1. ' MAMOON KAZI, J.---The appellants filed suit for recovery of rS,7,00,000 being the value of the goods said to have been shifted by the appellants from Chittagong to Karachi and which were lost on the highseas during an attack by Indian War Planes and the sinking of the Vessel 'Al-Abbas' during the war. The details of the goods were given by the appellants in a Schedule annexed to the plaint as Schedule "A".
2. ' Insurance cover for the said goods was obtained by the appellants from respondent No,1 on 4th December, 1971 for a sum of rS,7,00,000 and subsequently regular policies were obtained by the appellants from the said respondent. There is also no controversy on the point that the goods were got insured by the appellants under the War Risks Insurance Ordinance and the Scheme framed thereunder. According to the appellants, the goods never reached Karachi as the ship on which they were loaded was lost in transit either on account of enemy action or it was forcibly seized by the enemy. The respondents resisted the claim of the appellants and as many as ten issues were framed by the learned Single Judge, who heard the case. For the purpose of the present appeal only Issue No,3 would be relevant and the same is reproduced as follows:--- 'Did the plaintiff's ship goods from Chittagong on board 'Al-Abbas' between 30th November, 1971 and 1st week of December, 1971? If so, what was the nature, quantity and value of the goods?"
3. ' As is evident from the impugned judgment, all the learned counsel appearing for the respective parties were agreed on the point that the liability of respondents Nos.1 to 3 would occur only if the goods were proved to have been shifted on the vessel and it was further established that the loss had occurred during voyage. However, the only evidence adduced on behalf of the appellants on the point consisted of ten Bills of Lading marked as "5/1" to "5/10" but since neither they were the original bills of lading nor they had been signed on behalf of the Shipping Company or its Agent, the said bills were ruled out of consideration by the learned Single Judge. Admittedly, there was no evidence produced by the appellants in respect of Issue No,3 and therefore, neither the factum of shipment of the cargo was proved nor even the nature, the quantity and the value of the goods could be proved for want of evidence in this regard, therefore the learned trial Court did not consider it necessary to go into the other issues because the finding on Issue No,3 which was one of the most material issues could not be given in favour of the appellants. Consequently, the suit of the appellant was dismissed by the learned Single Judge.
4. ' It is pertinent to point out, that, during the pendency of this appeal an application has been filed on behalf of the appellants (C.MA. No,1265 of 1986) under Order 41, Rule 27 read with section 151, C.P.C. requesting this Court to permit the appellants to lead additional evidence. The contention raised on behalf of the appellants is that at the time of shipment of the consignments 11 mate's receipts had been issued by respondent No,4, acknowledging receipt of the goods. Photostat copies of the said receipts have been filed alongwith the application as Anxs. A/1 to A/11. According to the appellants' witness Abdul Sattar, he was stranded for some time after the fall of the then East Pakistan and ultimately he managed to return to Pakistan through Red Cross in or about June, 1974.
5. Theresince the said witness was working in Balagamwala Cotton Ginning Factory at Tando Adam and later with Dada Sons at Gedani, Balochistan. In September, 1986, the said witness suddenly met Haji Abdul Ghaffar s/o Ismail, partner of the appellants and it then transpired that the latter had filed a suit against the Steamship Company but the same was dismissed on account of non- availability of material evidence. The witness thereafter filed the present affidavit in Court in support of the application filed by the appellants under Order 41, Rule 27 alongwith the photostat copies of the said mate's receipts.
6. ' So far as the genuineness of the receipts is concerned, no controversy has been raised by respondent No,4 in this regard as no counter-affidavit has been filed on its behalf. The question which requires determination, however, is whether the appellants can be permitted, at this stage, to lead additional evidence as requested by them, under the circumstances just enumerated in this judgment.
7. ' Mr. Abdul Latif A. Shakoor, learned counsel for the appellants has sought support from a number of cases and the first case referred to in this regard is Mst. Fazal Jan v. Roshan Din PLD 1990 SC 661. In this case, although the facts of the case show that the case had been badly conducted not only from the petitioner's side but also from the respondent's side and all the relevant documents had not been brought on record, the Supreme Court nevertheless allowed the parties to lead additional evidence in the case. The next case cited by Mr. Abdul Latif A. Shakoor is the case of Avari Hotels Ltd. v. Hilton International Company PLD 1985 Kar.
445. In this case the provisions of Order XLI, rule 27 once again came under focus before a Division Bench of this Court and it was observed in that case as follows:--- "The conjoint reading of the three provisions of law contained in the Code of Civil Procedure would show that the Appellate Court, while hearing an appeal, is bound by the rules of Order XLI, only in so far as those rules would apply. Such application of Order XLI is undoubtedly limited. No doubt, the broad principles, governing the reception of additional evidence are stated in Order XLI, rule 27, C.P.C. but the provisions contained in Order XIII do not state that the appellate Court cannot travel beyond the scope of Order XLI, rule 27, C.P.C. Examining the provisions of Order XLI, rule 27, C.P.C. it would appear that the appellate Court can require the production of any document, or, allow the same to be produced, if there is a substantial cause, which could persuade the appellate Court to adopt such course."
8. ' Challenging the contentions of Mr. Abdul Latif A.Shakoor, Mr. Imtiaz Lari, learned counsel for respondent No,1 has invited our attention to a Privy Council ruling reported in AIR 1931 PC 143, wherein it has been observed in no less clear terms that the provisions of Order 41, Rule 27 are clearly not intended to allow the litigant who has been unsuccessful in the lower Cow to patch up weak parts of his case and fill up omissions in the Court of appeal and similar observation can be found in the case of Bashir Ahmed v. Ahmad ul-Haq Siddiqui 1985 SCM R 1232.
9. We would like to point out that the Code of Civil Procedure is meant to advance the ends of justice, muchless to place obstacles in the path of the Court to do substantial justice between the parties in the case. As was observed by a Division Bench of this Court in the case of Avari Hotels Ltd. the Appellate Court can always require the production of any document if there is substantial cause to adopt such a course. In the present case, as has been contended on behalf of the appellants, when the case proceeded before the learned Single Judge the evidence now sought to be introduced by the appellants in the case was not available with them and the same became available only after the 15th September, 1986, when all of a sudden the appellants' partner Haji Abdul Ghaffar met their former employee Abdul Sattar. The appellants have filed photostat copies of the mate's receipts which apparently show the description of the goods and their value. We are not oblivious of the fact that the appellants tried to lead evidence in regard to the nature and value of the goods by production of different bills of lading but the said documents were not exhibited but ruled out of consideration by the learned Single Judge. Under the circumstances, the only other substantial piece of evidence, which the appellants are in a position to produce in support of their claim are the mate's receipts. There is no controversy on the point that by production of such evidence the appellants would not be introducing a new element in the case which is not supported by the pleadings. Taking into consideration all the relevant factors, we are consequently of the view that it is a fit case to allow the appellants to lead additional evidence in the case, as requested by them.
10. ' In the result, the judgment passed by the learned Single Judge is set aside and the case is remanded for recording of additional evidence sought to be produced by the appellants consisting of eleven mate's receipts, which the appellants intend to bring on record through their witness Abdul Sattar. The learned Single Judge shall give a fresh decision after taking into consideration the said evidence.
11. ' The parties are left to bear their own costs.