1989 PLP 547 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by the defendants side in a suit for declaration and permanent injunction etc., against the acceptance by the High Court of the respondents/plaintiffs side's regular second appeal. Although on face the main question before the trial Court was whether the petitioners side were lawful purchaser of the suit property from Ali Muhammad its original owner; yet the decision of the suit mainly depended upon whether the respondents/plaintiffs side had any locus standi or cause of action to file the suit. The basis for filing the suit was that Fateh Din the predecessor‑in interest of respondents was an heir of Ali Muhammad and in that capacity was together with other heirs entitled to inherit the property if it had not been sold to the petitioners side. The trial Court held that proper proof of sale by Ali Muhammad was lacking; but at the same time held that Fateh Din was not related to Ali Muhammad as claimed, hence, the plaintiffs side would fail on account of this reason. The learned first appeal Court upheld the trial Court's negative finding regarding relationship of Alt Muhammad and Fateh Din but on petitioners' appeal held that the judgment of the trial Court had suffered inter se inconsistencies. Accordingly the sale in favour of the petitioners' side, was upheld. On respondents' appeal a learned Judge in the High Court set aside the 1 findings of the both the learned Courts below and also resolved the point of limitation in respondents' favour, on the ground that it was a continuing cause of action which was brought before the Court. In doing so the learned Judge, amongst others, relied upon a pedigree table produced by the respondents side at the High Court stage and entertained as additional evidence under Order XLI, Rule 27, C.P.C. Learned counsel for the petitioners has contended:‑ "that there was no justification for admitting the additional evidence: that the petitioners were not afforded opportunity to contest respondents' application in this behalf; that Fateh Din had not been able to establish relationship with Ali Muhammad; that the relationship relied upon from the respondents' side was not mentioned in the plaint nor there was any other evidence to support the claim; that the respondents' suit was time barred; and that all the necessary parties were not impleaded. None of the arguments of the learned counsel has any force. There was oral evidence in support of the respondents' assertion about the relationship. It was not disbelieved by the lower Courts nor was any cogent reason for the lower Courts to reject it. Therefore, the finding by the High Court on the question of the relationship would stand even if the additional evidence is excluded. If on the other hand the assessment by the learned Judge that without such evidence it had become difficult to pronounce judgment on the question of relationship is considered, this amongst other grounds was sufficient to satisfy the condition under Order XLI, Rule 27, C.P.C. The objection regarding lack of opportunity in our view in the circumstances of this case, is not well‑founded. Similarly the objection that necessary parties were not impleaded is also not well founded. The decision by the High Court on the question of limitation is unexceptionable as the cause of action in the circumstances of this case, was recurring one. Other contentions of the learned counsel relate to the appreciation of evidence or findings on fact which do not suffer from any infirmity so as to justify interference by this Court. Leave to appeal, therefore, is refused. MA.K./A‑389/S Leave refused.