' SAJJAD ALI SHAH, J.--By this appeal with leave is called in question order dated 31-3-1990 and announced on 4-4-1990 of Lahore High Court, Lahore, whereby Civil Miscellaneous No,1180 filed by respondents in Civil Revision No,32-D of 1986 is accepted allowing summoning of original record from Patwari Halqa and office of the Collector, relating to Mutation No,1332 dated 28-11-1943 to establish that mutation was attested on the date mentioned above. Further revision petitioners have been allowed right of rebuttal.
2. Briefly stated the relevant facts are that the respondents before us as plaintiffs instituted a suit for perpetual injunction against defendants who are appellants before us restraining them from interfering with their possession of the property comprised in Khasra Nos.597/1 and 597/2. The case of the plaintiffs in the suit is that they are owners of the property in dispute by virtue of registered sale-deed dated 2-11-1948 executed in their favour by Ch. Jewan. Defendants in the suit Fateh Muhammad and Ghulam Ahmad in the written statement denied title of plaintiffs. During pendency of the suit, Local Commissioner was appointed, who inspected the site and before him photo copy of Mutation No,1332 attested on 28-11-1943 was produced which was marked by him as 'A'. The Local Commissioner submitted his report alongwith copy of mutation. According to this mutation the land in dispute belonged to Hindu lady Mst. Sab Devi, who sold it in favour of defendants Fateh Muhammad and Ghulam Ahmad vide sale-deed dated 5-5-1943 and mutation was recorded on 24-2-1944 and finally attested in 1952. Copy of Mutation No,1332 further shows that defendants had orally sold the land in suit to Muhammad Ramzan alongwith some other land and Muhammd Ramzan sold the land by sale-deed dated 11-7-1947 to Ch. Jewan, who sold the same to Ch. Muhammad Shall predecessor-in-interest of plaintiffs vide sale-deed dated 2-11-1948. Suit was decreed against which appeal was dismissed by learned Additional District Judge.
3. In the High Court in revision proceedings application was filed for recording of additional evidence for permission to have, certified true copy of Mutation No, 1332 (Part Sarkar), certified true copy of Jamabandi for the year 1949-50 regarding Pind Araian, Tehsil and District Sialkot and copy of Mutation No,1332 (Part Patwar) produced and brought on the record. Request for additional evidence was opposed by the other party but has been allowed by the High Court for the reasons stated in paragraph 8 in the impugned judgment reproduced as under:-- "Learned counsel for the plaintiffs maintains that they had placed the copy marked 'A' before the Local Commissioner and the Local Commissioner had filed it with his report and as no objection to its admissibility was raised, it was to be read as evidence in the case under Order 26, Rule 10(2) of the C.P.C. According to him, if at any stage of the proceedings in the learned trial Court, the objection to the admissibility of the copy had been raised, the plaintiffs would have produced a certified copy. A certified copy of the mutation has been placed on the record, a certified copy of Part Patwar has also been produced, the object being to show that Mutation No,1332 had in fact been attested and that the transaction so evidenced was genuine transaction. In this behalf, learned counsel for the plaintiffs also points out and rightly in my view that from objecting to the admissibility of the copy of the objection of the defendants before the learned Courts below had been that at the date of the mutation, the defendant had no saleable interest in the land."
4. Before us it was submitted on behalf of the appellants that High Court as Revisional Court was not competent to allow recording or production of additional evidence which can be done by the Appellate Court as allowed I under Order XLI, rule 27, C.P.C. Leave has been granted by this Court to consider whether only appellate Court is empowered to allow the additional evidence and no such power exists in the revisional Court.
5. It was submitted before us by the learned counsel for the appellants that the revisional Court can revise and correct orders but cannot correct the errors made by parties to the case. In support of the contention reliance was placed upon three cases. The first case is of Kanwal Nain etc. v.
Fateh Khan etc. (PLD 1983 SC 53) which is distinguishable and is not attracted to the facts of the case for the reason that in that case recording of additional evidence was not involved but re- examination of evidence recorded in Trial Court on question of fact. Second case cited is of S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 Kar. 149), which is judgment of Full Bench comprising seven Judges, who have delivered very illustrious judgment on the scope of section 115, C.P.C. With regard to jurisdiction exercisable by the High Court on the revisional side. Guidelines have been laid down with regard to the jurisdiction in general terms and this ruling is not attracted to the facts of the case, because question pointedly is whether additional evidence can be allowed in revisional jurisdiction. Third case cited by learned counsel for the appellants is of N.S. Venkatagri Ayyangar and another v. The Hindu Religious Endowments Board, Madras reported in AIR 1949 Privy Council
156. This case is also not relevant for the present purposes because it covers general scope of revisional jurisdiction.
6. It is submitted on behalf of respondents that High Court in revisional jurisdiction can record additional evidence in an appropriate case in the ends of justice as is contemplated' under section 115, C.P.C. In support of the contention reliance is placed upon three cases. The first case is of Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88) in which suit for pre-emption was dismissed for default by trial Court and restoration application was dismissed in spite of the fact that plaintiff produced Parcha Peshi issued by Reader and also examined him. Appeal was allowed and the case was remanded for further proceedings. On revision High Court re-summoned and re- examined Reader of the trial Court who was also re-crossexamined on factual aspect whether plaintiff appeared on the date when suit was dismissed for default. High Court concluded that Parcha Peshi issued by the Reader was forgery. Leave was granted by this Court to consider whether High Court could reverse the judgment in revision on recording and admitting fresh evidence. Further considering the facts and legal aspect and keeping in view peculiar facts of that case, this Court held as under:- "We while keeping in view the law declared on the point have made an effort to uphold the impugned judgment of the High Court in this case wherein reversal of findings of fact with regard to the appearance of the applicant on 10-6-1979 and the issuance of the Parcha Peshi by the Reader was achieved by recording additional evidence of the Reader of the trial Court but with no success. The impugned judgment does not fall under clause (a) of section 115 (1), C.P.C. Because the learned appellate Court in this case did exercise the jurisdiction vested in it by law. The case is not covered by clause (b) either because there is no complaint from either side that any Court had failed to exercise a jurisdiction vested in it. And finally clause (c) is not attracted because no arguments have been addressed at the bar that the appellate Court had acted in exercise of its jurisdiction illegally or with any material irregularity.
' We having carefully scrutinised the appreciation of evidence on record by the learned appellate Court so as to discover whether there was any material irregularity even by way of departure from any principle of appreciation of evidence but none was found. Thus, there was no material irregularity either in so far as the appellate judgment is concerned. There was no further scope except for clauses (a), (b) and (c) of section 115 (1), C.P.C. By virtue of which the High Court could either interfere with the findings of fact or could if at all, record additional evidence at the revisional stage. In the result there is no alternative but to allow the appeal and set aside the impugned revisional judgment and restore the appellate judgment in this case.
' We order accordingly. But in the circumstances of the case leave the parties to bear their own costs."
' Ratio of this ruling is further discussed in the second case, which is to follow.
7. Second case is of Mohabbat v. Asadullah Khan etc. (PLD 1989 SC 112). In this case on examination of the record, High Court in revision formed the view that confusion was created by the statement of Patwari, when read with copy of Shajra filed on record with regard to the identity of the property in dispute, as "Sailaba type of fields" were not given Khasra numbers. In such circumstances, High Court in revision proceeding felt the need of clarification and examined Patwari. This action was assailed on the ground that recording of additional evidence is not permitted in revision, which is not continuation of suit like appeal justifying recording of evidence on merits of the case. It was held therefore, by this Court that ordinarily additional evidence can be recorded by the Appellate Court under Order XLI, Rule 27, C.P.C., but if that Court exercises jurisdiction illegally and with material irregularity then scope of additional evidence is not excluded in revision on the ground that fatal error on merits of the case cannot be described as an exercise of erroneous discretion but jurisdictional error as contemplated by section 115(1)(c), C.P.C. In coming to such conclusion ratio in the case of Haji Muhammad Zaman supra was followed. In the case under discussion in the circumstances and for reasons aforementioned it was held that the High Court in its inherent jurisdiction under section 115, C.P.C. In revision can admit such evidence for clarification in the ends of justice.
8. Third case is of Malik Mir Bashi and others v. Haji Allah Khan etc. (1991 SCM R 2504) in which at revisional stage in the High Court witness was examined with consent of both parties, who were given fair opportunity of cross-examining and further examining that witness. Reliance was placed on the proposition that High Court in exceptional case could examine a witness at revisional stage.
9. Upshot of the discussion on the point briefly stated is that under Order XLI, Rule 27, C.P.C., appellate Count is competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error is committed then in revision additional evidence can be admitted in a fit and proper case for clarification if that is essential for just decision of the case.
10. For the facts and reasons mentioned above in the instant case High Court was perfectly justified in allowing summoning of original record from Patwari Halqa and office of Collector in support of mutation by way of clarification. We are unable to find any flaw or legal infirmity in impugned judgment which is hereby upheld and the appeal is dismissed with no order as to costs.