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‑‑‑0. XLI, R. 27‑‑Additional evidence‑‑Production of‑‑Such evidence, held, could be allowed only where Trial Court had improperly refused to admit admissible evidence, or Appellate Court would require such evidence to be produced being essential in pronouncement of judgment or for other substantial cause‑ Power to allow additional evidence is discretionary in nature though such discretion has been circumscribed by limitations specified by provisions of O.XLI. R. 27 of Civil Procedure Code, 1908.

Sir Muhammad Akbar Khan v. Mst. Motai and others A I R 1948 P C 36; Mangibai Gulabchand and another v. Suganchand Bhikamchand and others A I R 1943 P C 177 and U.P. v. Maubodhan Lal Srivastava A I R 1957 S C 912 ref.

‑‑‑0.XLI, R. 27‑‑Additional evidence‑‑Requirement for grant of permission to produce‑‑Numerous adjournments obtained by defaulting party for production of evidence and failing to produce same, held, would not justify grant of permission to produce additional evidence‑In circumstances.

Ehsanul Haq for Appellant.

Shakeel Ahmad for Respondent.

Date of hearing: 23rd September, 1985.

This appeal is directed against the judgment and decree passed by the Additional District Judge II, Quetta on 26‑12‑1983 whereby the suit filed by the appellant‑plaintiff has been dismissed.

2. The plaintiff filed a suit on 4‑4‑1979 against the respondents for declaration and injunction and it was prayed that a decree against the defendant‑respondent to the effect that the demand of Rs.38,636 being the cost of 7 poles of electricity and electricity bill for Rs.16,419.84 is not correct and justified and as a consequential relief mandatory injunction restraining the defendants not to disconnect the electricity be passed.

The case of the plaintiff as set up was that he was granted electric connection for his tube‑well by the WAPDA authorities at Pishin and he was to receive the electric connection only onward from the poles installed for the connection of one Gul Muhammad in the same locality and only two poles were then installed for plaintiff but the WAPDA authorities‑had demanded a sum of Rs.38,636 being the cost of seven poles and also a bill for the electricity consumed in the sum of Rs .16, 419.84 was sent to him for payment which bill according to the plaintiff was not justified. The suit was contested by the defendants and the issues were framed on 30‑7‑1979.

The plaintiff filed a list of witnesses containing the names of seven persons on or about 18‑9‑1979 but only three witnesses could be produced upto 25‑5‑1982 and in spite of several adjournments granted to the plaintiff for the completion of the evidence no witness was produced with result that on 21‑11‑1983 the case of the plaintiff was closed except the statement of the plaintiff for which purpose the case was adjourned to 7‑12‑1983 but on this date the plaintiff did not put in appearance. A further indulgence was shown to the plaintiff and a final chance was afforded for 26‑12‑1983 but this too was not availed of and since the evidence on record did not establish the case the suit was dismissed on 26‑12‑1983.

Against this judgment and decree the present appeal has been filed and alongwith the appeal an application under Order XLI, rule 27, C . P . C . has also been filed and it has been vehemently urged by the learned counsel for the appellant that he may be permitted to examine a witness of the WAPDA Department alongwith relevant record as according to him the learned trial Court has unjustifiably closed a side of the plaintiff and the evidence of the said witness is important and relevant for the case.

The provision of law invoked by the learned counsel for the appellant is reproduced:‑

"27. Production of additional evidence in Appellate Court.‑‑(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court. But if:‑

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission It would be seen that the additional evidence can be allowed only where: ‑

(I) The trial Court has improperly refused to admit the evidence which ought to have been admitted, or

(ii) The appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, or

(iii) the appellate Court requires such evidence for any other substantial cause

The power to allow the additional evidence is discretionary in nature, but the discretion is circumscribed by the limitation specified in this rule (Order XLI, rule 27 , C . P . C .) . From the record it is established that ample opportunity was available to the appellant in the lower court but he did not avail. The appellant had on his own request been granted month's time after the date fixed for first hearing. Numerous adjournments were obtained by him for producing evidence and at no stage it was brought, to the knowledge of the Court by his counsel even that the assistance of the Court in procuring the attendance of any witness or any record was required. In the circumstances of the case, I find no reason to allow the appellant to produce the evidence which he has failed to produce in the lower Court by his own negligence. The process fee for the witness now being desired to be produced was paid only once and the Court did issue process but thereafter, neither any process fee was paid nor any request in that behalf was made in writing or even verbally by the appellant or his counsel. It is noteworthy that two Advocates have been appearing for him. On the persistent failure of the plaintiff to produce evidence the trial Court was obliged to close his case. No satisfactory reason was shown to the trial Court nor this Court that this order was not justified in law. The evidence could have been produced by the plaintiff at the trial if he had been diligent. Since for this the plaintiff has to think himself and the counsel he had engaged to prosecute his case, it does not constitute a substantial cause. The test as to whether the additional evidence should be received ends upon the question whether or not the appellate Court requires depends the evidence "to enable it to pronounce judgment or for any substantial cause" as to which the appellate Court is to be sole judge. The expression to enable it to pronounce judgment" does not mean to enable the appellate Court to pronounce judgment in favour of a particular party, but only when it is impossible to pronounce judgment at all on evidence. The Privy Council in Sir Muhammad Akbar Khan v. Mst. Motai and others A I R 1948 P C 36 has ruled that the indulgence of a second opportunity to adduce evidence cannot be allowed to enable a party to fish out evidence in order to prove his case and make up the lacuna which then existed. This view was again reiterated by the Privy Council in Mangibai Gulabchand and another v . Suganchand Bhikamchand and others A I R 1943 P C 177. In State of U.P. v. Manbodhan Lal Srivastava A I R 1957 S C 912 it has been held that a party who had opportunity but elected not to produce evidence, cannot be allowed to give evidence that could have been given in the Court below. I am, therefore, of the view that no case for admitting further evidence has been shown. The desired evidence is certainly not required to enable this Court to pronounce judgment.

On my enquiry from the learned counsel for the appellant as to why the appellant did not appear in the witness‑box he candidly conceded that it would not have improved his case. The evidence on record does not establish the case set up by the plaintiff.

On the evidence as it stands the appellant has entirely failed to establish his case. The judgment of the trial Court, therefore, has to be affirmed. The appeal is, therefore, dismissed with costs.

Appeal dismissed. A. A.

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