' SYED ASGHAR HAIDER, J.---It is contended by the learned counsel for the petitioner' that Syed Tahmasip Hassan Tirmizi was owner of a house commonly known as House No.4, Street No.1, Cavalry Ground, Lahore Cantt. He died issueless on 16-6-1997. He submits that the relations of Syed Tahmasip Hassan Tirmizi were strained with his brother and sisters, and that he through an oral gift dated 20-12-1996 gifted the property to the petitioner. The respondents Nos.2 to 8 forcibly occupied the ground floor of the said house and filed a suit for possession through Partition which was decreed ex parte on 28-9-2001. The petitioner came to know of this position and she filed an application under section 12(2), C.P.C. On 24-3-2003 praying the ex parte judgment and decree dated 28-9-2001 be set aside. In the course of proceedings, the petitioner made an application under Order XVIII, Rule 2 read with section 151, C.P.C. Praying that she be granted permission to produce Mr. M.A. Khadim, advocate and Mr. Suhail as witnesses. The learned counsel contends that it is the right of every party to produce evidence in rebuttal whenever new points are raised. The learned Trial Court did not appreciate this proposition and dismissed the application. He further contends that aggrieved of this order, a revision petition was filed before the learned Additional District Judge, Lahore who dismissed this application thereby committing a patent illegality. At this stage, M/s. Shahzad Shaukat and Ch. Tanvir Ahmad, Advocates (watching brief) have entered appearance and requested they be permitted to assist the Court in the interest of justice as they are counsel for respondents Nos.3 to 8. The request is allowed.
2. Learned counsel for the respondents conversely argued that evidence in rebuttal is not a right when the burden of proving the issues has been cast on the petitioner entirely. In this context, he has specifically adverted to Order XVIII, Rules 2 and 3 C.P.C. And further contends that the application is mala fide and meant just to protract and prolong the proceedings. It has been filed with delay and is 'a ploy by the petition to get more share than her due entitlement and lastly, as she was required to prove all the issues through affirmative evidence for which no list of witnesses was filed and now through this belated application a right not vesting in her is being demanded the application is thus mala fide. The learned counsel has relied upon the following judgment:--
(i) (PLD 1985 SC 131). (ii) (1984 SCM R 1284). (iii) (1981 CLC 36f). (iv) (1988 CLC 779). (v) (1990 PCr.LJ 1231 (D.B) (vi) (2003 CLC 504).
3. I have heard both the learned counsel and with their assistance perused the record.
4. The learned counsel for the respondents has specifically adverted my attention to the testimony of Syed Ikhtisar Ahmad, Advocate (R.W.2) wherein in his cross-examination a specific question was put to him, the relevant portion is reproduced as under:-- {{URDU TEXT}} ' The reply is self-explanatory and unequivocally establishes that the learned counsel know the petitioner of his own. The learned counsel for the petitioner had urged vehemently that both the witnesses mentioned in the application under Order XVIII, Rule 2, C.P.C. Were essential because it would establish that the petitioner had not engaged any counsel. This position is not sustainable as it stands rebutted from the record.
5. Further provisions of Order XVIII, Rule 2 circumscribe the production of evidence in rebuttal. In the instant case, no such ground has been made. I have read the A judgments of the trial Court and the lower. Appellate Court with the assistance of the learned counsel, the testimony of R.W.2 squarely establishes that the petitioner engaged a counsel no material is available on the record to disprove it. The provision of Order XVIII, Rule 2, C.P.C. Subscribed the method for producing evidence. The learned counsel for the respondents is correct to state that the burden of proving all the issues was on the petitioner, she could have produced all the witnesses which she desired at the relevant time, no convincing reason for non-production of witnesses has been put forth in this context. The law cited by the learned counsel for the respondents fully applies to the facts and circumstances of the matter. I have read the judgments of trial Court and lower Appellate Court.
There is concurrent finding against the petitioner. No illegality or mis-application of law has been 'pointed out. There is no infirmity or illegality in the order dated 4-2-2006 passed by the learned Additional District Judge, Lahore. Therefore, this petition is without merit and the same is dismissed in limine.