2013 PLP 239 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The respondent filed a suit for declaration to the effect that she is real daughter of deceased Muhammad Ali and as such is entitled of her share in the estate of deceased Muhammad Ali. The petitioners contested the suit and learned trial Court after recording the evidence and hearing the parties dismissed the suit vide judgment and decree dated 29-4-2008. The respondent assailed the said judgment and decree through an appeal which is pending disposal before the learned appellate Court. The respondents then filed an application under Order XLI, Rule 27, C.P.C. for recording additional evidence. The petitioner opposed the said application and the appellate Court vide order dated 9-4-2010 allowed the application, hence, this petition.

2. Learned counsel for the petitioner submits that learned appellate Court has failed to consider the fact that application has been designed only to fill in the lacuna in their case. The document is originally available on record and the learned trial Court has given its findings and has not accepted the same. He further submits that additional evidence sought to be produced by the respondent is against the interest of petitioner.

3. Learned counsel for the respondents submits that application for additional evidence is for producing a document certified copy of which was not in existence at the time when respondents got recorded their evidence and as such the learned first appellate Court has rightly allowed the said application.

4. The contents of application for additional evidence shows that respondents want to file a certified copy of an application filed by them before the Chief Settlement Commissioner/Member Board of Revenue and the order passed by the Chief Settlement Commissioner. Admittedly these documents were not in existence at the time of recording the evidence of parties by the learned trial Court. The certified copy of order is to the effect that the claim form placed on record is Exh.P2 and the learned trial Court has not believed this document on a specific finding that it is in a dilapidated condition. The petitioners have already filed an application with the Chief Settlement Commissioner/Member Board of Revenue for issuance of certified copy of said document. The Settlement Commissioner vide order dated 16-1-2010 accepted this application and the respondents then filed an application for recording additional evidence for proving that Claim Form No.11740 was a genuine document and the same has been verified by the Settlement Commissioner, the only authority to confirm the genuineness of document. The said document is admittedly a document which can be looked into by the appellate Court specially in terms of findings of learned trial Court, as the learned trial Court has opined that this document is in dilapidated condition. The said document has been verified by the competent authority after the passing of decree and as such the same was not available to the respondent at the time of recording the evidence. The respondent has rightly filed the application for additional evidence which was allowed by the learned appellate Court. The learned appellate Court has rightly held that certainly the petitioner will be given an opportunity to rebut the documents sought to be produced by the respondents. In these circumstances there was no option available to the learned trial Court to allow the application as the appeal is in continuation of suit and learned appellate court enjoyed all powers of trial Court. Learned counsel for the petitioners have failed to point out any defect, illegality or irregularity in the impugned order, as such the petition is dismissed.

5. There is no order as to costs. KMZ/A-188/L Petition dismissed.