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Civil Revision No.29 of 1984, decided on 16th January, 1985.

---S. 115 & O. XLI r. 27--Additional evidence--Production of--Register of Petition-writer--Plaintiff moving trial Court for summoning of Register of Petition-writer but Court failing to secure production of said register --Failure of trial Court to secure production of register, held, could not be a cause of punishment to plaintiff--Document/Register of petition allowed to be produced as additional evidence.--[Evidence]. A I R 1933 All. 104; A I R 1936 Pat. 631 and A I R 1928 Pat. 64 ref.

---S.115 & O. XLI, r. 27--Additional evidence, production of during appeal--Courts to be strict in adhering to rule postulated under O.XLI, r.27, C.P.C. and very slow to allow additional evidence at appeal stage--While granting permission for additional evidence care has to be always taken to guard against admission of fabricated documents- Appellate Court held, if satisfied that additional evidence sought to be produced was genuine and was not available at trial stage or was not in knowledge of party seeking to lead such evidence or was ,beyond its control, then additional evidence is allowed to be admitted.--[Evidence] P L D 1979 S C (A J K) 15; P L D 1979 B J 38 and 1979 CLC 533 ref.

---O. XLI r. 27--Additional evidence--Production of--Attested copy of register sought, to be produced as additional evidence already exhibited on record--Summoning of original register, held, not a wrong exercise of discretion. --[Evidence].1979 C L C 533; A I R 1936 Pat. 631; A I R 1943 All. 184; AIR 1958 Pat. 63; A I R 1949 E P 158 and A I R 1943 All. 184 ref. P L D 1979 S C (A J K) 15; P L D 1979 B J 38 and 1979 C L C 533 ref. M.Y. Arvi for Petitioner. Muhammad Riaz Akhtar for Respondents. Date of institution: 11th December, 1984.

The petition is addressed against an order of the learned District Judge, Mirpur, passed on 25th November, 1984, whereby prayer for production of register of Muhammad Abdullah, petition-writer, relevant to the point at issue, was declined. 2. Muhammad Shafi, petitioner acquired allotment of Plot No.119, measuring 16 Marlas, situate in Mangla Hamlet. Subsequently, the plot was transferred by the petitioner to Muhammad Najib, respondent No.l, for a sum of Rs.2,000 through an affidavit executed on 30th October, 1977. On the same day, a power of attorney was also executed by the petitioner in favour of Abdul Aziz, respondent No.2. On acquisition of possession of the plot, respondents constructed one or two rooms over it. As the respondents claimed alienation of entire plot, the petitioner agitated the claim of the respondents, by institution of a suit for possession of half of the plot, by virtue of his title of allotment. It was averred that plaintiff-petitioner transferred 8 Marlas i.e. half of the plot, to Muhammad Najib, respondent, through an affidavit but, according to his knowledge, the defendant, due to connivance with the petition-writer manoeuvred entry of entire plot in the affidavit. The plaintiff sought declaration in the manner of rectification of power of attorney and possession of half of the plot in his favour. The suit was instituted on 2nd August, 1978. The opposite party resisted the suit by repudiation of the claim of the plaintiff. The trial Court dismissed the suit for want of proof. The plaintiff-petitioner, feeling dissatisfied with the finding of the trial Court, preferred an appeal before the District Judge. During the pendency of appeal, an application was moved for permission of production of register of the petition-writer, copy of which was already admitted in evidence as Exh PA/1. The original register was sought to be summoned in presence of rejection of evidence consisting of copy Exh. PA/1 by the trial Court, for want of its proof by comparison with the original register. The learned District Judge was not impressed by the request, as such, it was declined. 3. The objection to the production of register, on behalf of the respondents, is that at appeal stage production of register tantamount to additional evidence which is not permissible under the provisions of Order XLI, rule 27, C.P.C. It was emphasized on behalf of the respondents that the petitioner who failed to get the register summoned at the time of evidence in the trial Court, should not be allowed to remove the lacuna at appeal stage. Reference was made to P L D 1979 S C (AJK) 15, P L D 1979 B J 38 and 1979 C L C 533. 4. Rule 27 of Order XLI, C.P.C. postulates that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, it', the appellate Court, provided:- (a) the Court from whose decree the appeal was preferred, refused to admit evidence which ought to have been admitted; or (b) the appellate Court required any document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. In presence of either of the conditions listed in categories (a) and (b), the appellate Court was empowered to allow such evidence or document to be produced or witness to be examined. To test the application of the provision of rule 27, it is imperative to list the i-actual aspect of the case. Issues were framed on 4th February, 1979 when the plaintiff was directed to lead his evidence on 11th March, 1979. The plaintiff-petitioner obtained copy of the entry of affidavit (deed of transfer of plot) on 17th February, 1979. On 14th February, Lin application was moved for summoning of the register from the judicial record-room and the application for issuance of attested copy of the game was also moved on the same day. The Presiding Officer ordered the issuance of copy and also summoned the record-keeper for production of relevant register. Here, it may- be stated that Muhammad Abdullah, petition-writer, scribe of the affidavit and power of attorney, at the time of evidence was already dead. In consequence of direction of the Court, the record-keeper appeared on various dates who ultimately disclosed that he was not in possession of the register. On this, a copy of the document which was duly attested by the Sub-Judge, who was Incharge of the copying branch, was allowed to be admitted in evidence by its tender by the counsel for the plaintiff, on 13th February, 1983. No objection. to the admission of this evidence was raised at the relevant time. In addition to the application referred to above, on 7th January, 1984, another application for summoning of the register was moved by the plaintiff. It appears that the Presiding Officer failed to take action on this application. The factual picture of the case, therefore, suggests that the plaintiff took all reasonable steps right in time, to seek production of the register, as evidence in support of his claim. At appellate stage the necessity to renew the request for production of register emanated in view of the finding of the trial Court whereby the attested copy of the register Exh.PA/1 was rejected for want of its comparison with the original register. We have already reviewed the provisions of rule 27 and found that additional evidence at appeal stage was not permissible provided the appellate Court was satisfied that such evidence was refused by the trial Court or it was necessary to enable it to pronounce the judgment or for any other substantial cause. Irrespective of the fact whether production of register would make material difference An the ultimate conclusion, it is just and reasonable to believe that the request of the petitioner is genuine and well founded. It is so as the trial Court which was moved at the earliest for summoning of the register, despite the fact that a copy of the entries in the register was issued by the Presiding Officer, in his other capacity, failed to secure production of register. At this stage, it may be stated that for my own satisfaction of the genuine cause of the petitioner. I sent for the register and examined the relevant entries. The register was found in the custody of son of the deceased petition writer. The relevant entries are identical to the undisputed entries in the register and are found to have been made by the petition-writer in his own hand. Therefore, failure of the Presiding Officer to secure the production of register cannot be a cause of punishment to the plaintiff. 5. Courts strictly adhere to the rule postulated under rule 27 of Order XLI, C.P.C. and are very slow to allow additional evidence at appeal stage. While granting permission for additional evidence, care is always taken to guard against admission of fabricated documents. It is B only on the satisfaction that additional evidence sought to be produced, was genuine and was not available at the trial stage or was not in the knowledge of party, seeking to lead such evidence or was beyond its control, that additional evidence is allowed to be admitted. Here in the case, it is noticed that the document sought to be produced. undoubtedly, was in the knowledge of the party and the same was sought to be produced at the earliest stage, but the omission in its production occurred due to negligence and failure of the trial Court. For in case one register was not found in the judicial record-room the same could have been procured from the custody of the petition-writer or in case of his death, from the custody of his son. This was obviously not done by the trial Court in time. 6. In an identical situation, the learned Judges of the Allahabad High Court A I R 1933 All. 104, allowed production of documentary additional evidence on the satisfaction of affidavit that the document could not be discovered at the earliest stage. The present position is fairly better as the attested copy of the document was already produced and admitted in evidence at the stage of trial. In A I R 1936 Pat. 631, the case was remanded to get the document admitted in evidence where the document in possession of Court could not be admitted in evidence at trial stage, as the trial Court refused to help the party for producing the document. In A I R 1928 Pat. 64, where incorrect certified copy of deposition was admitted in evidence by the trial Court, was allowed to be replaced by admission of another correct certified copy at appeal stage. In A I R 1958 Pat. 63, the appellant was allowed production of power of attorney as additional evidence at appeal stage, on acceptance of explanation that the power of attorney could not be produced at the trial stage, as the same was in possession of other attorney who had died and despite search made by the son of the deceased, the document could not be found and it was only found out (luring the pendency of the appeal. It was held that the document should be admitted as additional evidence to enable the Court to pronounce the judgment in the case. In A I R 1949 E Pb. 158, the 'objection against the order of the District Judge for admitting additional evidence, was overruled, on the ground that the exhibit being already on record, admission of additional documentary evidence relevant to the exhibit was not a wrong exercise of jurisdiction. As identical view was expressed in A I R 1943 All. 184. In the present case, and attested copy of the register sought to be produced as additional evidence is already exhibited as Exh. PA/1. Therefore, summoning of original register is not a wrong exercisel of judicial discretion. The case-law cited by Mr. Riaz Akhtar, the learned counsel for the respondents, is not helpful to the case, in view of the distinguishable factual position in those cases. The rule of additional evidence enunciated by the Supreme Court of Azad Jammu and Kashmir P L D 1979 S C (AJK) 15 and in Abdul Aziz's case P L D 1979 B J 38 as well as in Waris Ali's case 1979 C L C 533 is well acknowledged and there is no second view about it. Nevertheless, the rule is not applicable to the proposition in hand, on account of its peculiar facts. 7. For the reasons listed above, I feel inclined to allow the petition with the direction that the register shall be allowed to be produced as additional evidence. Parties are directed to appear before the learned add District Judge, Mirpur, on 3rd February, 1985. M.Y.H. Petition allowed.

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