Govt: of KPK etc Vs Meer Ali Khan & others

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR.

(JUDICIAL DEPARTMENT)

C.R No.1026-P/2023 with CM No.1979/2023. Govt: of KPK etc.

Vs.

Meer Ali Khan & others.

Date of hearing --- 11/09/2025.

Petitioners by --- Mr.Niaz Muhammad, A.A.G. Respondents by --- Mr.Ijaz Ali, Advocate.

JUDGMENT

FARAH JAMSHED, J.- The instant civil revision has been brought by the Provincial Government through Secretary Revenue, Khyber Pakhtunkhwa and others questioning the judgment, order and decree dated 02.10.2023 of the learned Additional District Judge-V, Swabi whereby the judgment and decree dated 19.01.2023 of learned Senior Civil Judge (Judicial), Swabi in suit bearing No.41/1 of 2022 titled Mir Ali Khan and others Vs. Provincial Government through Secretary Revenue Khyber Pakhtunkhwa and others was upheld and the appeal filed by the petitioners was dismissed.

2.Respondents filed a suit against the present petitioners seeking the decree for declaration, perpetual injunction and possession of suit property, fully

described in the headnote of the plaint, contending that they are owners in possession of half of the suit property measuring 85 kanals and 08 marlas comprising various Khata and Khasra numbers of Mauza Maneri Bala, Swabi through inheritance of their predecessor-in-interest Said Afzal. It was further contended that during the review of the revenue record it came to their notice that half share of the suit property has been wrongly entered in the name of respondents without any backing of law and legal entries; that on the basis of said illegal entries in the revenue record respondents are interfering in the lawful ownership of respondents, hence, they sought the decree for declaration, permanent injunction and possession. Defendants were summoned, however, they failed to appear before the court despite publication of notice, hence, they were placed ex-parte. Subsequently, the suit was also dismissed in default on 10.12.2015 but subsequently restored on the application of respondents on 11.04.2016. In the meanwhile, petitioners also put their appearance before the learned trial court and upon their application the ex-parte proceedings were set aside on 22.04.2019. They filed their written statements contesting the suit of the respondents on legal and factual grounds whereupon the pleadings of the parties were reduced to legal and

factual issues. Both the parties produced their evidence and after conclusion of the trial, the learned Civil Judge-VII, Swabi dismissed the suit vide judgment and decree dated 16.02.2021. However, the appeal filed by the respondents was accepted vide judgment and order dated 17.05.2022, the impugned judgment and decree dated 16.02.2021 was set aside and case was remanded back to the learned trial court to decide the same in the light of issues framed by the appellate court.

Accordingly, the parties led their respective evidence whereupon the learned trial court decreed the suit vide judgment and decree dated 19.01.2023. Being unhappy, petitioners challenged the validity of same by filing appeal No.12/13 of 2023, however, that too was dismissed vide judgment and order dated 02.10.2023 and the judgment and decree of learned trial court was maintained, hence, the instant civil revision petition.

3.Without touching the other merits of the impugned findings of the learned lower courts below, the learned A.A.G for the petitioners placed his arguments on his application dated 16.05.2023 filed before the learned appellate court for additional evidence under Order XLI Rule 27 of CPC. He contended that the learned appellate court in complete disregard of the pending application merely relied upon the findings of the learned trial court and no

opportunity was provided to lead additional evidence pursuant to the ibid provision of Civil Procedure Code that valuable rights of the petitioners are involved and same cannot be decided in a slipshod manner, hence, on acceptance of the instant civil revision the impugned judgment and decree/orders of learned lower fora be stayed and the petitioners may be allowed to lead additional evidence.

4.Conversely, while contesting the instant petition and rebutting the arguments of learned A.A.G the learned counsel for the respondents submitted that both the courts below have given concurrent findings, admitting the claim of the respondents vis-à-vis suit property. Further contended that at this belated stage the learned A.A.G cannot take the refuge under Order XLI Rule 27 CPC to fill up the lacuna. Further argued that no legal provision allows the party to re-agitate the matter once a complete evidence has been led and case has been finally decided by the learned trial court.

5.I have heard the arguments and perused the record available before me.

6.As discussed above, the suit under discussion of this petition was instituted by the respondents in the year 2014. Initially in the first round of litigation, it was decided by the learned trial court on 16.02.2021

after full dressed trial. Subsequently, while accepting the appeal of respondents and framing of issues by the learned appellate court vide judgment and order dated 17.05.2022 both the parties once again produced their respective evidence and suit was decided by the learned trial court on 19.01.2023 which was assailed by the petitioners before the appellate court. At that stage the application for additional evidence was filed by submitting that;

“It is submitted that prior to notwithstanding the exercise of due diligence by the applicant, the accompanying documents could not have been procured by him as he had absolutely no knowledge of the said document. (Muataion No.4507 attested 08.04.1922 and Mutation No.4504 attested 08.04.1922 enclosed).”

It is noteworthy that the present petitioners are the Provincial Government and its officers. The record which was questioned by the respondents pertains to the revenue record prepared and maintained by the same officers. From the date of inception of the suit it was the stance of the respondents that the entries in favour of the Government in the revenue record are wrong and illegal. While contesting the suit through written statements the petitioners maintained that the suit property is ownership and possession of the Provincial Government with which respondents have got no right and concern whatsoever. It was also

maintained that all the entries in favour of the Provincial Government are correct which needs no interference and same be maintained. To this effect a specific issued No.6 was also framed as under;

“6. Whether plaintiff is owner in possession of disputed property being legal heirs of deceased Mir Asgher alias Lalay and deceased Muhammad Afzal s/o Mir Ghazan and entries of half property of deceased Mir Afzal (plaintiff predecessor) in the name of provincial Government is wrong, against law and facts? OPP

Both the parties were provided equal opportunities to produce their respective evidence and subsequently when the case was remanded back to the learned trial court vide judgment and order dated 17.05.2022 the learned appellate court also framed issued and the relevant issue to this effect is issue No.11 which is reproduced as under;

(X1) Whether the suit property has rightly and lawfully been transferred and incorporated in the revenue record in the name of Provincial Government? OPP

The burden of which was also placed on the present petitioners once again parties were provided an opportunity to produce their evidence in respect of their specific claim. After the remand, ADK official of petitioners was examined as APW-1 and in his

continued statement recorded on 16.11.2022 he ;categorically stated that 1908/1907 سال "جمعبندی اور 1920/1919کے درمیان کوئی جمعبندی نہیں ہے۔ اور میں نے جتنے بھی جمعبندی ہائے پیش ُس میں سرکار کے نام کئے ہیں۔ ا تبادلہ بیع، انتقال کوئی موجود نہ ہے۔ اور نہ کرکی کا کوئی انتقال بنام حکومت موجود ہے ۔ بمطابق جمعبندی سال میں ملکیت خانه 1908/1907 حکومت کے نام کوئی اندراج موجود نہیں ہےاور نہ جمعبندی مذکور پر کسی انتقال بیع یا تبادلہ کا کوئی اندراج موجود ہے .میں نے جمعبندی سال 1920/1919بھی پیش کی ہے۔ جس کے خانہ ملکیت میں سرکار دولت مدار کے نام یک حصہ کا اندراج سال جمعبندی ہے۔ موجود 1908/1907میں خانہ ملکیت میں میرا فضل نصف ،محمد افضل و سید افضل پسران شاه داد بحصہ برابر نصف کا اندراج خانہ ملکیت میں موجود ہے جبکہ جمعبندی سال 1920/1919میں محمد افضل وسید افضل کے نام با خانہ ملکیت موجود نہ ہے۔ اس لیے مع بعد جمعبندی ہائے میں بھی محمد افضل و سید افضل کے نام حذف شده ہیں ۔ جس کے بارے میں کوئی انتقال بیع موجود نہ ہے۔ جو کہ محافظ نےخوب تالش کیا خانہ میں ہم مگر نہ مل سکا۔"

The perusal of impugned judgment and order dated 02.10.2023 indicates that the learned District Attorney was confronted by the learned appellate court in respect of the entries in favour of the petitioners, but nothing substantial could be put forth by him now the claim of the petitioners that Order XLI Rule 27 allows a party to produce additional evidence. The learned

A.A.G for the petitioners submitted that Sub-Clause (b) of Sub-Rule (1) of Rule 27 empowers the appellate court to examine any witness, however, the wordings of Sub-Clause (b) clearly entails that “the appellate court requires any document .......”. In the instant case the impugned judgment and order of learned appellate court sufficiently provides that no such need was felt by the court to allow additional evidence. Similarly, the “substantial cause” as mentioned in Rule 27 (1) (b) of CPC, admittedly every case has its own peculiar facts and circumstances and in the instant case the learned appellate court did not deem it appropriate that such cause exist for recording of additional evidence. In Muhammad Siddique’s case1, it was held that parties to an appeal are not entitled to adduce any evidence but the same can be allowed if the court from these decree an appeal is preferred had refused to admit the evidence, which ought to have been admitted or the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause which is an exception to the principle for the appellate court cannot record sufficient evidence. Similarly, in Abdul Hameed’s case 2 application for production of

Muhammad Siddique Vs. Abdul Khaliq and 28 others

(PLD 2000 SC AJK 20)

Abdul Hameed and 14 others Vs. Abdul Qayyum and 16 others

(1998 SCMR 671)

additional evidence was dismissed by learned appellate court which order was maintained by the High Court in revision petition. The supreme court held that the High Court was justified in refusing to allow production of additional evidence at the appellate stage especially when no reasonable ground was shown for not producing the same during trial of the suit though the parties were conscious of the questions involved yet they did not produce the evidence. In Mst.Jewan Bibi’s case it was held that discretion of court should not be exercised in favour of a person who remained indolent for years together in the matter of producing oral or documentary evidence before the learned trial court and such person should suffer the consequences of his failure.

7.Coming back to the legal provision, Rule 27 (1) CPC clearly puts a bar upon the parties to an appeal to produce additional evidence before the learned appellate court. Similarly, the exception provided under Clause (a) is not attracted to the case in hand as no such application was preferred by the learned trial court.

Sub-clause (b) provides a specific criteria under which an appellate court may allow additional evidence and that criteria is “to enable it to pronounce judgment or for any other substantial cause” and in this respect the Mst.Jewan Bibi and 2 others Vs. Inayat Masih

(1996 SCMR 1430)

appellate court alone is sole Judge to decide whether there is any need for additional evidence or it can safely announce the judgment. It, under no circumstances, means that an additional evidence should be admitted in appeal in order to enable the appellate court to pronounce judgment in the pending appeal.

8.For what has been discussed above, the learned A.A.G for the State has not been able to point out any misreading or non-reading of evidence by the learned courts below or any illegality or infirmity in the impugned judgments, decrees and orders warranting interference through the instant revision petition, which even otherwise has a very limited scope under section 115 CPC. Consequently, the instant revision petition, being bereft of merit, is hereby dismissed with no order as to costs.

Announced. JUDGE Dt.17/09/2025.

Justice Ms.Farah Jamshed.

(A.K.Khan, C.S)