HASSAN and another vs HUSSAIN

' Through-this Civil Revision, the petitioners have challenged the order dated 12-6-1994 passed by the learned Additional District Judge, Vehari whereby their application under Order 41, Rule 27, C.P.C. For recording of additional evidence was dismissed.

2. Brief facts giving rise to the above-noted civil revision are that the respondent-plaintiff filed a suit for declaration challenging the vires of Mutation No, 255 dated 16-11-1987 on the ground that the same is collusive and therefore void ab initio. The said suit was decreed vide judgment and decree dated 11-2-1992. The petitioners preferred appeal against this judgment which is still pending decision. On 16-2-1992 petitioners moved an application before the learned appellate Court wherein they prayed for the production of following additional evidence:--

(i) Patwari Halqa alongwith Roznamcha Waqiati No, 80 in whose possession the said record was;

(ii) Patwari Halqa who entered the said Rapt No, 2; and

(iii) Saddar Qanungo/Office Qanungo alongwith original record of Mutation No, 255 dated 16-11- 1987 of Chak No, 171/WB.

' This application was dismissed by the learned appellate Court vide the impugned order dated 12- 6-1994 on the ground that "The Rapt of Roznamcha Waqiati and copy of the mutation are per se admissible. There is no need to summon Patwari Halqa and Girdawar Halqa alongwith the original mutation to prove the original mutation".

3. Learned counsel for the petitioners has challenged the order of the learned appellate Court on the ground that the evidence which was sought to be adduced by way of additional evidence was imperative for a just decision of the case as the respondent-plaintiff had denied the mutation and the public documents had to be proved in accordance with law to establish petitioners- defendants' title which originated from the documents in question. In support of his pleas, learned counsel relied on the following judgments:--

(i) PLD 1993 Lahore 492 (Mst. Hajan Nawab Bibi v. Additional District Judge, Lahore and 3 others);

(ii) PLD 1992 SC 811 (Mst. Fazal Jan v. Roshan Din and 2 others);

(iii) 1992 SCMR 1778 (Zar Wali Shah v. Yousaf Ali Shah and 9 others).

4. Learned counsel for the respondent-plaintiff has opposed this petition on the ground that the petitioners' application praying for additional evidence did not fall within the ambit of Order 41, Rule 27, C.P.C. That the petitioners-defendants could have produced the said evidence before the learned trial Court and having failed to do so the Court cannot permit a party to fill up the lacuna by way of additional evidence. He relied on the following judgments:--

(i) 1990 CLC 1095 (Hidayatullah and 2 others v. Haqnawaz and another);

(ii) PLD 1965 (W.P.) Peshawar 259 (Pordil Khan v. Sufaid Gul and others);

(iii) 1993 CLC 1637 (Muhammad Ismail and another v. Bahadur and 2 others);

(iv) 1993 CLC 450 Muhammad Sharif v. Mst. Nasrin and another);

(v) Manzoor Hussain etc. v. Muhammad Shafait etc. 1993 CLC 2357;

(vi) 1994 CLC 2417.

5. I have heard learned counsel for the parties and have gone through the precedent case-law which has been presented at the Bar.

6. The Legislature in its wisdom enacted Order 41, 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 Courts". 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. In PLD 1993 Lahore 492 it was observed as under:-- ' Civil Procedure Code (V of 1908)- ----O.XIII, R.2 & S. 115---Permission to produce certified copies of documents of public record as additional evidence---Validity---Such copies appeared to be essential for the just decision of the case---Application for permission to produce additional evidence could be filed at any time/stage---Order passed by Trial Court did not suffer from any jurisdictional defect or material irregularity so as to justify interference in exercise of revisional jurisdiction---Mere fact that Appellate Court held a different view regarding necessity of additional evidence or that impugned order was liable to correction, was no ground to set aside order passed by trial Court---Interest of justice demands that parties be allowed to bring on record documents which were otherwise of unimpeachable authenticity for resolving the controversy---Production of such documents would also obviate possibility of remand of case by Appellate/Revisional Court."

' In PLD 1992 Supreme Court 811 the suo motu power under Order 41, Rule 27, C.P.C. Was upheld as in absence of that exercise it would have led to a miscarriage of justice.

' Similarly in 1992 SCMR 1778, the Hon'ble Supreme Court justified the exercise of this power with a view to promote substantial justice and it was observed that "Concept of bar against filing the gaps was no more available in Pakistani jurisprudence and the law including the precedent law on Islamic principles which were being made applicable progressively to the proceedings before the Courts and other forums which were required to record/admit evidence" and the august Supreme Court remanded the case to the learned trial Court for a fresh decision in the light of the afore- referred observations.

' The case-law which has been referred to by the learned counsel for the respondent is distinguishable as the facts in those cases were different.

7. Examining the prayer of the petitioners in the light of the precedent case-law I am of the view that 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 title to prove the execution of the said mutation. Entries made in records 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 those entries to bring them an record. When the vires of a mutation is directly 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 ambit of expression "sufficient cause" which appears in Order 41, Rule 27 of the C.P.C.

8. In this view of the matter as the learned appellate Court failed to exercise jurisdiction in accordance with law by disallowing the application I am inclined to set aside the impugned order in revisional jurisdiction of this Court. Resultantly, this petition succeeds, the order dated 12-6-1994 passed by the learned Additional District Judge, Vehari is set aside, the application for additional evidence is accepted and the learned Addl. District Judge, Vehari is directed to record the additional evidence which finds mention in para 2 of this order above. The respondent-plaintiff shall of course have a right to produce any lawful evidence in rebuttal.