1. ' This second appeal is directed against the judgment and decree of the Ilnd Additional District Judge, Hyderabad, dated 30th November, 1971 passed in Civil Appeal No, 194 of 1969 whereby he dismissed the suit of the appellant.
2. ' In order to appreciate the points involved in this appeal for consideration by this Court, it will be necessary to state briefly the facts: ' Respondent is occupant of the shop No, H/1284 Shahi Bazar, Hyderabad, and he applied on N.C.H.
3. Form for the transfer of the same in the Settlement Department and he was issued appendix for Rs,6,000 as non-claimant. It was averred in the suit that the respondent had no money. He agreed with the appellant that the appellants may pay the amount and when permanent Transfer Deed will be issued to the respondent, he would sell the same to the appellant. The appellant got payment made of the aforesaid price Rupees 4,631 were paid through an agreement of association of the respondent with Wali Muhammad, Ghulam Muhammad, Ismail and Mst. Khatija Bie from the compensation book No, 135109 (HOR-III-2292). Rupees 1,119 were paid towards the price of the aforesaid shop through agreement of association of the respondent with one Abdul Qadir from compensation book No, 1293 (HOR-II-345) and the appellants paid Rs,2,970 and Rs,704-15-6 to Wali Muhammad, Ghulam Muhammad, Ismail, Mst. Khatija Bie and Abdul Qadir. As the shop was transferred to the respondent all things of these agreements of association and payments of challan were made in the name of the respondent. On 25-5-1960 the parties entered into agreement of sale and the respondent had also executed a promote for the aforesaid amount in favour of the appellants but the appellants had lost the same as such could not be produced in Court. Permanent Transfer Deed of the aforesaid shop was issued in favour of the respondent on 6- 1-1965. The appellants served notice on 22-9-1966 which was not replied. The appellants filed Suit No, 3769 of 1966 for specific performance of agreement of sale dated 25-5-1960.
4. ' The respondent filed written statement in which he denied execution of agreement. It was averred that the price of the shop was paid by him from the compensation books and the same were purchased by him and the amount in the two challans were also remitted by him and the appellants were never put in possession of the shop and he never agreed to remain in the shop as the tenant of the appellants. It was further averred that the appellants have been trying to get the shop from him as the building on the top of the shop is in possession of the appellants and they are owners of the upper story and the appellants having failed in their persuasive as well as a coercive method, the appellants filed this suit.
5. ' On the pleadings of the parties the learned trial Court framed the following issues on 5-12-1968:-
(1) Whether the compensation books of Abdul Qadir, Wali Muhammad, Ismail and Mst. Khatija, were purchased by the plaintiffs for the payment of the price of the shop in dispute on behalf of the defendant?
(2) Whether the agreement dated 25-5-1960 was executed by the defendant? If so, what is its effect?
(3) Whether the defendant was the tenant of the plaintiffs in the suit shop?
(4) Whether the defendant was putting off the performance of the agreement?
(5) Is the plaintiffs entitled to the specific performance of the agreement?
(6) Is the suit not maintainable in law?
(7) Is the suit under valued?
(8) Whether the defendant was issued P.T.D. By the Settlement Authorities?
(9) Whether the defendant ever paid rent to the plaintiffs?
(10) Whether the plaintiffs by virtue of the transfer of the upper story are using coercive methods and compelling the defendant to sell away the shop?
(11) What should the decree be?
6. ' The appellant No, 1 examined himself as Exh. 13, the margin witnesses Muhammad Yousuf as Exh.
7. 21 and Noor Ahmad as Exh. 22 and claimants Abdul Qadir as Exh. 25 and Wali Muhammad as Exh.
28. The respondent examined himself as Exh. 32 and one witness Nizamuddin as Exh.
8. 34.
9. ' The learned IInd Extra Joint Civil Judge 'Ind Class, Hyderabad, on the basis of the evidence, both oral and documentary, produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 1, 2, 3 and 9 in the negative and dismissed the suit vide his judgment and decree dated 31-5-1969.
10. ' The appellants being aggrieved by judgment and decree dated 31-5-1969 of the Lind Extra Joint Civil Judge, Hyderabad, filed Appeal No, 194 of 1969 along with application under Order XLI, rule 27, C.P.C, which was ultimately decided by Ilnd Additional District Judge, Hyderabad. The Additional District Judge dismissed the appeal and upheld the judgment and decree of the !Ind Extra Joint Civil Judge, for the reasons given in the said judgment and decree.
11. ' The appellants, above named being aggrieved by the judgment and decree dated 13-11-1971 of the learned Additional District Judge, Hyderabad, has preferred this appeal on the grounds mentioned in the memo, of appeal.
12. ' During the pendency of the appeal, the learned counsel for the appellants filed two applications, namely application under Order XVI, rule 6, C.P.C. For summoning of record from Settlement Authority and the other application under section 107 C.P.C. For remanding the appeal afresh deciding application under Order XLI, rule 27, C.P.C.
13. ' By order dated 18-4-1983 the record was summoned from the Office of the Settlement Authorities.
14. On 1-4-1984 Muhammad Younus, Clerk of the Office of Deputy Settlement Hyderabad, appeared before me and stated that record in respect of the disputed shop has not been traced out. His statement was recorded by me and the hearing of the main appeal as well as hearing of application under Order XLI, rule 27, C.P.C. Was adjourned to a date in Office.
15. ' Mr. S.A. Jamali, the learned counsel for the appellants, has contended that when there is no proper evidence in support of the finding of the First Appellate Court, or the evidence is misread or misrepresented or the Court below misapplied the law and the finding on the face of it against the evidence, is not only perverse but absurd, the finding, though one of fact, is vitiated and Court of second appeal is entitled to review the evidence. According to the learned counsel for the appellant, in the present case, there was a misreading of evidence and the Courts below had misapplied the law and, therefore, this Court is competent to review the evidence is Second Appeal.
16. ' On the other hand Mr. Akhtar Mehmood, the learned counsel for the respondent has contended that under section 100 of the Civil Procedure Code, this Court is not competent to interfere with the finding of fact by the Courts below. The learned counsel urged that the trial Court and the first Appellate Court have arrived at a concurrent finding of fact with regard to sale agreement that it was not executed by the respondent. He has further contended that the Additional District Judge has held that excepting the alleged sale agreement, there is nothing on the record to show that actually the amount of purchasing compensation books was paid by the appellants. In support of his contention, the learned counsel has relied on PLD 1955 SC 38, PLD 1954 Lah. 769 and PLD 1969 SC 617.
17. ' On the evidence of the parties, the learned trial Court, on issues Nos. 2 and 9 held that agreement Exh. 14, dated 25-5-1960 is not proved to have been signed by the respondent. On issue No, 1, he held that the appellants have not produced any documentary evidence to prove the payment of money to P.Ws. Abdul Qadir and Wali Muhammad. Had the appellants paid money to the respondent, some receipt must have been passed by those P.Ws. To the appellants but no such receipt has .Been produced before the Court. The appellants must have entered into agreements with these P.Ws. But no such agreements have been produced in the Court. The learned trial Judge held that it is not proved that the compensation books purchased by the appellants were utilized into the purchase of the shop in dispute and it, therefore, not established that price of the shop was paid by the appellants.
18. ' The appellants filed appeal to the District Judge, which was ultimately transferred to the IInd Additional District Judge, Hyderabad. He dismissed the appeal. He held that the alleged deed of agreement of sale Exh. 14 is typed in English. The signature of the respondent is made in Gujrati. The respondent denied to know Gujrati and had also denied the signature on it. He also denied the execution of the agreement of sale. In the present case, the Additional District Judge has arrived at the following conclusion:- "The appellants-plaintiffs must have purchased the shop either for their personal requirements or for commercial purposes and profit basis to get rent. From the alleged execution of the sale agreement dated 25-5-1960 till the filing of the suit dated 28-11-1966 neither they received any rent from the respondent-defendant, nor they made any demand for any rent from him. They also made no demand from the respondent-defendant to hand over vacant possession of the shop to them during this period. They even did not serve any notice on the respondent-defendant till 20-9- 1966 to execute any registered sale-deed in their favour. All these facts and circumstances go to belie the stand taken by the appellants-plaintiffs. Under these circumstances, the oral assertion of the appellants/plaintiffs and his few interested friends could not be accepted. The learned Extra Joint Civil Judge, II Class, Hyderabad had legally and validly discarded the oral assertion of the appellants-plaintiffs and his few interested friends."
19. After hearing the learned counsel for the parties, I am satisfied that the conclusion of the Additional District Judge in the evidence produced by the parties is reasonable and no exception can be taken to it. I have gone through the judgments. It appears that the learned Courts below have given reasons in support of their conclusion. Since the learned counsel for the appellants has urged that the findings are based on misreading of evidence and has at J raised various contentions. I, in the larger interest of justice, in order to satisfy myself that the judgments do not suffer from misreading of evidence or legal defects, propose to have a judicial appraisement of pleadings, oral and documentary evidence adduced by the parties.
20. ' In order to discharge the onus the appellants examined five witnesses and placed on record documents Exhs. 14 and 15. To rebut the same respondent examined two witnesses including himself and placed on record the document Exh.
21. 33.
22. ' P.W. No, 1 Usman Ghani stated that respondent was non-claimant. Appendix was issued in favour of the respondent but he had no money to pay the price. It was agreed between him and the respondent that he should make payment on his behalf and that when Permanent Transfer Deed would be issued, he would sell the shop to the appellants. He purchased claims from Wall Muhammad, Ghulam Muhammad and Abdul Kadir, Ismail and Mst. Khatija Bie. From their compensation books the price was adjusted. He had made payment to those persons from who compensation books were purchased by the appellants. Two challans for Rs, 475 each were filled in by him and credited in Government treasury. There was agreement between him and the respondent. He produced Exh.
14. It bears his signature and that of the respondent. Noor Ahmed and Muhammad Yousif were the marginal witnesses. The respondent at the time of agreement said that till the execution of sale- deed, he would be deemed as his tenant and that he would be paying him rent at the rate of Rs,30 or Rs,32 per month. For some time the respondent paid him the rent but later on he stopped. It is false that the agreement was not made or signed by the respondent. It is false that the payment was made from the funds of the respondent.
23. ' P.W. No, 2 Muhammad Yousif is the marginal witness. He stated that Exh. 14 bears his signature and that of the parties. The possession of the shop was with respondent. He admitted that agreement of association was executed between the claimants and the respondent.
24. ' P.W. No, 3 Noor Ahmed stated that Exh. 14 bears his signature and that of parties and Muhammad Yousif. He stated that he does not know if respondent had deposited money in National Bank and also bought claims. P.W. Abdul Qadir and P.W. 5 Wall Muhammad had compensation books. They had sold amounts in their books.
25. ' D.W. No, 1 Ali Muhammad stated that no such agreement was executed nor he has any knowledge of it. He did not borrow amount from the appellants. He also denied about payment of any rent to the appellants. He also denied his signature on Exh.
14. He stated that he signs in English and he does not know Gujrati. He also denied his signature on Exh.
31. He also stated that he had paid amount from his income. He further stated that P.W. Yousif had introduced him with the above named persons who sold the compensation books to him. When the impugned judgments are read with the above analysis of the oral and documentary evidence, the findings of the learned Courts below seem to have been arrived at after discussing the evidence and the documents produced by the parties correctly and properly.
26. ' In the end, the learned counsel for the appellants has submitted that the appellants had filed in the Court of Additional District Judge, an application under Order XLI, rule 31, C.P.C. For permission to adduce additional evidence on which arguments were heard along with arguments on appeal but no decision was recorded on the said application ant', therefore, the decision of the appeal stand vitiated. He has father submitted that the appellants have also filed an application under Order XLI, rule 27, C.P.C. In this Court.
27. ' I have considered this objection too. Order XLI, rule 27, C.P.C. Reads as under:- "Clauses (a) and (b) of sub-rule (I) of Rule 27--
(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."
28. It is clear from the above clauses (a), (b) of sub-rule (I) that appellate Court requires any document to be produced to enable it to pronounce judgment or for any other substantial cause.
29. In other words, the requiring any document in the matter by the appellate Court is under clause (b) subject to the appellate Court feeling the necessity of production of documents. This necessity may arise on account of appellate Court being unable to pronounce judgment on the evidence already available on the record due to omission of a material nature in the said evidence or some other substantial cause but necessity to record evidence was to be a requirement of the Court and not that of a party. Appellate Court, therefore, could make an order on this 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 hearing arguments on the merits of the case, however, did not apparently find any such lacuna in the evidence and was able to decide the appeal on the evidence as available on the file. Admittedly, he had heard arguments on this application simultaneously with arguments on the appeal and was obviously conscious of the existence of such an application having been filed and pressed by the appellants. Therefore, by deciding the appeal on merits, the Additional District Judge had admittedly rejected this application of appellants. No Capital can, therefore, be made out of his having not made an express order of dismissal of said application.
30. ' However, even if it is considered that Additional District Judge was not conscious of existence of this application at the time of recording decision of the appeal and, therefore, this application had not been rejected by him impliedly, even then, appellants have no case in this regard. The act of the appellate Court in not passing an order on such application did not amount to failure on his part to exercise jurisdiction vesting in him.
31. I am of the view that there was no merit in this application and it appears that it had been filed by the appellants to allow a party to patch up weaker parts of its case or fill up omissions. The only reason which the application advances for seeking permission to produce additional evidence is that this is a case where the respondent has been bold enough to say that he does not sign in Gujrati and signs in English. The respondent is a Katchi Memo. And it is strange that he does not know' to sign in vernacular, that is, Gujrati and he knows to sign in English. The respondent denied his signature on Exh.
19. The respondent had filed N.C.S. Form on 21-7-1959 for the disputed shop and entered into agreement of association with one Abdul Qadir on 20-5-1960. He filed affidavit in Settlement Department on 2-5-1962 in order to obtain a Permanent Transfer Deed. The respondent filed Vakalatnama in Criminal Case No, 200 of 1965 on 19-8-1965. All these documents are signed by the respondent in Gujrati. These documents had not been placed on the record of the trial Court and no reason had been given in the application to explain why necessary documents could not have been produced earlier before the trial Court and no justification had been made out in it for grant of an order to permit the appellants for second time to adduce evidence. The precise objection was taken in the written statement that no agreement of sale was executed between the parties nor any terms and conditions were fixed or agreed upon. The appellant deposed that respondent always signs in Gujrati language. The respondent deposed that he does not know Gujrati and he signs in English. He further deposed that Exh. 14 does not bear his signature. The appellants closed their evidence subject to right in rebuttal on 4-2-1969. However, no evidence in rebuttal was produced by the appellants. All the documents were available on the file of the settlement authorities but no steps were taken to summon the same from the Settlement authorities. The learned Joint Civil Judge in his judgment on issue No, 2 relating to execution of sale agreement had clearly held that there in nothing before the Court to show that if the respondent ever signed in Gujrati language. It is advantageous to reproduce the concluding lines:- "The plaintiffs must have produced the evidence to show that the defendant has been signing in Gujrati language and they must have called for the record of the Settlement Department and other documents which were purported to have been signed by the defendant in Gujrati language. The plaintiffs have not produced the slightest evidence in this respect."
32. I am of the view that the application under Order XLI, rule 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 lacunas in the evidence of appellants produced before the trial Court. This, however, could not be allowed to be done by resort to Order XLI, rule 27, C.P.C.
33. Which is not meant to patch up of a weak case. The principles laid down by the Privy council in the case of AIR 1931 P C 143 are to be kept in view while allowing additional evidence. I agree with the finding that Exh. 14, the agreement of sale was not executed by the respondent. In the present case the attempt to do so was obviously dishonest. The findings of the Courts below, therefore, on issue No, 2 were entirely justified.
34. ' It is necessary to state that in view of the factual and legal aspects discussed by the Courts below which have confirmed that the respondent never executed agreement of sale Exh. 14 and the appellants have failed to establish that Exh. 14 was executed by the respondent.
35. ' For these reasons I agree with the concurrent findings of the Courts below and dismiss the appeal with no order as to costs.