1. ' The present revision has been filed by the original plaintiff against the judgment and decree dated 3-11-1983 of the VIII Additional District Judge in Civil Appeal No, 539 of 1982, by which that Court upheld the judgment and decree of XXXI Civil Judge, Karachi.
2. ' The brief facts of the case are that the applicant and his younger brother Abdur Razzak were jointly residing in Quarter No, 601, Block 3, Liaquatabad, Karachi, since its allotment was in the name of the said Abdur Razzak. It was averred in the plaint that his brother's health was not sound and so his financial position also remained week. For this very reason he sold the half portion of the quarter to one Muhammad Rafiq. The applicant being elder brother not only supported him but with his own money he raised construction over the remaining half portion of the said quarter and made it worthy to live there. At that time his expenditure on its construction amounted to Rs,5,000.
3. In the year 1969, when the health of the said allottee deteriorated further he offered to the applicant to execute a sale agreement of the said portion in consideration of the said amount in his favour.
4. He executed the sale agreement and ,transferred his right in his favour as per agreement dated 30-4-1969, under the circumstances the said allottee continued to live along with his wife in a room of the said quarter for which the applicant had no objection as, in fact, he was already supporting him since long. After some time he breathed his last. The applicant after the death of his younger brother, allowed the respondent No, 1 to continue to live in the same room where she was residing with her deceased husband. In the year 1980, the respondent No, 1 called her son-in-law the respondent No, 2, from Tando Adam, who continued to live permanently in the same room along with the respondent No,
1. The applicant filed a suit for possession and mesne profits being Suit No, 2349 of 1981 against the respondents. The respondents filed written statement. The respondents averred that the applicant was allowed by the respondent No, l's husband to live as tenant in the portion of the quarter in his possession. The respondent No, 1 categorically stated that neither husband had sold the quarter, nor any agreement was executed by him. The respondent denied the contents of the plaint.
5. ' Upon the pleading of the parties following issues were framed:-
(1) Whether the plaintiff owns half portion of the Plot No, 601/B, Block No, 3, Liaquatabad, Karachi in his own right?
(2) Whether the agreement dated 30-4-1969 has been ever executed by the late husband of the defendant No, 1, if so what is its effect?
(3) Whether the defendant No, 1 is occupying the premises in her occupation as licensee or owner of the same?
(4) What should the decree be?
6. ' The learned trial Court on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 1 and 2 in the negative and dismissed the suit vide judgment. and decree dated 30-8-1982.
7. ' The applicant being aggrieved by judgment and decree dated 30-8-1982, of the Civil Judge, Karachi, filed Civil Appeal No, 539 of 1982 in the Court of District Judge, Karachi which was ultimately transferred to the VIII Court of Additional District Judge Karachi. The VIIIth Additional District Judge, Karachi, by his judgment and decree dated 30-11-1983, dismissed the appeal and upheld the judgment and decree of the learned Civil Judge, for the reasons given in the said judgment.
8. ' The applicant above named, being aggrieved by the judgment dated 30-11-1983 of the VIllth Additional District Judge, Karachi had preferred this revision, on the grounds mentioned in the memo of Revision .
9. ' Mr. Aziz UM the learned counsel for the appellant has urged that the Courts below refused to exercise a jurisdiction vested in them by law and it is open to this Court to act in revision under subsection (b) to section 115, C.P.C.
10. ' On 8-4-1984 I issued pre-admission notice to the respondent. In response to the pre-admission notice Mr. Sadiq appeared for the respondent. He has contended that the findings of facts recorded by the Courts below cannot be challenged in this revision.
11. ' Learned counsel for the applicant has contended that the applicant is owner of half portion of the quarter. The applicant had based claim of ownership on an Iqrarnama.
12. ' Learned counsel for the applicant has contended that the applicant had based claim of his ownership on an "Iqrarnama" and no other documents in proof of his title. "Iqrarnama" does not bear the signature of his brother late Abdur Razzak. The applicant had not examined attesting witnesses and scribe of the "Iqrarnama". According to him it is forged one. The execution of "Iqrarnama" having been challenged by the respondents, the applicant ought to have examined attesting witnesses and scribe of "Iqrarnama" to prove the "Iqrarnama" was executed by late Abdul Razzak. The applicant did not examine the witnesses and it is not the duty of the Cclurt to examine those witnesses as Court witnesses. In the "Iqrarnama" it is mentioned that late Abdur Razzak delivered all the documents in respect of the said property to the application but none of the documents were produced in evidence by the applicant.
13. ' The applicant filed application under Order XLI, r. 27, C.P.C. in the Court of VIllth Additional District Judge, Karachi for bringing certain documents on record.
14. ' I have taken into consideration the arguments advanced by the learned counsel of both the parties and have also gone through the judgments of both the learned lower Courts.
15. ' The learned Civil Judge, who finally decided the suit has in his judgment dated 30-8-1982 clearly held that "Iqrarnama" Exh. 6 is the document which required consideration. In fact a document in evidence is nothing and therefore it is not admissible in evidence, unless accompanied by proof of some sort. It was incumbent upon the plaintiff to prove Ext. 6, by calling the stamp vendor, who issued the stamp and also by calling the witnesses in whose presence the documents was signed, or written. It was the duty of the plaintiff to examine Oath Commissioner who had attested the document. Beside this no other circumstantial evidence is produced by the plaintiff/applicant.
16. ' The learned Civil Judge has also stated in his judgment that the applicant in his cross- examination admitted that his name has not been entered in the Government record. He had never paid any tax to any department.
17. It is clear from rule 27 that the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment on the evidence already available on the record due to some omission of a material nature in the said evidence or some other cause but necessity to record evidence was to be a requirement of the Court and not that of a party. The appellate Court therefore, could make an order on the application if after looking into the entire evidence it came to the decision that there was some lacuna left in the evidence. The learned Additional District Judge after bearing arguments on merits of the case, however, did not apparently find any such lacuna on the file. Admittedly, he had heard arguments on the appeal and was obviously conscious of the existence of such an application having been filed by the applicant. Therefore, by deciding the appeal on merits, the Additional District Judge had impliedly rejected the application of the applicant.
18. I am of the view that the application under Order XLI, r. 27, C.P.C. for grant of permission to produce additional evidence in the circumstances of the present case amounted to seeking permission to fill up the deficiencies and lacuna in the evidence of applicant produced before the Civil Court.
19. This, however, could not be allowed to be done under Order XLI, r. 27, C.P.C. which is not meant to cover up defaults of parties in production of their evidence earlier before the trial Court.
20. ' In the instant case the learned Additional District Judge has applied his mind to the facts of the case and has come to the conclusion and in my view very rightly, that the learned Civil Judge has correctly recorded a finding of that Exh. 6 agreement dated 30-4-1969, was not executed by late Abdur Razzak.
21. I find that both the learned Courts below have exercised their jurisdiction legally and properly and it is not a fit case for interference under section 115, C.P.C. The revision petition is dismissed in limine.