Muhammad Ramzan vs Pop etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

R.S.A. No.09 of 2012

Muhammad Ramzan (deceased) represented by L.R.s Versus

Province of Punjab through District Collector, Rajanpur & others

JUDGMENT

Date of hearing: 23.09.2026.

Appellant by: Mr. Muhammad Tufail Alvi, Advocate. Respondents by: Ms. Samina Mehmood Rana, A.A.G. Respondents No.7 to 9 ex parte.

MUHAMMAD SAJID MEHMOOD SETHI, J.:- Through this Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (“CPC”), the appellants, legal representatives of Muhammad Ramzan (deceased plaintiff), have assailed the judgment and decree dated 12.01.2012 passed by the learned Additional District Judge, Rojhan (Camp at Rajanpur), whereby the appeal preferred by the appellant against the judgment and decree dated 30.03.2011 passed by the learned Civil Judge, Rajanpur, dismissing his suit for declaration and permanent injunction, was dismissed.

2.The facts necessary for disposal of this appeal are that Mst. Khanum Begum, widow of Sultan, a Mangla Dam affectee, was allegedly allotted 102 Kanals 05 Marlas of state land in Mauza Rakh Fazal Pur Chak Khas, Rajanpur, vide Mutation No.250 dated 31.01.1990, against her land in Mirpur, AJK. Her son and General Attorney, Mehmood Akhtar, agreed to transfer the land to the appellant for Rs.1,40,000/-. Upon his failure to do so, the appellant obtained a decree for specific performance on 13.06.1991, pursuant to which registered sale deed No.261 dated 24.09.1991 was executed and Mutation No.140 was sanctioned on 07.05.1992. Portions of the land

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were thereafter exchanged with respondents No.7 to 9 through Mutations No.161, 181, 183 and 406. Subsequently, the Member Board of Revenue/Chief Land Commissioner, Punjab, in suo motu proceedings, vide order dated 03.08.1998 (Ex.P28), cancelled Mutation No.250 and the subsequent transactions, inter alia, holding that the allotment letter dated 27.09.1967 did not contain the name of Mst. Khanum Begum and that she had died in 1981. The appellant challenged the said order through the instant declaratory suit instituted on 27.03.1999. Out of the divergent pleadings, the learned Trial Court framed the following issues:-

1)Whether the suit land allotted to rehabilitated person vide mutation No.250 dated 31.01.1990? OPP

2)Whether the plaintiff purchased the same land with bona fide intention in consideration of Rs.1,40,000/-? OPP

3)Whether the order passed by defendant No.2 dated 03.08.1998 in which mutation No.250 dated 30.01.1990 has been cancelled which is illegal, against the law and against facts? OPP

4)Whether the proper Court fee has not been affixed on the plaint? OPD 7 to 9

5)Whether the suit is not maintainable in its present form? OPD 7 to 9

6)Whether the suit is time barred? OPD 7 to 9

7)Relief

Learned Trial Court, after recording evidence and hearing arguments, dismissed the suit vide judgment & decree dated 30.03.2011. The appellant preferred a first appeal before the learned Appellate Court. Along with the memorandum of appeal, the appellant moved an application under Order XLI Rule 27 CPC seeking permission to adduce additional evidence, including production of official record and examination of the concerned record-keeper from the WAPDA/Mangla Dam Organization, Mirpur (AJK), with a view to establish and verify the material relating to the alleged entitlement and allotment of Mst. Khanum Begum and to substantiate Ex.P1 and Ex.P2. The learned Appellate Court, however, dismissed the appeal vide judgment and

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decree dated 12.01.2012 without deciding the said application. Hence, instant appeal.

3.Learned counsel for the appellants submits that the failure of the learned First Appellate Court to consider and decide the application under Order XLI Rule 27 CPC constitutes a material illegality which goes to the root of the appellate adjudication. He contends that the proposed additional evidence directly concerns the original entitlement of Mst. Khanum Begum, which constitutes the foundation of the appellant's claim. In support, he has referred to Muhammad Aslam and others v. Sherdil Khan and others (1984 SCMR 247) and Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232).

4.Conversely, learned Law Officer appearing for respondents No.1 to 6 supports the impugned judgments & decrees on merits; however, in response to a specific query, could not point out any portion of the impugned judgment or appellate record demonstrating that the application under Order XLI Rule 27 CPC was ever decided.

5.I have heard learned counsel for the parties and perused the record with their assistance.

6.The principal question requiring determination at this stage is whether the learned First Appellate Court could lawfully dispose of the appeal without considering and adjudicating upon the pending application under Order XLI, Rule 27, C.P.C. The answer depends on the nature of the power conferred by that provision, the principles settled by the superior Courts, and the duties of a Court of first appeal. Order XLI Rule 27 CPC is an exception to the general rule that an appeal is decided on the record made before the trial court. It confers on the appellate Court a discretion to receive additional evidence, but that discretion is conditioned by the grounds prescribed in Rule 27(1). Where additional evidence is admitted, Rule 27(2) requires the court to record its reasons, and Rules 28 and 29 regulate the manner in which the evidence is taken and the points to which it is to be directed. A discretion of this kind must be exercised judicially, upon examination of the grounds urged and of the requirements of law. An application

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invoking it is therefore not a collateral or inconsequential matter. It may be allowed or declined, but either course calls for a conscious and reasoned decision. It cannot be left unattended while the appeal itself is finally decided.

7.The proposition finds direct support from Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232). In that case, the appellant had filed an application under Order XLI, Rule 27, C.P.C. before the Appellate Court for bringing on record an order of the Land Commissioner which had a direct bearing upon the order relied upon by the Trial Court while dismissing the suit. Although the parties had addressed arguments on the appeal as well as on the application for additional evidence, the Appellate Court dismissed the appeal without adjudicating upon the application. The Hon'ble Supreme Court held that, once the Appellate Court was seized of the application under Order XLI, Rule 27, C.P.C., it ought to have adjudicated upon the same before disposing of the appeal. The Court accordingly set aside the earlier adjudication and remanded the matter, directing that the evidence sought to be produced be entertained along with such other evidence as might be necessary. The ratio of the judgment, therefore, is not merely that an application should be noticed, but that a material application concerning additional evidence, once properly brought before the Appellate Court, cannot be ignored while finally determining the appeal.

8.The rationale underlying the said principle is equally significant. Relying upon Amina Begum v. Ghulam Dastgir (PLD 1978 Supreme Court 220), the Hon'ble Supreme Court emphasized the judicial discretion vested in the Court to receive additional material in appropriate cases so as to avoid multiplicity of proceedings, shorten litigation and advance the cause of complete justice. The judgment further demonstrates that the question whether additional evidence ought to be received involves a judicial determination of the circumstances in which the evidence became available and the reasons for its non-production at the earlier stage. Thus, the mere fact that the

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proposed material was not before the Trial Court does not render the application inconsequential; rather, it calls for examination of the statutory conditions governing its reception. In the present case, therefore, the application under Order XLI, Rule 27, C.P.C. required conscious adjudication before the appeal could be finally disposed of, particularly as the proposed official record was directly connected with the foundational issue of the alleged allotment and the documents relied upon by the appellant.

9.The same principle was reiterated by the Hon'ble Supreme Court in Muhammad Azam v. Muhammad Abdullah through L.Rs. (2009 SCMR 326), where an application for additional evidence had been noticed but was neither considered nor disposed of before the main revision was decided. The Hon'ble Supreme Court found that the appellant's case had thereby been prejudiced and observed that, in the interest of justice, the application ought to have been decided before final adjudication. The emphasis in the said judgment is not upon procedural formality for its own sake, but upon ensuring that a matter capable of materially affecting the adjudication is not bypassed to the prejudice of a litigant.

10.The same jurisprudential principle has subsequently been recognized by this Court in Mst. Ghulam Fatima and others v. Pahar Khan and others (2024 CLC 1538). While dealing specifically with an application under Order XLI, Rule 27, C.P.C., the Court held that a pending miscellaneous application having a bearing upon the lis could not be ignored while finally disposing of the matter. The Court emphasized that the object of procedural law is not merely to bring litigation to an end, but to bring it to an end through a lawful, fair and complete adjudication of the matters material to the controversy. A contrary approach risks foreclosing a party's case without first determining a matter which may affect the evidentiary basis upon which the final decision is to rest.

11.It is appropriate, however, to notice the judgment of the Hon'ble Supreme Court in Sultan Ali alias Sultan through L.Rs. and others v.

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Rasheed Ahmad and 45 others (2005 SCMR 1444). The said judgment does not lay down that every application under Order XLI, Rule 27, C.P.C. must necessarily be disposed of through a separate order before the appeal can be decided. Its ratio is that a composite judgment is not, by itself, impermissible where the application is actually considered and adjudicated upon. The significance of the said authority, therefore, is to distinguish between a defect of form and a failure of adjudication. It does not sanction the complete omission to consider a pending application which is capable of affecting the evidentiary foundation of the appeal.

12.The following principles emerge from these authorities. First, procedural law does not insist on a particular form where the substance of adjudication has been duly undertaken. Secondly, a court cannot finally determine a lis while leaving undecided a material matter capable of affecting the result. Thirdly, parties are entitled to have their material applications judicially considered, and the final decision must rest on a properly determined evidentiary record. These principles reflect the fundamental maxim that procedure is the handmaid, not the mistress, of justice, and the maxim actus curiae neminem gravabit: an act or omission of the court should not prejudice a litigant. Finality of litigation is desirable, but it cannot be achieved by bypassing a matter which the law requires the court to decide. The omission is more serious in a first appeal. A first appeal is a valuable statutory right, and the first appellate court is ordinarily the final forum for the reappraisal of both facts and evidence. The power under Order XLI Rule 27 CPC, though exceptional, exists so that the appellate court may, within the limits of the law, secure a complete and effective adjudication. The court was therefore bound to examine the application independently and to determine whether the conditions of Rule 27 existed. If satisfied, it was to proceed under Rules 27 and 28; if not, it was to decline the application for reasons. Silence was not a legally sustainable substitute for adjudication. This accords with Order XLI Rule 31 CPC, under which a first appellate judgment must state the points for

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determination, the decision on them and the reasons for that decision. An appellate court discharges that duty not by merely affirming or reversing the decree of the trial court, but by an independent examination of the matters arising from the pleadings, evidence and grounds of appeal. Where an application bearing on the evidentiary record is pending, the court must first determine its fate and then decide the appeal on the record lawfully available to it.

13.In the present case, the application under Order XLI, Rule 27, C.P.C. sought production of official record from the Mangla Dam Organization concerning the alleged entitlement and allotment of Mst. Khanum Begum, with a view to substantiate Ex.P1 and Ex.P2. The proposed evidence was, therefore, not extraneous to the controversy nor was the application shown to be unrelated to the issues already framed. On the contrary, the documents sought to be produced had a direct bearing upon the foundational question of the alleged allotment, which also constituted the subject matter of Issue No.1 before the learned Trial Court. The application thus required judicial consideration on its own merits before the appeal could lawfully be concluded.

14.The defect becomes more pronounced from the impugned judgment dated 12.01.2012 itself. It contains no meaningful consideration of the application under Order XLI, Rule 27, C.P.C., nor does the record disclose any reasoned order whereby the application was either allowed or declined. The learned First Appellate Court consequently proceeded to determine the appeal without first determining whether the additional material sought to be brought on record was admissible under the statutory parameters. In these circumstances, the omission cannot be treated as a mere deficiency in reasoning or an irregularity of form. The learned First Appellate Court failed to exercise jurisdiction in respect of a material matter pending before it, with the result that the appellate adjudication proceeded without first settling the evidentiary question which could have a bearing upon the determination of the controversy.

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15.The omission in the present case is therefore not being treated as a technical objection raised merely to prolong litigation. The governing principle is one of substantive procedural fairness: a party should not suffer an adverse final adjudication without having its material application considered according to law, particularly where the material sought to be produced bears upon an issue already framed in the suit. As observed by the Hon'ble Supreme Court in the cases of Muhammad Umer and Muhammad Azam, the purpose of such procedural safeguards is, inter alia, to avoid prejudice, prevent multiplicity of proceedings and advance the ends of complete justice. The same philosophy underlies the principle recognized in the case of Mst. Ghulam Fatima (supra) that a lis should be finally buried only after the matters materially affecting its determination have been properly dealt with.

16.In the circumstances, this Court refrains from expressing any opinion on the merits of the controversy, including the validity of Mutation No.250, the authority of the General Attorney, the effect of the death of Mst. Khanum Begum, the legality of the order dated 03.08.1998, the evidentiary value of Ex.P1 and Ex.P2, or the appellant's claim of bona fide purchase. All such questions are left open for determination by the learned First Appellate Court in accordance with law. Equally, no opinion is expressed on whether the application under Order XLI, Rule 27, C.P.C. ultimately merits acceptance or rejection. The learned First Appellate Court shall determine that question independently, upon hearing the parties and keeping in view the statutory requirements governing additional evidence.

17.For the foregoing reasons, this Regular Second Appeal is allowed. The judgment and decree dated 12.01.2012 passed by the learned Additional District Judge, Rojhan (Camp at Rajanpur), are set aside and the first appeal is remanded to the learned District Judge, Rajanpur, for entrustment to the competent Appellate Court. The learned First Appellate Court shall first judicially determine the

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pending application under Order XLI, Rule 27, C.P.C. by a reasoned order after hearing the parties. If the application is allowed, the Court shall proceed in accordance with Rules 27 and 28 of Order XLI, C.P.C., and thereafter decide the appeal afresh on merits in accordance with law. The appellate judgment shall also conform to the requirements of Order XLI, Rule 31, C.P.C. The observations made herein are confined to the procedural defect identified above and shall not prejudice either party on the merits of the controversy or on the ultimate fate of the application for additional evidence. The parties shall appear before the learned District Judge, Rajanpur, on 07.10.2026. The remanded appeal shall, preferably, be decided within three months from receipt of the record. Office shall transmit the record forthwith.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*