' This civil revision is a. Ected against the order dated 2-10-1990 passed by the learned Additional District Judge, Lahore, whereby the respondents' application seeking to produce additional evidence during the course of appeal filed by the petitioners was accepted.
2. The relevant facts are that the predecessor-in-interest of the petitioners filed a suit for a declaration and permanent injunction claiming to be the transferee of Plot No,100/G, Model Town, Lahore, vide order dated 6-3-1973. Leaving aside the unnecessary details about the alleged payment and the rebate allowed to the said predecessor-in-interest of the petitioners, it was ultimately asserted in the plaint filed in the suit afore-noted that the plot was illegally enlisted in the auction list, whereupon he filed an application on 3-6-1975 for the deletion of the aforesaid plot from the said list, wheeafter he also applied for the issuance of permanent transfer deed, but in the month of September 1979 Messrs Muhammad Afzal Khan, Iftikhar-ud-Din and Mahmood Ali Khan alongwith certain other undesirable persons visited the premises and threatened the plaintiff to dispossess him forcibly from the property on the ground that they have secured permanent transfer deed from the Settlement Department. In any case on inquiry it revealed that Muhammad Afzal Khan by posing himself to be the attorney of the predecessor-in-interest of the petitioners had represented before the Settlement Department that the said predecessor-ininterest of the petitioners had surrendered his rights of ownership in the plot aforenoted in favour of Messrs Iftikhar-ud-Din and Mahmood Ali Khan through agreement dated 23-6-1979 which was allegedly approved by the Settlement Commissioner on 12-7-1979 resultantly a transfer order was issued in favour of Iftikhar-ud-Din for an area of 3 Kanals, 17 Marlas and another transfer order was also issued in favour of Mahmood Ali Khali for an area of 2 Kanals and 3 Marlas. The predecessor-in- interest of the petitioners thereupon challenged the above said transfer orders which were issued in favour of Messrs Iftikhar-ud-Din and Mahmood Ali Khan by filing Writ Petition No,1050-R of 1979 but the same was withdrawn for it was considered that k is a matter of inquiry, which was to be resolved by the Civil Court. Consequent thereupon the predecessor-in-interest of the petitioners filed a suit and during the pendency thereof the Deputy Settlement Commissioner cancelled the transfer orders issued in favour of Messrs Iftikhar-ud-Din and Mahmood Ali Khan vide order dated 7-6-1982 simultaneously cancelling the transfer order made in favour of the predecessor-in- interest of the petitioners. The above said order was challenged by filing another suit on the various grounds seeking a declaration that the order dated 7-6-1982 passed by respondent No,1 to the extent of setting aside the transfer order passed in favour of the predecessor-in-interest of the petitioners be declared to be void ab initio and that the respondents be restrained from interfering in his possession.
3. The suit was resisted by the respondents, who inter alia maintained that the transfer order in favour of the predecessor-in-interest of the petitioners was procured through fraud and misrepresentation for no price or rent was ever determined by any competent authority and the payments as asserted by the predecessor-in-interest of the petitioners were made of his own which were neither valid nor lawful and that when the fraud was unearthed by the Settlement Authorities, the transfer order in favour of the predecessor-in-interest of the petitioners was rightly cancelled.
4. The parties having joined issues also produced evidence in support of their respective pleas, wherein Muhammad Iqbal Patwari Record Keeper Settlement Office was examined by the plaintiffs as P.W.3 while the same person was examined as D.W.1. It appears from the tenor of the statement of the said Muhammad Iqbal Patwari that the predecessor-in-interest of the petitioners had claimed that he was not heard before the cancellation of the transfer order in his favour.
5. The learned trial Court having appraised the evidence as also discussed the same proceeded to dismiss the suit of the petitioners vide its judgment and decree dated 30-3-1991. The petitioners appealed against the above said judgment and decree which was statedly finally heard and judgment was reserved when the respondents filed an application under Order XLI, rule 27, C.P.C.
Seeking to produce as many as 13 documents as additional evidence in the appeal. The said application was resisted by the petitioners but was ultimately allowed by the learned Appellate Court vide its order dated 2-10-1994.
6. The above said order has been assailed in the present revision petition mainly on the ground that it is the age old law that additional evidence should not be allowed to fill in the lacunas in the case and that the documents were required by the Court to enable it pronounce the judgment. It was also asserted that the documents are forged, fictitious and fabricated for Muhammad Iqbal Patwari having appeared twice in the case had neither referred to the same nor the respondents elicited from him about the existence of the said documents. The fact that the said witness was examined twice was also relied upon to support the argument that lacunas left in the case should not be allowed to be filled in by the party who had remained indolent.
7. The learned counsel for the respondents raised a preliminary objection that an order passed under Order XLI rule 27, C.P.C. Is not a 'case decided' within the meaning of the word as defined in section 115, C.P.C. In support of his argument ,he relied on Muhammad Swaleh and another v.
Messrs United Grain and Fodder. Kgencies PLD 1964 SC 97, wherein it has been observed:-- "Every irregularity or illegality in exercise of jurisdiction will not render subordinate Court's order void and without jurisdiction. Party seeking Revision to show further that there was such violation of statutory provision or principle of natural justice as rendered proceedings coram non judice."
The argument is not well-based for the reason that there is plethora of judgments that such an order is a 'case decided' and can be interfered with particularly when the exercise of discretion by the Court needs to be examined by the revisional Court. Reliance may be placed on Ahmed Ashraf v. University of the Punjab 1988 SCM R 1782. It may be stated here that scope of section 115, C.P.C.
Has been discussed in the case of Manager,- Jammu and Kashmir, State Property in Pakistan v.
Khuda Yar and another PLD 1975 SC 678, wherein it has been held:-- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court may make such order in the case as it thinks fit."
' In view of the rule of law laid down in the said judgment the objection of the respondents is repelled.
8. The root question as tried by the trial Court and being looked into by the Lower Appellate Court was to the effect as to whether the transfer order in favour of the predecessor-in-interest of the petitioners was passed by practicing any fraud or that he was heard before the cancellation thereof, the learned Lower Appellate Court felt handicapped in pronouncing the judgment, therefore, asked for the additional evidence as offered by the respondents. The argument that the party failing to produce evidence before the trial Court should not be allowed to fill in lacunas therein would ordinarily hold the field but is held to be no more applicable in the present Pakistani jurisprudence which is being progressively applied to the proceedings before the Courts, for it was held in the case of Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCM R 1778 thus:-- "It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed document/signatures, the Court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filling the gaps is no more available in the present Pakistani jurisprudence and the law; including, the precedent law on Islamic. Principles; which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence. See Mian Aziz A. Sheikh v. The Commissioner of Income-tax PLD 1989 SC 613."
It would be appreciated from the rule afore noted that the concept of bar against filling the gaps is held to be no more applicable and not only that the parties were required to produce all the material evidence but also a duty is cast upon the Court to collect evidence so as to decide the case effectively and finally. In another case reported as Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661 it was observed as follows:-- "All the relevant documents were not brought on record. The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of the two higher Appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI rule 27, C.P.C. For bringing on record additional evidence. The suo mom exercise of this power would also have been fully justified in the facts and circumstances of the case."
It would thus be appreciated that the concept of adversarial proceedings under which it was the duty of the parties to produce all relevant evidence has been departed from inasmuch as the Courts have also been called upon to share this burden either on the application of the parties or suo motu to summon and record all the relevant evidence in order to decide the case effectively and finally. The rule is one of wisdom for-if a party to the litigation fails in its duty the Court is not denuded of its power to summon the relevant evidence so that the dispute between the parties is decided fairly and finally. As far the plea that the additional evidence sought to be produced may have been concocted and made up for the purpose of the suit, suffice it to observe here that not only the petitioners would have the right to cross-examine the witness but also he has been allowed to produce any evidence in rebuttal. This is the normal practice to prove that any document has been concocted for the purpose of the suit. The learned lower Appellate Court has already observed that it would be benefited from the various documents sought to be produced as additional evidence in pronouncing the judgment. For what has been stated above, the learned Appellate Court does not seem to have proceeded with any material irregularity amounting to illegality in exercise of its jurisdiction while allowing additional evidence in this case.
9. In result this revision petition is dismissed with no order as to costs.