1988 PLP 1780 (CLC)

Regular First Appeal No. 36 of 1983, decided on 26th January, 1988. ‑‑‑O. XLI, Rr. 25, 27, 28, 29 & S. 96‑‑Additional evidence‑‑Suit for recovery of money on basis of equitable mortgage‑‑Defendant, one day before pronouncement of judgment, making application before Trial Court that his predecessor‑in‑interest alleged to have made mortgage in favour of plaintiff in 1971 had actually died in 1969 and not in 1973‑‑Trial Court, however, making no order with regard to said application either in final judgment or separately‑‑Date of death of defendant's predecessor‑in‑interest being crucial point in the case, counsel of both parties agreeing that Trial Court might be directed to record evidence of parties on said point and give its finding thereon and meanwhile appeal might remain pending‑‑Such course, held, not only necessary but also a just and legal course‑‑Application o additional evidence accepted, Trial Court ordered to record evidence of parties, both documentary and oral, only on point as to when predecessor‑in‑interest of defendant had died and send its findings on said point to High Court‑‑Scope and extent of evidence directed to be limited to said point and no party to be allowed to get out of it even in cross‑examination of a witness. Asghar Hamid Bhutta for Appellants. Yawar Ali Khan for Respondent. During the course of arguments in the case, the learned counsel for the appellants has drawn our attention to an application, dated 16‑11‑1982 preferred by the appellants before the learned trial Court for the grant of permission to produce additional evidence relating to the time of death of Mst. Iqbal Begum who, according to the plaint, created an equitable mortgage in favour of the respondent. In para. 7 of the plaint it has been alleged that Mst. Iqbal Begum died in 1973. This para has been denied in the corresponding paragraph of the written statement. Khalid Pervaiz one of the appellants and a legal heir of "Ast. Iqbal Begum appeared as D.W.1 and stated that she had died in 1969 in the Albert Victor Hospital, Lahore. The said application was made in order to prove that she actually died in 1969 and not in 1973. The said application was filed on 16‑11‑1982, i.e. a day before the announcement of judgment, by the learned trial Court, on 17‑11‑1982. However, no order in regard to the said application) was made either in the said final judgment or separately. The learned counsel for the appellants has contended that the date of death of Mst. Iqbal Begum is a crucial point in the case because in the plaint it is alleged that the mortgage was made by her in 1971 or afterwards. The learned counsel for the respondent agrees that it is essential to determine the date and time of the death of Mst. Iqbal Begum. The learned counsel for both the parties agree that the learned trial Court may be directed to record evidence documentary and oral, of both the parties only on the said point and should give its finding on the said point and that in the meantime the appeal may remain pending here and. then may be decided keeping in view the evidence produced before and the finding given by the learned trial Court on this point. This is not only a necessary but also a just and legal course. Therefore, the application for additional evidence filed on 16‑11‑1982 is accepted. It is ordered that the learned trial Court shall record evidence produced by the parties, both documentary and oral, only on the point as to when Mst. Iqbal Begum died. It is clarified that the scope and extent of the evidence shall be limited only to the said point and no party will be allowed to get out of it even in the cross‑examination of a witness. The case shall be taken up for evidence by the learned trial Court on 24‑2‑1988 and on subsequent dates, if necessary, whereafter arguments may be heard and the learned trial Court shall give its finding only on the said point and send the same to this Court, alongwith the record, well before 28‑3‑1988; on which date, the appeal will come up for final hearing. The parties may apply for summoning of witnesses if any, before the learned trial Court, within 3 days of the receipt of the record by it. S.Q./K‑69/L Order accordingly.