1. ' Abdul Aziz and others filed civil suit against Naeem-ur-Rehman and two otheRs, The claim of the plaintiffs was that they were owners of residential house situated in Khasra No,61, Khatauni No,2600, Khewat No,2430, Street No,9, Mohallah Gobindpura, Faisalabad.
2. ' The suit was contested by the defendants. The trial Court framed the following issues:- {{ URDU TEXT }} ' Issues I, 2, 3, 4, 5 and 6 were found by the trial Judge against the, defendants. Issues Nos. 7 and 8 were decided in favour of the plaintiffs. Issue No, 9 was decided against the plaintiffs., ' On the basis of the findings of issues Nos.7 and 8, the trial Court decreed the suit in favour of the plaintiffs by its judgment and decree, dated 17-11-1981.
3. ' The defendants-respondents went in appeal before the District Judge. During the pendency of appeal the plaintiffs-petitioners filed application under Order XLI, rule 27, C.P.C. for recording additional evidence. The ground urged was that the copies from the Excise and Taxation Department and receipts of payment,, filed by the defendants before the trial Court, were forged.
4. The application was dismissed on 2-11-1983. This order has been impugned by Abdul Aziz and others by means of the present Civil Revision.
5. ' Learned counsel for the respondents raised a preliminary objection regarding the maintainability of the Civil revision. Relying on the case of Sheikh Ghous Bakhsh v. K.S.Muhammad Abdul Naeem PLD 1976 Kar. 169 and Karam Hussain and 2 others versus Wall, etc. PLD 1977 Lah. 1273 he submitted that this revision was not competent.
6. ' Learned counsel argued that the question of allowing additional evidence was a matter of discretion for the appellate Court. The appellate Court after examining the pros and cons found that it was not a fit case where additional evidence was to be allowed. The learned counsel submitted that the discretion having been rightly exercised the impugned order as such calls for no interference.
7. ' The counsel further submitted that as a matter of fact, request for additional evidence on the part of the plaintiffs-petitioners was to fill in the lacuna in their evidence.
8. ' Learned counsel for the petitioners contended that the appellate Court erred in law in disallowing the application moved by the petitioners under Order XLI, rule 27, C.P.C. Mr. S. M. Masud submitted that all that the petitioners sought from the appellate Court was a reasonable opportunity to prove that the documents filed by the other side were forged. It was contended Iliat there being an allegation of fraud this case was a fit case where Order XLI, rule 27 came into operation.
9. ' It was further submitted that the petitioners came to know at late stage that the documents were forged and had been procured by interpolation in the official record.
10. ' On the question of production of additional evidence, learned counsel cited the case of Mst.Durga Tewary v. Ramrati Kuer AIR 1937 Patna 584. Reliance was also placed on Seth Kunjilal Manakchandji Bhawasar and others versus Shankar Nanuram AIR (30) 1943 Nagpur 289. In this case the Court dealt with the expression " for any other substantial cause; as used in Order XLI, rule 27, C.P.C. The learned Judge observed: "The phrase 'for any other substantial cause' does not mean any cause stated by the plaintiff; it must be read with the words preceding it.1 Where the Court has not heard any arguments on merits, the Court must require the additional evidence for some substantial cause to enable it to pronounce the judgment.
11. ' Thereafter the learned counsel relied on Sardar Muhammad Sadiq Khan and others v. t(.B.Abdul Hayee Khan and others PLD 1957 SC (Pak)
186. In this case, the Supreme Court examined as to what was meant by the expression, "sufficient cause".
12. ' Another instance where additional evidence was allowed was, where the contents of Khasra Girdawari were not clear. The case is reported as Amir Bakhsh and others versus Khuda Yar PLD 1960 (W.P.) Lah.
13. 256.
14. ' In the case of Mst. Ratni w/o Tara Singh v. Harwant Singh AIR (36) 1949 E.P. 158, it was held that where both the parties agreed to admission of additional evidence it could not be said that the Judge exercised the discretion wrongly in admitting it.
15. ' First of all I would like to deal with the preliminary objection raised by the learned counsel for the respondents with regard to the maintainability of the Civil revision. The answer to this is found in the case of Maheshwari Prashad Bhagat v. Mahadeo Roy and others AIR 1939 Patna 216, cited by the learned counsel for the petitioner. In this case the Court observed that where the appellate Court did not deal with the points raised by the appellant, nor made effort to' understand and appreciate the case, the order was open to revision.
16. ' I am clear in my mind that the objection raised by the learned counsel for the respondents has no force. This civil revision is main trainable, as envisaged by section 115 of the C.P.C.
17. ' Now I proceed to consider the petition on merits.
18. ' Order XLI, rule 27, C.P.C. deals with the production of additional evidence in the appellate Court. It says: "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."
19. ' The relevant expression to be considered in this petition is, "or for any other substantial cause".
20. There is no doubt, it is a matter of discretion with the Court concerned to permit additional evidence to be recorded or not. But the discretion implies judicial discretion. If the discretion is exercised in an arbitrary manner or contrary to the judicial norms then certainly the appellate or the revisional Court shall interfere. The important criterion for exercising judicial discretion is to make sure that it is done in the interest of justice and to avoid miscarriage of justice.
21. ' In the present case, the respondents claim the property in dispute through adverse possession, whereas the petitioners say that they are its lawful owners, This particular aspect is to be decided after taking into consideration the relevant evidence to be produced by the parties. The petitioners allege forgery against the other side. This is a very serious allegation and it is in the interest of justice that they should be given an opportunity to substantiate their allegation.
22. ' Therefore, I think that the appellate Court erred in law in disallowing the request of the petitioners to produce additional evidence.
23. ' I accordingly accept this civil revision and direct the appellate Court to give an opportunity to the petitioners to lead additional evidence. No costs.