This revision petition is directed against the order of Additional Sub---Judge, Mirpur, passed on April 24, 1996, whereby additional evidence was allowed.
2. The facts giving rise to this revision petition are that a suit for declaration alongwith the prayer for permanent injunction, was filed by the plaintiff-petitioner, in the Court of Additional Sub-Judge, Mirpur. After framing issues, the trial Court received evidence from both the parties. The defendant respondents, after close of their evidence, applied through an application for permission to produce additional evidence. The learned Additional Sub-Judge, after receiving objections from the opposite side, proceeded to allow the production of additional evidence. The said order is the subject of challenge before this Court, through the instant revision petition.
3. Mr. Riaz Alam, the learned counsel for the petitioner raised the following points in support of the petition:-----
(i) That the trial Court exercised illegal jurisdiction under Rule 27 of Order 41, C.P.C., whereby additional evidence was allowed. It was explained that the above Rule applies to the appellate Court and not the trial Court;
(ii) that the defendant-respondents, after availing the opportunity of bringing their evidence on record, moved the application, to fill in the lacuna in the case; and
(iii) that the plaintiff-petitioner would be deprived of the right to rebut the evidence brought on record as additional evidence. The learned counsel referred to 1986 SCR 22, in support of his assertions.
4. On the other hand, Raja Hassan Akhtar, the learned counsel representing the opposite side, opposed the petition by addressing the following arguments:----
(i) That Rule 27 of Order 41, C.P.C. Applies to the trial Court as well as appellate Court. Tile appellate Court would exercise jurisdiction in case the trial Court illegally refused to take any evidence.
Therefore, the argument that the Rule applies to the appellate Court only, is not a correct proposition of law, advanced by the counsel for the petitioner;
(ii) that the Jambandi for the year 1991-92, sought to be produced through additional evidence, was not available at the time the defendant respondents availed the opportunity of production of their evidence. Therefore, the same could not be brought on record. It was explained that the relevant Jamabandi which is a public document, was prepared in the Settlement Operation for which the respondents secured a copy, as such applied for the additional evidence. It was also argued that the defendant-respondents did not waste any time in moving the Court; and
(iii) that the argument advanced by the learned counsel for the petitioner that the plaintiff- petitioner would be deprived of the tight to rebut the additional evidence, is not correct as he would be entitled to rebut the additional evidence if he so chooses.
5. I have heard the learned counsel for the parties and also gone through the impugned order. To appreciate the proposition, it would be necessary to reproduce the relevant provision of Rule 27 of Order 41, C.P.C., which is reproduced as under:-- "O.41, R.27, C.P.C.. Production of additional evidence in appellate Court.--(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. "
The analysis of the above provision reveals that the additional evidence can be allowed by the appellate Court where the trial Court has improperly refused to admit the evidence which ought to have been admitted or the appellate Court requires such documentary evidence or witness and cannot pronounce its judgment without such additional evidence, or if the appellate Court requires such evidence for any other substantial cause. This rule is an exception to the principle that the appellate Court cannot record fresh evidence. Therefore, it may be recorded under this Rule provided the provisions of Rule 27 are satisfied. The power to allow additional evidence is discretionary in nature which is circumscribed by the limitations specified under the rule and can be allowed in proper cases even in second appeal. Where the evidence is improperly rejected by the trial Court or where it has illegally refused to take it, the appellate Court may allow such evidence to be brought on record, or where the appellate Court requires the document to be produced in order to enable it to pronounce the judgment, it may allow such evidence to be produced at the appellate stage. The power under this Rule can be exercised suo motu or on the application of a party. A party to the appeal may move the Court itself. The test provided is whether the appellate Court can pronounce the judgment without taking into consideration the evidence sought to be produced. This shall be done in the interest of justice and not for the purpose of allowing the patching up of a weak case. Therefore, any other substantial cause has difference in the context that the exercise of discretion has to be made keeping in view the administration of justice. Where an important evidence having material bearing on the merits of the suit, is subsequently discovered, there are three courses open to such party: (i) It may apply for admission of fresh evidence before the judgment; (ii) it may apply for review of the judgment after it has been pronounced; or (iii) it may appeal from the judgment and apply for admission of additional evidence, before the appellate Court. The proposition of allowing additional evidence came under consideration before the Supreme Court of Pakistan in a case titled 'Secretary to the Government of Pakistan v. Gulzar Muhammad' (PLD 1969 SC 60) wherein the following observation was made:-- " ....Normally, where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. The appellant resorting to the last course must disclose as to why he could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. 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."
1981 CLC 610), Mr. Justice Muhammad Ilyas, J. (as he then was) while resolving the point of allowing additional evidence, after discussing number of authorities on the subject, gave the following verdict:-- "---Now I proceed to consider the contention of the learned counsel for the petitioner that since the respondent had failed to place on record the documents in dispute at the stage of evidence, he could not be allowed to fill in the lacuna in his case by producing the said documents at the stage of appeal. The case of Allah Ditta, Nur Muhammad and another, State of U.P., Malik Fazal Din, Ghaus Bakhsh, Perdsotim Thakur end others and Abdul Aziz cited by the learned counsel for the petitioner are on the point that a party cannot produce additional evidence at the stage of appeal to fill in gaps in the evidence but, as ruled in the case of Malik Fazal Din, Ghaus Bakhsh, State of U.P.
And Parsotim Thakur and others, relied upon by the learned counsel for the petitioner, and in the case of Messrs Muhammad Siddique Muhammad Umar and another, cited by learned counsel for the respondent, the Appellate Court can allow the production of additional evidence if it feels that the recording of such evidence is necessary for the proper administration of justice. In the present case also, the learned Additional District Judge was of the view that since the documents in question go to the very root of the case, they 'have great importance and impact upon the fate of the suit. In other words, he permitted the production of the said documents not with a view to allowing the respondent to improve upon his case but for the correct and just decision of the case.
It was explained to the learned Additional District Judge that initially the respondent was not aware of the documents and as soon as he came to know of them, he sought permission of the trial Court to produce them in evidence.-----therefore, no legitimate exception can be taken to the impugned order of the learned Additional District Judge."
The Supreme Court of Azad Jammu and Kashmir while dealing with the point in a case titled 'Taj Din v. Jumma and others' (PLD 1978 SC (AJ&K) 131) made the following Observation:---- "---A litigant, for permission to adduce additional evidence at the stage of appeal, has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced at the time the question was being tried or it has come into existence after completion of the trial. "
6.The case reported as AIR 1931 PC 143 is also a basic case on the subject. The observations recorded therein have been followed in number of cases subsequently coming before the different jurisdictions, as such it would be most relevant to quote the dictum which is reproduced as under:- - "---The provision of section 107 as elucidated by Order 41, 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 this case and fill up omissions in the Court of appeal. Under rule 27, clause (1) (b), it is only where the appellate Court 'requires' it (i.e. Finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case, it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard, a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'. It may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure, it is bound by Rule 27(2) to record its reasons for so doing, and under rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case."
7. The Supreme Court of Azad Jammu and Kashmir in a case titled 'Abdul Qayum v. Bashir Ahmed Khan and others' (1996 SCR 22), referred to by the learned counsel for the petitioner, has resolved the proposition in the following manner:-- "---O.41, R.27---Additional evidence---The rule postulates that the Appellate Court may allow the production of additional evidence; (i) when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for (iii) any other substantial cause---The additional evidence cannot be allowed to a party in order to fill up the lacunas or omissions or to patch up the weaker parts of its case---A party to the appeal may move the Court for the additional evidence but it can be allowed if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on the record. The test is whether the Appellate Court can pronounce judgment without taking into consideration the evidence sought to be produced. A party that had opportunity but elected not to produce evidence cannot be allowed to give evidence that could have been given in the Court below---Mere lapse or negligence either on the part of the appellant or his counsel cannot be recognised as a substantial cause."
8. Keeping in view the relevant law and observations made by the different jurisdictions discussed above, it follows that though the rule is specifically for the Appellate Court, but it also recognises the authority and power vested in the trial Court as envisaged in clause (a) of above rule.
Therefore, the point raised by the learned counsel for the petitioner for the trial Court having no such power to exercise the jurisdiction under the above Rule, is without any substance.
9. Next, the question arises whether in the circumstances of the present case the order allowing the defendant-respondents to produce additional evidence is in consonance with the provisions of law established by the superior Courts in this regard. The defendants claimed that the document, the copy of the Jamabandi for the year 1991-92, has a material bearing on the merits of the suit which was not available at the time the defendant-respondents availed the opportunity of bringing their evidence on record. The evidence of respondents was closed on March 3, 1992, while the document, according to the respondents, was prepared later on by the Settlement Authorities and came into possession of the respondents on April 25, 1993. It is not disputed that the document sought to be produced is a public document and came in possession of the respondents on the aforesaid date.
Therefore, the question of the document being fabricated or sought to be produced to fill in the lacuna in the case, does not arise. The document appears to have a material bearing on the suit and was, in fact, not in possession of the respondents at the time they had an opportunity to produce their evidence. Therefore, it can safely be resolved that the trial Court exercised its proper jurisdiction in allowing the production of additional evidence. The point of the petitioner of depriving him of the opportunity to rebut the additional evidence, in view of the stand taken by the learned counsel for the opposite side that he has a lawful right to do so, also merits no consideration.
10. In view of the above discussion, the revision petition is found to have no substance in it which is hereby dismissed.