C.M.A No.1-C OF 2003 ' Civil revision originally was filed within limitation, which was returned by the office with certain objections on 19-2-2003 and was refiled on 25-2-2003, after removing the objections, just two days late to time fixed by office, for this purpose. Office objections were not material and thus this application, which is supported by an affidavit, is allowed and two days delay in refiling the petition is condoned and this petition is disposed of.
' MAIN CASE
2. This civil revision assails judgment/order dated 21-11-2002 passed by the Additional District Judge, Ferozwala, whereby, application of the petitioners under Order XLI rule 27 C.P.C. Seeking production of certain documents by way of additional evidence, has been dismissed.
3. A short factual background of the case is that two suits pertaining to land measuring 118 Kanals and 10 Marlas were filed and since both the suits involved common question of law and facts and were between the same parties, were consolidated by the learned trial Court. One set of plaintiffs i.e. Mst. Fatima Bibi and the others claimed themselves to be legal heirs of Muhammad Boota, owner of the above-mentioned land. According to them Muhammad Boota was issueless and died in the year 1962, according to them revenue authorities did not sanction the mutation of inheritance, and due to this lapse, their adversaries got transferred land of Boota through Mutations Nos.132 and133 dated 19-6-1998. They besides challenging these mutations, asserted their hereditary rights. In the other suit plaintiffs namely Muhammad Yousaf etc. Have also claimed themselves to be legal heirs of Muhammad Boota. Both these suits were jointly tried and the learned trial Court vide its consolidated judgment and decree dated 4-1-2002 dismissed both these suits.
3. After decision of the trial Court matter came up in appeal before the Additional District Judge, Ferozewala, where petitioners in their appeal, filed an application under Order XLI Rule 27 C.P.C.
Seeking permission to produce by way of additional evidence certain documents i.e. a copy of pedigreetable for the year 1967-1968 and a copy of Mutation No.482 dated 16-12-1969. The Additional District Judge, who was seized of the appeal, vide his order dated 21-11-2002 dismissed this application keeping the appeal pending. View taken by the Appellate Court while dismissing the application under discussion, is that by allowing the petitioners, permission to produce the additional evidence, rights of their adversaries would be affected, it would amount to filling up the lacunas in evidence and it will prolong the litigation.
4. Learned counsel for the petitioners submits that the documents sought to be produced are copies of public record and are absolutely relevant to the controversy involved in the lis and thus claimed that refusal of permission to produce these public documents would prejudice their case.
He further contends that the Appellate Court has erroneously dismissed their application without looking into the relevancy of the documents to the dispute and this course according to him was not permissible under law. He further elaborates his arguments by saying that reasons, on which the application of the petitioners has been dismissed, are not just and fair.
5. Learned counsel appearing on behalf of the respondents besides refuting the arguments of the petitioner, supported the judgment of the Appellate Court and urged that acceptance of application of the petitioners would amount to filling of the lacunas in their case. He further submits that the petitioners have not explained as to why they did not produce these documents before the trial Court in absence of such an explanation, according to him, permission to produce the additional evidence, prayed, cannot be allowed.
6. I have considered the arguments of the learned counsel for the parties and have examined the record. Undeniably documents sought to be produce, are copies of public record and there is no probability of their tampering. Controversy involved in both these suits relates to inheritance and relationship of the parties with Boota deceased. Viewing nature of dispute, documents appear to be quite relevant to the matter involved in issue but some finding with regard to relevancy of these documents, could only be given at the time of hearing of the appeal. Be that as it may, I feel that this application of the petitioners should not have been decided in isolation and should have been determined alongwith the appeal, itself.
7. Language of Rule 27 of Order XLI, C.P.C. Is clear that such an application has to be decided at the time of hearing of the appeal because under one of the clause 5 of this sub-rule, additional evidence can be allowed if the Court feels that evidence sought to be produced, is needed by it for a just decision of the case but the Appellate Court without adverting to this provision of law, has opted to dismiss the application by keeping the appeal pending. The order passed by the Appellate Court is tainted with illegality/material irregularity and thus is not sustainable, at law. I accordingly accepted this revision petition, set aside the judgment/ order dated 21-11-2002 passed by the Additional District Judge, Ferozewala with the result that application of the petitioners filed by them under Order XLI rule 27 of the C.P.C. Shall be deemed to be pending and will be decided on its merits by the Appellate Court, alongwith their appeal, without influenced by any remarks in the instant order or its earlier decision, hereby set aside. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.