The respondents filed a suit against the appellants for the pre-emption of certain land, claiming superior right, on the ground that their land was contiguous to the suit land and they were participators in the immunities of the right of passage and the right for the discharge of water from their land to suit land. The appellants joined issue with the respondents and the pleadings of the parties gave rise to as many as seven issues. Before the trial Court, however, the learned counsel for the respondents conceded that he could not succeed on the ground of superior right of contiguity and consequently confined his arguments to the other two rights. The learned trial Judge, however, came to the conclusion that the appellants had failed to bring forth any satisfactory evidence in regard to these two rights and consequently dismissed their suit.
2. The judgment of the trial Court was challenged by the appellants in appeal before the Additional District Judge, Mardan, and his judgment shows that the arguments addressed before him were confined only to issues Nos. 5, 6 and 7, which respectively read :-
(5) Have plaintiffs superior right of pre-emption ?
(6) Whether Rs. 75,000 fixed in good faith or paid as sale consideration ?
(7) What is market value of suit land ?
After hearing the arguments on these issues, the learned Additional District Judge took notice of the fact that there existed a path between the suit Khasra numbers and the lands of the respondents, measuring 2-- karams in width but its character had not been determined whether it was a private or public path. He therefore, set aside the trial Judge judgment and remanded the case to him to determine this question afresh.
3. Being aggrieved of this judgment, the present appeal has been filed by the defendants in the suit, which before me has been argued by Mr. Pir Bakhsh Khan, their learned counsel.
The first contention of Pir Bakhsh Khan is that even if the impugned judgment of the learned Additional District Judge was assumed to be unexceptional ho had no jurisdiction to set aside the decree of the trial Court for achieving the desired end for which he had remanded the case to the trial Judge. This objection of the learned counsel, supported, as it is, by the language of Order XLI, rules 25 and 27, C. P. C., was conceded to by Mr. D. M. Kamil, learned counsel for the respondents, bat this is not the only objection of the appellants. Mr. Pir Bakhsh Khan, learned counsel, contended that the remand order of the learned Additional District Judge was in excess of jurisdiction inasmuch as the object which it intended to achieve was to afford the respondents another opportunity to fin up lacunae in their case, which was not permissible. In support of his contention, the learned counsel referred to rules 25 and 27 of Order XLI, C. P. C. (which appear to be the only two rules under which additional evidence can be taken in a case) and in order to appreciate his contention, these rules may be reproduced :- "25. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required: And such Court shall proceed to try such issues, and shall return the evidence to the Appllate Court together with its findings thereon and the reasons therefor.
27.-(1) 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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
Learned counsel first dealt with scope of rule 25 and contended that the trial Court had framed and tried all the necessary issues arising from the suit and consequently the remand order of the learned Additional District Judge cannot be justified thereunder. There seems to be force .Fir this contention, for the learned counsel for the respondents did not make any grievance that the trial Court hid omitted to frame or try any issue which was necessary for the determination of the cause between the parties. He, however, contended that although a path exists between the land of the respondents and that of the suit land, there was no evidence on record to show whether it was private path or a path meant for the public at large. He, therefore, attempted to justify the order of the learned Additional District Judge that without the determination of the character of this path, substantial justice could not be done between the parties.
Apart from the fact that a remand order for any such purpose cannot be justified under rule 2 of Order XLI. C. P. C., the learned Additional District Judge seems to have misconceived the factual position. The respondents supported their case through their attorney Faqir Gul arid also produced in evidence P. W. Abdul Jabbar Patwari and P. W. 3 Shah Said Girdawar. In his examination-in-chief, Abdul Jabber Patwari admitted that the land of the respondents and the suit land are severed by a common path. So far as Shah Said Girdawar is concerned, he has also referred to the path in question, but says that he was not aware whether it was public or private path. As regards Faquir Gul, he clearly admitted in his evide2ce that the path between the suit land and the land of the respondents was a common path and this assertion of his finds support from akas shajra kishtvar, Exh. P. W. 1/4, which is on record. From this, it is clear that the question for which the learned Additional District judge had remanded the case to the trial Judge had already been dealt with by the witnesses in their evidence and after applying its mind to it, the trial Court decided the same against the respondents. Not only this, but it is in the evidence of Said Misal, who is the Lambardar of the village, that the path in question is bandobast and he was not cross-examined on that point.
In these circumstances, the order of remand of the learned Additional District Judge is not supported by the language of Order XLI, rule 25, C. P. C.
So far as concerns rule 27 of Order XLI, C. P. C. It too has no application to the facts of the case in hand. There is nothing in the judgment of the learned Additional District Judge that upon the evidence already on record, he had any difficulty in pronouncing judgment or for any other substantial cause he was satisfied that the case required the taking of additional evidence. I am, therefore, of the view that the impugned judgment cannot be supported under either of the above too rules of Order XLI, C. P. C. And consequently it must be held that in passing that order, the learned Additional District Judge had transgressed the limits of his jurisdiction.
4. Mr. D. M. Kamil, learned counsel for the respondents, however, referred to a judgment of the Supreme Court of Pakistan reported as Secretary, to the Government of West Pakistan v. Gulzar Mohammad (PLD 1969 SC 60), in which the taking of additional evidence was allowed, but their Lordships were conscious of the established legal position all the same by observing that, "In an appeal, it is now well settled that additional evidence should not be admitted in order merely to enable one of the parties to litigation to fill in gaps in the evidence."
PLD 1966 SC 684), their Lordships of Supreme Court had the occasion to consider the scope of rule 27, Order XLI, C. P. C., -and after having held that this provision should not be given a restricted meaning made the following observations :-- "The rule merely prescribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice."
So far as the present case is concerned, the respondents had alleged in their plaint superior right on the ground that their land and the suit land were served by y a common passage, but they brought no satisfactory evidence to show whether the passage in question was public or private. It is not a case, in which respondents were taken unawares, because apart from their own evidence they examined two revenue officers and yet failed to prove through them that the path was a private one. In these circumstances, the remand order of the learned Additional District Judge was wholly unjustified, for it was tantamount to affording another opportunity to the respondents to fill in gaps in their case and ibis practice has been disapproved by the Judicial Committee of the Privy Council in Parsotim Thakur and others v. Lal Mohar Thakur and others (AIR 1931 P C143) in these words: "The provisions of section 107 as elucidated by Order XLI, rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal."
5. In view of this discussion, this appeal is allowed with costs, the decree and the judgment of the Learned Additional District Judge is set aside and the case is remanded to him for decision on merits.