Present: Mehmood Maqbool Bajwa, J.
MUHAMMAD FAYYAZ (deceased) through LRs etc.--Petitioners
SAEED AHMAD (deceased) through LRs. etc.--Respondents
C.R. No. 2907 of 2012, decided on 12.4.2013.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27--Additional evidence--Suit for specific performance of executory contract of sale--Failed to perform part of contract--Document sought to be produced were essential for decision--Concept of filling gaps and lacunas in lis is no more recognized in civil administration of justice--Validity--Mere omission on part of petitioners to make an application for respondents would not be sufficient to non-suit the petitioner--No executory contract of sale was executed between adversaries and it was a lease agreement--Documents sought to be produced at instance of petitioners record of stamp vendor as well as petition writer in order to substantiate its content can is substantial cause--Application for production of additional evidence was allowed. [P. 30] A & B
Raja Nadim Haider, Advocate for Petitioners.
Ms. Shaista Habib, Advocate for Respondents.
Date of hearing: 12.4.2013.
Suit for specific performance of executory contract of sale was instituted by respondents against present petitioners claiming specific performance of said agreement maintaining that present petitioners failed to perform their part of contract. Since there was contest, therefore, after casting issues and recording evidence, learned trial Court granted decree in favour of respondents, which decree was called in question at the instance of petitioners by preferring an appeal before the learned District Court, in which application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908 was made at the instance of petitioners for production of record of stamp vendor and petition writer, upon which statedly agreement to sell was written. After calling written reply, the said application was declined by the learned District Judge, vide order dated 25.7.2012.
2. Learned counsel for the petitioners contended that the documents sought to be produced at the instance of petitioners were essential for just decision of the case and the learned District Judge while declining the application failed to exercise jurisdiction vested in it. Submitted that the opinion formulated by the learned appellate Court that the documents sought to be produced are not relevant is erroneous keeping in view the stance taken by the petitioners in written statement whereby it was specifically alleged that the property was leased out and period of lease has been terminated. Seeking help from the dictum laid down in "Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778), "Muhammad Younus and 2 others v. Abdul Ghaffar and others" (1998 MLD 1622), "Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar Asghar" (2001 CLC 1721), it was maintained that the application should have been allowed because the concept of filing gaps and lacunas in the lis is no more recognized in civil administration of justice.
On the other hand, learned counsel for the contesting respondents while endorsing the impugned order maintained that since no objection was raised at the instance of petitioners in the written statement regarding execution of lease agreement, therefore, the petitioners are estoped by their words and conduct to raise the plea by production of additional evidence before the learned appellate Court. Banking upon the dictum laid down in "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 Supreme Court 151), it was maintained that the petitioners are estopped to produce additional evidence as no such plea was taken in the written statement. Further maintained that the petitioners failed to point out any compelling circumstances due to which they were unable to produce the additional evidence before trial Court. Likewise, argued, no reason has been assigned why the application was not made before the learned trial Court. In this regard help was sought from the dictum laid down in Government of Khyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511).
3. Provision of Order XLI, Rule 27 of The Code of Civil Procedure, 1908 can be pressed into service on the following grounds. (1) Improper refusal of trial Court to admit documents (2) Conclusion of appellate Court feeling the necessity of admission of such documents to enable it to pronounce judgment, and (3) for any other substantial cause. One of the grounds mentioned in Rule 27(1) of said order is that if the that Court has wrongly disallowed the application for additional evidence, reference of which has been made in the dictum laid down in "Government of Kyber Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others" (2011 MLD 1511) cited at bar by learned counsel for the respondents. However, there are two other grounds as well mentioned in the provision of law under reference, according to which additional evidence can be admitted in evidence, if the Court feels that the evidence is required in order to reach a just conclusion, which opinion admittedly can be formulated by the appellate Court and not by this Court while exercising re visional jurisdiction.
4. However, matter does not end here. There is another ground mentioned in the provision upon which appellate Court can also allow the application of additional evidence if there is "any other substantial cause". In view of the matter, mere omission on the part of petitioners to make an application before learned trial Court as argued by learned counsel for respondents would not be sufficient to non suit the petitioners.
5. Stance taken by learned counsel for the respondents that factum of lease was not agitated in the pleading, therefore, keeping in view the doctrine of "Scendum Ellegata et-probata", petitioners are estopped to make an application for the admission of said documents can not advance the plea of respondents keeping in view para 4 of the written statement in which it was categorically mentioned that the property was leased by the petitioners and lease money was paid and lease period has been terminated.
6. It is the case of petitioners that in fact no executory contract of sale was executed between the adversaries and it was a lease agreement. Documents sought to be produced at the instance of petitioners i.e. record of stamp vendor as well as petition writer in order to substantiate its contention is "substantial cause".
7. Rule of law expounded in "Zar Wali Shah" (1992 SCMR 1778) substantiates the plea of petitioners regarding admission of documents in evidence sought to be produced.
8. In view of discussion, learned District Judge while declining the application failed to exercise jurisdiction vested in it and as such while allowing the revision petition, application for additional evidence is accepted but without any order as to costs.
(R.A.) Petition allowed