PLJ 2022 Lahore (Note) 55
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI R. 27--Specific Relief Act, (I of 1877), S. 42--Application for producing of additional evidence during pendency of appeal--Dismissed--Statements of witnesses of respondents were never confronted by petitioner before trial Court--Neither any application was submitted before trial Court which was refused nor appellate Court considered it appropriate to bring on record said documents in order to reach a fair conclusion--Statement of a witness recorded in another case is not perse admissible unless it is confronted to witness while he appears in subsequent proceedings before any Court--Petitioner was required to furnish documents relied upon at time of filing suit but he did not do so for long period of time and then preferred application for production of additional evidence--The petitioners while doing so was required to give sufficient reasons for non-furnishing of documents within due course of time which he could not proffer during course of arguments--Mere desire of a party to do an act which was required to be done in a particular manner cannot be termed a good reason or cause--Application could not be acceded to--Civil revision dismissed.
[Para 7] B, C, D & E
PLD 2013 SC 255 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Pre-requisite for producing of document--There is a pre-requisite that the document is produced before the trial Court and the trial Court refuses to admit it in the evidence or an application for production of additional evidence is made before the trial Court which is refused then an application under Order XLI Rule 27 CPC is proceedable before the appellate Court or otherwise if the appellate Court itself deems it necessary, he may order for production of additional evidence. [Para 7] A
Ch. Zahid Imran, Advocate for Petitioners.
Mr. Jahanzaib Khan, Advocate for Respondents.
Date of hearing: 7.6.2018.
PLJ 2022 Lahore (Note) 55
Present: Atir Mahmood, J.
versus
MUHAMMAD ABDUL AZIZ, etc.--Respondents
C.R. No. 146 of 2016, heard on 7.6.2018.
Judgment
Brief facts of the case are that the petitioners filed a suit for declaration before learned Civil Judge Sargodha which was decreed on 08.01.2013. Feeling aggrieved, petitioners filed an appeal before learned Additional District Judge, Sargodha and during pendency of said appeal, the petitioners filed an application under Order XLI Rule 27 CPC, whereby, he sought permission to place on record the certified copies of statements of Abdul Hameed, Hakeem Jamil Hassan and Noor Ahmad made in application under Section 14/17 of Arbitration Act. This application was resisted by the Respondents No. 1(i) to l(ix) by filing written reply. Vide impugned order dated 13.10.2015, learned lower appellate dismissed the application in the following terms:
“All the documents sought to be produced in additional evidence pertain to the judicial record of the year, 1984 and at the time of filing of original suit in the year 2006 till its decision in the year 2012, the same were very much in knowledge of the petitioners, appellants. The petitioner has simply pleaded in his application that those documents are very necessary for the effective decision of the case but did not aver that why did they remain mum for decades. It cannot be said that this judicial record was not in the knowledge of the petitioners nor the same has been agitated in this application. No sufficient and good cause has been shown by the petitioner for producing the additional evidence at this belated stage, so the petition stands dismissed.”
Hence this civil revision has been preferred.
2. The contention of learned counsel for the petitioners is that the documents to be produced in additional evidence were the statements of the witnesses in another case and were per se admissible and the Court should have taken judicial notice of the same. Lastly, prayed that this petition be allowed and the impugned order be set aside.
3. On the other hand, learned counsel for the respondents controverted the arguments of the petitioners and supported the impugned order and prayed for dismissal of the revision petition having no merit.
4. Arguments heard. Record perused.
5. Admittedly, the documents sought to be produced by the petitioners pertain to the year 1984, whereas, the suit was filed by the predecessor of the respondents in the year 2006. Written statement was filed by the petitioners in the year 2007. It is not the case of the petitioners that the said documents were not in the knowledge of the petitioners while filing the written statement. The petitioners during the proceedings before the learned trial Court neither confronted these statements to the witnesses of the Respondent nor any application was submitted before the learned trial Court for production of said documents as additional evidence.
6. The application was filed for the first time before the learned appellate Court in order to invoke the provision of Order XLI Rule 27, CPC. It would be advantageous to re-produce the Order XLI Rule 27 CPC as under:
“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.
7. In view of above quoted provision, there is a pre-requisite that the document is produced before the trial Court and the trial Court refuses to admit it in the evidence or an application for production of additional evidence is made before the learned trial Court which is refused then an application under Order XLI Rule 27 CPC is proceedable before the learned appellate Court or otherwise if the appellate Court itself deems it necessary, he may order for production of additional evidence. In the present case neither any application was submitted before the learned trial Court which was refused nor appellate Court considered it appropriate to bring on record the said documents in order to reach a fair conclusion.
8. Even otherwise, statement of a witness recorded in another case is not perse admissible unless it is confronted to the witness while he appears in subsequent proceedings before any Court. The petitioners filed the appeal on 23.01.2013 against judgment and decree dated 08.01.2013 passed by trial Court but he did not file the said application for more than two years thereafter and then filed the application on 17.02.2015. In my considered view, this application was at very belated stage. The petitioner was required to furnish the documents relied upon at the time of filing of suit but he did not do so for long period of time and then preferred the application for production of additional evidence. The petitioners while doing so was required to give sufficient reasons for non-furnishing of the documents within due course of time which he could not proffer during the course of arguments. Even after careful scrutiny of the application, I could not find any plausible reason warranting to allow the application. Mere desire of a party to do an act which was required to be done in a particular manner cannot be termed a good reason or cause. In the circumstances, the application could not be acceded to. Reliance is placed on the ratio laid down in case titled “Muhammad Anwar and others v. Mst. Ilyas Begum and others” (PLD 2013 SC 255).
9. The order impugned is in accordance with law. Learned counsel for the petitioners has miserably failed to point out any illegality or irregularity in the impugned order. No interference is called for.
10. In view of the above, this civil revision lacks merit, hence dismissed.
(Y.A.) Revision dismissed
0 comments:
Post a Comment