Brief facts of the case are that Respondent No. 1 filed a suit for declaration and cancellation of Mutation No. 261 attested on 09.03.1965. It was alleged in the plaint that the deceased Muhammad Yar alias Manna son of Azmat who had died on 10.05.1978 had gifted away his property by means of Mutation No. 261 dated 09.03.1965 in favour of only his sons and 'had deprived his five daughters as mentioned in the plaint. Petitioners were the contesting defendants in thd said suit. Whereas Defendants No. 4 to 10 and 12 conceded the plaint by filing their conceding written statement. On 22.01.2007 evidence of the plaintiff-Respondent No. 1 was completed and thereafter the matter was set down for recording the evidence firstly of consenting defendants and then that of the petitioners. But without recording the evidence of the consenting defendants first the evidence of the petitioners was completed. That after close of evidence of the petitioners on 12.01.2010 once again the consenting-defendants in the case intended to produce their evidence which course of action was objected to by the petitioners and an application under Order XVIII, Rule 2 CPC was also made. Learned trial Court vide order dated 19.01.2010 dismissed the application of the petitioners.
Petitioners filed a civil revision which also met with the same fate by the learned appellate Court.
2. Learned counsel for the petitioners contends that the impugned orders passed by the Courts below are against law and facts and also not sustainable in the eyes of law; that it is settled law that after closing the evidence of the contesting defendants/petitioners consenting defendants cannot record their evidence. Further argued that consenting written statement of conceding respondents is available on record, therefore, there is no need to give them an opportunity to produce their evidence.
3. On the other hand, learned counsel for the respondents have vehemently opposed the contentions raised by the other side.
4. Arguments heard. Record perused.
5. Undeniably, in the case in hand, there are two sets of defendants. One is supporting the plaintiff's version and the other is denying the same. It is settled law that the evidence of the conceding defendants should have to be recorded prior to the evidence of the contesting defendants but at the relevant time petitioners did not raise any such objection towards said proposition before commencing their own evidence. Moreover petitioners have also filed the application U/O XVIII, Rule 2 CPC at belated stage. The main contention of the petitioners is that plaintiff intends to fill in the lacunas through the evidence of conceding defendants. The said contention of the petitioners is without substance because no party can go beyond its pleadings. Consenting written statement of the defendants is available on record. Both the Courts below have rightly rejected the application of the petitioners. However in the interest of justice learned trial Court is directed to give full opportunity to the petitioners to produce their evidence in rebuttal after recording the evidence of the conceding defendants. Petitioners have also ample power to cross-examine the said witnesses. It is further clarified that no party can record their evidence beyond their pleadings.
However if they do so, the learned trial Court shall not consider the same at the time of final decision. With the said observation the instant writ petition is disposed of.