1988 PLP 247 (MLD)

This appeal under section 100 C.P.C. is filed by the appellant against the two concurrent judgments of the Courts below. The facts relevant to the disposal of this appeal may be stated as follows:- The appellant acquired a plot of land bearing No. D-178 admeasuring 11 acres from Sind Industrial Trading Estate under an agreement dated 18th March, 1972. However, at the time of delivery of possession it was discovered by the appellant that a portion of the said plot was unauthorisedly occupied by some other person. It is the case of the appellant that later on the respondent above named acquired the possession of the said portion of the plot from the unauthorised occupant and started raising construction thereon. In these circumstances the appellant instituted Suit No. 1214 of 1975 in the Court of 17th Civil Judge, Karachi for possession and mesne profits. The learned trial Judge after hearing the parties dismissed the suit on the ground that the appellants failed to establish their title to the land and the document which was relied upon by them did not create any title in their favour. The learned first appellate Court also concurred with the findings of the trial Court and dismissed the first appeal preferred by the appellant. Mr. Sharaf Faridi, learned counsel for the appellant contends that before the learned first appellate Court the appellant filed two applications. One of these applications was under Order 41, Rule 27, C P C for production of the registered lease deed which in the meantime was, executed in favour of the appellant while the other application was under Order 26, Rule 9 read with Section 151, C P C for appointment of Commissioner to take measurement of the plot leased out in favour of the appellant in order to determine whether the alleged encroached portion was included within the boundaries of the plot allottee to the appellant or not. Both these applications were dismissed by the learned first appellate Court. Learned counsel for the appellant contends that while dismissing these applications the learned first appellate Court failed to notice that the case of the appellant was based on title and the documents sought to be produced in evidence were not only relevant but were necessary for a just and final decision of controversy in the suit. Mr. Inayat Ali, learned counsel for the respondent on the other hand contends that as these documents were not available at the time of filing of the suit they could not be allowed to be produced at the appellate stage as this would amount to making an improvement in the case of the appellant. After hearing the learned counsel for the appellant and learned counsel for the respondent I am of the view that the learned first appellate Court did not act in proper exercise of his jurisdiction in declining to grant application filed by the appellant for production of the registered lease deed which was a document material for the decision of the issue in the case. The learned Court below also acted in a haste in rejecting the other application for appointment of the Commissioner as the evidence sought to be brought on record through that application was also very relevant and material for the decision of the controversy in the suit. I accordingly allow this appeal, set aside the order of the first appellate Court and remand the case back with the direction that an opportunity may be given to the appellant to produce the document namely registered lease deed executed in their favour by the S.I.T.E and the application for appointment of the Commissioner may also be re-considered in the light of the evidence which may be brought on record in the shape of registered document-and also in the light of issues framed. The learned first appellate Court may also in its discretion allow production of any further evidence by the parties if it is so necessary in the circumstances of the case. There will be no order as to costs. M.Y.H/D-27/K.