2009 SCMR 326 (PLP)

SYED SAKHI HUSSAIN BOKHARI, J.

This appeal with leave of the Court is directed against the judgment, dated 13-2-2001 passed by Lahore High Court, Lahore whereby Civil Revision No.83-D of 1990 filed by appellant was partly allowed.

2. Relevant facts for the disposal of this appeal are that appellant purchased land measuring 19 Kanals bearing Khewat Nos.46/126, 127, 329/675 to 680, 361/750 to 752, 455/965 to 972, 456/973 and 462/978 situated in village Gallanwala, Tehsil and District Gujrat from Muhammad Rashid etc. vide sale-deed, dated 13-6-1979. Muhammad Abdullah, respondent, pre-empted that sale. The appellant filed written statement, whereupon learned trial Court framed issues, recorded evidence and decreed the suit on 5-10-1995. The appellant filed appeal thereagainst which was dismissed vide judgment, dated 9-10-1989 passed by learned Additional District Judge, Gujrat. Then appellant challenged the said judgment in Civil Revision No.83-D of 1990 which was partly allowed vide judgment. dated 13-2-2001 and suit of respondent was dismissed to the extent of land measuring 1 Kanal, 7 Marlas situated in Khewat No.46/126 to 127 as it was observed by learned High Court that respondent/plaintiff was not co-sharer in said Khewat (No.46/126 to l27). Hence this appeal.

3. We have heard the arguments of learned counsel for the parties and perused the record. As mentioned above appellant purchased suit-land through registered sale-deed, dated 13-6-1979 and respondent had filed suit for possession through pre-emption regarding the same. The suit brought by respondent was decreed and appeal filed by appellant was dismissed. He (appellant) filed Revision Petition No.83-D of 1990 which was partly allowed and suit, to the extent of 1 Kanal, 7 Marlas, was dismissed. The case of appellant is that respondent/plaintiff had instituted suit on the ground that he is co-sharer in the Khewats in question. Also that appellant is also co-sharer in the said Khewats, therefore, he has no superior right qua the vendee/appellant. Learned counsel for the appellant submits that he had filed application (C.M. No.370/C of 1990) for production of additional evidence before the High Court whereupon notice was issued to respondent and High Court observed that the same would be decided along with main case (Civil Revision No.83 of 1990) but the High Court did not dispose of his application before decision of the main case. Further submits that appellant intended to bring on record Register "Haqdaran Zamin" for the years 1965-1966 to 1985-1986 and copies of mutations to prove his case, therefore, his case has been prejudiced. He contended that appellant had submitted similar application before Appellate Court but the same was rejected illegally, therefore, he has prayed for acceptance of this appeal and to remand the case to learned High Court for decision afresh after disposal of his application for production of additional evidence. He has relied upon the cases of Muhammad Umer v. Muhammad Qasim 1991 SCMR 1232, Muhammad Yousaf v. Abdul Khaliq 1991 SCMR 1981 and Imtiaz Begum v. Sultan Jan 2008 SCMR 1259. Learned counsel for the respondent submits that appellant had not produced copies of documents in Appellate Court and that there was no ground for granting permission to produce additional evidence. Further submits that learned High Court has rightly ignored the application filed by appellant. We have considered the submissions made by learned counsel for the parties with care. We have examined the record of learned High. Court, according to which appellant had filed application (Civil Miscellaneous Application No.370/C of 1990) for production of additional evidence on 23-1-1990. Notice was issued to the respondent and it was observed that this application shall be decided along with main case (Civil Revision No.83 of 1990). However, the learned High Court decided the revision petition brought by appellant without taking into consideration documents in question and without disposal of said application for additional evidence. As such we find that case of appellant has been prejudiced. Even otherwise the case of appellant is that he is co-sharer in the Khewats in question, therefore, it was in the interest of justice that High Court should have decided his application before final adjudication of the case.

4. For what has been discussed above, we are- of the considered opinion that impugned judgment is not sustainable in law. As such this appeal is accepted, impugned judgment is set aside and the case is remanded to the learned High Court for decision afresh on merits and in accordance with law after dealing with the application for additional evidence. No order as to costs. H.B.T./M-93/SC Case remanded.