' The above-captioned revision petition is filed against the order passed by the learned District Judge, Muzaffarabad on March 24, 1992, whereby the application moved by the plaintiff-petitioner for adducing additional evidence, was rejected.
2. The facts giving rise to the present controversy briefly stated are that on April 30, 1988, the plaintiff-petitioner brought a suit against Mst. Nasrin (respondent) for restitution of conjugal rights in the Court of Sub-Judge, Hattian. Mst. Nasrin also filed a declaratory suit with perpetual injunction as consequential relief against Muhammad Sharif, the present petitioner in the same Court on May 27, 1988. The trial Court consolidated both the suits and finally vide judgment dated October 23, 1989, dismissed the suit of the plaintiff-petitioner whereas the counter-suit filed by the defendant- respondent was decreed in her favour.
3. The judgment was assailed in appeal before the first appellate Court. Alongwith the appeal, the plaintiff-petitioner moved an application for producing additional evidence. The learned District Judge, after taking objections from the opposite-party vide order under revision, disallowed the prayer. Hence the present revision petition.
4. I have heard the learned counsel for the parties and have also gone through the record of the case with utmost care.
5. Mr. Muhammad Ashfaq Kiani, the learned counsel for the petitioner urged that the learned District Judge has committed error in rejecting the prayer for producing additional evidence.
According to him, the plaintiff petitioner intended to prove a document which came into existence after the evidence of the plaintiff-petitioner was concluded by him in the trial Court. The trial Court without providing him an opportunity of leading evidence in rebuttal, posted the case for final arguments and ultimately vide order dated 23rd of October, 1989, dismissed the suit of the petitioner and decreed the cross suit of the respondent. Thus, the error committed by the trial Court was sufficient to allow the petitioner to adduce additional evidence in order to rebut the evidence brought on record by the contesting respondents. It was further argued that as document was executed by respondent No,2 who happened to be the father of respondent No,1 during the pendency of the suit, therefore, the plaintiff-petitioner should have been allowed reasonable time to lead evidence in support of this important piece of evidence which would facilitate the matter for judicious and conclusive decision of the controversy at issue. The learned counsel placed reliance on cases titled "Saifee v. Lal Din" (PLD 1986 Azad J & K 148). This case authority is distinguishable and has nothing common with the facts of the case in hand. The learned counsel further relied on a case reported as PLD 1986 Azad Jammu and Kashmir 128 (Muhammad Rashid v.
Muhammad Arif and others) wherein it was held that the question of admission of documents lies with the discretion of the Court. However, a public document must be allowed to be brought on record. This case is also beyond the controversial issue and has no bearing on the facts of the present case.
6. While repudiating the arguments advanced by the learned counsel for the petitioner, the learned counsel for the respondents, Mr. Ghulam Mustafa Mughal, vehemently argued that document in question according to the stand of the petitioner, came into existence when his suit was pending before the trial Court and further this document was in possession of the plaintiff-petitioner. But no effort was made by him to tender the same in evidence before the trial Court. So the document which was in the knowledge and custody of the petitioner before the trial Court and which was not tendered by him in evidence for consideration, could not be allowed to be produced in evidence at the belated stage of appeal. In support of his contentions the learned counsel relied on 1992 CLC 187.
7. Admittedly the application for additional evidence was moved before the first appellate Court.
Keeping in view the language used in Order 41, Rule 27, Code of Civil Procedure, the first appellate Court could take additional evidence only if after examining the evidence produced was inherently defective or insufficient and unless additional evidence was allowed, the Court could not pronounce the judgment.
8. In the present case, it appears that the first appellate Court did not feel inclined to record additional evidence for the resolution of the controversial issues between the parties. Therefore, this Court cannot direct the learned District Judge to record any evidence on behalf of any of the parties for filling up the lacunas in the case. The document, according to the stand of the petitioner was executed between him and respondent No,2 and the same was with him but he made no attempt to produce the same before the trial Court. Therefore, apparently no sufficient cause has been disclosed as to why this document was not tendered in evidence before the trial Court. In "Mst. Jan Begum and 30 others v. Muhammad Ismail and 60 others" (1992 CLC 187), the Supreme Court of Azad J & K in similar circumstances at page 15 observed as under:-- "The first question which needs to be resolved is as to whether the appellants were justified in failing to produce the relevant document when their case was pending in the trial Court or in the first appellate Court. The learned counsel for the appellants, Ch. Muhammad Sharif Tariq has argued that in fact the aforesaid document was executed when their suit was already pending in the trial Court. In other words his case is that although the document in question was not in existence when the suit was filed; but the same was in existence when the suit had not yet been decided by the trial Court. It implies that according to the counsel for the appellants, the document in question was in the knowledge of Muhammad Hussain, the predecessor-ininterest of the appellants but he made no effort to adduce the same in evidence. Similarly, no attempt was made to tender the aforesaid document as additional evidence in the Court of District Judge. The application for allowing additional evidence was for the first time submitted in the High Court wherein it had been mentioned that as the appellants could not find the said document earlier, they could not produce the same in evidence earlier. It appears that arguments advanced on the point were somewhat at variance with the stand taken in the application,' i,e, it was contended before the High Court that the document was not in the knowledge of the appellants at the relevant time. We are of the opinion that the reasons given by the learned counsel for the appellants for failing to produce the document at proper stage have no substance because the document, according to the appellants, was in existence when Muhammad Hussain, predecessor- in-interest of the appellants, was alive and had the knowledge of the document in question, because the document was executed by Muhammad Ismail, respondent, when his suit was pending in the trial Court. Most of the authorities cited by the learned counsel for the appellants pertain to filing of documents under Order XIII, rule 2, C.P.C. i,e, whether a document can be brought on the record after the first date of hearing of the suit. In the instant case, the question does not relate to the filing of the document at a date subsequent to the first hearing of the suit, rather the matter pertains to adducing additional evidence at the stage of the second appeal for which no sufficient cause has been shown. It is correct that in proper cases, the Court has discretion to allow additional evidence at appeal stage but the same cannot be allowed to fill up the lacunas or as a matter of routine. It is not a case of technicality which should be liberally construed in favour of the party concerned, rather it is a case of filling up the lacunas in a case; and no sufficient cause has been shown for not producing the document in the trial Court. It is settled principle of law that additional evidence under Order 41, rule 27, C.P.C., can be adduced only for sufficient reasons or if it is necessary for enabling the Court to pronounce judgment. No such eventuality exists in the instant case.'
9. The additional evidence cannot be recorded to supplement the evidence of the parties or to make up the weaknesses of one's case. In civil law, a negligent party is to suffer for its omissions and negligence. However, as to whether the plaintiff-petitioner should have been allowed time to produce evidence in rebuttal by the trial Court or whether sufficient time was not allowed to him to produce the evidence in support of his pleading are the matters which are to be decided by the first appellate Court as these points have been specifically agitated in the memorandum of appeal which has been filed before the first appellate Court by the plaintiff-petitioner. Therefore, it will not be proper for this Court to adjudicate upon the matters upon which the Court below has not given any finding. The plaintiff-petitioner shall be at liberty to raise these questions before the first appellate Court if so advised.
10. The revision petition, in the light of the above observations is without any substance. The same stands dismissed with costs.