This petition is directed against the order, dated 25-10-1999 passed by the Additional District Judge, Lahore, whereby the application of the petitioner for additional evidence under Order XLI, Rule 27 read with section 151, C.P.C. Was dismissed.
2. The brief facts giving rise to the filing of the instant petition are that the petitioner filed a suit for specific performance of the contract against the respondent in respect of the Property No.S-XVIII- 62-S-14, situated at Gotham Street Muhallah Areya Samaj, Ichhra, Lahore, regarding a house measuring 6 Marlas for a consideration of 5,30,000 and on the same date the petitioner paid Rs.30,000 as token money to the general attorney of the respondents. According to the petitioner, the date of registration of the sale --deed was agreed as 20-12-1987. It is also alleged that just seven days before the date of execution, the respondents got cancelled the power of attorney which led to the civil litigation and subsequently, a compromise was effected on 17-6-1991 and the respondent No.1 was agreed to sign the sale-deed on 27-12-1991, after receiving an extra amount of Rs.40,000 and an agreement, dated 3-9-1991 was executed in favour of the petitioner. The respondents again backed out from their undertaking and the petitioner, however, got the sale completed to the extent of the other co-sharer except the respondent on 2-6-1992. Thereafter, the petitioner filed a suit for specific performance. The suit was contested by filing the written statement. From the divergent pleadings of the parties, the learned trial Court framed the issues.
Both the parties produced their respective evidence. The suit was dismissed by the learned trial Court vide judgment and decree, dated 7-6-1994. The petitioner appealed which is still pending adjudication before the learned Additional District Judge, Lahore. During the pendency of the appeal, the petitioner filed an application under Order XLI, Rule 27, C.P.C. Before the First Appellate Court which has been rejected by the impugned order, dated 25-10-1999. The petitioner in application under Order XLI, Rule 27 read with section 151, C.P.C. Has stated that the petitioner could not hand over original document to his attorney in order to produce the following documents in Court:--
(i) Agreement to sell, dated 14-11-1991. (ii) Agreement, dated 3-9-1991 and (iii) Receipt, dated 3-9- 1991.
3. The learned counsel for the petitioner contends that the aforesaid documents are not fabricated rather the aforementioned documents are admitted documents. Reference of the documents have also been given in the plaint. The application of the petitioner was dismissed solely on the ground that contradictory pleas have been raised in both the above-referred applications filed by the appellant-petitioner and that no application for production of document was ever moved before the-learned trial Court and no good ground for production of those documents have been stated in the application which are in conflict with the assertion made in appeal. Further submits that the evidence sought to be produced has direct nixes with the controversy in the suit. The application could not be moved in the learned trial Court for production of documents as the same was not in his possession. He further submits that unless the additional evidence sought to be produced is allowed fair and just decision of the case is not possible. The learned counsel relied on Order XLI, Rule 27 of the C.P.C. And case of Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811.
Muhammad Younus and 2 others v, Abdul Ghaffar and others 1998 M LD 1622, Hassan and another v.
Hussain 1996 CLC 650 and Zar Wali Shah v. Yousaf A.I Shah and others 1992 SCM R 1778.
4. I have perused the record. The petitioner intends to produce agreements to sell, dated 14-11-1987 and 3-9-1991 which have been mentioned by him in paras. Nos.1 and 4 of the plaint. Even otherwise the application under Order XLI, Rule 27, C.P.C. Could not have been dismissed independently without decision of the appeal. Order XLI, Rule 27 reads as under:-- "(27;) 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 Court has not yet heard the arguments on appeal perused the record, appreciated the evidence and, therefore, was not able to make a decision regarding requirement of the document which the petitioner intends to produce. In PLD 1992 SC 811, it was held that:-- "All the relevant documents were not brought on record---Trial Court as well as both Appellate Courts though were not denuded of powers to summon all the necessary Revenue Record and also to summon the Patwari so. As to supply omissions from both sides but they failed to perform their duty to do so---Held, it was an appropriate case for exercise of power under O.XLI, R.27, C.P.C for bringing on record additional evidence and the suo motif exercise of such power would have been fully justified in circumstances. In 1998 M LD 1622 it has been held by this Court while dealing the matter of Order XLI, Rule 27 in revisional jurisdiction under section 115:-- "Non-production of such evidence is neither intentional nor wilful but because of the reasons explained in the application. Court has to see the importance of the evidence which the party wants to produce. If it is necessary indispensable and goes into the roots of the case for its just and fair decision, delay in making such application is not sufficient ground to decline their request for production of such a evidence."
1996 CLC 650, the Court while dealing the case of additional evidence in appeal, held that essentials and requisites of Order XLI, Rule 27, C.P.C. Are that the Appellate Court may record additional evidence which in its view was necessary:-- "To enable it to pronounce judgment or for any substantial cause, Court has to pronounce a judgment in accordance with a view to achieve justice and thus, provisions of Order XLI. Rule 27, C.P.C. Have nexus with ultimate purpose which is just decision. Additional evidence which is sought to be produce, should have a direct bearing on the point in issue and the test whether permission should be granted or not so as to see whether a just decision could be arrived or without additional evidence which sought to be produced."
1992 SCMR 1778, it has been held that: "Court has ample power to collect all material documents for determination of controversy, before even if one or other party fails to produce all material documents and/or fails to request for proper examination of disputed documents/signatures
5. To my mind agreement to sell, dated 14-11-1987, agreement, dated 3-9-1991, receipt, dated 3-9- 1991, which the petitioner wants to produce in additional evidence have been mentioned in the plaint and have nexus with the ultimate purpose for just decision and the evidence which is sought to be adduced has direct bearing on the point in issue and the Appellate Court may require these documents to enable it to pronounce judgment and there is a substantial cause. Therefore, the first Appellate Court has committed material illegality while dismissing the application under Order XLI, Rule 27 of the C.P.C. And thus, has not exercised its jurisdiction vested in it vide impugned order dated 25-10-1999. .
6. In view of the above, this revision petition succeeds. The order, dated 25-10-1999, passed by the learned Additional District Judge, Lahore is set aside, and the application under Order XLI, Rule 27 filed on 17-6-1997, before the learned Additional District Judge, is accepted. The petitioner is allowed to produce the original documents mentioned in the application. The respondents shall have right to produce the evidence in rebuttal.