ATTA MUHAMMAD QURESHI Versus IQBAL

1. I. Exemption is granted but subject to all just exceptions.

2. I have heard the learned counsel at length. Evidently, there was an earlier round of litigation between the parties which culminated at the level of the Supreme Court and there the relationship of landlord and tenant not having been, on the material available, found to subsist, the parties were referred to civil proceedings. In consequence, the applicant filed a suit against the respondent seeking possession, mesne profits,‑etc. Such suit was dismissed and an appeal is currently pending. In the appeal the plaintiff‑applicant filed an application‑under Order 41, Rule 27, C.P.C. seeking that additional evidence be taken of a lease deed which, in the meantime, has been executed by the K.M.C. in favour of plaintiff‑applicant. Correspondingly, the defendant‑respondent has already filed a suit of his own seeking the nullification of such lease as apparently it affected his rights and the suit is pending. In the circumstances of the case, the learned II Additional District Judge, Karachi West, dismissed the application under Order 41, Rule 27, C.P.C. This Revision Application has, therefore, arisen.

2. Learned counsel for the applicant‑plaintiff has referred me to Parsotim Thakur v. Lai Mohar (AIR 1931 PC 143) and Muhammad Aslam v. Wazir Muhammad (PLD 1985 SC 46).

3. The circumstances in which additional evidence at the appellate stage can be entertained are visualised by Order 41, Rule 27, C.P.C. The first part of the rule is not relevant here because such evidence as was sought to be adduced at the appellate level did not exist when the suit had proceeded to trial. It is therefore, the second and third parts of the rule on which the learned counsel relies. With reference to the second part, an appellate Court is permitted to entertain additional evidence in the event such Court finds it necessary to pronounce judgment in the case. Co‑relatively, the last part of rule 27 permits the acceptance of additional evidence at the appellate level for any other substantial cause. It is, therefore, on the last‑mentioned two portions of the rule that the plea for entertainment of additional evidence was based.

4. It is true that additional evidence at the appellate stage may be accepted to avoid multiplicity of proceedings and even to take note of altered circumstances of a case if that be towards advancement of justice. But what has to be seen is whether acceptance of the freshly executed lease deed in the applicant's favour would achieve such objectives at all.

5. There can be little doubt that the rights of the parties were to be determined on the basis of such title as was possessed at the time the suit was filed. Reliefs of possession and mesne profits were to be allowed or disallowed 8 upon the material as existed at the time the suit had proceeded. If, in the meantime, at the instance of a third party, one of the contestants was able to even perfect his title, that would result a new situation and it would be a fresh title which would have to come for adjudication in course of time. For that purpose the person who claims the altered advantage may even be treated to have acquired a new cause of action and can pursue an appropriate remedy but if he succeeds on the basis of such new title, the reliefs shall have to be related to the point of time when the title was so perfected.

6. In the instant case, there was another ingredient and that was rightly taken note of by the learned appellate Judge. He has found that such additional C evidence as was sought to be produced, namely, the new lease deed in favour of the plaintiff‑applicant, has already been challenged in a suit, proceedings wherein are already pending.

7. In view of the foregoing, I have no hesitation in observing that the acceptance of the new additional material of the kind referred above at the appellate leval is more likely to result in confusion and chaos than in anything else. Moreso when the relief based on such a document would be relatable to the p point of time when the document came into being. Consequently, upon Acceptance of such material the suit may have to be remanded back for additional evidence from either side. To forestall these eventualities and to determine the rights of the parties as they existed of the suit, the application of the plaintiff -applicant was rightly dismissed. No jurisdictional error falling under section 115, C.P.C. has been shown.

8. While the Revision Application is disallowed, the observations hereinabove made have a more pointed reference to an altered cause of action, occurring during the pendency of proceedings, but so far as such altered defences are concerned, the position emerging in relation thereto may not be altogether similar and the approach may differ from case to case.

9. A.A./A‑1483/K Revision dismissed.