Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Second Appeal No.31 of 2019
Appellant : Ideal Arcade Builders & Developers
through Mr. Akhlaq Ahmed, Advocate.
Respondent : Saeed Ahmad Qureshi called absent.
Date of hearing : 19.03.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Suit No.271/2011 (old Suit No.231/2006) filed by the respondent for specific performance of agreement, recovery of possession and permanent injunction against the appellant was decreed against him by the learned trial Court vide judgment and decree dated 30.03.2017 and 31.03.2017, respectively ; and, Civil Appeal No.35/2017 filed by the appellant against the aforesaid decree was dismissed by the learned appellate Court vide impugned judgment and decree dated 13.10.2018 and 20.10.2018, respectively. The main ground urged in the present appeal is that the application filed by the appellant under Order XLI Rule 27 CPC before the learned appellate Court for recording additional evidence, was wrongly dismissed by the learned appellate Court due to which important and vital evidence could not be produced by him. Through his above application, it was prayed by the appellant that relevant officers of the post office and courier service be called to prove whether or not the document mentioned therein was sent by the appellant to the respondent. In the affidavit filed in support of the above application, it was stated by the appellant that the above document could not be traced at the relevant time due to shifting of his office. Learned counsel for the appellant concedes that no such application for summoning the witness / record from post office or courier service was filed by the appellant before the learned trial Court although he was fully aware at that stage that the relevant document was not available in his record and he was unable to produce the same in evidence.
2. Perusal of Rule 27(1) of Order XLI CPC shows that the scope thereof is limited as it contemplates very few circumstances or conditions in which the appellate Court may allow a party to the appeal to produce additional oral or documentary evidence. 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 to enable it to pronounce judgment, or (c) for any other substantial cause. Admittedly, the case of the appellant does not fall under Rule 27(1)(a) as he neither attempted to produce the document in question before the learned trial Court nor did the learned trial Court refuse to admit the same in evidence. 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 appellant was required by the appellate Court itself to enable it to pronounce judgment. As far as the question of ‘substantial cause’ mentioned in Rule 27(1)(c) is concerned, needless to say it depends upon the facts and circumstances of each case. The law laid down by Hon’ble Supreme Courts of Pakistan and Azad Jummu & Kashmir regarding production of additional evidence in appeal is briefly discussed below :
A. In Mad Ajab and others V/S Awal Badshah, 1984 SCMR 440, by referring to the case of Parshotim Thakur and others V/S Lal Mohar Thakur & others, AIR 1931 Privy Council 143, it was held by the Larger Bench of the Hon’ble Supreme Court of Pakistan 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.
B. In Muhammad Siddique V/S Abdul Khaliq and 28 others, PLD 2000 SC (AJ&K) 20, it was held that parties to an appeal are not entitled to adduce any evidence, but the same can be allowed if the Court from whose decree an appeal is preferred had 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 it to pronounce the judgment or for any other substantial cause which is an exception to the principle that the appellate Court cannot record fresh evidence ; under Rule 27 of Order XLI CPC, additional evidence cannot be recorded unless provisions of the said Rule are attracted ; the power to allow additional evidence is discretionary in nature, but the same is circumscribed by the limitation specified in the said Rule as evidence under Rule 27(b) of Order XLI is required by the appellate Court itself and not by a party to the appeal ; it may be allowed only when a party was unable to produce evidence through no fault of its own or where evidence was imperfectly taken by the lower Court ; a party that had an opportunity but elected not to produce evidence cannot be allowed to give evidence that could not have been given in the Court below ; and, the appellate Court can allow additional evidence only if it itself so feels that the judgment cannot be pronounced in the absence thereof.
C. In Taj Din V/S Jumma and 6 others, PLD 1978 SC (AJ&K) 131, it was held by the Hon’ble Full Bench that provisions of Rule 27 of Order XLI CPC impose strict conditions so as to prevent a litigant from being negligent in producing the evidence at the time of the trial ; a litigant seeking permission to adduce additional evidence at the stage of appeal has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced at the time the question was being tried or it has come into existence after completion of the trial ; therefore, where a party who had been negligent in producing evidence at the time the issue was being tried and a lacuna had been left and it is not shown as to how the absence of the proposed evidence would result into failure of justice, a prayer for additional evidence in such circumstances obviously would not be granted.
D. In Nazir Hussain V/S Muhammad Alam Khan and 3 others, 2000 YLR 2629 [SC (AJ&K)], it was held that provisions contained in Rule 27 of Order XLI CPC would reveal that the appellate Court must be very cautious while allowing additional document ; and, a party which seeks to bring additional evidence on record must convince the Court with proof that such party could not lead the evidence at proper stage due to some substantial cause.
E. In Abdul Hameed and 14 others V/S Abdul Qayyum and 16 others, 1998 SCMR 671, application for production of additional evidence was dismissed by the lower appellate Court which order was maintained in revision by the learned High Court. It was held by the Hon’ble Supreme Court that the learned High Court was justified in refusing to allow production of additional evidence at the appellate stage specially when no reasonable ground was shown for not producing the same during the trial of the Suit ; and, though the parties were conscious of the questions involved in the Suit, yet they did produce the evidence.
F. In Nazir Ahmed and 3 others V/S Mushtaq Ahmed and another, 1988 SCMR 1653, leave was refused as no explanation was offered as to why the evidence which was sought to be produced in the High Court for the first time was not tendered before the trial Court.
G. In Mst. Jewan Bibi and 2 others V/S Inayat Masih, 1996 SCMR 1430, it was held that discretion of Court should not be exercised in favour of a person who had remained indolent for years together in the matter of producing oral or documentary evidence before trial Court, and such person should suffer the consequences of his failure.
3. Keeping in view the language used in Rule 27 ibid, it may be observed that the first appellate Court could take additional evidence only if after examining the evidence produced by the parties it comes to the conclusion that the same was inherently defective or insufficient, and unless additional evidence was allowed, judgment cannot be pronounced ; and, only such additional evidence can be permitted to be brought on record at the appellate stage which is required by the appellate Court itself for final or conclusive adjudication in the matter, or for any other substantial cause. It follows that additional evidence can be allowed in appeal when on examining the record, as it stands, an inherent lacuna, defect or deficiency is not only apparent, but is also felt by the appellate Court. The sole criterion as to whether additional evidence should be allowed or not depends upon the question whether or not the appellate Court requires the evidence “to enable it to pronounce judgment or for any other substantial cause”, as to which the appellate Court is the sole judge as the need for additional evidence must be felt by the appellate Court itself. In such an event, the appellate Court may allow additional evidence either on an application by any of the parties or even suo motu. Thus, it can be safely concluded that the expression “to enable it to pronounce judgment” means to enable the appellate Court to pronounce a satisfactory and complete judgment ; it certainly does not mean that additional evidence should be admitted in appeal in order to enable the appellate Court to pronounce judgment in favour of a particular party. Thus, the provisions of Rule 27 ibid can be legitimately invoked by allowing additional evidence only in cases where it is impossible for the appellate Court to pronounce judgment on the basis of the evidence available on record. These views expressed by me are fortified by the authorities discussed above.
4. In the present case, it is an admitted position that no application for summoning the witness / record from post office or courier service was filed by the appellant before the learned trial Court although he was fully aware at that stage that the relevant document was not available in his record and he was unable to produce the same in evidence. Moreover, there was no reasonable explanation or justification by the appellant that in spite of reasonable care and due diligence he could not produce the evidence in question at the trial or why application in this behalf was not filed by him before the trial Court. It may be noted that it was not the case of the appellant before the learned appellate Court that he may be allowed to produce certain document which could not be produced by him before the trial Court. In fact it was his case that the said document was still not in his possession. If this was the case, then the same position was prevailing at the time of trial, but he still did not file any application for summoning the witness / record of the authorities who, according to him, were in possession of the said document, nor did he offer any explanation for not doing so. Therefore, the appellant, who had an opportunity, but elected not to avail it, could not be allowed to fill up the omission / lacuna in his case before the learned appellate Court.
5. Learned counsel for the appellant has not been able to point out any misreading or non-reading of evidence by the learned Courts below or any illegality or infirmity in the impugned judgments and decrees which are based on proper appreciation of evidence and sound reasoning. In view of the above, concurrent findings of both the learned Courts below do not require any interference by this Court. Accordingly, the appeal and pending stay application must fail.
6. These are the reasons of the short order announced by me on 19.03.2019 whereby this appeal and CMA No.1317/2019 were dismissed with no order as to costs.
J U D G E