2. Background of this case is that Mst. Raj Bibi (predecessor-in-interest of the present respondents) tiled a suit for declaration that she is owner of the suit-- property and that Mutation No. 44 dated 29-9-1926 and all other subsequent entries in the Revenue Record on the basis of that mutation are illegal, void and ineffective on her rights.
3. The suit was contested by the petitioners (defendants in the suit) inter alia on the ground that parties were governed by Customary Law and not by Muslim Law.
4. After a prolonged trial the suit was eventually decreed by the Civil Court against which an appeal was filed by the petitioners during the pendency whereof an application under Order 41, rule 27, C.P.C. Was moved for producing certified copies of 41 documents and some witnesses by way of additional evidence. It was contested by the respondents and on 21-9-2001 the said application was dismissed by Additional' District Judge, Mailsi.
5. The aforesaid order is called in question in this civil revision on the ground that the learned Appellate Court had exercised its jurisdiction illegally and with material irregularity inasmuch as without having perused the entire evidence already recorded, it had no jurisdiction to decide the application for additional evidence hence the impugned order is coram non judice. Reliance was placed on the case of Muhammad Akhlas and others v. Muhammad Ismail (PLD 1963 SC 466) and Allah Bukhsh v. Muhammad Ramzan (1989 CLC 344).
6. It was further submitted that superior Courts have taken liberal view in allowing additional evidence under Order 41, rule 27, C.P.C. Reliance was placed on the case of Mst. Fazal Jan v. Roshan Din (PLD 1992 SC 811) and Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCM R 1778).
7. Arguments heard, C.R., annexures appended therewith and the authorities cited by the learned counsel for the petitioners perused.
8. Order 41, rule 27, C.P.C. Is reproduced as under:-- "Rule 27(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.
Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its admission.
9. Case of the petitioners admittedly did not fall under rule 27(1)(a). Requirement of rule 27(b), C.P.C. Is that such evidence should be required for this purpose by the Appellate Court and not by a party to the appeal.
It is obvious that decision of the Appellate Court that additional evidence is required to enable it to pronounce judgment or for any other cause can only be made after examining the entire evidence already recorded in the case hence a perusal of evidence already recorded is a prerequisite without which the logical conclusion of admitting additional evidence cannot be made, therefore, any decision of the Appellate Court admitting additional evidence without going through the evidence already recorded would not be a proper exercise of discretion.
Under rule 27(2) the Appellate Court is required to record reasons where it allows additional evidence to be produced.
10. In the rulings PLD 1963 SC 466 and 1989 CLC 344, additional evidence was allowed by the - Appellate Courts without assigning reasons for allowing the same hence the said orders were set aside. In the former case it was also held that evidence already recorded was sufficient for resolving the controversy while in the latter authority it was also field that without having perused the evidence already produced by the parties, Court could not have decided application for production of evidence. The word "decided" used in that authority refers to the decision of the Appellate Court allowing the application for additional evidence. In the present case the application for additional evidence was not allowed, therefore, both the aforesaid authorities are distinguishable.
Perusal of entire evidence already recorded and giving reasons for refusing an application for additional evidence is not the requirement of Order 41, rule 27, C. P. C.
11. The other two authorities referred by the learned counsel for the petitioners viz. 1992 SCM R 1778 and PLD 1992 SC 811 are not applicable in the present case inasmuch as the aforesaid judgments were delivered in civil appeals and not in civil revisions. Revisional jurisdiction is not analogous to the appellate jurisdiction and secondly in none of the aforesaid reported case any application under Order 41, rule 27, C.P.C. Was moved by any of the parties but the Supreme Court itself felt the necessity of additional evidence and had remanded the cases. This could be done in the appellate jurisdiction. In the former case further inquiry was deemed necessary while in the latter case it was felt that the case was badly conducted on both the sides and one of the parties (lady), under disadvantage and disability was grossly mishandled.
12. Section 115, C.P.C. Is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction.
13. In section 115(1)(c), C.P.C., the words "illegally or with material irregularity" have reference to material defects of procedure and not to, errors of law or fact after the formalities which the law prescribes have been complied with.
14. In the present case additional evidence at the appellate stage was not required by the Appellate Court to enable it to pronounce judgment or for any other substantial cause as is evident from a perusal of the impugned judgment. Under Order 41, rule 27, C.P.C: the Appellate Court was not required to peruse the entire evidence already recorded in the case for refusing additional evidence. The said requirement was necessary to be followed in case of an order for admission of additional evidence.
15. The discretion whether the proposed additional evidence was or was not essential for enabling the Appellate Court to pronounce judgment entirely vested with the said Court and interference with the said discretion is not warranted in revisional jurisdiction, if while exercising that discretion no illegality or material irregularity is committed for such interference would amount to pre- empting the discretion of the subordinate Court.
16. Learned counsel for the petitioner could not draw my attention to the breach of any provision of law or commission of any error of procedure by the learned Appellate Court.
17. Revision petition being devoid of any merit is hereby dismissed in linine.