1985 PLP 2252 (CLC)

Iqbal Hussain and others had instituted a suit for possession through pre-emption of a house bearing No. 2164/B-Ill, situated in Mohallah Qureshian, Bahawalpur, alleged to have been sold through registered sale-deed, dated 21-2-1978 by Mst. Noor Bibi in favour of the respondent/defendant.

2. In discharge of onus, to prove the issues, the petitioners/ plaintiffs closed their evidence, thereafter, the petitioners on 16th of December 1981, moved an application under section 151, C.P.C. for adducing additional evidence in the case. Through the said application, various documents were sought to be brought on record. On 10th of January 1982, another application under Order XIII, rule 2, C.P.C., was moved in continuation of the earlier application, in which the scope of earlier application under section 151, C.P.C. was amplified. These applications were allowed. The respondent/defendant Mst. Nazir Begum assailed the said order, dated 26-1-1982 through a revision petition filed in this Court. The said revision petition (Civil Revision No. 16/82 BWP) was accepted vide order, dated 23-10-1982 and the case was remanded, so that a speaking order could be passed. The learned Senior Civil Judge, in remand vide his order, dated 19-1-1983, rejected both the applications moved by the petitioners/plaintiffs for the production of additional evidence. The petitioners/plaintiffs aggrieved by the said order, have filed this revision petition.

3. The learned counsel for the petitioners has stated before me that only two documents; a sale-deed, dated 5th of December, 1888, whereby, House No:2165/B.III was purchased by Allah Dad, grandfather of Talib Hussain from Syed Ghulam Ali Shah and another sale-deed, dated 28-1-1947 executed by Mufti Ghulam Mustafa in favour of Mst. Noor Bibi in respect of the disputed house is sought to be produced in evidence. Through the first sale-deed, dated 5th of December 1888, it was sought to be proved that the house sold bearing No. 2165/B-Ill and now bearing No. 2166/B-Ill, was situated towards East of the disputed house, which belongs to the granfather of the plaintiffs/ petitioners, whereas, through the second sale-deed, the purchase of the house by Mst. Noor Bibi was sought to be established. The learned counsel for the petitioners further argued that these documents were not in possession of the petitioners/plaintiffs at the time of the institution of the suit and the production of evidence in the trial Court.

4. The learned counsel for the respondent/defendant has deherriently contested this revision petition. It was contended by the learned counsel for the respondent that the rejection of application under Order XIII, rule 2, C.P.C. does not amount to a case decided within the meaning of section 115, C.P.C. and, therefore, the revision is incompetent.

5. No doubt, in the cases reported as Nawabzada Malik Habib Ullah Khan Tiwana v. Pakistan Cement Industries Ltd. and others 1968 SCMR 864 and in Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 S C M R 965, the decisions on such applications had been held to be cases, not decided within the meaning of section 115, C.P.C., but in another reported judgment Rehman Dad and others v . Major Raja Sajawal Khan etc. 1976 S C M R 350, the decision on such application has been held to be a case decided within the meaning of section 115, C.P.C. Placing reliance upon the case latter in time Rehman Dad and others v. Major Raja Sajawal Khan etc. 1976 SCMR 350, and S. Zafar Ahmad v. Abdul Khaliq P L D 1964 Kar. 149 , I hold that the decision on such applications amounts to a case decided within the meaning of section 115, C.P.C. The next question falling for the determination, is whether the present revision petition should be accepted. After anxious consideration, and the perusal of the case-law cited by both the sides, I am of the view, that this revision petition should be allowed. The right of Pre-emption is no more a predatory right as held by the Supreme Court of Paksitan in the case Siddique Khan v. Abdul Shakoor Khan PLD 1984 S C 289, interpretation of Order XIII, rule 2, C.P.C. was determined by the Privy Council and their Lordships in the reported case Kumar Gopika Raman Roy v. Atal Singh and others A I R 1929 P C 99 held as follows:- "Even where the rule of exclusion applies and the documents cannot be filed without the leave of the Court, that leave should not ordinarily be refused where the documents or official records of undoubted authenticity may assist the Court to decide rightly the issues before it." Similarly, after applying the criteria laid down in the cases reported as Muhammad Bakhtiar Khan v. Qari Bashir Ahmad and another P L D 1957 (W.P.) Lah.

803. The Lahore Improvement Trust v. Messrs Khuda Bakhsh-Meraj Din P L D 1956 Lah. 252 and Umar Hayat v. Naik Alam P L D 1977 A J & K

78. I am of the view, that the petitioners/plaintiffs should be provided, an opportunity to produce the aforementioned sale-deeds, in evidence to prove their case. Accordingly, I hereby accept this revision petition, set aside the order impugned, dated 19-1-1983, and allow the petitioners/plaintiffs to produce the sale-deeds, dated 5-12-1888 and 28-1-1947 in evidence subject to the payment of costs of Rs.500 to the respondent. With these observations this petition is accepted. M.Y.H. Petition accepted.