2017 CLC 59 AJ&K
2017 C L C 59
[Supreme Court (AJ&K)]
Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
M. ABID----Appellant
Versus
AHMED AZAD and 96 others----Respondents
Civil Appeal No.59 of 2014, decided on 28th April, 2016.
(On appeal from the judgment of the High Court dated 29.05.2012 in Revision Petition No.58 of 2012).
Civil Procedure Code (V of 1908)---
----O. XLI, R. 27---Production of additional evidence before the Appellate Court---Scope---Trial Court dismissed the suit against which appeal was filed wherein an application for production of additional evidence was moved which was dismissed---Validity---Additional evidence at appellate stage could not be allowed to be produced as of right rather it was discretion of the court to determine whether such evidence was illegally refused to be admitted by the trial court or appellate court, at its own had reached to the conclusion that any document was required to be produced or any witness was to be examined to enable the court to pronounce judgment or for just decision of the case---Additional evidence must be requirement of the court and not of a party---Initially plaintiff had moved application for production of additional evidence which was allowed by the Trial Court and suit was decided---Documents which the plaintiff wanted to produce as additional evidence were not necessary to pronounce judgment or for any other substantial cause---Appellate Court, in circumstances, was justified to disallow the application for production of additional evidence-- Additional evidence was not to be permitted at appellate stage to enable one of the parties to remove lacuna in its case---Sufficient cause and reason for production of additional evidence must exist---Plaintiff had failed to furnish any sufficient cause or reason in the application for production of additional evidence---Case could not be reopened in the guise of production of additional evidence---High Court had not committed any illegality while upholding the judgment of first appellate court---Appeal was dismissed by the Supreme Court, in circumstances.
Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35, Abdul Rashid v. Abdul Ghani and others 2006 SCR 188 and Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15 ref.
Zarait Ullah Khan v. Fazal Ahmed and 29 other PLD 2004 SC (AJ&K) 35 and Muhammad Sadiq v. Allah Ditta and 6 others 2014 SCR rel.
Raja Hassan Akhtar, Advocate for Appellants.
Raja Inamullah Khan, Advocate for Respondents Nos.1, 4, 5, 8, 9, 11, 27, 31 to 36, 43 to 45 and 50 to 72.
Date of hearing: 25th April, 2016.
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JUDGMENT
RAJA SAEED AKRAM KHAN, J.--- The titled appeal by leave of the Court has been filed against the judgment of the High Court dated 29th May, 2012, whereby the revision petition filed by the appellant, herein, has been dismissed.
2.The facts necessary for disposal of this appeal are that the plaintiff-appellant filed a declaratory suit in the Court of Senior Civil Judge, Kotli which was dismissed vide judgment and decree dated 21.11.2011. He challenged the judgment and decree of the trial Court through an appeal before the District Judge, Kotli. During pendency of appeal, the appellant filed an application for bringing on record some documents as additional evidence which was dismissed by the District Judge on 30.03.2012. The plaintiff-appellant feeling dissatisfied from the order of the District Judge approached the High Court through a revision petition which was also dismissed vide impugned judgment dated 29.05.2012, hence, this appeal by leave of the Court.
3.Raja Hassan Akhtar, Advocate, the learned counsel for the appellant argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that the documentary evidence sought to be produced as additional evidence are very much relevant and necessary for just decision of the case and the same were not in the knowledge of the appellant at the time of filing the suit. He added that it is settled principle of law that the document which is necessary to reach the just and right conclusion can be produced at any stage, but the Courts below failed to take into consideration this principle of law. He further added that the learned High Court fell in error while not taking into account that the first appellate Court while dismissing the application for production of the additional evidence has not assigned any reason. He lastly submitted that dismissal of the application for production of the additional evidence amounts to denial of the rights of the appellant which is against the settled norms of justice.
4.On the other hand, Raja Inamullah Khan, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He contended that concurrent findings have been recorded by the Courts below which cannot be disturbed as the learned counsel for the appellant failed to point out any misreading or non-reading of the evidence. He further contended that the production of the additional evidence is not a right of a party rather it is the discretion of the Court to allow the same or not. He added that the documents which the appellant wants to produce in the appellate Court were very much in his knowledge during the pendency of the suit before the trial Court, thus, such like documents cannot be allowed to be produced at appellate stage. He submitted that firstly the appellant filed an application in the trial Court for production of additional evidence which was allowed and once the evidence of the plaintiff is completed and closed then again under law he was not competent to file second application for production of additional evidence at a belated stage. He forcefully contended that the failure on the part of appellant to bring on record those documents which were available or could be made available during the course of evidence as additional evidence before the trial Court, would disentitle him for production of such documents at appellate stage. He added that the documents which the appellant wants to produce were neither referred to in the plaint nor in the appeal before the first appellate Court. He has relied upon the cases reported as Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35, Abdul Rashid v. Abdul Ghani and others [2006 SCR 188], and Muhammad Lal v. Mohko and 2 others [PLD 1979 SC (AJ&K) 15].
5.We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The controversy involved in the matter pertains to the production of the additional evidence at the appellate stage. Before attending the moot point, we have examined the relevant provision of law, i.e. Order XLI Rule 27, C.P.C. which deals with the production of the additional evidence at appellate
2 of 52/22/2018, 12:17 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017S...
stage. For better appreciation the relevant provisions are reproduced here which read as under:-
"27.Production of additional evidence in Appellate Court.--- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if---
(a)the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b)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.
(2)Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
The bare reading of the statutory provisions clearly reveals that the parties to the appeal are not entitled to produce any sort of additional evidence, whether it is oral or documentary, however, the appellate Court may allow the additional evidence if the trial Court from whose decree the appeal is preferred has 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 the appellate Court to pronounce the judgment or for any other substantial cause the appellate Court may allow such evidence to be produced. The statutory provisions further provide that whenever the additional evidence is allowed to be produced the Court shall record the reason for its admission. The additional evidence at appellate stage cannot be allowed to be produced by a party as of right rather it is discretion of the Court to determine whether the additional evidence which the party wants to produce in the Court was illegally refused to be admitted by the trial Court, or the appellate Court at its own reaches the conclusion that any document is required to be produced or any witness to be examined to enable the Court to pronounce the judgment or for just decision of the case. The main conditions by the appellate Court for production of the additional evidence are; (i) the trial Court illegally refused to admit the additional evidence, or; (ii) the appellate Court requires the additional evidence to be produced to enable it for pronouncement of the judgment, and; (iii) the appellate Court while allowing the additional evidence shall record reason for its admission. This Court in a number of pronouncements has interpreted the above reproduced statutory provisions. Reference may be made on a case reported as Zarait Ullah Khan v. Fazal Ahmed and 29 other [PLD 2004 SC (AJ&K) 35], while dealing with the proposition this Court has observed that---
"8.In accordance with rule 27 referred to above, the additional evidence can be allowed only where: (i) the trial Court has improperly refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or (iii) the Appellate Court requires such evidence for any other substantial cause. The additional evidence cannot be allowed in order to allow the parties to patch up the weaker parts of its case or fill up omissions or to enable it to raise new point. The party to the appeal may moved the Court for additional evidence but it can only be allowed if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on record. This clause is attracted if some inherent lacuna or defects become apparent. The test is whether the Appellate Courts can pronounce judgment satisfactorily without taking into consideration the evidence sought to be produced."
In another case reported as Muhammad Sadiq v. Allah Ditta and 6 others [2014 SCR 789] this Court has
3 of 52/22/2018, 12:17 PM
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observed as under:-
"According to celebrated principle of law, the permission for additional evidence can only be granted if the trial Court has refused to admit the evidence which ought to have been admitted or if the appellate Court requires any document to be produced or witness to be examined to enable it to pronounce judgment or for any other substantial cause. Without fulfilling the statutory requirements, the application of a party in casual manner for filling the lacunas or reopening the proceedings cannot be allowed."
After going through the statutory provisions and the case-law, it can safely be said that the requirement of additional evidence must be the requirement of the Court and not of a party. Moreover, allowing the additional evidence is the discretion of the Court which can be exercised subject to the limits prescribed in the statutory provisions.
6.In the light of the statutory provisions and the case law referred to hereinabove, we have examined the case of the appellant. While scrutinizing the record it transpires that initially the appellant filed an application for production of additional evidence which was allowed by the trial Court. The trial Court after recording the evidence decided the case against the appellant. Thereafter, the appellant filed appeal before the District Judge against the judgment and decree of the trial Court. During the pendency of the appeal, the appellant filed another application for production of additional evidence before the first appellate Court. The first appellate Court dismissed the application while recording the following findings:-
The perusal of the findings supra shows that the first appellate Court after properly attending all aspects of the case reached the conclusion that the documents which the appellant wants to produce as additional evidence are not necessary to pronounce the judgment or for any other substantial cause, the same can be admitted. In such state of affairs, we have no second thought except that the learned District Judge was fully justified to disallow the application. It may be observed here that it is well settled principle of law that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at the proper stage and to fill in the gaps. It may also be observed here that under the statutory provision of Order XLI, Rule 27, C.P.C. there must be sufficient cause and reason for production of additional evidence at appellate stage, whereas, in the case in hand, the appellant failed to furnish any sufficient cause or reason in the application for production of the additional evidence. The relevant portion of the application reads as under:-
Thus, in such situation, the whole case cannot be reopened in the guise of production of the additional evidence as if such like practice is allowed in routine it will amount to drag the parties into endless litigation as has been held by this Court in the case reported as Muhammad Sadiq v. Allha Ditta and 6 others [2014 SCR 789], that:
"The parties should be vigilant while prosecuting their cases before the Courts and if any party is careless and at proper time fails to take necessary steps, after completion of legal process of recording evidence, at appellate stage, the case cannot be reopened in the garb of production of additional evidence. If such like practice is encourage their will be no end of litigation."
Keeping in view the relevant law on the subject and the facts of the case, we are of the considered view that the first appellate Court was fully justified to dismiss the application filed by the appellant for production of additional evidence and the learned High Court has not committed any illegality while upholding the judgment of the first appellate Court. Resultantly, having no substance this appeal is dismissed with no order as to costs.
4 of 52/22/2018, 12:17 PM
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ZC/34/SC(AJ&K)Appeal dismissed.
[Supreme Court (AJ&K)]
Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
M. ABID----Appellant
Versus
AHMED AZAD and 96 others----Respondents
Civil Appeal No.59 of 2014, decided on 28th April, 2016.
(On appeal from the judgment of the High Court dated 29.05.2012 in Revision Petition No.58 of 2012).
Civil Procedure Code (V of 1908)---
----O. XLI, R. 27---Production of additional evidence before the Appellate Court---Scope---Trial Court dismissed the suit against which appeal was filed wherein an application for production of additional evidence was moved which was dismissed---Validity---Additional evidence at appellate stage could not be allowed to be produced as of right rather it was discretion of the court to determine whether such evidence was illegally refused to be admitted by the trial court or appellate court, at its own had reached to the conclusion that any document was required to be produced or any witness was to be examined to enable the court to pronounce judgment or for just decision of the case---Additional evidence must be requirement of the court and not of a party---Initially plaintiff had moved application for production of additional evidence which was allowed by the Trial Court and suit was decided---Documents which the plaintiff wanted to produce as additional evidence were not necessary to pronounce judgment or for any other substantial cause---Appellate Court, in circumstances, was justified to disallow the application for production of additional evidence-- Additional evidence was not to be permitted at appellate stage to enable one of the parties to remove lacuna in its case---Sufficient cause and reason for production of additional evidence must exist---Plaintiff had failed to furnish any sufficient cause or reason in the application for production of additional evidence---Case could not be reopened in the guise of production of additional evidence---High Court had not committed any illegality while upholding the judgment of first appellate court---Appeal was dismissed by the Supreme Court, in circumstances.
Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35, Abdul Rashid v. Abdul Ghani and others 2006 SCR 188 and Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15 ref.
Zarait Ullah Khan v. Fazal Ahmed and 29 other PLD 2004 SC (AJ&K) 35 and Muhammad Sadiq v. Allah Ditta and 6 others 2014 SCR rel.
Raja Hassan Akhtar, Advocate for Appellants.
Raja Inamullah Khan, Advocate for Respondents Nos.1, 4, 5, 8, 9, 11, 27, 31 to 36, 43 to 45 and 50 to 72.
Date of hearing: 25th April, 2016.
1 of 52/22/2018, 12:17 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017S...
JUDGMENT
RAJA SAEED AKRAM KHAN, J.--- The titled appeal by leave of the Court has been filed against the judgment of the High Court dated 29th May, 2012, whereby the revision petition filed by the appellant, herein, has been dismissed.
2.The facts necessary for disposal of this appeal are that the plaintiff-appellant filed a declaratory suit in the Court of Senior Civil Judge, Kotli which was dismissed vide judgment and decree dated 21.11.2011. He challenged the judgment and decree of the trial Court through an appeal before the District Judge, Kotli. During pendency of appeal, the appellant filed an application for bringing on record some documents as additional evidence which was dismissed by the District Judge on 30.03.2012. The plaintiff-appellant feeling dissatisfied from the order of the District Judge approached the High Court through a revision petition which was also dismissed vide impugned judgment dated 29.05.2012, hence, this appeal by leave of the Court.
3.Raja Hassan Akhtar, Advocate, the learned counsel for the appellant argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that the documentary evidence sought to be produced as additional evidence are very much relevant and necessary for just decision of the case and the same were not in the knowledge of the appellant at the time of filing the suit. He added that it is settled principle of law that the document which is necessary to reach the just and right conclusion can be produced at any stage, but the Courts below failed to take into consideration this principle of law. He further added that the learned High Court fell in error while not taking into account that the first appellate Court while dismissing the application for production of the additional evidence has not assigned any reason. He lastly submitted that dismissal of the application for production of the additional evidence amounts to denial of the rights of the appellant which is against the settled norms of justice.
4.On the other hand, Raja Inamullah Khan, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He contended that concurrent findings have been recorded by the Courts below which cannot be disturbed as the learned counsel for the appellant failed to point out any misreading or non-reading of the evidence. He further contended that the production of the additional evidence is not a right of a party rather it is the discretion of the Court to allow the same or not. He added that the documents which the appellant wants to produce in the appellate Court were very much in his knowledge during the pendency of the suit before the trial Court, thus, such like documents cannot be allowed to be produced at appellate stage. He submitted that firstly the appellant filed an application in the trial Court for production of additional evidence which was allowed and once the evidence of the plaintiff is completed and closed then again under law he was not competent to file second application for production of additional evidence at a belated stage. He forcefully contended that the failure on the part of appellant to bring on record those documents which were available or could be made available during the course of evidence as additional evidence before the trial Court, would disentitle him for production of such documents at appellate stage. He added that the documents which the appellant wants to produce were neither referred to in the plaint nor in the appeal before the first appellate Court. He has relied upon the cases reported as Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35, Abdul Rashid v. Abdul Ghani and others [2006 SCR 188], and Muhammad Lal v. Mohko and 2 others [PLD 1979 SC (AJ&K) 15].
5.We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The controversy involved in the matter pertains to the production of the additional evidence at the appellate stage. Before attending the moot point, we have examined the relevant provision of law, i.e. Order XLI Rule 27, C.P.C. which deals with the production of the additional evidence at appellate
2 of 52/22/2018, 12:17 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017S...
stage. For better appreciation the relevant provisions are reproduced here which read as under:-
"27.Production of additional evidence in Appellate Court.--- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if---
(a)the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b)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.
(2)Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
The bare reading of the statutory provisions clearly reveals that the parties to the appeal are not entitled to produce any sort of additional evidence, whether it is oral or documentary, however, the appellate Court may allow the additional evidence if the trial Court from whose decree the appeal is preferred has 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 the appellate Court to pronounce the judgment or for any other substantial cause the appellate Court may allow such evidence to be produced. The statutory provisions further provide that whenever the additional evidence is allowed to be produced the Court shall record the reason for its admission. The additional evidence at appellate stage cannot be allowed to be produced by a party as of right rather it is discretion of the Court to determine whether the additional evidence which the party wants to produce in the Court was illegally refused to be admitted by the trial Court, or the appellate Court at its own reaches the conclusion that any document is required to be produced or any witness to be examined to enable the Court to pronounce the judgment or for just decision of the case. The main conditions by the appellate Court for production of the additional evidence are; (i) the trial Court illegally refused to admit the additional evidence, or; (ii) the appellate Court requires the additional evidence to be produced to enable it for pronouncement of the judgment, and; (iii) the appellate Court while allowing the additional evidence shall record reason for its admission. This Court in a number of pronouncements has interpreted the above reproduced statutory provisions. Reference may be made on a case reported as Zarait Ullah Khan v. Fazal Ahmed and 29 other [PLD 2004 SC (AJ&K) 35], while dealing with the proposition this Court has observed that---
"8.In accordance with rule 27 referred to above, the additional evidence can be allowed only where: (i) the trial Court has improperly refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or (iii) the Appellate Court requires such evidence for any other substantial cause. The additional evidence cannot be allowed in order to allow the parties to patch up the weaker parts of its case or fill up omissions or to enable it to raise new point. The party to the appeal may moved the Court for additional evidence but it can only be allowed if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on record. This clause is attracted if some inherent lacuna or defects become apparent. The test is whether the Appellate Courts can pronounce judgment satisfactorily without taking into consideration the evidence sought to be produced."
In another case reported as Muhammad Sadiq v. Allah Ditta and 6 others [2014 SCR 789] this Court has
3 of 52/22/2018, 12:17 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017S...
observed as under:-
"According to celebrated principle of law, the permission for additional evidence can only be granted if the trial Court has refused to admit the evidence which ought to have been admitted or if the appellate Court requires any document to be produced or witness to be examined to enable it to pronounce judgment or for any other substantial cause. Without fulfilling the statutory requirements, the application of a party in casual manner for filling the lacunas or reopening the proceedings cannot be allowed."
After going through the statutory provisions and the case-law, it can safely be said that the requirement of additional evidence must be the requirement of the Court and not of a party. Moreover, allowing the additional evidence is the discretion of the Court which can be exercised subject to the limits prescribed in the statutory provisions.
6.In the light of the statutory provisions and the case law referred to hereinabove, we have examined the case of the appellant. While scrutinizing the record it transpires that initially the appellant filed an application for production of additional evidence which was allowed by the trial Court. The trial Court after recording the evidence decided the case against the appellant. Thereafter, the appellant filed appeal before the District Judge against the judgment and decree of the trial Court. During the pendency of the appeal, the appellant filed another application for production of additional evidence before the first appellate Court. The first appellate Court dismissed the application while recording the following findings:-
The perusal of the findings supra shows that the first appellate Court after properly attending all aspects of the case reached the conclusion that the documents which the appellant wants to produce as additional evidence are not necessary to pronounce the judgment or for any other substantial cause, the same can be admitted. In such state of affairs, we have no second thought except that the learned District Judge was fully justified to disallow the application. It may be observed here that it is well settled principle of law that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at the proper stage and to fill in the gaps. It may also be observed here that under the statutory provision of Order XLI, Rule 27, C.P.C. there must be sufficient cause and reason for production of additional evidence at appellate stage, whereas, in the case in hand, the appellant failed to furnish any sufficient cause or reason in the application for production of the additional evidence. The relevant portion of the application reads as under:-
Thus, in such situation, the whole case cannot be reopened in the guise of production of the additional evidence as if such like practice is allowed in routine it will amount to drag the parties into endless litigation as has been held by this Court in the case reported as Muhammad Sadiq v. Allha Ditta and 6 others [2014 SCR 789], that:
"The parties should be vigilant while prosecuting their cases before the Courts and if any party is careless and at proper time fails to take necessary steps, after completion of legal process of recording evidence, at appellate stage, the case cannot be reopened in the garb of production of additional evidence. If such like practice is encourage their will be no end of litigation."
Keeping in view the relevant law on the subject and the facts of the case, we are of the considered view that the first appellate Court was fully justified to dismiss the application filed by the appellant for production of additional evidence and the learned High Court has not committed any illegality while upholding the judgment of the first appellate Court. Resultantly, having no substance this appeal is dismissed with no order as to costs.
4 of 52/22/2018, 12:17 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017S...
ZC/34/SC(AJ&K)Appeal dismissed.
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