2004 PLP 1424 (CLC)

Sheikh Qamar Javed and others v. Sheikh Hassan Ali 2001 SCMR 1766; Pordil Khan v. Sufaid Gul and others PLD 1965 (W.P.) Pesk 259 and Allah Ditta v. Ghulam Rasool PLD 1975 Lab. 138 ref. Javed Younis Qureshi for Petitioners. . By virtue of Sale Mutation No.200 attested on 27-6-1994, Suitland was purchased by Mst. Qaisar Jehan Begum, vendee-defendant for an ostensible sale consideration of Rs.1,80,

075. Ghularn Qasim plaintiff (sine dead and represented by his legal heirs) filed suit for possession through pre-emption of suit-land maintaining that in fact the suit property was purchased for Rs.94,900 but the inflated amount was inserted in suit mutation in order to defeat the pre-emption suit. The suit was contested. During pendency of the suit, the land in suit was alienated in favour of Mehmood-ur-Rehman son of Mujib-ur-Rehman who was impleaded as defendant on the application of plaintiff. Plaintiff filed amended plaint. Written statements were filed, relevant issues were framed and evidence of the parties was recorded. Resultantly, suit was dismissed by learned Civil Judge, D.I. Khan on 5-5-2003 vide judgment of the even date principally on the ground that plaintiff has failed to fulfill the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987 and to prose the sending of notice "Talab-i-Ishhad". '

2. An appeal was preferred thereagainst before learned District Judge, D.I. Khan which was entrusted to learned Additional District Judge-I, D.I. Khan for disposal. When main appeal came up for arguments, the appellant-plaintiff filed an application for permission to produce additional evidence. The application was rejected and it was held that appellant-plaintiff had failed to produce the best available evidence in the trial Court, whereby valuable rights had been accrued to the respondent-defendant. Therefore, at this stage he cannot be allowed to fill up the lacuna.

3. Mr. Javed Younis Qureshi, learned counsel for the petitioner contended that the impugned order has been passed without legal justification and without adhering to the point involved in total disregard to the fact that document sought to be produced had direct bearing on the ultimate decision of the case and the omission on the part of the petitioner to produce the same at the relevant time was not intentional because two pre-emption suits of similar nature were pending in two different Courts for adjudication.

4. Where important evidence having a material bearing on the merits of the suit, is subsequently discovered, there are three courses open to such a party, as (i) it may apply for admission of fresh evidence before judgment,' (ii) it may apply for review of judgment after it has been pronounced or (iii) it may appeal from the judgment and apply for admission of additional evidence before Appellate Court under rule 27 of Order 41 of the Code of Civil Procedure. Additional evidence can be allowed under this rule provided the provisions of this rule are attracted. The power of Appellate Court to admit further evidence is only confined to those cases in which the Court requires any document to be produced or any witness to be examined, to enable it to pronounce judgment or in any other substantial cause. The preponderance of authority is in favour of the view that the party who had the opportunity to produce the evidence in the trial Court, but did not avail of the opportunity, should not be allowed to improve its case by producing evidence at the appellate stage. The party that had opportunity to elect not to produce evidence cannot be allowed to produce in Appellate Court that could have been given in the Court below. Fresh evidence should not be allowed at a later stage if such evidence is of a nature as can be easily fabricated. In the absence of satisfactory reason in the non-production of the evidence in the trial Court, additional evidence should not be admitted in appeal because a party guilty of remissness in the lower Court is not entitled to the indulgence of being allowed to give further evidence under this rule. It needs no reiteration that the provisions of this rule are not intended to allow a litigant who has been unsuccessful in the trial Court to seek indulgence of the Appellate Court and try to fill in the lacuna in his case by way of producing additional evidence at the Appellate stage, which could have been produced at the trial stage. In this view of the matter, I am fortified by the observations made in Sheikh Qamar Javed and others v. Sheikh Hassan' Ali 2001 SCMR 1766, Pordil Khan v. Sufaid Gul and others PLD 1965 (W.P.) Pesh. 259 and Allah Ditta v. Ghulam Rasool PLD 1975 Lah. 138.

5. The West Pakistan High Court ruled in Ghulam Muhammad and another v. Shah Wali (1) that:-- "If an appellant, who had ample opportunity of giving evidence in the trial Court; elects not to do so, but rests his case on the evidence as it stood, he ought not to be allowed to give evidence which he could have given in the trial Court."

6. Having regard to the facts and circumstances of the case, I agree with the Appellate Court that it was not a fit case in which petitioner should have been permitted to produce additional evidence at the appellate stage. The impugned order being correct requires no interference of this Court in its revisional jurisdiction.

7. Finding no substance in this civil revision, I dismiss the same in limine. H.BT./131/P Revision dismissed.