2011 PLP 2314 (YLR)

ABDUL WAHEED KHAN, J.--The petitioner filed a suit for possession through pre-emption of land measuring 4-kanals situated in Chak No.6 Ghaga, Tehsil Shorkot, District Jhang alleging therein that it was in fact not an exchange rather a transfer through sale, with intent to defeat his right of pre-emption. After filing of the written statement and settlement of issues on 19-5-2005, ,statement of P.W. 1 namely Muhammad Ramzan retired Branch postmaster and examination-in-chief of Muhammad Munir (plaintiff), Bashir Ahmad and Khurshid Ahmad were recorded as P.W.2 to P.W.4 respectively on 27-7-2009. The petitioner filed an application for permission to produce original postal envelope and the notice of Talb-e-Ishhad in additional evidence as according to him, because of inadvertence, the said documents could not be produced during recording of the examination-in- chief of the P.W.2 to. P.W.4. The said application was accepted by the civil court 'vide order dated 8-1-2010. The respondent No.1/defendant assailed the order dated 18-1-2010 before the District Court through a revision petition and the Additional District Judge, Shorkot accepted the revision petition on 16-4-2010 and set aside the order of the civil court dated 8-1-2010, hence this Constitutional Petition by the plaintiff.

2. The counsel for the petitioner, while reiterating the contents of the petition, submits that omission to produce postal envelope and the original notice of Talb-e-Ishhad was only because of inadvertence and since valuable rights of the petitioner are involved therefore the civil court rightly granted the application for additional evidence and that the revisional court erroneously set aside the order of the civil court dated 8-10-2010 and thus impugned judgment of the Addl. District Judge Shorkot dated 16-4-2010 be set aside.

3. Conversely, the contentions of the counsel for the respondent are that the petitioner/plaintiff had not been vigilant and the revisional court has rightly passed the impugned judgment/order and the same does not call for interference in Consti tutional jurisdiction.

4. Arguments of the counsel for the petitioner have been heard. It is mentioned in para-4 of the application for additional evidence that at the time of examination-in- chief of P.Ws. 2 to 4, the original notice and the envelope could not be produced/ exhibited inadvertently but the fact is that the said documents were already available with the petitioner and he was in a position to produce the same at the time of recording of examination-in-chief of the aforementioned P. Ws. He did not produce the said documents at the relevant time on account of negligence and carelessness.

5. A party, to a civil suit, can be permitted to produce additional evidence when:-- (a) important evidence having a material bearing on the merits of the suit, is subsequently discovered, (b) the document sought to be produced in additional evidence was not in its knowledge, (c) the document was not available with it and that (d) such document was beyond its control. The power to allow additional evidence is discretionary, circumscribed by the limitations and it should not be allowed where a party has been grossly negligent. Inadvertence, mistaken, legal advice, ignorance of law or negligence of a party are not grounds for allowing additional evidence. Production of additional evidence is not a matter of right, particularly in a suit for possession through pre-emption which is a feeble right.

6. So in these circumstances when the documents, intended to be produced in additional evidence, were available with the petitioner and he failed or omitted to produce the same during recording of examination-in-chief of the P.W.2 to P.W.4, he cannot be permitted to produce the same through additional evidence to make up the weaknesses of his case or to fill up the lacuna or gaps. The counsel for the petitioner could not cite any rule of law that a party failing through its inadvertence or negligence to produce some document during examination-in-chief of the witnesses can seek to produce them by way of additional evidence by invoking inherent jurisdiction of the Court. The documents, intended to be produced as additional evidence, in the case in hand, relate to the Talb-e-Ishhad forming foundation of claim, involving the question of maintainability of the suit itself.

7. The civil court fell in error while allowing the application of the petitioner/ plaintiff through order dated 8-1-2010 which error has rightly been rectified by the revisional court through the impugned judgment dated 16-4-2010. The counsel for the petitioner could not point out any jurisdictional error in the impugned judgment and convince this court that the impugned judgment dated 16-4-2010 passed by Additional District Judge Shorkot District Jhang is without lawful authority. The result is that this writ petition fails and thus it is dismissed. H.B.T./M-931/L Petition dismissed.