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Civil Revision No. 111 of 1978, decided on 9th January, 1980.

---- O. XLI, r. 27-Appeal-Additional evidence - Legitimate occasion for admission of additional evidence arises when on examining record an inherent lacuna or defect found-Test whether or not appellate Court requires such evidence "to enable it to pronounce judgement or for any other substantial cause" and Appellate Court sole Judge to decide question.-[Evidence].

Messrs Mohammad Sadiq, Mohammad Umar and another v. The Austrlasia Bank Ltd. P L D 1966 S C 684 ref.

--- O. XLI, r. 27-Expression "to enable to pronounce judgment " Means to enable Court to pronounce a satisfactory judgment and not to enable Court to pronounce judgment in favour of a particular party-Court may call for further evidence in appeal where it is impossible to pronounce judgment at all.--[Words and phrases].

- S. 137-Failure to cross-examine a witness-Tantamount to -admitting his statement.-[Cross-examination).

Karnidan Sarda and another v. Sailaja Kanta Mitra and another A I R 1940 Pat. 683 and Mst. Zar Jan v. Mst.Najmun Nisa and others P L D 1969 Pesh. 118 rel.

-- O. XLI, r. 27-Appeal-Additional evidence-Requirement must be genuine-Provisions of r. 27 not intended to allow a litigant, unsuccessful in lower Court, to patch -up weak parts of his case and fill up omissions in appellate Court-Petitioner, wishing to patch up weak parts of his case and Appellate Court also not feeling necessity of such evidence-Rule, 27, held, cannot be invoked in aid of petitioner.-[Evidence].

- O. XLI, r. 27--Additional evidence in Appellate Court -Substantial cause--Appellant not mentioning any cause preventing him from producing evidence in question before trial Court Appellant not diligent and disability to produce additional evidence in first Court for causes due to his negligence-No substantial cause, held, constituted within meaning of r. 27.--[Evidence].

Abdus Samad Khan for Petitioner.

D. M. Kamil for Respondents. .

Date of hearing : 7th October, 1979.

This application for revision has arisen out of a suit brought by the plaintiffs/respondents, Mohammad Zarin and Mohammad Sherin, against the defendant applicant, Qalandar, for possession by pre-emption of 24 kanals 9 marlas of land, bearing Khasra No. 237, situate in the area of village Lik Puni, which was sold by Abdul Aziz Khan to the applicant, by Mutation No. 1893 attested on the 13th of May, 1975, for an ostensible sum of Rs. 25,000. The plaintiffs based their right of pre-emption on the ground of being participators in the immunities and appendages of the land sold as well on the ground of being owners of contiguous property. As regard the sale consideration, their plea was that it was Rs. 3,000 only and the amount shown in excess thereof was intended to prevent the pre-emptors to enforce their light of pre-emption.

The suit was vigorously contested by the defendant. He denied the plaintiffs' right of pre-emption and added that they had no cause of action for bringing the suit that the suit besides being barred by limita tion was also hit by the principles of Sinker and that the sale consideration' was Rs. 25,000 which had been fixed in good faith and actually paid.

The following issues, arising out of the pleadings of the parties, were framed :-

(1) Whether the plaintiffs have got a superior right of pre-emption

(2) Whether the plaintiffs have got a cause of action

(3) Whether the suit is hit by the principle of Sinker

(4) Whether the suit is within time .

(5) Whether the sum of Rs. 25,000 was fixed in good faith or paid actually

(6) What is the market value of the suit land

(7) Relief.

After recording all the evidence which the parties wished to adduce, the trial Judge found Issues 1, 2 and 4 in favour of the plaintiffs and issues Nos.. 3 and 5 against the defendant. On Issue No. 6, it was held that the market value of the land was Rs. 19,755.60 Consequently, by his judgment and decree dated 30th March, 1977, the trial Judge decreed .the suit on payment of Rs. 19,755.60, leaving the parties to bear their own costs.

The defendant appealed to the District Judge, Mardan. Alongwith the' Memorandum of appeal, he annexed a sketch said to have been prepared by a Patwari of the Irrigation Department. By this sketch. it was sought to be proved that a path and water channel intervened between the suit land, and the land owned by the plaintiffs on the basis of which their right of pre-emption was found to exist. About nine and a half months after the institution of the appeal, an application was submitted on behalf of the appellant for allowing him to produce additional evidence to show that the position at the spot was the one shown in the sketch prepared by the Patwari. Irrigation Department, and that the Aks-Shajra-Kishtwar prepared in 1925-26 wherein path and the water channel had not been shown in between the suit land and the ownership of the plaintiffs did not represent the factual position obtaining at the time of the sale in question.

The application for additional evidence was resisted by the respondents. Upon consideration of the matter before him, the District Judge rejected the application and proceeded to consider the appeal on the evidence produced before the trial Court. Only one point, namely, whether the plaintiffs had superior right of pre-emption as against the defendant, was argued before him. Relying on the testimony of Mohammad Jan Patwari examined as P. W. 1 in the Trial Court, the District Judge held that the plaintiffs being owners of contiguous property were possessed of superior right of pre-emption as against the vendee and, consequently, by his judgment dated 2nd March, 1978, dismissed the appeal with costs throughout. This decision is now being complained of before me.

It is not denied, and in fact has candidly been conceded by the learned counsel for the petitioner appearing before me, that on the evidence produced before the trial Court, the plaintiffs-respondents had superior right of pre-emption as against the defendant applicant. The controversy in essence falls, therefore, in a narrow compass, namely, whether the vendee applicant was entitled to produce the additional evidence which he sought to produce before the lower appellate Court. -

The learned counsel for the petitioner strenuously contended, on the authority of Messrs Mohammad Sadiq Mohammad Umar and another v, The Australasia Bank Ltd. (P L D 1966 S C 684) that the Court should not give such a restricted interpretation to the Provisions of rule 27 of Order XLI -of the Code of Civil Procedure as would, in effect, amount to tying down the hands of the Court and stand in the way of doing complete justice in a cause. He argued that the additional evidence sought to be produced in this case was important piece of evidence having a material bearing on the merits of the case inasmuch as in it's presence, the plaintiffs could not be regarded as having land contiguous to the suit land and for that reason, their suit could not succeed.

It is true that the rules of procedure, as held in the above-cited case, are not made "for the purpose of hindering justice" But it is also true that the legitimate occasion for admission of additional evidence on appeal is when on examining the record as it stands, there is an inherent lacuna or defect. The test as to whether additional evidence should be received A depends upon the question whether or not the appellate Court requires the evidence "to enable it to pronounce judgment or for any other substantial cause", as to which the appellate Court is to be the sole Judge. The expression "to enable it to pronounce judgment", means to enable it to pronounce a satisfactory judgment and does not mean that, in order to enable the appellate Court to pronounce judgment in favour of a particular party, additional evidence should be admitted in evidence in appeal, it means only that where it is impossible to pronounce judgment e at all on the evidence, the Court may call for further evidence. In the present case, the District Judge to whom request for additional evidence was made for the first time in appeal, did not feel any need for additional evidence to enable him to pronounce judgment. The evidence on the record was found sufficient by him to pronounce a satisfactory judgment. It will not be out of place to point out here that the evidence produced by the plaintiffs on the point that they owned land contiguous to the suit land stop unchallenged in the trial Court. In this context, reference may be made to the statements of the Patwari and one of the, plaintiffs, namely; Mohammad Sherin. The Patwari stated in most unequivocal words that Khasra No. 235. owned by the plaintiffs was contiguous to the suit land as shown in Aks-Shajra Ktshtwar Exh. P. W. 1/9. Mohammad Merin plaintiff also made a similar statement saying that plaintiffs were the owners of land contiguous to the land in dispute. On this point, they were not at all cross examined by the 'vendee or his counsel and indeed, not a single question was put to them on this particular point. It is well settled that failure to cross-examine a witness tantamounts to admitting his statement. If any authority is needed in support of this view, one could refer to Karnidan Sarda and another v. Sailaja Kanta Mitra and another (A I R 1940 Pat. 683) ; and Mst. Zar Jan v. Mst. Najmun Nisa and others (P L D 1969 Pesh. 118). In the first of these cases, there were certain matters which could only be explained by the plaintiff or his witnesses. Although the plaintiff was cross-examined at considerable length, the defendants appellants consistently avoided asking questions on those particular matters. While referring to the said matters, it was contended on behalf of the appellants that the sums of money alleged to be advanced by the plaintiff to defendant No. 1 were fictitious and that it was merely an arrangement made between defendant No. 1 and .the plaintiff for the purpose of defrauding defendants Nos. 2 and 3 who had obtained an attach ment against defendant No. 1. This argument was dismissed by their Lordships and the following observations were made in this behalf :-

"In my judgment the argument may .be dismissed by one reason alone. If there was anything in the Hatchitha account which was questionable or raised doubt in any sense of the term, the only person or persons who could explain those matters was the plaintiff or his witnesses. Now, although the plaintiff was cross-examined at considerable length, the defendants-appellants consistently avoided asking questions on these particular matters. It cannot lie too strongly emphasized that the system of administration of justice allows of cross-examination of opposite-party's witnesses for the purpose of testing their evidence, and .it must be assumed that when the witnesses were not tested in that way, their evidence is to be accepted unless of course there are any inherent improba bilities. If we were to come to a conclusion that the argument presented to us by the appellants in this matter should be accepted, it would be impossible to support such a judgment by any juristic reasons. In my judgment, so far as the appellants' case depends upon any question of fact, it must be decided in the same sense as the learned Judge in the Court below has decided it, and I must come to the conclusion that these sums of money were in fact advanced by the plaintiff to defendant No.' 1."

In the second case, the parentage of Mst. Zar Jan defendant was in question. She want pursuing that litigation through her Mukhtar Muhammad Hanif who duly appeared as a witness in the case and deposed on oath that Mst. Zar Jan was the daughter of Amir Said from his first Wife Mst. Said Marian. Another witness produced on the same point was Noor Wahid defendant .No. 3. None of these witnesses was cross examined. On an objection having been raised as to the parentage of Mst. Zar Jan, it was held by his Lordship that the failure to cross examine a witness tantamounts to admitting his statement and on this principle, the parentage of Mst. Zarjan could not be doubted. On the rule laid down in the said two authorities, I would hold that the failure to cross-examine the patwari and one of the plaintiffs in the present case on the point of contiguous ownership of the plaintiffs tantamounts to admitting their statements. In such a state of affairs, it cannot be said that the appellate Court was unable to decide the appeal on the record as it stood. The fact of the matter is that the appellant, by producing the sketch prepared by the patwari, Irrigation Department, by way of additional evidence, aimed at filling up the loopholes in his case which, under the law, he could not be permitted to do. It would appear that far from supporting the view of the learned counsel for the petitioner, the rule laid down by their Lordships of the Supreme Court in P L D 1966 S C 684 ; is diametrically opposed to what has been contended by him. What was held in that case was that the requirement for additional evidence must be genuine ; that the provisions of rule 27 were "clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the o appellate Court and that the need for additional evidence must be felt by :he Court. In the present case, this rule cannot be invoked in aid o the petitioner because by means of additional evidence, he wants to patch up the weak parts of his case and further the appellate Court did not at all feel the necessity for such evidence. In fact, the evidence as it stood on the record, was so clear on the point of the plaintiffs' contiguous ownership that the District Judge could have no difficulty in pronouncing the judgment.

It would appear that there was also no substantial cause entitling the appellant to produce additional evidence. In his application, the appellant did not mention any cause by which he was prevented from producing the evidence in question before the trial Court. The evidence could have been produced by him at the trial if he had been diligent nice he was not diligent and the disability to produce additional evidence in the first Court was for causes due to the negligence of the appellant, it could not constitute a substantial cause within the meanings of rule 27.

It will be seen from what has been stated above, that the District Judge was perfectly justified in rejecting the application for permission to allow the appellant to produce additional evidence. The plaintiffs' right of pre-emption, as stated already, stood established from the evidence on the. record. The result, therefore, is that the present application for revision fails and is accordingly dismissed with costs.

M. Y. M. Application dismissed.

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