MUHAMMAD JEHANGIR ARSHAD, J.--- The petitioner who was plaintiff' before the trial Court is aggrieved of the concurrent judgments of two Courts below, whereby his pre-emption suit was dismissed by the trial Court on 17-7-2000 and appeal filed by him against the judgment of dismissal of his suit was also dismissed by the learned Additional District Judge, Rahimyar Khan on 14-3-2005.
2. 'The facts in brief are that against a sale of area measuring 20 Kanals situated in Monza Doodi, Tehsil Rahimyar Khan evidenced through Mutation No.201 sanctioned on 2-8-1994 in favour of Abdul Karim respondent/defendant, the petitioner filed a pre-emption suit on 14-1 1-1994 on the ground of his being co-sharer of the disputed Khata as well as being owner of a contiguous property and that of participator in the passage of the suit-land. It was alleged in the plaint that the said sale took place without his notice as well as knowledge and that the moment he acquired knowledge of the same he immediately made Talb-e-Muwathibat and on the failure of respondent/defendant to transfer the property in his favour, in recognition of his right of pre- emption sent registered notice attested by two witnesses confirming Talb-e-Ishhad and to complete Talb-e-Khasumat was filing the suit with the prayer that same be decreed in his favour on payment of Rs. 1 ,00,000 the price actually paid whereas the ostensible sale price of Rs.2,70,000 was fictitiously got entered in the mutation which was neither fixed nor paid in good faith. The suit was contested by the respondent/defendant who in his written statement besides denying right of pre-emption of the petitioner also alleged non-fulfilment of Talbs as required under section 13. Of the Punjab Pre-emption Act, 1991, claiming the suit as time-barred, estoppel against the petitioner and finally that the suit-land was purchased for a consideration of Rs.2,70,000 which was in fact fixed and paid in good faith and in case of decree in favour of the petitioner ancillary expenses including the District Council Fee were also claimed along with sale price of Rs.2,70,000.
3. In view of divergent pleadings of the parties, the following issues were framed: Issues
(1) Whether plaintiff has complied with conditions of pre-emption according to law? OPP
(2) Whether plaintiff has right of pre-emption against defendant, if so, of what kind? OPP
(3) Whether plaintiff is entitled to get decree of possession through pre-emption, if so, with what conditions? OPP
(4) Whether defendant purchased the property in dispute for Rs.2,70,000 and the same was paid?
OPD
(5) If preceding issue is not proved; what was the market value of disputed property at the time of its sale? OP Parties
(6) Whether defendant is entitled to get incidental charges, if so, to what extent? OPD
(7) Whether suit is time-barred? OPD
(8) Whether plaintiff has waived his right of pre-emption by virtue of his words and conduct? OPD
(9) Whether plaintiff has not come to the Court with clean hands, if so, its effect? OPD
(10) Whether defendant is entitled to get special costs under section 35-A of C.P.C.? OPD
11. Relief.
4. In support of his case the petitioner/plaintiff appeared himself as P.W. And after producing Muhammad Ali as P.W.2, Muhammad Hanif P.W.3 and Farooq Ahmad P.W.4 (though written as P.W.6) and tendering documentary evidence Exh.P.1 to Exh.P.5 closed his evidence. As against the above evidence, the respondent/defendant appeared himself as D.W.1 and after producing one Ghulam Mustafa as D.W.2 closed his evidence by tendering documents Exh.D.1 to Exh.D.10. On the conclusion of trial, the learned trial Court vide judgment and decree dated 17-7-2000 held the sale price of suit property as Rs.2,70,000 under Issue No.4 and answered the said issue in favour of respondent/ defendant, whereas under Issues Nos.7 and 8 the suit was held as within time and petitioner was also held to be not estopped from filing the suit. Issues Nos.5 and 7 were left undecided, however, on the basis of findings on Issues Nos. 1, 2 and 3, the suit of the petitioner/plaintiff was dismissed by the learned trial Court holding that petitioner had failed to prove his right of pre-emption as well as performance of requisite Talbs in terms of section 13 of the Punjab Pre-emption Act, 1991. Against the said judgment of the learned trial Court, the petitioner filed appeal but the same was also dismissed by the learned Additional District Judge, Rahimyar Khan on 14-3-2005. Hence, this civil revision.
5. As the petitioner failed to produce any documentary evidence to establish his right of pre- emption under Issue No.2 and the learned trial Court recorded findings to this effect, the petitioner along with his appeal also filed application before the learned Appellate Court seeking permission to produce additional evidence to prove Issue No.2. The said application was opposed by the respondents through his written reply and the learned Additional District Judge vide order, dated 4-2-2005 dismissed the said application. It has now been contended by learned counsel for the petitioner that although the petitioner failed to produce any documentary evidence before the learned trial Court on Issue No.2, however, application moved by the petitioner seeking permission to adduce additional evidence on Issue No.2 was wrongly dismissed by the learned Additional District Judge without considering the fact that through the proposed application the petitioner wanted to place on record a copy of mutation of gift made in his favour by his mother as well as copy of Register Haqdaran Zameen which could not be produced before the learned trial Court due to oversight and that both the documents being part of public record should have been allowed to be produced as additional evidence and ,the learned Appellate Court acted illegally and with material irregularity by disallowing application on the ground that same was moved at a belated stage with the object of filling the lacunae in his evidence which ground was not available under law. It has further been argued by learned counsel that although these documents could not be produced due to oversight yet in the interest of justice, said application should have been allowed and the petitioner should have been permitted to produce additional evidence to prove his right of pre-emption under Issue No.2.
6. Record perused. The above arguments advanced by learned counsel for the petitioner have been given due consideration.
7. There is no cavil to the proposition that additional evidence can be allowed at any stage and the said prayer cannot be turned down merely on the ground that same was being made at a belated stage but before allowing such application it is also a requirement of law that non-production of evidence at the relevant stage must be reasonably explained and unless the Court is satisfied that there was sufficient/good cause for non-production of evidence at the appropriate stage in terms of Order XIII, rule 2, C.P.C. And that production of such additional evidence at a belated stage was essential to pronounce judgment or any other sufficient cause within the meanings of Order XLI, rule 27, C.P.C. Is shown, the same cannot be allowed to be produced at the whim and desire of the litigant just to enable him to fill up the lacunae. I am fortified in my view by the judgment of Honourable Supreme Court of Pakistan reported in Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849, Mst. ]iwan Bibi and 2 others v. Inayat Masih 1996 SCM R 1430 and Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCM R 1049. The contention of learned counsel that proposed additional evidence i.e. Certified copies of mutation and Register Haqdaran Zameen being part of public record can he allowed to be produced at any stage, cannot be taken in a light vein, especially when the petitioner claiming to have a right of pre- emption qua the sale in dispute, filed suit way back in 1994 and remained dormant and did not opt either to produce the same at an appropriate time or to move application at any subsequent stage before the trial Court and just were up after the suit was dismissed by the trial Court holding that the petitioner failed to produce any evidence on Issue No.2. Although, it is now an established principle of law that right of pre-emption is a legal right yet one cannot lose sight of the fact that legal right can only be enforced when it is so established. If a person claiming legal right fails to establish that right, he cannot claim that he has been refused his legal right notwithstanding his conduct to prove the basic ingredients of the said right. There is no presumption under the Punjab Pre-emption Act, 1991 that a person filing a suit automatically acquires right of pre-emption, unless the same is proved specifically. The petitioner specifically claimed his right of pre-emption in para.2 of the plaint and same was specifically denied by the respondent in his written statement, as a result of which Issue No.2 was framed. He was also specifically cross-examined by the respondent and suggestion was put that he had no right of pre-emption. I am, therefore, satisfied that although the learned Appellate Court dismissed the petitioner's application for additional evidence on the ground of having been filed at a belated stage and to fill lacunae in his evidence and the same may not be a ground alone for disallowing said application yet in the present case petitioner being aware of the fact that he had to prove his right of pre-emption under Issue No.2 failed to produce any evidence with regard to his having a right of pre-emption either as a co- owner or owner of the adjacent property or having any common interest in the right of irrigation or common passage and despite pendency of suit since 1994 till its dismissal on 17-7-2000, now allowing him to produce additional evidence on Issue No.2 would not only be unjustified but also.
Would amount to burdening the respondent/ vendee by restoring him to the position to the time of sale despite passage of more than a decade. The Courts while deciding the matter are always supposed to extend equal treatment to both the parties and in case if due to lapse or omission of one party, the other party has acquired a right or derived benefit from the same especially in a pre-emption matter, no leniency should be shown to the pre-emptor in the matter of additional evidence just on the ground that documents sought to be produced in additional evidence are part of public record and there is no likelihood of being forged and fabricated because said principle is only applicable while deciding the mode of production of such documents whether admissible per se or through some evidence, which is a question of procedural law but has no bearing on the evidentiary value of those documents, hence, the arguments of learned counsel are not sustainable. Since both the Courts below have concurrently held Issue No.2 against the petitioner and the said findings neither suffer from any misreading or non-reading of evidence, therefore, the same are maintained. As the petitioner has failed to prove his right of' pre-emption under Issue No.2 hence, no useful purpose would be served by discussing findings of two Courts below on Issue No.1 regarding non-fulfilment of requisite Talbs and the said findings also being findings of fact recorded concurrently against the petitioner do not suffer from any misreading or non-leading of evidence, hence, need no interference. Resultantly, this civil revision has no force and the same is dismissed in limine.