This revision petition is directed against the judgment and decree of the learned District Judge, Mianwali dated 13th of November, 1983, whereby he set aside the judgment of the trial Court dated 15th of February, 1981.
2. This revision petition arises out of a suit filed by respondent No. 1, Jewan, wherein he claimed that he be declared as owner-in-possession of the land in dispute and the order dated 28th of December, 1976 passed by the Additional Deputy Commissioner (Consolidation) with the powers of Chief Settlement Commissioner was illegal, void and without jurisdiction. In the plaint it was alleged that the land in question was transferred to Muhammad Ibrar Ahmad, respondent who alienated it in favour of the other respondents. The Respondent No. 1/plaintiff pre-empted these sales by filing three suits for pre-emption which were decreed in his favour and he became owner thereof.
Subsequently, it appears that Abdus Samad petitioner filed proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 against the original transferees, the subsequent purchasers and also the respondent. This application resulted in the order dated 28th of December, 1976, whereby the Additional Deputy Commissioner, with the powers of Chief Settlement Commissioner, Mianwali, proceeded to cancel the allotment. The main ground on which the order was challenged in the suit was that the respondent had not been given as opportunity of being heard before passing the impugned order. This suit was originally d-.Creed by the trial Court.
Aggrieved by this decision, the respondent No. 1 went in appeal which was dismissed by the learned District Judge, Mianwali on 2-3-1982. The respondent thereupon filed C.R. No. 535-13/82 which was accepted by Muhammad Afzal Lone, J. On the 'ground that the District Judge should have decided the appeal on merits rather than confining himself to the decision on the question of jurisdiction alone. The District Judge was, therefore, directed to decide the appeal of the respondent afresh.
3. It appears that after the remand of the appeal, the petitioner filed two applications under Order 41 rule 27 C.P.C. For permission to produce additional evidence. The first application was dismissed by the District Judge on 17th of July, 1983 after holding that the application could not be allowed at that stage and farther that the documents sought to be produced as additional evidence had not been filed along with the application. The subsequent application filed by the petitioner on 6t of October, 1983 was, however, accepted by the District Judge who allowed the documents to be produced as additional evidence and proceeded to accept the appeal on the same day i.e. 13th of November, 1983.
4. Mr. Shahzad Shaukat, Advocate, learned counsel for the petitioner has taken serious objection to the decision of the District Judge, Mianwali on the application under Order 41 rule 27 C.P.C. Filed by the respondent. The learned counsel has pointed out that no reason, whatsoever, has been given by the learned District Judge, for allowing the production of additional evidence except that the documents were required to enable him to pronounce the judgment. The other grievance of the learned counsel, is that after having allowed the respondent to produce additional evidence, no opportunity was allowed to the petitioner to produce evidence in rebuttal. Both these contentions of the learned counsel are well founded and to me it appears that the application under Order 41 rule 27 C.P.C. Has not been decided in accordance with law.
Sub-rule (2) of rule 27 of Order 41 C.P.C. Requires that in case the Court comes to the conclusion that the production of additional evidence is necessary, it shall record reasons for doing so. In the present case, from a perusal of the judgment of the District Judge it is apparent that he has not given any reason whatsoever except observing that the documents were required to pronounce the judgment. While disposing of an application for additional evidence the appellate Court is required under the law to give such reasons which could lead to the inference that without recording additional evidence it was not possible to decide the appeal. The mere repetition of the words of rule 27 of Order 41 C.P.C. Are not enough. It was so held by the Supreme Court in Messrs Muhammad Siddique Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684) and Sh. Muhammad Ikhlas and another v. Muhammad Nawab (PLD 1963 SC 466). This being the position it is quite evident that the order of the learned District Judge in this behalf is not sustainable. The other grievance of the learned counsel is equally well founded. If there was any necessity of admitting additional evidence the petitioner should have been granted an opportunity to produce evidence in rebuttal. On this score also the judgment of the District Judge cannot be sustained.
As the matter has remained pending since long before different Courts, the appeal shall be decided by the District Judge within a period of four months. The parties are left to bear their own costs.
M.Y.H./A-671/L