The Legislature in its wisdom enacted Order XLI Rule 27 C.P.C., with a view to enable the learned appellate Court to record additional ......

 2023 YLR 2441

The Legislature in its wisdom enacted Order XLI Rule 27 C.P.C., with a view to enable the learned appellate Court to record additional evidence which in its view is necessary “to enable it to pronounce judgment or any other substantial cause”. The Court has to pronounce a judgment in accordance with law with a view to achieve justice and the afore-referred enabling provision has a nexus with the ultimate purpose i.e. a just decision. The additional evidence which is sought to be adduced should have a direct bearing on the point in issue and the test whether a permission should be granted or not is as to whether a just decision could be arrived at without the additional evidence which is sought to be produced. 8. It is settled law that each and every case is to be decided on its own peculiar circumstances and facts Justice could not have been sacrificed on the alter of the technicality which does not go to the root of the cause, in so far as the fairness thereof is concerned. Obviously unjust and wrong decision which is also against the substantive law of the country shall be avoided by the Court.

Where a party challenges the vires of a mutation in the revenue record it becomes essential for the other party who is deriving any title from the said transaction to prove the valid execution of the said mutation. Entries made in record of rights do have a strong presumption in favour of the party who derives title from the said entries but this presumption can be rebutted if evidence is led to that effect. It, therefore, becomes essential for the party relying on those entries to bring them on record. When the vires of a mutation is direct in issue I am afraid a Court cannot pronounce a just judgment without looking at the documents which are in dispute and without recording the statements of those who wish to prove or disprove the documents in question. This factor is sufficient to bring the case within the expression “sufficient cause” which appears in Order XLI Rule 27 of the C.P.C. 10. Persons who had allegedly put their thumb impressions and signatures on the mutations denied doing the same then the Court should have permitted opinion of Finger Prints Expert as additional evidence but by failing to do so it had failed to exercise jurisdiction vested in it.

The Courts are not only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the litigants, and one who commits a mistake in procedural matter should be deprived of the right claimed, even if he is entitled to it.

Where the interest of the justice and the requirement of the Court in adjudicating on the matter demand that such additional evidence is necessary, then the same should be allowed and recorded. The Courts are not denuded power to summon all the necessary record and also to summon the witnesses so as to supply omissions from both the sides. If a piece of evidence is relevant and pertinent for decision of an issue and it is genuine and reliable, it should not be stopped to be brought on record merely because in the process employed for the collection of the material an irregularity or an illegality was committed. The concept of bar against filling the gaps is no more available in Pakistan jurisprudence. The Courts should collect and record evidence which is authentic, consistent with the pleadings and relevant to the findings so as to advance and to do complete justice between the parties. Interest of justice demands that petitioner be allowed to bring on record documents as well as oral evidence which are otherwise of unimpeachable authenticity, for resolving the controversy and the ends of justice.