ORDER ABDUL RAHIM KAZI, J.- This application has been moved by the appellant under Order 41 rule 27 CPC with the prayer that the documents as mentioned in the accompanying list may be allowed to be brought on record.
2. Briefly the facts relevant for the purposes of this application are that the present appellant had filed Civil Suit No. 3880/982 for Specific Performance, Declaration and Injunction against the present respondent. According to appellant he had purchased the house on Plot No 143/5 F.B. Area, Karachi of an amount of Rs. 55,000/- vide sale agreement dated 7-1-1976 and out of the said amount he had paid Rs. 30,000/- to the respondent who had executed a receipt therefor.
According to the appellant, he was also put in possession of the premises and on 2-6-1981 the respondent alongwith his son had approached him and*got the paper pertaining to the transaction between the parties, It is also in the pleadings of the parties that the respondent had filed a rent case against the appellant on I-7-1981 and obtained an ex- parte eviction order on 31.7.1982. An appeal was preferred which was dismissed on 13-9-1982. The present respondent had filed his written statement wherein he had denied the allegations levelled in the plaint. He denied the vary execution of the application and claimed that he had put the appellant in possession of the house as a tenant. On the above pleadings of the parties, the trial Court was pleased to settle the following issues:
1. Whether the defendant agreed to sell the house in suit for a sum of Rs. 55,000/- to the plaintiff and executed the alleged agreement of sale dated 7th January, 1976?
2. Whether the plaintiff paid a sum of Rs. 30,000/- to the defendant and the defendant executed the alleged receipt dated 7.1.1976?
3. Whether after execution of said sale agreement and receipt of Rs. 30,000/- dated: 7-1 -1976 the defendant handed over the vacant possession of the property in suit and other relevant documents to the plaintiff?
4. What should the decree be?
Both the parties had led evidence, It may be pertinent to point out that the present appellant had examined himself as witness Ex. P.I and produced certain documents. He also examined P.Ws. Afzal Hussan and Rehmatullah. The respondent also led his evidence and produced number of documents. The trial Court after hearing the arguments was pleased to dismiss the suit holding that the appellant had failed to produce any cogent evidence to prove the above issues. This judgment was announced on 3-1-1991. It is against this judgment that the present appeal has been preferred which is now ripe for regular hearing. During pendency of this appeal, the appellant has preferred this application on 12-11 -1992. The application is vehemently contested by Mr. Zafar Alam Advocate appearing for the respondent.
3. I have heard learned counsel on 21-5-1995 and dismissed this application by a short order.
Following are the reasons for the above said order:
4. The learned counsel for the appellant has urged that the documents sought to be produced are necessarily required for final, conclusive and just adjudication in the matter as these documents will affect the judgment given by the trial Court. According to the arguments of the learned counsel, the present respondent had filed the rent case wherein it was held that there is no relationship of landlord and tenant and therefore it should be assumed that the present appellant had come in To occupation of the said permissibly under the said agreement. He had further referred to the other documents, which are sought to be produced, which include the depositions of various witnesses examined by the parties. I have perused the said documents. The order passed by the learned Rent Controller in Rent Case No. 137 of 1988 filed by the respondent against the appellant would show that the said rent case was dismissed. The operative part of the order is given in issue No. 2 which reads as under> "Since the applicant has failed to prove his case, therefore, the ejectment application is dismissed.
Parting with the order I would like to mention here that the question of title is still sub judice before the Honourable High Court against the impugned judgment of Suit No. 3880 of 1982 decided by the Civil Judge, Karachi Central, hence I do not think any necessity to advise the applicant to get his title established from a Civil Court of Competent jurisdiction, In the circumstances the parties are left to bear their costs."
5. The above order shows that no conclusive finding was given by the learned Rent controller with regard to the title. Accordingly the said finding would not be relevant for the purpose of the present matter. As regards the depositions of the witnesses which are sought to be produced in this case, it may be observed that these depositions were in the rent case and for the purpose of that case only. The witnesses examined in that case were not cross-examined as regards the issues involved in the suit. Even otherwise, the transaction as shown in the present matter dates as far back as in year 1976 and the present appellant could have brought such evidence in the suit. The grounds advanced for non-production of this evidence if the relevant period at an earlier stage in the suit is given in paragraph 5 of the application which shows that it was only through a mistake or inadvertence that such documents were not produced in suit at earlier proper stage. However, it has not(been specified as show such mistake, or inadvertence could be termed as bona fide, It may be observed that under provisions of Order 41 rule 27 CPC only such additional evidence can be permitted to be brought on record at appellate stage, which is required by the Court for final or conclusive adjudication in the matter and also for any other substantial cause. It may be observed that the provision of Article 41 Rule 27 cannot be observed that the provisions of Article 41 Rule 27 cannot be invoked to cover up any lacuna' left by any party to the suit or to help improve the case of any of the parties.
6. The learned counsel for the appellant has placed reliance on the case of Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 S.C. 822). I am afraid, the facts of this case have no bearing on the present case and the same are not attracted. The other case relied on by the learn^l counsel for the appellant is that of Naseer Ahmad and another v. Asghar Ali (1992 S.C.M.R. 2300). In this case, the party had sought to produce evidence to show that a decree passed earlier could not become effective for non-payment of pre-emption money and, therefore, vendees' defence to pre-emption suit would revive. This is not the case involved in the present matter. The learned counsel for the appellant has then relied on the case of Mst. Haian Nawab Bibi V. Addl. District Judge, etc. (NLR 1994 Civil 619). The facts of this case are also different, In this case a learned Single Judge had held that public documents can be permitted to be received in evidence if they are essential for just decision of the Case, while in the case of Sheikh Abdul Rehman v. Mst. Violet, etc. (.NLR 1986 Civil 704) the point involved was that a decree in the other suit had been acted upon and consequently a rectification deed was also executed which was sought to be produced in evidence.
7. The facts of the above cited cases relied on by the learned counsel for the appellant have no bearing to the present case. As discussed above, it is essentially required that the additional evidence would be permitted only when the same is required by the Court to give conclusive adjudication and not merely to fill in the lacuna left by the parties during the trial or to improve the case of any party. In the case of Shaikh Muhammad Ikhlas and others v. Muhammad Ismail (PLD 1963 S.C. 466) it has been held by the Lordships that in case the prayer is made for allowing additional evidence to be received, the same must be based on reasons specifically and categorically mentioned therein. Mere repetition of the words contains in sub-rule (I) of Order 41 Rule 27 CPC are not sufficient. Also in a Division Bench judgment of this Court in the case of Shaikh Muhammad Taqi v. Muhammad Anwar Khan Ghauri (I983 C.L.C. 1085) it was held that in presence of sufficient material available on record on the point on which additional evidence is sought to be produced, the application would not be granted.
8. As discussed above, in the present' matter the parties have led the evidence in support of their respective case. The documents which are now sought to be produced pertained to the relevant period when the transaction is said to have been entered upon between the parties and some other documents which came into existence much before the evidence was recorded. Thus, all such documents which are now sought to be produced by way of additional evidence would not be permitted to be produced as the same would amount to filling in the lacuna left by the party. As regards the order of the Rent Controller, he had only held that there was no relationship of landlord and tenant and the question of determination of title was left open. Thus, the question of allowing such order to be received by way of additional evidence would not serve any fruitful purpose. The reasons assigned for non- production of the said evidence at the relevant time, as disclosed in paragraph 5 of the application, can hardly be termed as substantial or even sufficient reasons.
9. In view of the above discussion, I find to force in the contention of the learned counsel.
Accordingly the application is dismissed.