ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Civil Revision Application No.S-76 of 2023

(Azizullah & another v. Muzafar Hussain & Ors)

 

DATE

ORDER WITH SIGNATURE OF JUDGE

 

1.      For orders on office objection “A”

2.      For orders on CMA No.432/2024 (S/A)

3.      For hearing of main case.

 

Applicants:                              Through Mr. Noshad Ali Taggar, Advocate

Respondent No.1:                   Through Mr. Abdul Wajid Khokhar, Advocate

Province of Sindh:                  Mr. Abdul Waris. K. Bhutto, Asst. A. G.

Date of hearing:                    07.04.2025

Date of Order:                       11 .04.2025

 

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O R D E R

 

NISAR AHMED BHANBHRO, J;-             Through the instant civil revision application filed under section 115 of the Code of Civil Procedure, the applicants have called in question the validity of order dated 24.03.2023 (the impugned Order) passed by the Court of Learned 3rd Additional District Judge, Larkana (the Appellate Court), whereby the application under order 41 Rule 27 CPC read with section 151 CPC filed by the applicants in Civil Appeal No.114 of 2022 Re- Azizullah and another Versus Muzaffar Hussain and others, for production of additional evidence was dismissed.

 

2.                     Facts in brief, leading to filing of this revision application are that the Respondent No 1 (Muzaffar Hussain) filed First Class Suit No.336 of 2019 Re - Muzaffar Hussain Versus Azizullah and others before the Court of Learned 1st Senior Civil Judge, Larkana (the Trial Court), seeking relief of Declaration, Possession and Permanent Injunction, averring therein that plot admeasuring about of 4900.5 square feet of un-city survey No.12 situated at Soomra Muhalla, Waggan Road Larkana (the Suit Property) was exclusively owned by him by way of purchase through registered sale deed dated 06.11.2008. Khata of the Suit Property stands maintained in his name in record of rights vide entry No 3360 dated 28.11.2008 in Village Form VIIB (VF-VIIB). The Respondent No 1 remained in peaceful possession of the suit property; the Defendant Azizullah (Applicant in the present case) is his uncle, who requested his father to allow him a temporary residence in the Suit Property, which was granted to him out of affection. By the passage of time dishonesty crept in the mind of Applicants who started raising construction over the Suit Property. The Respondent No 1 filed an application under section 3 and 4 of the Illegal Dispossession Act 2005 before the Court of Learned Sessions Judge Larkana, which was dismissed, hence he filed suit before the Trial Court. Applicants (Defendants in the Suit) contested the suit by filing written statement. The Trial Court after recording of evidence decreed the suit of Respondent No 1 as prayed vide judgment and decree dated 30.08.2022. The applicants filed civil appeal No.114 of year 2022 against the judgment and decree of the Trial Court before the Court of Learned District Judge Larkana which was assigned to the Appellate Court for disposal in accordance with law. In appeal, the Applicants filed an interlocutory application under Order XLI Rule 27 Read with Section 151 CPC for production of the additional evidence of Mukhtiarkar Revenue Larkana and representative of SEPCO Larkana, the Appellate Court dismissed the said application vide the impugned order with directions to proceed with the main appeal. Hence this Revision Application.

 

3.         Mr. Noshad Ali Tagar Learned Counsel for the Applicants contended that the impugned order was perverse, arbitrary and non-speaking and unsustainable under the law. The Appellate Court failed to exercise jurisdiction vested in it, the production of additional evidence of the proposed witnesses was essential to reach a judicious conclusion in the case. The Appellate Court failed to apply its judicial mind while dealing with the application seeking production of additional evidence. He contended that the Respondent No 1 obtained a decree for the Suit Property admeasuring 4900 square feet, whereas per revenue record as per share he was entitled for an area of 3200 square feet only, such fact surfaced for the first time in Mukhtiarkar Report filed in execution proceedings before the Executing Court. The Applicant when came to know about such factual position regarding original area of the Suit Property he filed an application requiring the assistance of the Appellate Court for production of such an important piece of oral and documentary evidence. He contended that appeal being continuity of the proceedings, production of additional evidence would not prejudice the case of either side rather would help in rendering a correct decision. He contended that the rejection of earlier interlocutory applications would not in any manner debar the filing of fresh application. He prayed for allowing of the revision application.

 

4.         Conversely Mr Abdul Wajid Khokhar Learned Counsel for the Respondent No 1 opposed revision application on the ground that during trial of the suit a similar application for recording of evidence of Mukhtiarkar and representative of SEPCO was filed which was dismissed by the Trial Court vide order dated 05.11.2020, the said order was not challenged, thus attained finality. He contended that the applicants filed similar application before the Appellate Court which was dismissed vide order dated 02.12.2022. The second application was filed by Deputy District Attorney on behalf of the Official Respondents on the same grounds, which was also dismissed vide order dated 27.05.2023. He contended the third application was filed on the same facts, which was dismissed through the impugned order. He contended that production of the additional evidence is nothing but to circumvent the execution proceedings. He contended that the applicants instead of proceeding with the appeal on merits have resorted to filing of interlocutory applications time and again which is nothing but a tactics to linger on the proceedings in appeal, he prayed for dismissal of revision application.

 

5.         Mr. Abdul Waris K.Bhutto, Learned Assistant Advocate General supported the stance of the applicants and contended that the evidence of official witnesses will help in arriving at just and fair conclusion of the case and it will not prejudice the case of either side in any manner, he prayed for allowing of production of additional evidence by setting aside the impugned order.

 

6.         Heard Learned Counsel for the parties and examined the material available on record with their able assistance.

 

7.         Scanning of the record reveals that the Respondent No 1 filed a suit seeking relief of  Declaration, Possession and Permanent Injunction for the Suit Property admeasuring 4900.50 square feet. The applicants filed written statement wherein they did not dispute the area of the Suit Property but claimed possession to be co-owners. The Trial Court based upon the divergent pleadings of the parties framed five issues, out of which the issue No 2 related to the ownership, being relevant is reproduced hereunder for the ease of reference. 

“2. Whether plaintiff is the owner of suit property i.e a house having un city survey No.12, area 4900.50 square feet situated at Deh Lahori, Tapo Abra, Taluka Larkana by virtue of a registered sale deed No.7714 dated 06.11.2008 executed between him and his father Badarudin.”  

The Respondent No 1 filed suit in year 2019, the Trial Court framed a specific issue regarding ownership to the extent of 4900.5 square but at no point of time before recording of evidence any amendment in the issues was sought by the Applicants and other parties contesting the suit. The parties led evidence in support of respective claims; the Trial Court after hearing the parties rendered its findings for issue No 2 in affirmative and decreed the suit of the respondent No.1 as prayed.

 

8.         Record reflects that the Applicants had filed Suit No 94 of 2014 Re Azizullah another Versus Badaruddin and others seeking relief of declaration and cancellation of registered document. The plaint in the Suit No 94 of 2014 filed by the applicants specified the area of the suit property as 4900.5 square feet. The Para No.2 and 3 of the plaint (available at page number 9 of the memo of the Petition) being relevant is reproduced for sake of convenience.

“02. That an area of 4900.5 square feet out of un-city S. No. 12 situated at Soomro Mohalla Wagan Road Larkana will here in after be called “the suit property”. However the total area in joint possession of the plaintiffs and defendant No.01 and 02 have been about 8000 square feet.

 

3. That in the year 1972 the plaintiffs and defendant No 1 jointly purchased the suit property through registered sale deed. The Khata of the jointly purchased property was mutated in the name of Defendant No 1 as he was the eldest brother and also the elder of the family.” 

Applicants in their own pleadings admitted that the Suit Property was purchased in the name of Badaruddin Soomro in year 1972 and it comprised of an area of 4900.5 square feet. The Respondent No 1 has acquired rights in the Suit property by way of purchase through registered sale deed dated 06.11.2008 from his father. The title of the Respondent No 1 is not under challenge before any Court of law, even in the suit filed by the applicants in year 2014 they did not seek cancellation of registered sale deed dated 06.11.2008.

 

9.         It appears that the dispute regarding area of the suit property arose when Respondent No 2/ Mukhtiarkar Revenue Larkana (the Defendant No 3 in the Suit) filed a report before Executing Court in Execution Application No 11 of 2022 in the shape of objections (available at page No 65 of the memo of petition) specifying therein that the father of Respondent No 1 was having a share of 0-1.5 paisa in un-city Survey No 12 and per record total area of the entire survey number was 4-30 acres, the share of the father of Respondent No 1 in the property was to the extent of 3200 square feet as against 4900 square feet mentioned in Registered Sale Deed dated 06.11.2008 and entry No 3360 dated 28.11.2008 of VF- VIIB. The Mukhtiarkar Revenue Larkana also filed report before this Court being Respondent No 3, wherein taken the same stance that Respondent No 1/ Decree Holder owned property to the extent of an area of 3200 square feet, the copy of entry No 3360 dated 28.11.2008 of VF – VIIB is also submitted with report, wherein the area of the suit property is shown as 4900.5 square feet. The Report of Mukhtiarkar cannot be relied upon unless authenticated through solid proof, in particular when the entry in the record of rights in favor of Respondent No 1 was recorded on the basis of registered document. It is surprising rather shocking that Mukhtiarkar himself was a party in the Suit filed by the Respondent No 1 but stayed away from the proceedings before the Trial Court. Though the entry in Revenue Record does not create a right or title in the Suit Property but the same has got a presumption of truth attached unless the contrary is proved in terms of section 53of the Sindh Land Revenue Act, 1967. The Report of the Mukhtiarkar cannot be treated as a public document whereas the registered document and the entry in record of rights falls within the definition of the public document, therefore presumption of authenticity is attached to the same unless contrary comes on record, the Public Document has been defined under section 85 of the Qanu e Shahadat Order 1984, which reads as under:

"85 PUBLIC DOCUMENTS: The following documents are public documents:-

(1) Documents forming the acts or records of the acts

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive whether of Pakistan, or of a foreign country.

(2) Public records kept in Pakistan of private documents.

(3) Documents forming part of the records of Judicial proceedings;

(4) Documents required to be maintained by a public servant under any law; and

(5) Registered documents the execution whereof is not disputed.

(6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance 2002

 

10.       If the Government has any right or interest in the suit property, as reflected from the Report of the Mukhtiarkar Revenue Larkana submitted before this Court on 28.11.2023 showing the entitlement of the Respondent No 1 in the Suit Property to the extent of 3200 square feet. The Mukhtiarkar in its report raised concern that the Respondent No 1 wanted to occupy a portion of the Government Food Godown owned by the Food Department under the garb of Decree, be that it may, the concerned department can initiate the appropriate proceedings as per law. But so far since 2008 when property was transferred in favor of Respondent No 1 through registered document nothing appears to have been done, needless to say that none else but the Mukhtiarkar himself recorded Entry No 3360 of VF – VIIB in record of rights in favor of Muzaffar Hussain / Respondent No 1 showing an area of 4900.5 square feet.

 

11.       The perusal of the impugned order reveals that one of the grounds that attracted the Appellate Court for dismissal of the application for production of additional evidence was that the like nature applications filed before the Trial Court and the Appellate Court were dismissed vide orders dated 15.11.2020, 02.12.2022 and 27.05.2023 but no challenged existed against the same, thus matter attained finality, and the applicants were precluded from filing the application. This concept derives from the principle of Res Judicata, which debars filing of successive suits on the same subject matter between the same parties to avoid conflicting decisions. The principle of Res Judicata as codified in section 11of CPC though applies to the suits and would not be applied to the interlocutory applications but the general legal principles of the Res Judicata would certainly apply to the decisions on interlocutory applications filed during the proceedings. If an interlocutory application is decided on merits at one stage of the proceedings, the same would operate as a bar and would preclude the party from filing the application by raising the same plea at a subsequent stage of the proceedings, however such order would not operate as a bar if not passed on merits of the case and only expressed an opinion. In the present case, the earlier applications filed by the applicants were decided on merits through speaking orders and perusal of contents of the subsequent applications transpired that those were mere repetition without asserting any new facts or grounds rendering the same unsustainable under the law, thus rightly tackled by the Appellate Court. Thus the contention of Learned Counsel for the Applicants that successive interlocutory applications seeking the same relief are not debarred is without substance in the facts and circumstances of the instant case.

 

12.       Taking up the issue of production of the additional evidence at appellate stage as agitated by the Applicants that the powers of appellate Court for the purposes of recording of additional evidence equate to the powers of Trial Court is without legal force. In the proceedings during appeal, the Appellate Court though conferred with powers to order for production of additional evidence, under Order XLI Rule 27 CPC, however such powers are not absolute but structured by rule 27 itself and could only be exercised when the conditions specified therein are satisfied.  It is also to be kept in mind that Rule 27 of Order XLI CPC does not envisage providing of second opportunity to a party to adduce evidence or to rectify the negligence of a party in the initial round to fill any lacunas. Rule 27 of the Order XLI reads 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 provision of law starts with a negative declaration that parties to an appeal shall not be entitled to produce additional evidence, meaning thereby that a party enjoys a vested right to produce evidence during trial and such a right at appellate stage is qualified in nature subject to the condition enunciated under sub-Rule 1(a) of Rule 27.  For the purposes of production of additional evidence at appellate stage, the party invoking the provision of law has to satisfy that the Trial Court refused to admit a piece of evidence which ought to have been admitted, the emergence of a new fact would not in any manner create a ground for production of the additional evidence. The perusal of the contents of the application filed by the Applicants transpired that the same did not conform to the conditions codified under Order XLI Rule 27 CPC, thus were dealt by the appellate Court accordingly. The appellant used trickeries to delay the appeal and execution proceedings by filing of successive applications, such a practice cannot be appreciated at all, because the delay in dispensation of justice amounts to its denial.

 

13.       The Honorable Supreme Court in the case of Shamshad Bibi and others versus Riasat Ali and others reported as PLD 2023 Supreme Court 643 has been pleased to hold as under:

“5.  The power under Order XLI, Rule 27 of the C.P.C. is not intended to be exercised to fill up lacunas, or to make up any deficiency in the case, nor to provide an opportunity to the party to raise a new plea. The power essentially has to be exercised cautiously and sparingly and not to facilitate an indolent litigant. The court, before exercising its jurisdiction of allowing the recording of additional evidence, must be satisfied that the document sought to be adduced in evidence is not of the nature that could be easily fabricated, tampered or manufactured.”

 

14.       The High Court in its supervisory jurisdiction conferred under section 115 CPC has a significant role to play in the dispensation of justice. Whenever it appears to the High Court that the subordinate court has failed to exercise a jurisdiction so vested, or exercised jurisdiction illegally or with material irregularity, it will interfere to correct the wrong by rectifying the illegalities or/and irregularities in the judgments and orders to secure the ends of justice. Meticulous perusal of record reveals that the plea agitated by the Applicants did not fall within the structure of Rule 27 of Order XLI of CPC, the appellate Court dealt the application within the premise and parameters of law, and the impugned order does not suffer from any infirmity or illegality requiring interference by this Court under its revisional jurisdiction, the revision application fails and stands dismissed accordingly with pending applications.

           

                                                                                                                                Judge