Brief facts in the instant petition are that the respondent/plaintiff filed a suit for possession of land comprising Khatuni No.88, Khasra No.96/4, measuring 1 Kanal 5 Marlas situate in Mauza Shauka, Tehsil Burewala, District Vehari that he was owner of the said land. The suit was contested by the petitioner/defendant and the issues on the basis of the pleadings of the parties were framed. The learned trial Court after recording evidence of the parties decreed the suit vide judgment and decree dated 19-6-1993. This judgment was assailed in appeal by the present petitioner which is pending adjudication before the learned Additional District Judge, Burewala.
2. During the pendency of the proceedings before the Appellate Court the petitioner gave an application for production of additional evidence under Order XLI, Rule 27, C.P.C. For bringing on record the acquisition order passed by the Collector (Housing) dated 23-7-1975, order of the Deputy Commissioner/Collector, Vahari dated 14-3-1978 and that of the Additional Commissioner (Revenue) dated 10-7-1985, copy of the plaint titled Allah Yar v. Province of Punjab on the basis of that all these documents are part of public record and are necessary for deciding the real controversy between the parties. This application was contested by the respondent and the learned Additional District Judge vide judgment dated 14-7-1996 disallowed the application filed by the petitioner on the basis that a perusal of para. 3 on merits of the written statement filed by the petitioner before the learned trial Court reveals that the alleged fact regarding acquisition of property in dispute was in their knowledge and they were given ample opportunity to produce their evidence but they could not produce these documents which they have sought to be produced as the additional evidence before the Court: The reason asserted by the petitioner in the application for production of the additional evidence is not supported by the documents available on the record of the trial Court. Moreover, the record produced by the petitioner alongwith the application for additional evidence does not show that the property in dispute already stood acquired by the Provincial Government under the Punjab Housing Facilities for Non-Proprietors in Rural Areas (Act V of 1975), therefore, finding no justification to allow the same it was dismissed by the learned Additional District Judge, Burewala vide order dated 14-7-1996. This order has been assailed by the present petitioner.
3. Learned counsel for the petitioner has contended that during the pendency of the proceedings before the lower appellate Court the petitioner, for the first time, knowing the fact that the land in question was acquired by the Collector, Housing Scheme under the Punjab Housing Facilities for Non---Proprietors in Rural Areas (Act V of 1975) on 23-7-1975 and the appellate proceedings were not within his knowledge and therefore, he promptly applied to the Court of learned Additional District Judge under Order XLI, Rule 27, C.P.C. For production of additional evidence to show that the land claimed by the respondent/defendant is not owned by him and was acquired by the Province of Punjab for settlement of non-proprietors, the documents were to be brought on record and there was no doubt about their authenticity and that the appellate Court has wrongly decided that the acquisition of the land has not taken place vide order dated 23-7-1975 although the order itself is clear and that the respondent/plaintiff has concealed this fact from the Court.
4. I have heard learned counsel for the petitioner and perused the record. Lal Khan respondent filed a suit for possession of land measuring 1 Kanal 5 Marlas situated in Mauza Shauka, Tehsil Burewala, District Vehari. According to his assertion the mutation took place and, in Khatuni No.88 Ghair Mumkin Wandajat 304 to 309 were transferred in favour of the plaintiff and others which was total 99 Kanals 14 Marlas and the plaintiff was the owner to the extent of 8 Kanals 11 Marlas. The suit was resisted on the point that the suit was bad for misjoinder and non joinder of necessary parties and on the point that the petitioner-defendant has adverse possession for the last about 35/36 years.
In para. 2 on facts of the written statement filed by defendant No. l it was averred that the land measuring 99 Kanals 14 Marlas comprising Khatuni No.88 was Ghair Mumkin Abadi and the plaintiff was held co-owner in the said Khatuni but there is no demarcation of his ownership possessory rights and that the total property has come in the Housing Scheme and stands divided to the deserved persons. The suit was decreed by the learned trial Court vide judgment dated 19-6-1993.
5. It is noticeable that a Local Commissioner was appointed who gave his report, although according to the record the petitioner did not cooperate him. The defendant also produced documentary evidence. It was only for the first time after the judgment was given against them by the learned trial Court they have decided to bring on record the above documents as additional evidence. The real controversy between the parties is whether the disputed property measuring 1 Kanal 5 Marlas is entitlement of the present petitioner or not. The petitioner wants to bring on record certain documents which are not necessary to solve the controversy between the parties.
Even otherwise his real purpose is solved as the documents have become part of proceedings as he has produced the same with the application given under Order XLI, Rule 27, C.P.C. And they have been taken note by the Appellate Court. The suit was decreed on the material Issue No.1. Whether the learned trial Court did not take into consideration divergent plea of possession by the present petitioner, the matter is before the Appellate Court who has to decide the same and examine whether the finding of the trial Court on the material as well as other issues is according to the evidence on record or not. These documents date back to the year 1975 while the evidence was recorded in the year 1992 and was speaking averred in the written statement given by the defendant. Production of additional evidence in Appellate Court is only allowed where important evidence having the matter bearing on the merits of the suit is subsequently discovered. An appeal is a re-- hearing and as such appellate Court does not ordinarily record fresh evidence. However, the Appellate Court is empowered under section 107-D read with provisions of Order 41, Rule 27(a), C.P.C. To do so. This is an exception to the principle that the Appellate Court cannot record fresh evidence. Additional evidence can only be recorded provided the provisions of Rule 27 are attracted. The provisions are as follows;--- "The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--- the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 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."
So far as the words "any other substantial cause" are concerned this power is to be used only in the interest of justice and not allowing the party to remove the lacunae in the evidence. Inadvertence of the party or a second opportunity to adduce evidence are not the grounds for allowing additional evidence must be the requirement of the Court to pronounce judgment. It is only allowed when the party is unable to produce evidence through no fault to his own. Moreover, the mere discovery of fresh evidence at the later stage is not a ground for permitting its recording at the appellate stage unless the Appellate Court requires such evidence to pronounce judgment. As I have discussed above that controversy between the parties is who has the entitlement of 1 Kanal 5 Marlas and that is to be seen in the light of evidence produced by the parties whether documents dated 23-7-1975 are read wrongly or not the Court can again take a judicial note of it as these documents do form part of the record and have been considered by the Appellate Court, therefore, the judgment passed by the learned Appellate Court is unexceptionable, the instant Civil Revision is dismissed in limine.