' This revision petition has been filed to call in question the order, dated 1-6-1989 passed by the learned Additional District Judge, Pakpattan, whereby, he dismissed the application filed by the petitioner under Order 41, Rule 27, C.P.C. For the production of additional evidence.
2. Briefly stated the facts of the case are that respondents had instituted a suit for declaration in the Court of Senior Civil Judge, Pakpattan. The suit was contested by the defendant/petitioner, who, filed his written statement and denied the averments of the plaint. On the basis of the pleading of the parties, the trial Court framed various issues and after recording and appreciating the evidence, pro and contra, of the parties vide judgment and decree, dated 17-11-1987 decreed the suit. Feeling aggrieved the defendant/petitioner (herein) preferred an appeal which came up for hearing before the Additional District Judge, Pakpattan and during the pendency of the appeal, the petitioner applied to the Court for permission to produce the additional evidence and the appellate Court vide impugned order, refused to accept the application and dismissed the same.
3. Learned counsel for the petitioner contended that the documents which the petitioner wanted to produce in the Court as additional evidence are certified copies of the record maintained by the public functionaries and presumption of truth is attached to these documents. He further contended that to resolve the controversy in the suit this evidence was necessary to be placed on record. He continued that the contention of the plaintiffs/ respondents in the case is that while passing the impugned order the Settlement Authorities had not afforded an opportunity of being heard to the plaintiffs. He relied on the case of Ghulam Muhammad v. Muhammad Aslam PLD 1993 SC 336, Muhammad Ashiq and others v. Taj Bibi 1994 CLC 1585, Province of Balochistan v. Haji Muhammad Hassan 1988 CLC 1583, Mst. Fazal Jan v. Roshan Din PLD 1992 SC 811 and Zar Wali Shah v. Yusuf Ali Shah and 9 others 1992 SCM R 1778.
4. On the other hand, learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the petitioner and contended that it is the discretion of the appellate Court to ask the party to produce additional evidence if the Court desires that the evidence is needed for the just decision of the case. He further continued that a finding has been given against the petitioner and it is settled principle of law that the party cannot be allowed to fill up the lacuna left by the party in the trial , Court. He relied on the case of Bashir Ahmad Siddiqui v. Ahmadul Haq Siddiqui 985 SCMR 1232, Fazal Hussain v. Nawab Din 1990 CLC 1446 and Ghulam Hussain Arshad reported as 1990 CLC 1819.
5. I have heard the learned counsel for the parties and gone through the record. It is an admitted position that the petitioner had filed an application under Order 41, Rule 27, C.P.C. For placing copies of the applications filed by the respondents before Settlement Commissioner, Multan, to be impleaded as party. In this application the petitioner had stated that inadvertently he could not produce these copies before trial Court.
6. Order 41, Rule 27, C.P.C. Enumerates, that 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.
It reveals that the additional evidence firstly can be produced in appeal if the party has applied to the trial Court for the production of the additional evidence and the trial Court has refused to admit the same or that the appellate Court requires or deemed necessary to enable it to pronounce the judgment.
7. In the instant case, the petitioner has not applied to the trial Court for producing additional evidence. The certified copies of the applications by the respondent before Settlement Commissioner. The respondents were not party before the Settlement Commissioner. The petitioner was the party before the Settlement Commissioner but he has not impleaded the respondents as party. It means that it was in the knowledge of the petitioner that the respondents have applied to the Settlement Commissioner to be impleaded as party in the appeal. When the suit was filed or evidence of the parties was recorded, these documents, which the petitioner wanted to produce at appellate stage, were in, his possession and knowledge. The Honourable Supreme Court of Pakistan in case of Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad PLD 1969 SC 60 has observed that 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. In this case the documents which the petitioner intended to produce, were not discovered after the pronouncement of the judgment or at the recording of the evidence.
In case of Bashir Ahmad v. Ahmadul Haq Siddiqui 1985 SCM R 1232, the Supreme Court has observed that Order 41, Rule 27, C.P.C. Does not envisage filling up of lacunas left by the party in evidence before the trial Court. Additional evidence under the above said rule may be allowed to be recorded if the Appellate Court itself so requires. Additional evidence cannot be allowed in order to enable a party to patch up weaker part or to enable it to raise a new point. It can be allowed only if it is required by the Court on the basis of appreciation of evidence already on record. This principle was further followed by the High Court in cases of Ghulam Hussain Arshad and another v.
Allah Ditta and others 1990 CLC 1819 and Riazuddin v. Gul Khan Ahmed Qureshi 1996 CLC 1003.
' In case of Messrs Khawaja Auto Cars Limited v. Muhammad Yousaf and others 1991 SCM R 2223 the Honourable Supreme Court of Pakistan has held that the document which was being relied upon was in possession of the appellants which could not be taken into account at appellate stage before the Supreme Court as it would be admissible only it was admitted into evidence as provided for in Order 41, Rule 27, C.P.C.
8. Learned counsel for the petitioner has relied upon the case of Mst. Fazal Jan v. Roshan Din PLD 1992 SC 811 in which, all the relevant documents were not brought on record by the parties so the additional evidence was allowed in exercise of suo motu powers of the Court. In the case in hand, neither the petitioner has applied to the trial Court nor has the Court required the documents to come to a correct conclusion of the case. The evidence produced by the parties already on record, is sufficient to lead the Court for the proper decision of the case. Even otherwise, the plea of the respondents is that the Settlement Authorities have condemned them unheard. The petitioner has not impleaded the respondents as party in Court if this contention of the learned counsel for the petitioner be accepted that the respondents had applied to the Settlement Commissioner to be impleaded as party, this application according to the version of the petitioner was disallowed. Even then, this plea of the petitioner is established that the respondents were condemned unheard because neither they were made party by him nor they were allowed to be impleaded when they themselves applied to the Court, therefore, this evidence was neither required nor necessary for the Court to reach to a correct conclusion. The order passed by the learned First Appellate Court in disallowing the application of the petitioner for the production of additional evidence is not suffering from illegalities or infirmities; therefore, it calls for no interference.
9. In view of the above discussion, and in agreement with the dictum laid down in the cases, referred to above, by the learned counsel for the respondent, there is no force in this revision petition which is dismissed with no order as to costs.