1997 PLP 765 (MLD)

This order will dipose of application under order 41 rule 27, C P.C.. read with order 12, Rule 4, C.P.C. and section 151 of the C.P.C. The appellant has prayed that he may be allowed to lead additional evidence to prove the fact that the respondent No.1 belonged to Fiqah‑e‑Jafria and was governed by the principle of Shia Muslim Personal Law. The respondent No.1, Mir Ghulam Rasool Talpur (since deceased) filed suit for pre‑emption against the appellant and prayed for the following reliefs: "(a) That it be declared and decreed that plaintiff has the preferential rights to purchase the lands in dispute under the law of pre‑emption as Shafi‑i -Jar and Shafi‑e‑Khaleet after paying its price paid by defendant No. 1. (b) That defendant No. l be further directed to deliver physical possession of the land in dispute to the plaintiff within a period fixed by the Court, failing which he be ejected forcibly through Court." It would be relevant to note that in para. 1 of the plaint, the respondent No. l plaintiff has claimed to be Hanafi Muslim, while the appellant/defendant No. l filed his written statement and in para. 1 thereto he admitted the contents of para. 1 of the plaint. The learned trial Court settled the following issues: (1) Is the plaintiff owner of the S. Nos. adjoining the land in dispute? (2) Whether the plaintiff has any right of pre‑emption over the land in dispute? (3) Whether the plaintiff preferred the requisite demands? if so, what is its effect upon the suit land? (4) Whether the plaintiff has served the notice upon the defendants? If so what is its effect? (5) Whether the plaintiff has no cause of action? (6) To what relief the plaintiff is entitled to? (7) What should the decree be? Issues Nos. 1, 2, 4 and 5 were decided in negative. Issue No.3 was answered in affirmative and the suit was decreed as prayed. The appellant has challenged the said judgment in this appeal. It is alleged by the appellant that the respondent No. l had fraudulently claimed to be Hanafi Muslim in the plaint, while at all material times he had belonged to the sect of Fiqah‑e‑Jafria. The appellant has alleged that after the passing of the decree in the suit the appellant's father ascertained from the concerned Taluka Revenue Office that the respondent was not paying Ushr in respect of wheat, sugarcane, cotton and other crops, having declared therein that he was a follower of Fiqah Jafria. The appellant's father, therefore, applied for relevant copies of extracts from the Revenue Record and Declaration filed in terms of Ordinance XVIII of 1980 and a certificate of the Assistant Mukhtiarkar Zakat and Ushr which were granted to him on 13‑8‑1985. It is also stated in the application under consideration that the learned counsel for the appellant served notice under Order 12, Rule 5, C.P.C. upon the respondent before filing this appeal to admit the fact that the latter belonged to Fiqah Jafria but no reply was given by the said respondent. It is further stated that the facts disclosed in this application touches upon the very root of the matter as a person belonging to Fiqah Jafria cannot assert pre‑emption except on the ground of being Shafi‑e- Shareek. In this situation the respondent No. l would not be entitled to the decree of pre‑emption on the alleged ground of being Shafi‑e‑Jar and Shafi‑e- Khaleet. It is further alleged that the respondent had wilfuly and deliberately suppressed this fact. In these circumstances it has been prayed that it is necessary to lead additional evidence to prove the fact that the respondent No. l had belogned to Fiqah Jafria and was not entitled to claim pre‑emption on the ground mentioned in the plaint. This application is supported by the affidavit of the father of the appellant. The respondent No. l filed objections as well as affidavit wherein besides making a reference to para. of the plaint and written statement it is stated that he never observed Muharram or other Shia festivals and this fact was within the knowledge of the appellant's father. It is further alleged that now at the appellate stage this point has been raised for ulterior purposes and to cause harassment to the respondent. The respondent No. l also stated in his affidavit that he had paid Ushr of his other crops in relation to lands situated in Deh Lashari, District Hyderabad and he annexed several receipts. According to him he belongs to the Sunni Hanafi Sect. I have heard Mr. Mushtaq Memon learned counsel for the appellant and Mr. Abdul Sattar Shaikh learned counsel for the respondent No.1 and perused the record. Learned counsel for the appellant submitted that the additional evidence sought to be produced now consists of certain documents annexed with the memo. of appeal and it will help this Court to decide the entire matter and also to arrive at a just and proper conclusion. Learned counsel for the respondent No. l submitted that at this stage the appellant cannot be allowed to fill up the lacunas after having admitted the factual position in the pleadings. He further contended that the application for additional evidence is mis‑conceived. There is no denying the fact that whenever important evidence having a material bearing on the merits of the suit is subsequently discovered there are three courses open‑‑‑ (a) to apply for admission of fresh evidence before the judgment; (b) to apply for review of judgment after it has been pronounced; or (c) to appeal from the judgment and apply for admission of additional evidence before the Appellate Court under Rule 27 of Order 41, C. P. C. The appellant has adopted the latter course. In my humble view a party to proceedings can only lead such evidence as is not inconsistent with the pleadings. I find support of this proposition in Malik Mitha v. Jamaluddin PLD 1990 Lahore

186. In the instant case the appellant/defendant in his written statement has clearly admitted that the respondent No.1/plaintiff was a Sunni Muslim as claimed by him in the plaint. As such no issue was framed by the trial Court on that question as the same never arose from the pleadings of the parties. Therefore, at this stage if the listed application is granted it will amount to allowing the appellant to lead evidence which is at variance with his own pleadings. Accordingly this application having no merit is dismissed. A.A./M‑128/K Application dismissed.