Muhammad Khalid Vs Sheraz Khan

--. PESHAWAR HIGH COURT, ABBOTTABAD BENCH.

FORIVI OF ORDER SHEET

Date of Order of Order or other Proceedings with Signature of Judge (s) Proceedings

09.10.2023 C.R.No. 297-N2023.

Present: Malik Asif Ali, Advocate, for the petitioner. **rr

KAMRAN HAYAT MIANKHEL. J.- This civil revision is directed against the order dated 16.03.2023 passed by learned Additional District Judge-l! Abbottabad, whereby his application for recording additional evidence under Order 41 Rule 27 CPC has been dismissed

2.Concisely stated facts of the case, leading to filing of instant civil revision, are that petitioner had filed a suit for recovery of rent as well as damages etc against the respondent, which, after a full dressed trial, was dismissed by learned trial court vide judgment and decree dated 25.04.2022. Aggrieved from the findings of learned trial court, the petitioner had preferred an appeal before the learned District Judge Abbottabad, which was entrusted to the court of learned Additional District Judge- !l Abbottabad for disposal. During pendency of the appeal, the petitioner had filed an application under Order 41 Rule 27 CPC for recoding additional evidence, which was contested by the respondent through filing replication. The learned appellate court after hearing

arguments of learned counsel for the parties, dismissed the application vide impugned order dated 16.03.2023, hence, the instant civil revision.

3.Learned counsel for the petitioner mainly contended that under Order 41 Rule 27 CPC, the appellate court has jurisdiction to allow additional evidence and since the petitioner wants to become his own witness, therefore, his testimony being extremely important considering the controversy between the parties. So the learned appellate court by now allowing the petitioner's application has caused the great injustice to the petitioner.

3.I have heard arguments of learned counsel for the petitioner and gone through the record.

4.Perusal of record reveals that petitioner filed a suit for recovery of Rs.30,30,000i- in different heads. The suit was contested by the respondent by way of filing written statement, controverting therein all the allegations so leveled by the petitioner. lssues were framed and evidence was led by both the parties. The learned trial court after hearing the arguments dismissed the suit of the petitioner and being aggrieved the petitioner filed an appeal. During the pendency of appeal petitioner filed an application under Section 107 CPC read with Order 41 Rule 27 Rule CPC for additional evidence. The only ground so taken in the ibid application is that due to case

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\ being target and delay in adducing evidence has resulted in inadvertent closure of evidence without petitioner being examined as his own witness. No doubt the petitioner had applied to the learned appellate court through proper application for recording his additional evidence but a glance over the contents of Order 41 Rules 27 CPC depicts that in very few circumstances or conditions the appellate court may allow a party to the appeal to produce additional oral or documentary evidence, thus, as such its scope is limited one. Such circumstances / conditions are,

(a)where the Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted, or (b) where the appellate Court requires any document to be produced or any witness to be examined so as to enable it to pronounce judgment.

Admittedly, the case of the appellant does not fall under Rule 27(1)(a) as he neither attempted to submit an application before the learned trial court for producing additional evidence nor the learned trial court had refused his such request. Regarding Rule 27(1)(b), it may be noted that the learned appellate Court was not of the view that the evidence sought to be produced by the petitioner was required by the appellate Court itself to enable it to pronounce judgment.

5.Further perusal of the record transpires that the

petitioner had filed an appeal against the judgment and

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decree of learned trial court on 09.06.2022 and during pendency of said appeal on 23.01 .2023 i.e. at a belated stage, he had preferred an application for recording his additional evidence under Section 107 CPC, as elucidated by Order 41 Rule 27 CPC. The Order 41 Rule 27 CPC is not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and to fill up omission in the court of appeal.

According to the dictum so laid down by Larger Bench of the Hon'ble Supreme Court of Pakistan delivered in the case of "Mad Ajab & others Vs. Awal Badshah" reported as 1984 SCMR 440 it has been held that "the provisions of law with regard to additional evidence are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch-up the weak parts of his case and fill up omissions in the Court of appeal, and such power ought to be exercised very sparingly." ln this case neither the petitioner had earlier applied to the court of learned trial court for recording his additional evidence nor the learned appellate court had felt it necessary to examine him, however, the petitioner had tried just to patch-up the weak parts of his case without discovery of new evidence, facts or document, therefore, the learned appellate court while dismissing application of the

petitioner for producing additional evidence has committed no illegality.

6.Admittedly learned counsel for the petitioner has placed reliance on the judgment delivered by Hon'ble Supreme court of Pakistan in the case of "Mst. Fazal Jan Vs. Roshan Din & 02 others" reported as PLD 1990 SC 661 but the question involved in this petition is altogether different from the one involved in the referred case. The referred case was relating to suit for inheritance of property where all relevant record documents could not been brought on record while original record of trial court had statedly showed miserable jumble of papers which might have resulted in miscarriage of justice, thus, it was held that for bringing on record additional evidence the learned appellate court was bound to exercise suo moto powers and summoned Patwari for provision of relevant record, whereas in this case the petitioner had closed his evidence before the learned trial court whereafter a judgment and decree was passed and during pendency of appeal the petitioner filed an application for recording his additional evidence, which is othenruise not falling within the purview of Order 41 Rule 27 CPC. In the like nature case the Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Abdul Hameed & 14 others Vs. Abdul Qayyum & 16 others" reported as 1998

SCMR 671 has held as under: - d "Learned Courts below were iustified in refusing to allow production of the said documents at the appetlate stage, especially when no reasanable ground for not producing the same during the trial of the suff was shown. Parties were conscious of the question involved in the suit and they did produce the evidence. ln the circumstances of the case, we are in agreement with the Courts below that iustification for production of the certified copies in question as additional evidence was not made out. The discretion so exercised, does not sufferfrom any j u ri sd ictio n al e rro r. "

Similarly, again the Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Niaz Rasoo/ through Muhammad Bilal Vs Mst. Parueen lkram and othe,rs" reported as 2013 SCMR 397 has held as under:

"We would have countenanced the prayer of the learned counsel for the appellant for examination of additional evidence, but since the infirmities in the evidence of the appellant highlighted above are too fundamental to be cured by the evidence sought to be examined, we do not feel inclined to permit this exercise which, to our mind, has no other purpose but to prolong the agonies of the parties. The iudgments cited in this behalf being distinguishable on legal and factual turf do not any relevance to the case in hand."

ln this case, the Hon'ble Apex court held that the

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infirmities so creeping up in the evidence of petitioner are too fundamental in nature and are, therefore, incurable.

7.lt is by now trite law that parties to the suit must be vigilant while contesting the suit and if a party is careless and lax in conducting the suit or did not take necessary steps for production of evidence then subsequently any request on behalf of such party under the garb of Order 41 Rule 27 CPC for production of additional evidence has to be considered with extreme caution as the conduct of the party is always extremely relevant. The petitioner being not becoming his own witness is himself to blame inspite of availing ample opportunities to adduce his evidence.

B. Learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence by the learned court below or any illegality or infirmity in the impugned order, calling for interference of this court. Resultantly, the instant civil revision, being bereft of any merit, is hereby dismissed in limine.

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Hon'ble Mr. Kamran Hayat