents were not brought on the record. The trial Court was not denuded 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 appropriate 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."
The august Supreme Court of Pakistan further elaborated this point in "Bisvil Spinners (Pvt) Ltd" mentioned supra as under:- "Similarly from this a corollary would follow; namely, that if a piece of evidence is otherwise relevant and pertinent for the decision of an issue, it is untenable augment that: notwithstanding the fact that it is genuine and otherwise reliable it should not be made use of because in the process employed for the collection of the material an irregularity or for that matter an illegality was committed."
The Hon'ble Supreme Court of Pakistan in Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) justified the exercise of powers under Order XLI Rule 27, C.P.C., with a view to promote substantial justice and observed that concept of bar against filling the aps was no more available in 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 in the following terms:- "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 documents/signatures, the Court had ample powers 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."
Moreso, in order to do complete justice there cannot be any cudgel to allow additional evidence as described in case titled Muhammad Tariq and others v. Mst. Shamsa Tanveer and others (PLD 2011 SC 151) as under:- "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 foundation of the plea is already there."
The same view was also expounded in case titled as Commissioner Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58) as follows: - "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. Shamsa 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." The august Supreme Court of Pakistan in a case of "Mst. Resham Bibi and others" mentioned supra further held as under:- "Indeed production of' additional evidence is normally not encouraged at Revisional stage.
However, when 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 reservations in case order dated 17.02.1959 passed by the Deputy Commissioner (Claims), for whatever, worth it may be and subject to proof of its authenticity is considered by the learned revisional court after the remand."
It is also observed by the Hon'ble Supreme Court of Pakistan in case of Syed Phul Shah, mentioned supra as follows:- "It is also a well known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus while trying best to do justice in accordance with the law; the principles in Islamic jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle; Justice in accordance with law, Court will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islam come to the aid when one exerts."
9. Examining the prayer of the petitioners in the light of the precedent case law, I am of the view that where a party challenges the vires of a mutation in the revenue record it becomes essential for the other party who is deriving any title from the said transaction to prove the valid execution of the said mutation. Entries made in record of rights do have a strong presumption in favour of the party who derives title from the said entries but this presumption can be rebutted if evidence is led to that effect. It, therefore, becomes essential for the party relying on those entries to bring them on record. When the vires of a mutation is direct in issue I am afraid a Court cannot pronounce a just judgment without looking at the documents which are in dispute and without recording the statements of those who wish to prove or disprove the documents in question. This factor is sufficient to bring the case within the expression "sufficient cause" which appears in Order XLI Rule 27 of the C.P.C.
10. Persons who had allegedly put their thumb impressions and signatures on the mutations denied doing the same then the Court should have permitted opinion of Finger Prints Expert as additional evidence but by failing to do so it had failed to exercise jurisdiction vested in it. The august Supreme Court of Pakistan in a case titled as Syed Sharif Ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258) held as under:- "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."
11. While elaborating the duty of a Judge, Shariat Bench of august Supreme Court of Pakistan in a case tilted as Muhammad Azam v. Muhamamd Iqbal and others (PLD 1984 SC 95) observed that he is not a mere mute and blind arbiter to declare the winner in the fight but he must participate in the proceedings and held as under:- "The interpretation of the relevant legal provisions in this behalf would not be complete without taking note of the Muslim law on the duty of a Judge on this question, which aspect on the authority of Muhammad Bashir v. The State (PLD 1982 SC 139) can also be a supporting consideration. The Judge is required (when the parties avoid this) to summon important witnesses who would clarify the main issue or an ancillary matter. It is in this connection that neighbours were often summoned by the Court if omitted by the parties. (See Akhbar-ul-Quzat by Waki' Bin Khalf, Vol.II, p.21 (1366 H. Egypt). To the same effect is Fatawa-i-Almgiri, on the duty of a Judge in cases of theft-see Vol.II, p. 173 (1398 H Quetta), Doctor Muhammad Abdul Jawad Muhammad a scholar in Islamic Law and administration of justice, in his work on Islamic Sharjah and Law (1977 Alexandria) has made a comparative study on this question of various legal systems in the civilized world. According to his study also Islam does not permit a Judge to abdicate his functions in mistaken zeal of impartiality, in favour of the parties as if they have an exclusive domain to engage in an inter se fight and argumentation, only. He is not a mere mute and blind arbiter to declare the winner in the fight. He must actively participate in the proceedings. Exaggerated and wrong notions of such lack of concern (in the so-called impartiality) is being criticized by some western jurists also and is being progressively opposed in the middle eastern countries."
The Courts are not only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the litigants, and one who commits a mistake in procedural matter should be deprived of the right claimed, even if he is entitled to it. In this regard Hon'ble Supreme Court of Pakistan in a case titled as Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822) held as under:- "It is incorrect to think now under an Islamic dispensation that the Courts are only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the contesting litigants, and one who commits a mistake in procedural matters should be deprived of the right claimed; even if he is entitled to it. This Court has not approved of such like practice."
12. Where the interest of the justice and the requirement of the Court in adjudicating on the matter demand that such additional evidence is necessary, then the same should be allowed and recorded. The Courts are not denuded power to summon all the necessary record and also to summon the witnesses so as to supply omissions from both the sides. If a piece of evidence is relevant and pertinent for decision of an issue and it is genuine and reliable, it should not be stopped to be brought on record merely because in the process employed for the collection of the material an irregularity or an illegality was committed. The concept of bar against filling the gaps is no more available in Pakistan jurisprudence. The Courts should collect and record evidence which is authentic, consistent with the pleadings and relevant to the findings so as to advance and to do complete justice between the parties. Interest of justice demands that petitioners be allowed to bring on record documents as well as oral evidence which are otherwise of unimpeachable authenticity, for resolving the controversy and the ends of justice.
13. The case law which has been referred to by the learned counsel for the respondents is distinguishable as the facts in those cases were different.
14. In this view of the matter as the learned appellate Court failed to exercise jurisdiction in accordance with law by disallowing the application I am inclined to set-aside the impugned judgment/order in revisional jurisdiction of this Court. Resultantly, this petition succeeds, the order dated 17.01.2017 passed by learned lower appellate Court is set-aside, the application for additional evidence is accepted and the learned lower appellate Court is directed to record the additional evidence as prayed for by the petitioners. The respondents shall of course have a right to produce any lawful evidence in rebuttal.