IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO.S-1700/2016
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Order with signature of Judge
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PRESENT:
MR. JUSTICE FAHIM AHMED SIDDIQUI
Petitioner: Usman Khan
through Nasir Ahmed, advocate
Respondents. Muhammad Nazim and another
Date of hearing
and Judgment: 02.12.2016
JUDGMENT
FAHIM AHMED SIDDIQUI, J: Impugned in the instant petition is the order date 16-09-2016, passed by the learned Additional District Judge-VII, Karachi South, whereby the application under section 151 CPC was dismissed. Through the said application under inherent jurisdiction of the civil court, the petitioner was seeking order for producing some additional documentary evidence before first appellate forum.
2. Brief facts of the case are that the respondent/applicant filed a rent case against the petitioner/opponent in respect of two shops bearing shops No. 1-2, Mini Market, Plot No. CA-4, Phase II, Defence View, Karachi (the subject premises) on the ground of default which was subsequently allowed by the learned Rent Controller-X, Karachi South. The petitioner/opponent challenged the said order before appellate forum and during pendency of First Rent Appeal, he moved two applications. One is under Order XLI, Rule 27 r/w section 151 PCP for production of subsequent rent agreement between the parties as additional evidence. The other application is u/s 151 CPC for sending the said agreement for examination to writing expert. According to the petitioner/opponent, the subsequent rent agreement dated 27-11-2012 was executed between the parties which was malafidely not produced by the respondent/applicant before the learned Rent Controller. In the alleged subsequent rent agreement, the security deposit was enhanced from Rs.40,000/- to Rs.10,00,000/- and contention of the petitioner is that he will suffer considerable financial loss if the same is not taken on record. After hearing the parties, the learned Additional District Judge dismissed the said applications, as such the instant petition was filed.
3. In the instant matter notices were served but none appeared on behalf of the respondent/applicant. The learned counsel requested for staying the proceeding before the lower forum. However, he was asked if he was ready to argue the matter on merit to which he consented and preferred his submission. According to him, the respondent/applicant has purposely and willfully concealed the subsequent rent agreement in which he has received a huge amount of rupees ten lacs as security deposit as against the security deposit of Rs.40,000/- given by him at the time of previous rent agreement. He submitted that he also filed an application before the learned Additional District Judge for examining the parties regarding validity of the said agreement but the same was also declined. According to him, his client will suffer considerable loss of rupees ten lacs in case he was vacated from the rented premises. He submitted that there will be no harm if the said document is taken on record and the matter is remanded to ascertain the true fact.
4. Before dilating upon the issue raised in this petition, I would like to observe here that the rent application filed by the respondent/applicant was allowed by the learned Rent Controller. The verdict of the learned Rent Controller was challenged by the petitioner/opponent before the first appellate court by preferring a memo of appeal. The copy of memo of appeal is annexed with the instant petition. I have gone through the memo of appeal and found that it is silent about the subsequent rent agreement. It is settled law that the pleadings of the parties are the benchmark of their respective claims and subsequent rent agreement, (if) an important document, should be mentioned in the memo of appeal. No doubt, pleadings itself are not evidence but the evidence deduced or to be produced must be in line of the pleadings. The well settled principle of ‘secundum allegata et probata’ prevented a party from proving what had not been alleged or pleaded by him. In this respect I would like to take reliance from Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 and M/S Essa Engineering Company Pvt Ltd and another v. Pakistan Telecommunication Company Pvt Ltd. 2014 SCMR 922.
5. Now reverting to the case in hand in the instant case, the learned first appellate court rightly came to conclusion that the subsequent rent agreement cannot be produced as additional evidence at the time when the FRA is close to decision. In this respect my observation is that a negative phrase is used in Order XLI Rule 27, prohibiting the parties to adduce additional evidence whether oral or documentary at appellate stage but there are two exceptions; firstly, that the Court from whose decree/order the appeal is preferred has refused to admit evidence which ought to have been admitted and, secondly, that Appellate Court requires any document to be produced enabling it to pronounce judgment or for any other substantial cause. If these two exceptional conditions are fulfilled, then the appellate court may allow such evidence to be produced. As the very document is missing from the pleadings of the party in the appellate court therefore no such exception is available for production of additional evidence and therefore the learned first appellate court has rightly dismissed the applications of the petitioner and the same do not require any interference. The instant petition is dismissed alongwith listed applications.
JUDGE