2013 PLP 1741 (MLD)

ROOH-UL-AMIN KHAN, J.

Instant revision petition is directed against the judgment/order dated 8-1-2013, of the learned District Judge, Karak, whereby application of the petitioner/pre-emptor for production of additional evidence has been turned down.

2. Learned counsel for the petitioner argued that learned Appellate Court has erred in law by dismissing the application of petitioner as production of the additional evidence was inevitable for just and proper decision of the case. He further argued that vendees have withdrawn the pre-emption money form the Court and thereby relinquished their rights in the suit property; that the contest is now only between the present petitioner/ pre-emptor and rival pre-emptor Umar Zad, who has also no objection on acceptance of application of the petitioner, hence, the impugned order of the Appellate Court being perverse is liable to be set aside and application of the petitioner be accepted.

3. I have considered the submissions of the learned counsel for the petitioner and have gone through the available record.

4. Perusal of the record transpires that petitioner Ziari Gul filed a pre-emption suit against the respondents in respect of sale mutation No.10221, dated 16-9-2006. Respondent No.1 rival pre-emptor also filed a pre-emption suit qua the same sale. Both the suits were consolidated, consolidated issues were framed, pro and contra evidence was recorded and on conclusion of trial, suits of both the preemptors were decreed and the suit property was directed to be distributed amongst them, in equal shares. Parties filed four appeals against the same consolidated judgment of the Trial Court, two by vendees-defendants against both the preemptors and one by each pre-emptor, against the rival pre emptor and the vendees-defendants. All these appeals were decided vide consolidated judgment of learned District Judge Karak dated 22-9-2010, whereby appeal of the petitioner/ pre-emptor and that of vendees-defendants Niaz Muhammad and others were dismissed. Whereas, appeal of the rival pre-emptor Umar Zad, was allowed and the whole suit property was decreed in his favour. Petitioner-pre-emptor filed Civil Revision No.140-B/2010 before this Court, against the consolidated judgment of the learned Appellate Court. While the vendees-defendants did not challenge the same rather it was stated at the bar that they have withdrawn the pre-emption money, deposited by Umar Zad, rival pre-emptor, in consequence of the decree, passed by the learned District Judge. The revision petition was allowed by this Court vide judgment dated 4-10-2012, and the impugned judgment of the learned Appellate Court was set aside and case was remanded to the learned Appellate Court for re-writing the judgment in accordance with law, after affording opportunity of hearing to both the parties. On receipt of the record, present petitioner filed application for producing additional evidence, which was turned down, hence, this revision. 7(sic) It divulges from the record that both the suits have been filed in the year 2006, which are regarding pre-emption of the same property. In the suit of present petitioner, the defendant has categorically denied the receipt of notice Talb-e-Ishhad. Ample opportunity had been provided to the parties for leading their evidence by the Trial Court, which they did avail and even the case was decided on merits by the two Courts below, and on acceptance of revision petition by this court, the same was remanded to the Appellate Court for re-writing of judgment only, after providing opportunity of hearing to the parties. Sufficient opportunity was given to the petitioner for production of his evidence. He was legally required to bring before the Trial Court all the evidence which was required by him to prove his claim. At such a belated stage permission to allow the petitioner to produce additional evidence, and that too, the officials of the Post Office, regarding notice Talb-e-Ishhad, which has categorically been denied by the vendees, would amount to filling up the lacuna. The Hon'ble Supreme Court has settled principles in Muhammad Bashir and others' case 2007 SCMR 1105 and Bashir Ahmed's case 2011 SCMR 762, that for substantiating the plea of notice Talb-e-Ishhad the statement of Post-man is necessary. The petitioner in order to bring his case in line with the supra judgments of the apex Court and to fill up the lacunas, has filed application for production of additional evidence. Additional evidence cannot be allowed in order to allow a party to patch up the weaker part of its case or fill up omissions or to enable it to raise new point. Party to the appeal can move the Court for additional evidence, but it can only be allowed if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on the record. In this respect reference can be made to case titled, "Muhammad Yousaf v. Mst. Maqsooda Anjum (2004 SCMR 1049) and case titled Zarait Ullah Khan v. Fazal Ahmad and 29 others (PLD 2004 SC (AJ&K) 35).

8. The learned Appellate Court has properly appreciated the law on the subject and was justified in dismissing the application of the petitioner. There is no illegality or material irregularity in the impugned order which may warrant interference of this Court in its revisional jurisdiction. Finding no merits, this revision petition is dismissed in limine. KMZ/70/P Petition dismissed.