1993 PLP 1656 (MLD)

(b) Civil Procedure Code (V of 1908)

S. 115

Revision

Findings of fact rendered by First Appellate Court were based on correct reading and interpretation of evidence produced on record-- No misreading or non-reading of evidence, having been pointed out, finding recorded by Court below did not call for interference in revisional jurisdiction. Ch. Zamir Hussain for Petitioners Date of hearing: 3rd May, 1993. Facts of the case out of which this civil revision has arisen are that land measuring 2 Marlas was sold by vendor Sher Khan and others to Messrs Qayyum Khan and 2 others who are petitioners before this Court vide registered sale-deed, dated 17-11-1982. Muhammad Zaman the respondent in the present petition filed a suit to pre-empt sale as being a co-sharer in the Khata. The suit was contested and superior pre-emptive right was denied by the defendants on the ground that they are collaterals to the vendors. Vide judgment and decree, dated 21-4-1.986, the learned trial Court dismissed the suit on the ground that the vendors are proved to be collaterals of the vendors, therefore, the plaintiff does not possess superior pre-emptive right. This judgment and decree was challenged in appeal by the plaintiff which has been accepted by the learned District Judge, Attock vide judgment and decree, dated 6-12-1986. Shajra Nasab Exh.D.1 has been considered by the learned first appellate Court and it has been held that the vendees are sons of Awal Khan son of Zardar Khan who is predecessor-in-interest of Sarblund whereas predecessor-in-interest of the vendors is Sattar Khan, but there is no evidence to prove that Sarblund and Sattar were real brothers as held by the trial Court. Learned first appellate Court also held that the vendees are also not proved to be a co-sharer in the Khata inasmuch as the sale in their favour which took place vide Mutation No.87, sanctioned on 17-10-1981 was also subject-matter of pre-emption suit which has been decreed in favour of the plaintiff -respondent therefore, the vendees are no more co-sharers in the estate. It is therefore, clear that the plaintiff/pre-emptor has a superior pre-emptive right and hence, the suit was decreed in favour of the respondent. Aggrieved of this judgment and decree the vendees have filed this civil revision. Alongwith the petition an application under Order 41, Rule 27, C.P.C. has also been filed seeking permission to produce additional evidence in support of the vendees' contention that they are collaterals of the vendors.

2. Sh. Zamir Hussain, Advocate has appeared on behalf of the petitioners and has argued that the petitioners are proved to be collaterals of vendors. According to the learned counsel for the petitioner due to a wrong drawing of a line, in the copy of pedigree-table regarding relationship, by the person who prepared copy of pedigree-table Exh.D.1 it is not established that the vendees are collaterals of the vendors and if an opportunity is given to the petitioners to clarify this position by producing of additional evidence they will be in a position to-prove this case. It is contended that they may be allowed to produce another certified copy of the pedigree-table for determination of the issue and for this purpose if necessary the suit may be remanded.

3. I have considered the arguments addressed by the learned counsel for the petitioners and have also gone through the record. There is no ambiguity in the entries of document Exh.D.l which is a certified copy of pedigree-table issued by the competent authority and was produced in evidence by the petitioners themselves. If there was some ambiguity in drawing of line it was their duty to have made necessary inquiry prior to the production of document in question in evidence and get the mistake, if any, rectified. No effort was made by the petitioners in this behalf till the appeal was decided by the learned first appellate Court and even till filing of this revision petition. It is for the first time during the course of this revision petition that the petitioners have moved an application under Order 41, Rule 27, C.P.C. for allowing production of additional evidence to produce another certified copy of the pedigree-table and to clarify the mistake which according to them has occurred in the document Exh.D.l. I am afraid at this late stage during the course of pendency of revision petition against the judgment and decree rendered by the learned first appellate Court, the petitioners are not entitled as of right to get an opportunity to fulfil the lacuna in evidence Exh.D.l has been produced by the petitioners themselves and it very clearly establishes that the vendees are not related to the vendors. Consequently, learned first appellate Court after correct reading of document on record has held that the petitioners are not collateral of the vendors. Grant of permission to produce additional evidence is discretion of the Court and exercise of discretion is further controlled by judicial principle laid down for administration of justice. A negligent litigant is not entitled to the exercise of discretion in his favour for production of additional evidence without making out any ground for production thereof. There is no explanation as to why similar request was not made before the two lower Courts and as to why the document Exh.D.l when produced in evidence if the same was not in accord with the factual position, was produced as Exh.D.l as it is. There is also no basis for coming to the conclusion that line showing relationship in the pedigree-table is not correctly drawn. Mere assertion of the petitioners in this behalf without any prima facie material to substantiate the assertion, cannot be relied upon for exercise of discretion in favour of the petitioners who are proved to be negligent. It stands established, therefore, that the plea now being raised by the petitioners is an afterthought and, hence, is not a valid ground for allowing production of additional evidence. Hence the application is dismissed. Findings of fact rendered by the learned first appellate Court are based on correct reading and interpretation of evidence produced on record. It is not a case of misreading and non-reading of evidence. Hence the findings of the learned e lower appellate Court on the issue of the superiority of pre-emptive right are upheld.

5. Resultantly, I see no force in this civil revision. The same is dismissed in limine. A.A./Q-13/L Revision dismissed.