2007 PLP 1028 (CLC)

SALIM KHAN, J.

Manzoor Ahmad and Mst Akbaro, showing themselves as the son and widow of Ghulam Muhammad instituted suit against the heirs of Ghulam Muhammad and others for a decree for possession, claiming therein that the suit property belonged Ghulam Muhammad out of which 16 Kanals was given to her as dower and the plaintiff No.1 was the son and plaintiff No.2 was the widow of Ghulam Muhammad and entitled to share of inheritance in the property of Ghulam Muhammad. They alleged that Ghulam Muhammad died in 1983 and Mutation No.923 attested on 12-1-1986 in favour of the defendants and Niaz Muhammad deceased was wrongly attested, that the Collector remanded the mutation for inquiry on appeal by the plaintiffs but the same was kept intact. Hence the suit.

2. The defendant contested the suit. Evidence of the parties was recorded. The learned Civil Judge, Peshawar dismissed Suit No.73/1 instituted on 14-7-1997 through judgment dated 30-3-2006. During the proceedings on appeal by the present petitioners, the petitioners submitted an application with the request to order the conduct of DNA test of appellant No.1 and respondents Nos.1 to 5 to ascertain whether appellant No.1 (Manzoor Ahmad) was the son of Ghulam Muhammad or not. 3.The learned Appellate Court, vide order, dated 14-12-2006, observed that in. his opinion DNA test of a person could be conducted with his successor or predecessor and no DNA test can be conducted among the issues of same person. The learned Judge further held that the application amounted to request for additional evidence, but neither the appellants had made such request to the learned original Court nor there was any reason or substantial cause to allow their application, and that the evidence, if allowed, would amount to fill up lacunae of the plaintiffs left by them in their case. As far DNA test, besides the observation of the learned Appellate Court, it could be said that the proof of birth of a child through his/her mother from a certain person, without proof of prior publicly declared valid Nikah of his mother with that person, through the properly conducted DNA test, cannot and does not create a valid bond of parentage of that child with such person. But these observations regarding the DNA test do not require settlement in this case.

4. The learned Judge has come to correct conclusion in the light of the law as contained in order XLI, rule 27 of the Code of Civil Procedure, 1908. An application for additional evidence, like the request for DNA test, was not submitted to the learned original Court from whose decree the appeal was preferred, and the learned Appellate Court did 'not require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The learned Appellate Court was of the view that there was no need for DNA test.

5. It is not the request of a party to the appeal, but the requirement of the Appellate Court which is essential for allowing additional evidence at the appellate stage. Permission for production of such evidence can be granted only when Appellate Court has sufficient reason to require it. The Appellate Court has to satisfactorily show that either it is unable to pronounce judgment except after recording such evidence, or there is other substantial cause for which such Court requires the recording of the additional evidence. There is sufficient evidence on record for the pronouncement of judgment by the learned Appellate Court, and no other substantial cause is available for requiring the recording of additional evidence. It was the duty of the parties to prove their cases, and a Court of law is not expected to favour one or the other party by allowing the production of additional evidence in order to fill up a lacuna.

6. I do not find any merit in the present civil revision. I, therefore, dismiss the same in limine. H.B.T./73/P Revision dismissed.