PLJ 2023 SC 600
[Appellate Jurisdiction]
Present: Umar Ata
Bandial, HCJ and Athar Minallah, J.
SHAMSHAD BIBI, etc.--Petitioners
versus
RIASAT ALI, etc.--Respondents
C.P. No. 1692-L of 2022, decided on 25.5.2023.
(Against the order dated 24.05.2022 of the Lahore High Court,
Lahore passed in Civil Revision No. 107777 of 2017)
Civil Procedure Code, 1908 (V of
1908)--
----S. 115
& O.XLI R. 27--Application for conducting of DNA test of petitioner during
pendency of appeal--Allowed--Powers of High Court--Parameters--Principle of
balance of probabilities--No application was filed in trial Court--No
exceptional circumstances--Concurrent findings--Challenge to--Power under Order
XLI Rule 27 of CPC is not intended to be exercised to fill up lacunas, or to
make up any deficiency in case, nor to provide an opportunity to party to raise
a new plea--The power essentially has to be exercised cautiously and sparingly
and not to facilitate an indolent litigant--Petitioner had brought sufficient
evidence on record to prove, on touchstone of principle of balance of
probabilities and preponderance of evidence, factum of being Jabbar Din’s
daughter--The respondents were not able to rebut evidence and, therefore, two
competent Courts concurrently recorded findings in favour of petitioner’s
claim--Respondents had not filed any application before trial Court nor
appellate Court for recording of additional evidence--The grounds mentioned in
application, filed under Order XLI Rule 27 of CPC, did not disclose any
exceptional circumstance to justify recording of additional evidence--The
remanding of matter and setting aside of concurrent findings by two competent
Courts was not in consonance with legislative intent unambiguously manifest
from principles--Petition allowed.
[Pp.
603 & 604] A, B, C, D & E
1988
SCMR 1782, PLD 1986 SC 88 & PLD 1989 SC 112 ref.
Malik Ejaz Hussain Gorche, ASC for Petitioners (via
video-link, Lahore)
Rana Maqsood-ul-Haq, ASC for
Respondents (via video-link, Lahore).
Date of hearing: 25.05.2023.
Order
Athar Minallah, J.--Shamshad Bibi (‘petitioner’) has
sought leave against the order, dated 24.5.2022, whereby the High Court allowed
the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908
(‘CPC’) and has remanded the matter to the trial Court for recording of
additional evidence. The civil revision was also subsequently allowed and the
concurrent findings of the two competent Courts were set-aside.
2. The petitioner asserted in the plaint that she was the
daughter of Jabbar Din and granddaughter of Mst. Karima Bibi. The
dispute is regarding the inheritance mutation incorporated in the revenue
record after the passing away of Jabbar Din and his mother Mst. Karima
Bibi. The property was described in the plaint. It was asserted that Jabbar Din
had three wives, one of whom had been divorced. Jabbar Din had children from
all the three wives and the petitioner was the only daughter from Mst.
Fatima Bibi. The petitioner was excluded from the inheritance mutation
incorporated in the revenue record after the passing away of Jabbar Din and, later,
his mother. The petitioner, therefore, challenged her exclusion by filing a
suit for declaration, permanent injunction and malkana possession. The trial
Court had framed eight issues including the issue regarding the legitimacy of
the petitioner as Jabbar Din’s daughter. The suit was decreed by the trial
Court vide judgment and decree dated 19.12.2012, while the appeal
preferred by the respondents was dismissed vide judgment and decree
dated 08.11.2017. During the pendency of the appeal before the appellate Court,
an application was filed seeking a direction to the petitioner to conduct her
DNA test. The application was allowed, vide order dated 22.6.2013, and
later it was set-aside by the High Court vide order dated 08.12.2016.
The judgments and decrees of the trial Court and the appellate Court, whereby
the petitioner’s suit was decreed, were assailed before the High Court,
invoking its revisional jurisdiction under Section 115 of the CPC. The
respondents filed an application under Order XLI Rule 27 of the CPC and it was
allowed by the High Court vide impugned order dated 24.5.2022.
Simultaneously, the revision petition was also allowed and the concurrent
findings of the two competent Courts were set-aside. The matter was remanded to
the trial Court with a direction to record additional evidence.
3. We have heard the learned counsels for the parties at great
length.
4. The questions that have arisen for our consideration are;
whether the High Court, while exercising its revisional powers under Section 115
of the CPC, was justified in accepting the application under Order XLI Rule 27
of the CPC and remanding the matter for recording of additional evidence;
whether the High Court, in the absence of jurisdiction having been exercised
illegally or without material irregularity by the subordinate Courts, was
justified to allow the revision petition and remand the matter to the trial
Court. The powers vested in the High Court under Section 115 of the CPC are to
be exercised in accordance with the parameters described in clauses (a) to (c) ibid.
The revisional powers are meant for correcting errors made by the subordinate
Courts in the exercise of their jurisdiction. Ordinarily, erroneous decisions
of fact are not revisable, except in cases where the decision is based on no
evidence or inadmissible evidence and is so perverse that grave injustice would
result therefrom.[1]
Rule 27 of Order XLI, CPC empowers the appellate Court to allow additional
evidence to be adduced, whether oral or documentary, after the recording of
reasons. This power is circumscribed by three eventualities described in
clauses (a) to (c) i.e. if the Court, from whose decree the appeal has
been preferred, has refused to admit evidence which ought to have been
admitted; the appellate Court, on being satisfied that the additional evidence
was available but could not be produced before the trial Court for reasons
beyond the control of the party seeking its production; or the appellate Court
itself requires any such evidence so as to enable it to pronounce a judgment.
Rule 28 of Order XLI describes the procedure for taking additional evidence and
provides that the appellate Court may either take such evidence or direct the
Court from whose decree the appeal is preferred, or any other subordinate Court,
to take such evidence and to send it when taken to the appellate Court. Rule 29
of Order XLI further provides that where additional evidence is directed or
allowed to be taken, the appellate Court shall specify the points to which
evidence is to be confined and record in its proceedings the points so
specified. It would also be relevant to refer to Rule 23 of Order XLI of CPC
which describes the mode and conditions for remanding of a case by the
appellate Court. Rule 27 of Order XLI explicitly refers to an appellate Court
but by now it is well settled that in exceptional cases the power can also be
exercised by the revisional Court. A larger Bench of this Court has held that,
ordinarily, at the stage of civil revision there is no question of recording additional
evidence, but there may be exceptional cases where, in the interest of justice
and if so required by the Court to enable it to adjudicate on the matter, the
Court may order that such additional evidence should be recorded.[2]
In exceptional cases depending on the facts and circumstances, a Court
exercising revisional jurisdiction may record clarificatory statement or admit
evidence in any other form, in order to determine whether the lower Court had
acted illegally or with material irregularity, so as to attract clause (c) of
Section 115(1) of the CPC.[3]
Another larger Bench of this Court has held that where in a case falling under
Section 115(1)(c) of the CPC, it has been established
that the appellate Court had exercised its jurisdiction illegally or with any
material irregularity then the scope of additional evidence is not excluded.
Additional evidence can, therefore, be admitted in exceptional cases and to
rectify the error where the Court had acted illegally or with material
irregularity in the exercise of its jurisdiction, and justifiably fell within
the four corners of the power vested in the High Court under Section 115 of the
CPC.[4]
5. The power under Order XLI Rule 27 of the CPC is not intended
to be exercised to fill up lacunas, or to make up any deficiency in the case,
nor to provide an opportunity to the party to raise a new plea. The power
essentially has to be exercised cautiously and sparingly and not to facilitate
an indolent litigant. The Court, before exercising its jurisdiction of allowing
the recording of additional evidence, must be satisfied that the document
sought to be adduced in evidence is not of the nature that could be easily
fabricated, tampered or manufactured.
6. In the case in hand, the petitioner had brought sufficient
evidence on record to prove, on the touchstone of the principle of balance of
probabilities and preponderance of evidence, the factum of being Jabbar Din’s
daughter. The respondents were not able to rebut the evidence and, therefore,
the two competent Courts concurrently recorded findings in favour of the
petitioner’s claim. The respondents had filed an application before the
appellate Court, seeking a direction to the petitioner to subject herself to a DNA test. The application was allowed but
subsequently dismissed by the High Court. The respondents had not filed any
application before the trial Court nor the appellate Court for the recording of
additional evidence. The application was, however, filed before the High Court
which was exercising revision powers. The grounds mentioned in the application,
filed under Order XLI Rule 27 of the CPC, did not
disclose any exceptional circumstance to justify the recording of additional
evidence. The grounds were flimsy and appeared to be an attempt to embark upon a fishing or roving inquiry. Moreover, it was not denied
that the evidence sought to be recorded as additional evidence at the
revision
stage was available when the trial was pending but no attempt was made to
produce it then. The remanding of the matter and setting aside of the
concurrent findings by two competent Courts was not in consonance with the
legislative intent unambiguously manifest from principles highlighted above.
The above are the reasons for our
short order dated 25.05.2023.
(Y.A.) Petition allowed