Ghulam Qadir and others vs Sultan and others

Wazir, C.J.

(1) This is a second appeal and arises out of execution proceedings. The decreeholders presented an execution application in the Court of

SubJudge, Bhaderwah on 3rd Har, 2007, and it was alleged by the decreeholders in the application that they had previously filed an application for

execution in that Court the record of which had been burnt. The executing Court started an enquiry to find out whether there was any execution

application made by the decreeholders in that Court. The executing Court found that as the decreeholders had not proved that any previous

application was filed by them in that Court therefore their execution application was held to be time barred. Against that order the decreeholders

appealed to the District; Judge and filed three documents showing that the previous application had been made by them in the executing Court and

their application was wrongly held to be barred by time. The District Judge accepted the appeal of the decreeholders, set aside the order of the

executing Court and remanded the case to it with the direction that it shall peruse the original papers, the copies of which were brought on the

record, and pass fresh orders according to law. Against this order the judgmentdebtors have preferred a further appeal to this Court.

(2) A preliminary objection is taken by the respondents that second appeal is not competent inasmuch as the order passed by the lower appellate

Court under O. 41, R. 27 is not appealable. The counsel appearing for the judgmentdebtors has frankly conceded that second appeal is not

competent and has prayed that it may be treated as revision. This prayer is accepted and this second appeal shall be treated as revision.

(3) It is contended on behalf of the applicants that the lower appellate Court was not right in allowing the respondents to adduce additional

evidence in the appellate Court. Our attention has been drawn to O. 41, R. 27 which reads as under:

(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 other

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. and it is

contended that the lower appellate Court has not given any reasons for allowing the respondents to produce additional evidence; that the appellate

Court did not require any document to be produced to enable it to pronounce judgment, and therefore no additional evidence should have been

allowed by the lower appellate Court.

(4) It is true that the District Judge has not given reasons for allowing the decreeholders to produce further evidence to show that their execution

application was already pending before the executing Court. It appears that the lower appellate Court has admitted additional evidence under O.

41, R. 27, cl. (b). Although in the order the lower appellate Court has not given reasons showing that there was a substantial cause for allowing

additional evidence yet we find from the material on the record that there are circumstances which justify the lower appellate Court to allow the

decreeholders to adduce additional evidence. Ordinarily the appellate Court should not allow a party to adduce additional evidence to patch up the

weak parts of his case and fill up the omissions by adducing additional evidence but where the appellate Court finds that there is substantial cause

for nonproduction of evidence in the lower Court and additional evidence is required to clear up a point in the interest of justice it may allow the

party to produce additional evidence.

(5) The learned counsel for the appellants has cited a number of authorities to show that additional evidence should not be allowed to be produced

in the appellate Court in order to fill up the lacuna in the case which due to the negligence of a party could not be made up in the trial Court. These

authorities will not be helpful in the peculiar circumstances of this case. It appears from the record that the decreeholders made an application to

the executing Court to summon their counsel Mr. Swami Raj who could depose to the fact whether the execution application was filed by the

decreeholders or not. That application was not allowed by the executing Court. Moreover the decreeholders have filed certified copies of a

warrant issued by the executing Court for granting possession to the decreeholders in respect of the property which is mentioned in the decree.

From this warrant it appears that the decreeholders had already made an application for execution before the SubJudge, Bhaderwah. The record

of the Court of SubJudge, Bhaderwah was burnt to ashes in the year 2006. On the application which the decreeholders had filed before the

executing Court the office remarked that the record in connection with the execution application was burnt.

In these circumstances it was not possible for the decreeholders to have any knowledge about any document which would help them in showing

that they had filed an application previously. It appears that the decreeholders respondents have been able to trace some documents which go to

show that they had already made an application for execution before SubJudge, Bhaderwah. They placed those documents before the lower

appellate Court and in these extraordinary circumstances the lower appellate Court was perfectly justified in remanding the case to the executing

Court, for further enquiry in the light of the documents which were produced by the decreeholders before the lower appellate Court.

(6) We, therefore, see no reason to interfere with the order passed by the lower appellate Court and dismiss this revision application with costs.

(7) H.G.P. Revision dismissed.