Asad Ullah vs Mohib Ullah

2013 C L C 1655

[Peshawar]

Before Malik Manzoor Hussain, J

ASAD ULLAH and others----Petitioners

Versus

MOHIB ULLAH and others----Respondents

Civil Revision No.P-631 of 2012, decided on 23rd April, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Powers of Appellate Court for recording of additional evidence---Appellate court could exercise suo motu powers for bringing on record additional evidence and even in exceptional cases such power was allowed to be exercised at revisional stage---Additional evidence should have been a direct, and important bearing on the main issue in the case and that too to prevent miscarriage of justice, however, such power could not be exercised where the disputed document was not relied upon or tendered in the trial court.

PLD 1992 SC 811; PLD 1990 SC 661; 1989 SCMR 547 and 1988 SCMR 1782 ref.

Abdul Zakir Tareen for Appellant.

Inayat-ur-Rehman for Respondent.

Date of hearing: 23rd April, 2013.

JUGMENT

MALIK MANZOOR HUSSAIN, J:---Through the instant Revision Petition, the

interlocutory order dated 23-4-2012 and 17-5-2012 passed by the Additional District Judge-IX, Peshawar while hearing Appeal No.3/13 of 2011, has been impugned.

2.Brief facts of the case are that the present respondents filed suit for possession through partition and permanent injunction against the present petitioner, which was dismissed vide judgment and decree dated 24-11-2010. Being aggrieved the respondents filed appeal and while hearing appeal vide order sheet dated 23-4-2012 the following order was passed:--- "1. The parties are present. The respondent/defendant No.1 was directed to produce the original deeds by order dated 12-4-2012. Mr. Saifullah respondent No.4 who is also attorney of respondent/defendant No.1 has produced the gift deeds dated 14-8-1984, 1-4-1988, and 30-5- 1988. All the aforesaid original gift deeds are impounded till further order. After examination of said original deeds, the following points are significant for further arguments:--- a. The stamp papers on which the above noted gift deeds have been written, do not bear the stamp of the concerned issuing treasury officer to denote as to the place from where they were issued to the concerned stamp vendor.

b. There is no rubber stamp on back of the stamp papers showing the name, place and license number of stamp vendor from whom the stamp papers were purchased.

c. There is no thumb-impression of Mst. Khan Khela on back of stamp paper on which the purported gift deed dated 14-8-1984 is written.

d. There appears a dissimilarity between thumb-impression of Mst. Khan Khela on the gift deed dated 14-8-1984 and the gift deed dated 1-4-1988. Whether there is need of comparison through Finger Print Expert vis-a-vis thumb-impression.

2.To come up for arguments on the above points on 5-5-2012. Moharrar is directed to keep the original deeds in safe custody."

3.The case was fixed for 5-5-2012 and on the same date both the learned counsel for the parties requested for adjournment and ultimately the case was fixed for arguments on 9-5-2012, on that date the arguments were heard on formulated questions/ points and the matter was fixed for 17-5-2012 for the orders. On 17-5-2012 the following order was passed by the learned Appellate Court:---

"2. The original deeds were impounded. Arguments on the above noted points were heard on previous date i.e. on 9-5-2012. Before settlement of the legal impact of the points "a" to "c", it is deemed necessary to examine the stamp vendor from whom the stamp papers were purchased. For fair determination of point "d", it is essential to get the finger per opinion in respect of thumb impression of Mst. Khan Khela on the gift deed dated 14-8-1984 and gift deed dated 1-4-1988 after their comparison. It was also indicated on previous date by counsel for the respondent/defendant No.1 that the said respondent is also in possession of registered power of

attorney with thumb-impression of Mst. Khan Khela. If so advised, the respondent/ defendant No.1 would be at liberty to render the said power of attorney in original within three days for comparison of the thumb-impression with the thumb-impressions on gift deeds. This Court is of the opinion that the collection of aforesaid evidence is essential for pronouncement of the judgment; and this Court has got jurisdiction under Order XLI, Rule 27, C.P.C. to direct for collection/production of said evidence. The respondent/defendant No.1 is directed to produce the stamp vendor from whom the stamp papers pointed out above were purchased. In case, he wants that summons may be issued for procurement of attendance of the said witness, he will be at liberty to furnish the summons within three days. It has been requested on behalf counsel for respondent/defendant No.1 for the return of original deeds so as to ascertain the identity of concerned stamp vendor. The request has been accorded. The original deeds dated 30-5-1988, 1- 4-1988 and 14-8-1988 previous impounded have been returned after obtaining the receipt with the direction for their return in court within three days. The receipt has been placed on file. The original deeds be sent for comparison of thumb impression after their production as directed before.

Come up on 30-5-2012."

4.Without complying the order dated 17-5-2012 the petitioners preferred the present Revision Petition before this Court challenging both the orders dated 17-5-2012 as well initial order dated 23-4-2012.

Arguments heard and record perused.

5.From the bare reading of Order XLI, Rule 27(1)(b) it transpires that if 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. Now the question arises whether this power can be exercised by the Appellate Court suo motu or for that purpose the application of a party is pre-requisite. This question was answered way back by the Court in reported judgment PLD 1992 SC 811 and PLD 1990 SC 661 wherein it has been held that in appropriate cases the Appellate Court can exercise suo motu powers under Order XLI, Rule 27, C.P.C. for bringing on record additional evidence.

6.Similarly under the circumstances when the Appellate Court assessed that without additional evidence it had become difficult to pronounce judgment relating to the alleged gift deed, which has been challenged in the heading of plaint as well as in memo of appeal beside other evidence and in order to see its legal value it would be sufficient ground to apply the provision of Order XLI, Rule 27 C.P.C. Reliance is placed on judgment reported in 1989 SCMR 547. Even in exceptional cases this power was allowed to be exercised at revisional stage, reliance is placed on a Full Court judgment of the Apex Court reported 1988 SCMR 1782.

7.It is the satisfaction to the mind of the Court to make proper application of the relevant provision regarding additional evidence. Such evidence should have been a direct, and important bearing on the main issue in the case and that too to prevent miscarriage of justice. There are exceptions, where this power cannot be exercised by the Appellate Court and that are where the document was not relied upon or tendered in the trial Court. In the present case, valuable rights of parties and also the question of inheritance as well as validity of gift deeds are involved, so under the circumstances, this Court refrains from touching the merits of the case which may prejudice the Appellate Court while hearing the appeal on merits. Thus, both the orders passed

by the Appellate Court are in accordance with law and in the interest of justice.

Under the circumstances, this petition having no force is dismissed with no order as to costs.

AG/223/P Petition dismissed.