' MUHAMMAD JEHANGIR ARSHAD, J.---This civil revision has arisen out of judgments at variance recorded by two Courts below, whereby the learned trial Court vide judgment dated 14-4-1993 dismissed the suit filed by respondent, whereas appeal filed by the said respondent against the above judgment and decree was allowed by learned Additional District Judge, Okara vide judg*t and decree dated 13-6-1996 and the suit' filed by the respondent was decreed.
2. The facts significant for the disposal of this petition are that Syed Ali Husnain respondent/plaintiff filed a suit before the learned trial Court on 29-4-1984 seeking a declaration that he was owner of the suit-land (fully described in the head note of the said plaint) and that Power of Attorney allegedly executed by him on 18-5-1978 in favour of Qadir Bakhsh respondent No.4 was void and ineffective qua his rights being based on fraud, without consideration, without justification, without lawful authority, based on collusion and that in consequence of the said alleged Power of Attorney, the sale-deed executed by respondent No.4 and got registered on 11-6-1978 alienating the suit property in favour of the petitioners was without consideration, justification, against law and facts, as such not binding qua his rights and therefore, was liable to be cancelled. A permanent injunction was also sought by way of consequential relief restraining the petitioners/defendants from further alienating the suit-land to anybody else and to deliver its possession any further. The main ground seeking avoidance of aforesaid General Power of Attorney as well as subsequent sale-deed, as described in the plaint, is that at the relevant time i.e. 18-5-1978 and 11-6-1978 the respondent No.1 was minor and thus not capable of either executing General Power of Attorney, appointing respondent No.4 as his di (limey and the said General Attorney had no authority to alienate the suit-land on behalf of respondent/plaintiff. The suit was contested by the petitioners, who by filing written statement on 7-5-1991, besides taking preliminary objections, also denied the contention of respondent No.1 that he was minor at the relevant time. It was further averred in the written statement that although out of the total agreed price of. Rs.1,87,310, an advance amount of Rs.1,49,310 was received by respondent No.4, yet the balance amount of Rs.38,000 was received by respondent No.1 himself at the time of registration of the sale-deed, therefore, the petitioners were bona fide purchasers of the suit-land with consideration and without notice. The learned trial Court in the light of divergent pleadings of the parties formulated the following issues and invited the parties to lead their respective evidence:-- ' Issues
(1) Whether the deed of Power of General Attorney No.242 dated 17-5-1978 is based upon fraud, illegal, without lawful consideration and justification and against law and facts and collusive and as such not binding upon the plaintiff and is liable to be cancelled? OPP.
(2) Whether the deed of sale No.1607 dated 11-6-1978 is without consideration, illegal, against law and facts of the case and not binding upon the plaintiff and is liable to be cancelled? OPP.
(3) Whether the suit cannot proceed in its present form in view (2; preliminary objection No.1-4 to 11, 13, 14 and 16? OPD.
(4) Whether the plaintiff is estopped from suing by his act and conduct? OPD-4 to 11, 13, 14 and 16.
(5) Whether the suit is barred by Order XXXIII, rule (3), C.P.C.? OPD-4 to 11, 13, 14 and 16.
(6) Whether the suit is collusive? OPD-4 to 11, 13, 14 and 16.
(7) Whether the suit is false and vexatious and as such defendants are entitled to special costs under section 35-A of C.P.C.?
(7-A) Whether the plaintiff is entitled to get the possession of the suit property from the defendants? OPP.
(7-B) Whether the vendees/defendants are bona fide purchaser with consideration of the suit- land? OPD.
(7-C) Whether the suit is barred by time? OPD.
(8) Relief.
3. The respondent/plaintiff in his affirmative evidence on 4-11-1985 produced documentary evidence only as Exh.P.1 to Exh.P.5 and did not opt to appear himself rather reserved his statement to be recorded jointly in rebuttal which was also recorded on 28-1-1987, whereafter, Learned counsel for respondent No. 1/plaintiff got recorded his statement closing the evidence. In rebuttal, the petitioners produced oral evidence i.e. D.W.1, Muhammad Aslam, D.W.2, Muhammad Mansha, D.W.3, Hafiz Muhammad Ilyas, D.W.4, Wilayat Ali, D.W.5 Muhammad Amin, Registry Moharrir, D.W.6, Zaman Khan, D.W.7, Ghulam Mustafa, D.W.8, Qadir Bakhsh, D.W.9, Muhammad Anwar Baig and Manzoor Ahmad D.W.10. They also produced documents Exh.D.1 to Exh.D.6. On conclusion of the trial, the learned trial Court vide judgment and decree dated 14-4-1994 dismissed the suit of respondent No. 1/plaintiff by answering Issues Nos.1, 2 and 7-C against him, although on the point of minority of plaintiff, it was held in para.No.9 of the said judgment under Issues Nos.1 and 2 that he was minor at the time of execution of disputed Power of Attorney. The respondent No.1/plaintiff filed an appeal against the above judgment and decree of the learned trial Court, which was allowed by learned Additional District Judge, Okara on 13-6-1996 whereby the judgment and decree of the trial Court was set aside and the suit filed by respondent/ plaintiff was decreed, as prayed for. The petitioners/defendants have now filed this civil revision seeking annulment of the judgment and decree of the learned Appellate Court and dismissal of the respondent's suit by restoring the judgment and decree of the trial Court.
4. Along with main civil revision, a Civil Miscellaneous (C.M. No.1156-C of 2003) was filed by the petitioners being under Order 41, rule 27 read with section 151, C.P.C., for permission to produce additional evidence/documents and notice on this application was given to respondent No.1, who filed reply to the same on 10-10-2003 praying for its dismissal. It has been averred in the said C.M.
That earlier to the present suit out of which the instant civil revision has arisen the respondent No.1 had filed a suit on 3-31984 titled "Syed Ali Husnain v. Qadir Bakhsh" but the same was withdrawn in their absence with permission to file a fresh suit on 1-4-1984 and in the plaint of said suit, it was not mentioned that at the time of execution of General Power of Attorney in favour of respondent No.4, the respondent No.1 was minor and since the petitioners were not aware of the institution of the said earlier suit, hence, they could neither produce copy of said plaint nor the order dated 1-4-1984 passed by the learned Civil Judge allowing respondent No.1 to withdraw said suit with permission to file a fresh one; and it is now at this stage, they have come to know about particulars of the said suit/plaint. It is also submitted in the said application that per entry of birth maintained by the District Health Officer, Sahiwal, date of birth of respondent No.1/plaintiff was got entered as 15-8-1959 and the said entry was also reported by Shams-ud-Din who had also allegedly reported the date of birth as entered in Exh.P.1. It has thus been prayed in the C.M. That as according to the birth entry obtained by the petitioners, the age of respondent No.1 was more than 18 years at the time of execution of said General Power of Attorney in favour of respondent No.4, hence they may be allowed to place the same on record as an additional evidence. In support of this C.M., reliance has been placed on the case of "Mst. Fazal Jan v. Roshandin and 2 others" PLD 1992 SC 811; "Mst. Begum through Legal Heirs and 27 others v. Allah Ditta" 2000 CLC 744; "Ghulam Muhammad and another v. Muhammad Aslam and another" PLD 1993 SC 336 and "Muhammad Umar v. Muhammad Qasim" 1991 SCMR 1232.
5. Learned counsel for the petitioners has argued that since copies of plaint filed by respondent No.1 in the earlier suit and the order of the learned trial Court passed in that suit along with the record of birth entry of District Health Officer, Sahiwal, attached with this C.M., are all part of public record, hence the genuineness of these documents, prima facie, cannot be doubted and since the production of all these documents is essential for the just decision of the pivotal point involved in the matter in dispute, therefore, the petitioners were entitled to produce the same as additional evidence. Further submits that since the entries of these two documents vary each other and the documents now sought to be produced through this C.M. Will therefore, definitely be helpful in arriving at just and final conclusion about the age of respondent No.1/plaintiff at the time of execution of General Power of Attorney. His further submission is that the only reason which weighed with the learned Appellate Court in reversing the findings of the learned trial Court and discarding the said General Power of Attorney, was that respondent No.1 was minor at the relevant time, hence production of these documents, disclosing different date of birth of respondent No.1 would definitely be helpful in arriving at a just conclusion of the issue. Learned counsel has urged that as held in the abovementioned judgments, the only thing which the Court has to determine is, whether the documents proposed to be produced in additional evidence was needed/essential for the just decision of the suit and mere fact that same was sought to be produced at a later stage, cannot be considered a valid ground for disallowing such application. With reference to the case of "Zar Wali Shah v. Yousaf Ali Shah and 9 others" 1992 SCMR 1778, learned counsel contends that old concept of baring application of additional evidence on the principle "filling the gaps in evidence", was no more available in Pakistani Jurisprudence and the law including Islamic principles on the subject do not prohibit such application at any stage of the proceedings. He has also argued that powers of allowing additional evidence are not restricted to appellate jurisdiction only but the same are equally applicable to the revisional jurisdiction, as held in PLD 1993 SC 336. As regards, copies of plaint filed by respondent No.1 in the earlier suit and the order of the learned trial Court dated 1-4-1984 allowing withdrawal of the said suit with permission to file a fresh one, it has been argued by the learned counsel that object of producing these documents was to knock down the respondent No.1 on the ground of estoppel, as no such plea of minority was taken by him in his earlier suit.
6. Conversely, the learned counsel appearing on behalf of the respondent, has opposed this petition by contending that the petitioners failed to file any appeal or cross-objections against the findings of the learned trial Court holding the respondent No. 1/plaintiff as minor at the time of execution of General Power of Attorney, hence they were estopped from taking such plea at this stage. He has further argued that the proposed evidence cannot be allowed to be produced at this stage because the petitioners were allowed ample opportunity by the trial Court to produce their evidence and by allowing them additional evidence at this moment would amount to reopening of the entire suit. Reliance has been placed on the case "Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others" 1996 SCMR 1862 and "Government of N.-W.F.P. v.
Muhammad Zaman and others" 1996 SCMR 1864.
7. I have considered the arguments of learned counsel for the parties, perused the relevant record and gone through the cited case-law.
8. So far as the objection of learned counsel for the respondents that in the absence of any appeal or cross-objections having been filed by the petitioners against the findings of learned trial Court about minority of the respondent, is concerned, the said contention prima facie as well as in the light of the cited judgment of the Honourable Supreme Court, is tenable but at the same time I am also mindful of the fact that the question of minority was not properly taken by the two Courts below. This was the main ground taken by respondent No.1 in his plaint for avoidance of execution of the disputed General Power of Attorney as well as the sale, which formed cause of action necessitating the filing of instant suit and was also a fact in issue and being a relevant and material fact arising out of the pleadings of the parties, it was mandatory for the trial Court to have put the same by framing a specific issue on the said point. This Court in the case of "Mst. Munira Rafique Anwar through Legal Representatives v. Khalid Javed Answar and others" PLD 2005 Lahore 622-D.B. Held as under:-- "Every material proposition affirmed by one party and denied by the other, had to be the subject of a distinct issue in terms of rule 1 of Order XIV, C.P.C."
' A perusal of the plaint indicates that in para.2 of the plaint, the respondent No.1 asserted himself to be minor which para. Has been denied by the petitioners, therefore, a specific issue to this effect had to be framed.
9. Similarly, the plaintiff never appeared in his affirmative evidence and reserved the same till recording of his rebuttal evidence, which was not only violative of the provisions of Order XVIII, Rules 1 and 3, C.P.C. But also against the law declared by this Court in the case "Al-Haj Khalil Ahmad v.
The Australasia Bank Ltd. Lahore and another" 1979 CLC 494; "Mureed Hussain's case 1987 CLC 101; "Naseer Ahmad v. District Judge, Multan" PLD 1992 Lahore 92 and 1993 MLD 247, thus non- appearance of respondent No.1 in his affirmative evidence is not only violative of the law referred to above but has also caused prejudice to the petitioners who had no opportunity to rebut the statement of respondent No. 1/plaintiff got recorded on 28-1-1987 after their evidence which was concluded on 8-12-1986, especially when the plaintiff in his said statement disclosed his date of birth as 17-9-1962 for the first time, which fact was never mentioned in the plaint, hence, the petitioners were not only prejudiced by the said statement of respondent No.1 but also the course adopted by the learned trial Court was opposed to law. In such a situation, I am satisfied that this Court has got ample jurisdiction under section 151, C. P .0 . And also even by invoking provisions of Order XLI, rule 33, C.P.C. To interfere without taking notice of non-filing of appeal or cross-objections by the petitioners against the findings of the learned trial Court on the question of minority of respondent No.1 in the absence of any specific issue to this effect and the statement of respondent No.1 having been got recorded after conclusion of evidence of the petitioners/defendants, along with his evidence in rebuttal, in clear violation of law as well as the judgments cited above. I am supported in my view by the judgments reported as "Province of Punjab v. Muhammad Akram and others and 1998 SCMR 2306 and Muhammad Nawaz v. Amir Bibi 1995 SCMR 266.
10. Resultantly, this civil revision is allowed, the judgment and decree of the learned Appellate Court is set aside and the case is remanded to the learned trial Court with a direction to frame a specific issue on the question of minority of respondent No.1 and then decide the suit afresh by giving its findings on all the issues, after recording evidence of the parties on said additional issue and also recording the statement of respondent No.1/plaintiff in affirmative as well as in rebuttal, separately.
As the case is being remanded to the learned trial Court for decision of the same afresh, the petitioners would be at liberty to produce the documents sought to be produced through C.M.
No.1156-C of 2003, as additional evidence, in accordance with law. This being an old matter hanging fire since 1984, the learned trial Court shall ensure accelerated disposal of the suit, as early as possible, but not later than 31-7-2006, with compliance report to the Additional Registrar (Judicial) of this Court.