Syed MUHAMMAD HASSAN SHAH and others vs Mst. BINAT-E-FATIMA and another

' CH. EJAZ YOUSAF, J.---This appeal by way of leave is directed against judgment dated 19-4-2001 passed by a learned. Single Bench of the Lahore High Court, Lahore, whereby R.S.A. No,162 of 1989 filed by the appellant was dismissed.

2. Facts of the case, in brief, are that on 21-2-1982 a suit for specific performance in respect of land measuring 173 kanals, 1 marla was filed by the appellants against respondent No,1 and her mother, of whom she is the sole heir, on the averments that respondent No,1 and her mother Mst. Rabia Bibi owned the disputed land which included surrendered land measuring 1039 kanals and 6 marlas.

On 26-6-1972"an agreement to sell" the land in question, was executed by them in favour of appellant No,1 Syed Muhammad Hassan Shah and Syed Sajjad Haider, predecessor-in-interest of appellants Nos.2 to 5. According to the terms of the agreement, price of the surrendered land was Rs,46,800 out of which two vendors had already deposited a sum of Rs,38,999 while balance amount of Rs,7,801 including tax was to be paid by the appellants and it had to be considered as earnest money. It was agreed that in all a sum of Rs,56,000 would be paid by the appellants and in lieu thereof respondent No,1 would convey the suit-land to them. Though, as claimed by the appellants possession of the suit land was transferred to them yet, since respondent No,1 failed to abide by the terms and conditions of the agreement in question therefore, they were compelled to file the suit for specific performance of the contract. The suit was contested and execution of the agreement to sell was denied by respondent No,1, hence, as many as 8 issues were framed on divergent pleadings of the parties. The suit was dismissed vide judgment and decree dated 8-12- 1987 primarily on issue No,4 which was in the term, as to whether the suit in its present form was not maintainable. No other issue was, however, decided by the trial Court. The aforementioned judgment and decree was attacked by the appellants in appeal, whereas a revision was also filed by respondent No,1 seeking dismissal of the suit on all the issues. Both the appeal as well as the revision were disposed of by the first appellate Court, vide the consolidated judgment dated 26-6- 1989 who after appreciating the entire evidence, came to the conclusion that execution of the sale agreement was not duly proved and therefore the appellants were not entitled for the decree for specific performance. Regarding issue No,4, the first appellate Court found that there was no defect in the form of the suit. Accordingly finding on the said issue was reversed. Judgment and decree of the first Appellate Court, was assailed before the High Court through R.S.A. No,162 of 1989 which was dismissed vide the impugned judgment, hence this appeal.

3. It has been mainly contended- by -Mr. Mullanunad Akram Shaikh, Senior Advocate Supreme Court, learned counsel for the appellants that during pendency of appeal before the first appellate court, an application under Order XLI, Rule 27 was filed wherein it was, on the basis of attached documents, pleaded that since respondent No1, through the documents in question had admitted execution of the agreement to sell, whereas at the trial it was denied, therefore, the appellants may be allowed to produce the same. The application remained pending before the said Court and no order thereon was passed even at the time of decision of the appeal. In the circumstances, an application i,e, C.M.A. No,1-C of 1996 for production of the documents in question, by way of additional evidence, was again filed in the High Court which was dismissed primarily on the ground that since the documents in question were not produced at the trial, therefore, the appellants were estopped to produce the same at later stage in order to fill the- gaps and if allowed it would cause delay in disposal of the case. Learned counsel has maintained that since production of documents attached with the application under Order XLI, Rule 27, C.P.C., were essential for complete and fair adjudication of the matter, enabling the Court to decide the issues involved properly, therefore, the learned Single. Judge in chambers ought to have allowed the application particularly when the documents in question were certified copies of the judicial proceedings and their authenticity and genuineness was beyond doubt. The learned counsel has added that it was essential for the learned Judge to have disposed of the application for additional evidence by a specific order and not by taking over all view of the case without any reference to the issues framed in the suit. He has further contended to the impugned judgment being vague and indefinite does not comply with the requirements of Order XLI, Rule 31, C.P.C. As it was obligatory for the learned Judge to record points for determination before rendering the decision. It is further his grievance that the first appellate court while upsetting the findings on issue No,4 regarding maintainability of the suit should have remanded the case to the trial court as its failure to do so, had deprived the appellants a forum of appeal and the learned Judge in High Court has also gone wrong in law by endorsing the decision.

4 Mr. Zafar Iqbal, learned counsel for respondent No,1, on the other hand, while controverting the contentions raised by learned counsel for the appellants has submitted that since the application for production of additional evidence was filed at a belated stage and intention behind the same was to fill in the gaps in evidence, therefore, it was rightly rejected by the learned Judge in Chambers. He has added that since sufficient evidence, on record, was available therefore, the first appellate court was justified in deciding the suit itself despite the fact that learned trial Judge had given decision on issue No,4 only. Learned counsel has, however, not disputed that a similar application for production of additional evidence filed by the appellants in the first appellate Court remained pending and no order was passed thereon.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the relevant record minutely, with their assistance.

6. As to the first contention raised by the learned counsel for the appellant that application for taking additional evidence was unjustifiably rejected by the High Court, it may be mentioned here that reasons primarily weighed with the learned Judge in rejecting application for production of additional evidence were, that since adequate opportunity to produce evidence at trial was afforded to the petitioner, therefore, documents in question which were 'private documents' could not have been allowed to be produced at a later stage as otherwise it would have caused delay in disposal of the case. The explanation offered by the petitioner that documents in question were not within his knowledge at the trial stage too, was not found sufficient. While relying on the case of Abdul Hameed and 14 others v. Abdul Qayyum and 16 others (1998 SCM R 671) and distinguishing the instant case from Zar Wali Shah's case (1992 SCM R 1778) the learned Judge was further pleased to observe that a litigant was not entitled to produce additional evidence as a matter of course particularly in second appeal.

' It would be worthwhile to mention here that in Abdul Hameed's case (supra) production of documents at appellate stage was disallowed by the court for the reason that material already available on record was found sufficient in view of the statement made by the petitioner Noor Din as D.W.1 in the suit whereas in Zar Wali's case (supra) it was laid down by this Court that where one or the other party fails to produce all the material or documents necessary for just decision of the case or fails to request for proper examination of the disputed documents/signatures, then the court would have ample power to do the needful so as to advance justice rather than injustice, it was further held in the case that concept of bar against filling the gaps was no more available in Pakistan jurisprudence and the law; including, the precedent law on Islamic principles.

7. It may be noted here that power available under Order XLI, Rule 27, C.P.C. Though cannot be exercised in allowing a party to fill up lacunas or making up deficiency in a case as it has to be exercised cautiously and sparingly yet, where the evidence sought to be produced A before the Court has a direct bearing on an important issue in the case and the controversy is not likely to be resolved without taking further evidence, the Court must take additional evidence in order to render a just decision in the case. In such a situation, as it was in the instant case where decision on issue No,4 only was rendered by the trial Court and B the rest of he issues remained undecided, a duty is cast upon the Court to collect further evidence so as to decide the case effectively, as rules of procedure are not made for the purpose of hindrance in providing justice. It would also be not out of place to mention here that power available under Order XLI, Rule 27 of C.P.C. Is not meant to cater the needs of a particular party but is available for exercise by the Appellate Court in appropriate cases where need for taking additional evidence appears essential to the Court for just decision of the case. In this view we are, in addition to Zar Wali Shah's case (supra), fortified by the following reported judgments:--

(i) Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684),

(ii) Mehr Allah Ditta v. Muhammad Ali (PLD 1972 SC 59),

(iii) Fazal Jan v. Roshan Din (PLD 1992 SC 811),

(iv) Mst. Bakhshi v. Fazal Muhammad (1989 SCM R 2005),

(v) Muhammad Yousaf v. Mst. Maqsooda Anjum (2004 SCM R 1049).

' What to speak of taking additional evidence at appellate stage in the case of Ghulam Muhammad v. Muhammad Aslam (PLD 1993 SC 336) it was, while referring the cases of Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88); Mohabbat v. Asadullah Khan and others (PLD 1989 SC 112) and Malik Mir Bashi and others v. Haji Allah Khan and others (1999 SCMR 2504) held that "if the Appellate Court which is competent to record additional evidence, acts illegally or with material irregularity and on that account factual errors is committed then in a fit and proper case additional evidence can be admitted in revision even if it is found essential for just decision of the case".

8. Perusal of application filed by the appellants for production of additional documents in evidence reveals that the said application was filed because, according to the appellants, during pendency of the appeal thorough search of the record of the case left by their predecessor was made and the case file was also examined in consequence whereof certain important facts and documents came to the knowledge of the appellants which had great bearing on the issue/subject matter of the case. In order to properly appreciate the contention it would be advantageous to have a glance at the relevant extract from the said application which reads as follows: "That the appellants seek permission to produce, those documents by way of additional evidence.

The following documents are required to be produced by way of additional evidence:--

(a) Certified copy of grounds of review petition dated 21-1-1982, filed by Bint-e-Fatima (respondent in appeal).

(b) Certified copy of order dated 18-7-1982 of Collector passed on Review Petition.

(c) Certified copy of grounds of appeal dated 24-11-1983 filed by Bint-e-Fatima respondent before Commissioner/Faisalabad Division.

(d) Notice dated 27-511981, from Naseer Khusru Jaffari attorney of Bint-e-Fatima along with original registered envelope through which the notice was sent."

' Bare reading of the above would show that except the notice at Sr. No,(d), all the other three documents were certified copies of "public record" and were thus "public documents" within the purview of Article 85 of the Qanun-e-Shadat, 1984, while the envelope containing notice at serial

(d) too, bore postal stamp and therefore, could have been conveniently proved.

9. Since all the documents sought to be proved by way of additional evidence were relevant to the controversy in hand i,e, as to whether the agreement to sell dated 26-6-1972 was executed by the respondents? Therefore, in our view production thereof before the Courts was essential for just decision of the case. In the circumstances application filed by the appellant ought to have been allowed by the learned Judge in Chambers particularly when a similar application filed by them in the first appellate Court remained undecided as is explicit from perusal of para. 11 of the memo of appeal before the first appellate court. The contention therefore, has force in it.

10. In view of our findings on the above argument, the rest of the contentions needs not to be attended to lest it may prejudice the case of either of the parties before the trial Court.

11. Upshot of the above discussion is that this appeal as well as the application filed by the appellant for production of additional evidence are allowed, impugned judgments and decrees of both the courts below are set aside and the case is remanded to the trial Court for its decision afresh in accordance with law. Learned counsel for respondent No,1 has submitted that since it is an old matter, therefore, learned trial Judge may be directed to dispose of the case at an early date. We are inclined to allow the request. The trial Court is directed to decide the case within a period of two months from the receipt hereof, positively.