' This appeal is directed against order, dated 22-3-1980 of learned Additional District Judge, Lahore, whereby the appeal filed by respondent No, 1 against the judgment and decree, dated 22-6-1978 passed by the learned Civil Judge, Lahore, dismissing his suit, was allowed and the suit was remanded to the learned Civil Judge for deciding it afresh in the light of additional evidence to be adduced by him for which permission was granted to the respondent by the learned Additional District Judge.
2. Muhammad Shafi respondent instituted a suit against the appellant and respondents Nos. 2 to 4 in the Court of Civil Judge, Lahore, for possession of land measuring 2 kanals 4 marlas situated in Village Kot Mohibboo, Tehsil and District Lahore, on the ground that he had purchased the said land from its owner Manzoor Ahmad for Rs, 10,000 by means of registered sale-deed, dated 25-3-1971 executed by his attorney Majid Khan. As no mutation giving effect to aforementioned sale was sanctioned by the revenue authorities, because the original registered sale-deed handed over by him to Patwari Halqa entering the mutation was reported to have been lost, respondents Nos. 2 to 4 who succeeded to the estate of Manzoor Ahmad after his death, got an opportunity to dispose of the suit land through a sale in favour of the appellant for Rs, 8,000 on 28-o-1972. Respondent No, I questioned the aforementioned sale on the ground that it was effected by respondents Nos. 2 to 4 by practising fraud. The suit was contested by the appellants on various grounds. After considering the evidence of the parties produced by them in support of their respective contentions, the learned Civil Judge dismissed the suit on 22-6-19 8. The learned Civil Judge while discussing the main issue framed by him in the suit namely, whether the transfer of the suit land by defendants Nos. 1, 2 and 3 (respondents Nos. 2 to 4) in favour of defendant Nos. 4 to 5 (appellants) was collusive and had no effect on the rights of plaintiff (respondent No, 1) came to the conclusion that the signatures of Manzoor Ahmad deceased appearing on the special power-of-attorney favour of Majid Khan were not genuine and the same differed from hi signatures on receipt Exh. P. 2 which was executed by him after having received Rs, 10,000 as the price of the suit land. On the basis of evidence produced by respondent No, 1 learned Civil Judge found that he had failed to prove the sale of the suit land in his favour.
3. The judgment and decree of the learned Civil Judge was challeng ed by respondent No, 1 in appeal which was filed by him on 24-3-1978 During the pendency of the appeal respondent No, 1 submitted an application under section 151, C. P. C. On 19-12-1979 for permission to produce additional evidence as according to him the original sale-deed executed b Majid Khan in his favour which had been misplaced by the Patwari, has been found out and secured from the Patwari after the decision of the suit He also wanted to produce certified copy of power-of- attorney date 4-11-1970 executed by Manzoor Ahmad deceased in favour of Maji Khan. The aforementioned application of respondent No, 1 was allowed by the learned Additional District Judge as it was observed that the non-production of the original sale-deed was considered as the main ground by the learned trial Court for dismissing his suit. According to the learned Additional District Judge the production of original registered sale-deed and the certified copy of the general power-of-attorney was necessary for the final determination of the controversy.
4. Before dealing with the appeal on merits it is necessary to dispose of a legal objection raised by the learned counsel for respondent No, 1 namely, that the present appeal is not competent as an order of remain passed by the appellate Court under Order XLI, rule' 23 (A), C. P. C. I appealable only when an appeal would lie from the decree of the appellant Court and since the value of the subject-matter of the original suit in the present case does not exceed Rs 50,000 no further appeal is competent from the decree of the appellate Court in view of the provisions of section 102 (b), C. P.
C. Learned counsel for the appellants has further con tended that the right of filing a second appeal in the present case has not been affected by the provisions of clause (b) of section 102, C. P.
C. At the said provisions were incorporated after the institution of the suit respondent No, 1 through Civil Procedure Code (Amendment) Ordinance, 1980 (Ordinance X of 1980). Learned counsel for the appellant has further stated that in case this Court comes to the conclusion that no appeal was competent from the decree of the appellate Court in the present case in view of the amendment made by the aforementioned Ordinance, his appeal may be converted into a Revision and in support of his contention he has referred to the decision of this Court in the case of Bahadur v.
Mirza Abdul Qayyum and another (1) and the judgment of Dacca High Court in the case of Dr. Muhammad Mubarik Ali v. Prof. Muhammad Allarakha (2).
5. There is no denying the fact that the right of appeal is a sub sanative right as was observed by the Supreme Court in Muhammad Ishaq v. The State (3). It is also undisputed that where a statute affects a Substantive right it has to be construed prospectively unless there is express provision in the statute to show that the provisions are to be given res.' prospective effect. This view was also expressed by the Supreme Court in the aforementioned case. In the case of Salahuddin, etc. v.
Malik Muhammad Ibrahim (4) which was recently decided by this Court, the amendment of section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, made by the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979 (Ordinance IX of 1979) whereby the right of filing of second appeal in the High Court was abolished came up for consideration as it was contended that the right of second appeal in respect of the proceeding initiated before the coming into force of the amending Ordinance was not affected. After examining the provisions, of the amending Ordinance, it was held that since there was no provision in the amending Ordinance to 8 show that the amended law was to be given effect to retrospectively the right of second appeal in the proceedings initiated before coming into force of the amending 'Ordinance was not affected. In view of the aforementioned authorities, the contention of the learned counsel for the appellants that the provisions of section 102 (b). C. P. C. Which was incorporated by the Civil Procedure Code (Amendment) Ordinance, 1980, have not affected the right of second appeal in the present case as respondent No, 1 had instituted the suit before the said amendment, appears to be correct. The impugned order of remand is appealable as it is covered by Order "XLIII rule 1 (u), C. P. C. As there is no objection raised by the learned counsel for respondent No, 1, it is not necessary to consider the question whether this appeal can be allowed to be converted into a Revision.
6. Learned counsel for the appellants has assailed the order of remand on the ground that the learned Additional District Judge has failed to take notice of the provisions of rule 27 of Order XLI, C.
P. C. Which contain the guideline for the appellate Court as to when the parties to an appeal should be allowed to produce additional evidence. According to the learned counsel for the appellants the appellate Court in the present case did not apply its mind and without examining the evidence already on record allowed permission to respondent No, 1 to produce additional evidence. The real object of respondent No, 1 for filing application under section 151, C. P. C. Was to fill in gaps in his evidence which is not permissible as was observed by the Supreme Court in the case of The Secretary to the Government of West Pakistan, Communication and
(1) PLD 1968 Lah. 636 (2) PLD 1971 Dacca 293
(3) PLD 1956 SC 256 (4) 1979 CLC 895 ' Works Department and another v. Gulzar Muhammad (1). The learned counsel for the appellants has submitted that the provisions of section 151. C. P.C. Could not be invoked by respondent No, 1 for production of additional evidence in the presence of express provisions contained in Order XLI, rule 27, C. P. C. Dealing with the matter. In this connection he has referred to the judgment of this Court in Mst. Nooran and another v. Shah Muhammad alias Shahu (2) where it was held that the inherent powers of Court could not be invoked where there was a statutory provision dealing with the subject.
7. Learned counsel for respondent No, 1 has contended that the production of the original sale- deed executed by Majid Khan and the certified copy of the registered power-of-attorney was considered necessary by the learned Additional District Judge in view of the observations made by the learned trial Court in its judgment that respondent No, I had withheld sale-deed relied upon by him as a document of title of the disputed land and that he had failed to examine the Patwari as a witness to prove his contention that the aforementioned sale-deed was handed over to him and that it was misplaced by him. As the respondent has obtained the original sale-deed from Patwari as a result of his persistent demands after the decision of the suit only he could not produce it before the learned trial Court during the trial. The learned Additional District Judge has, therefore, rightly allowed permission to respondent No, 1 to tender it as an additional evidence. The production of copy of the registered power-of-attorney as evidence in this case is necessary as a reference has been made to it in the aforementioned registered sale-deed.
8. The power of an appellate Court to allow parties to produce additional evidence has been conferred by the provisions of Order XLI. Rule 27, C. P. C. In the presence of these provisions a party to an appeal cannot invoke inherent jurisdiction of the appellate Court under section 151, C. P. C.
And the learned counsel for the appellants' contention in this behalf is correct. The circumstances under which permission to produce additional evidence can be given to the parties to an appeal by the appellate Court are specified in clauses (a) and (b) of sub-rule (1) of rule 27 of Order XLI, C.
P. C. Namely, that the evidence sought to be produced was not allowed to be produced by the trial Court and that the production of additional evidence was necessary to enable the appellate Court to pronounce judgment or for any other substantial case. The case of respondent No, I is obviously not covered by clause (a) aforementioned as the learned trial Court had not refused to admit in evidence the original sale-deed and the copy of the registered power-of-attorney sought to be produced by him in appeal. Clause (b) of sub-rule (27) of Order XLI, C. P. C. Is also not applicable to the facts of the present case because the learned Additional District Judge has not considered the evidence of the parties already brought on record and without that it cannot be said that the controversy between the parties cannot be finally resolved in the absence of the documents referred to above. It appears that the learned Additional District Judge in his anxiety to dispose of the appeal before him has remanded the case to the learned trial Court and to justify his order of remand has allowed permission to respondent No, 1 to produce additional evidence before the learned trial Court. Under the circumstances the impugned order of remand is not legally sustainable. The appeal is accordingly allowed and the impugned order is set aside with the direction
(1) PLD 1969 SC 60 (2) PLD 1968 Lah, 433 ' that the learned first Appellate Court should proceed to dispose of the appeal on the basis of evidence already on the file in accordance with law. The record of the case should be returned immediately to the learned District Judge, Lahore who either should dispose of the appeal himself or entrust it to some Additional District Judge for disposal. The appellants are also awarded costs of this appeal.