2004 PLP 2111 (YLR)

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the order dated 11‑12‑1996 passed by learned District Judge, Khanewal, by which, he has accepted the revision petition filed by respondent No.3, Burhan‑ud‑Din and set aside the order dated 7‑5‑1996 passed by the learned Civil Judge, Khanewal whereby application of the petitioners for producing additional evidence was allowed.

2. Brief facts of the case are that the petitioners filed a suit for declaration against the official respondents as well as respondent No.3 on 12‑3‑1992 before the learned Senior Civil Judge, Khanewal. The controversial pleadings of the parties necessitated the framing of certain issues and evidence was produced by both the parties. An application for production of additional evidence in the shape of birth certificate and entry in the relevant register was moved by the petitioners on 21‑3‑1996. The same was opposed by respondent No.3. Said application was accepted by the learned Civil Judge, Khanewal on 7‑5‑1996 where against revision petition was filed by respondent No.3, which has been accepted through the impugned order by the learned District Judge, Khanewal.

3. Learned counsel for the petitioners contends that copy of birth certificate and register containing its entry, are public documents and the learned Civil Judge, had correctly accepted the application but the learned Additional District Judge has dismissed the same on surmises and conjectures. Relies upon the case of " Zar Wali Shah v. Yousaf Ali Shah and 9 others" 1992 SCMR 1778 in support of his contention that the application for producing additional evidence cannot be dismissed, if the same is necessary for arriving at a just and proper decision of the case. It is also contended that the good cause was shown for not producing the documents at the early stage. Also relies upon 1994 CLC 1085.

4. In spite of repeated calls nobody has entered appearance to prosecute this petition on behalf of the respondents, hence, they are proceeded against ex parte.

5. I have heard the learned counsel for the petitioners and also perused the documents attached with this petition. Admittedly, the suit was filed on 12‑3‑1992 by the petitioners, but these documents were not mentioned in the list of documents attached with the plaint. In spite of that under Order VII, rule 14, C.P.C. the. plaintiff is required to attach the relevant documents in his possession with the plaint when the same is presented and the other documents relied upon in support of its claim, (whether in his possession or power or not) have to be entered in the list to be annexed with the plaint. The case‑law relied upon by the learned counsel for the petitioners reported as "Zar Wali Shah v. Yousaf Ali Shah and 9 others" 1992 SCMR 1778 is not applicable to the facts and circumstances of the present case as in the said case the Supreme Court while hearing appeal had remanded the case to the trial Court for amendment in the pleadings deeming it just and necessary, whereas in the present case the view of lower Court is that allowing of proposed additional evidence will amount to fill in lacunas in the evidence. Moreover, the Honourable Supreme Court of Pakistan in the latest case reported as "Sher Baz Khan and others v: Mst. Malkani Sahibzadi and others". PLD 2003 SC 849 decided by the larger Bench has observed otherwise. The relevant portion is reproduced as under:‑‑ "Learned counsel for the appellants when questioned did not give satisfactory explanation as to what were reasons for non‑production of these documents at the proper stage if the same were so material from appellants point of view, for according to law, an unsuccessful party in a suit is not to be granted opportunity to fill up weaker parts of its case by producing additional evidence to the prejudice of the other party. He also had no satisfactory answer as to why these documents were not even relied under Order VIII read with Order VII, rule 14, C.P.C. as every party in a suit is required to mention the documentary evidence which it would like to produce in evidence in support of its case so that the adverse party had sufficient notice to meet the same. " From the perusal of the above case law, it is clear that unsuccessful party in a suit cannot be granted opportunity to fill up weaker parts of its case by producing additional evidence to the prejudice of the A other party.

6. No reason whatsoever for not entering these documents in the list attached with the plaint, even if same were not available, as provided under Order VII, rule 14(2), C.P.C. was given in the application. Even if Secretary of the Union Council remained suspended for a long period, although no date is mentioned in the application, the same cannot be termed a reason for not entering these documents in the list to be annexed with the plaint and record could be summoned through Court. It is not case of the petitioners, that this piece of evidence was not in their knowledge earlier and if they had withheld the same at the relevant time intentionally, they cannot be benefited for their own misdeeds by allowing production of additional evidence to fill up lacunas in, their evidence. The learned District Judge has correctly accepted the revision petition and set aside the order of learned trial Court. Even otherwise, the writ petition is only maintainable ‑ if there is any jurisdictional defect or the impugned order has been passed against the law. Moreover, it was also not a vested right of the petitioners to produce the additional evidence but it was the discretion of the Court to decide about the same keeping in L view the facts of the case and law on the subject. Though the learned trial Court had allowed to produce the additional evidence yet the learned District Judge has rightly exercised his discretion by accepting the revision petition and the learned counsel for D the petitioners has failed to point out any jurisdictional defect, improbability or illegality in .the impugned order, which is maintained.

7. For the foregoing reasons, this writ petition being not maintainable and having E no force is dismissed, with no order as to costs. H.B.T./C‑5/L Petition dismissed.