2007 PLP 1643 (YLR)

MIAN HAMID FAROOQ, J.

The respondent/plaintiff filed the suit for possession through pre-emption, against the petitioner/defendant, qua the suit-land measuring 15 Marlas, described in the plaint, claiming her preferential right on the basis of co-sharer, in addition to other rights such as roads and watercourse, while the petitioner was labelled as stranger. It was further pleaded that she has fulfilled the requirements of all the "Talbs", as envisaged under the law, and upon refusal of the petitioner to receive the sale price and restore the land to the respondent, necessitated filing of the suit. The suit was contested by the petitioner through written statement, also raising preliminary legal objections. The learned trial Court framed as many as ten issues, recorded the oral as well as documentary evidence of the parties and dismissed respondent's suit, vide judgment and decree dated 12-4-2006. The respondent challenged the said decree through the appeal and during its pendency filed the application seeking permission to produce copy of inheritance mutation in additional evidence. The application was opposed .by the petitioner, however, the learned appellate Court accepted the said application and allowed the respondent to produce copy of inheritance mutation, vide impugned order dated 16-10-2006, hence the present revision petition.

2. Learned counsel for the petitioners contends that respondent's application for permission to' lead additional evidence was illegally allowed and it would amount to fill up the lacunas in the case of the respondent. He has relied upon Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 SC 849), Shaikh Ghous Bakhsh (through legal heirs) v. K.S. Muhammad Abdul Naeem and others (PLD 1976 Karachi 169), Muhammad Qasim and others v. Muhammad Hussain and others (PLD 2001 Lah. 9). Conversely, the learned counsel for the respondent while relying upon Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778), Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811), and Ghulam Muhammad and another v. Muhammad Aslam and' others (PLD 1993 SC 336), has supported the impugned order.

3. I have heard the learned counsel and examined the available record. Upon perusing respondent's application for permission to lead additional evidence, I find that the respondent failed to give any reasons, what to talk of cogent reasons, entitling her to produce document in additional evidence. The stance of the respondent in his application was that in order to decide Issue No.1, it is essential to produce inheritance mutation in additional evidence and that it could not inadvertently be produced before the learned trial Court. No explanation is forthcoming either from respondent's application or from the available record as to why the document sought to be produce now, in additional evidence, was not produced before the lower forums.

4. Alleged "inadvertence" is no ground to allow a litigant to lead additional evidence. Admittedly, this document was not relied upon by the respondent before the learned trial Court. The suit, instituted on 10-10-2003, was dismissed on 12-4-2006, the respondent filed the appeal on 12-5-2006, and the application was filed on 16-5-2005. It has neither been explained in the application nor by the learned counsel as to why the petitioner did not earlier agitate the matter since the inception of the suit. It has been admitted by the learned appellate Court that the application has been filed at a belated stage. It is settled law that an unsuccessful party is not to be granted opportunity to fill up weaker parts of its case. In view of the principle of law laid down by the Honourable Supreme Court of Pakistan in the cases of Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana (PLD 2003 SC 849), Muhammad Yousaf v. Mst. Maqsooda Anjum (2004 SCMR 1049) and Shtamand and others v. Zahid Shah and others (2005 SCMR 348), which are completely applicable to this case, I feel that the impugned order deserves to be set aside.

5. There is another aspect of the case. The learned appellate Court, while admitting that the application has been filed at a belated stage, has granted permission to the respondent to lead additional evidence that too without assigning any reasons. The application has been allowed on the ground that "every relevant documents should be on record for the interest of justice without going into technicalities". The said findings are against the principle of law laid down in the aforesaid judgments. The learned appellate Court while allowing the application has completely misdirected itself and the impugned order was passed in complete oblivion of the facts of the case and law on the subject and I am persuaded to allow the appeal and constrained to dismiss respondent's application.

6. In the above perspective, the present revision petition is allowed and the impugned order dated 16-10-2006, whereby respondent's application for permission to lead additional evidence was allowed, is set aside with no order as to costs. Resultantly, respondent's said application stands dismissed. H.B.T./A-76/L Revision petition allowed.