' SHEZADA MAZHAR, J.---Briefly the facts necessary for disposal of present civil revision are that the petitioner filed a suit for possession through pre-emption in respect of land measuring 8-Kanals, 7- Marlas situated in Revenue Estate Biaga Tehsil Kotli, District Rawalpindi which was purchased by respondents Nos.1 to 10 from respondent No,11 through Mutation No,420 dated 17-1-1998. It is alleged in the said suit that in order to defeat and damage the right of the petitioner for pre-empting the land, respondents Nos.1 to 10 fraudulently got a gift mutation sanctioned instead of sale mutation according to which respondent No,11 sold the land from Khewat Nos. 179, 187, 2011, 309 and 310 along with Shamlat rights. The said suit was contested by respondents Nos. 1 to 10 on legal as well as factual grounds by filing joint written statement.
2. Following issues were framed out of divergent pleadings of the parties. ISSUES.
(1) Whether the plaintiff has got superior right of pre-emption qua the defendants/vendees? OPP
(2) Whether the plaintiff has made Talbs as required by law? OPP
(3) Whether the defendants Nos.1 to 10 have in fact purchased the suit land for Rs,20,000 but in order to defeat the plaintiff's preemptory rights they have wrongfully given the colour of gift to sale transaction? OPP
(4) What was the market value of the suit land at the time of it's alienation? OP Parties.
(5) Whether the suit is time barred? OPD
(6) Whether the suit is not maintainable in its present form? OPD
(7) Whether the suit land was gifted by defendant No,11 to defendants Nos.1 to 10 ten years ago?
OPD
(8) Whether the defendants have made improvements in the land, if so, to what extent and with what effort? OPD
(9) Whether the suit is under value for the purpose of court-fee and jurisdiction? OPD
(10) Whether the suit is frivolous and vexatious, hence the defendants are entitled to compensatory costs? OPD
(11) Relief.
' After framing of issues, the parties produced their pro and contra evidence. On conclusion of evidence, the suit of the petitioner was dismissed vide judgment and decree dated 24-3-2010.
Against the said judgment and decree, the petitioner filed an appeal before the learned District Judge, Rawalpindi. During the pendency of appeal, the petitioner filed an application under Order XLI, Rule 27 read with section 151, C.P.C. To produce the original Acknowledgement Dues (A.D.S) which were already on trial Court record along with certain documents. The said application was dismissed by the learned Addl. District Judge vide order dated 4-10-2012. The said order has been impugned through present revision petition.
3. Learned counsel for the petitioner submits that the learned First Appellate Court has failed to follow the settled law of Hon'ble Superior Courts pertaining to producing additional evidence during the trial and appeal/revision etc. Submits that admittedly ten A.D's are already available on the file of learned trial Court. Further submits that the petitioner/appellant in his plaint clearly mentioned that in spite of said notices of Talb-i-Ishhad, respondents Nos.1 to 10 did not transfer the suit land to him. Submits that the petitioner while appearing as P.W.4 produced 10-postal receipts which were exhibited as Exh.P-2 to Exh.P-11 but the said A.D's were not allowed to be exhibited. Submits that there was no negligence on the part of petitioner for production of said A.D's. Further submits that due to the death of the original counsel of the petitioner, the A.D's could not be brought on record as exhibits. Submits that the documents required to be produced as additional evidence are very important and necessary for proper adjudication of the lis. Submits that it is settled law that the parties are to be given maximum opportunities to produce their evidence. Inadvertent omissions and technicalities are not allowed to come in the way of justice. Submits that learned first Appellate Court while dismissing the said application for permission to produce additional evidence exercises its jurisdiction illegally and with material irregularity. Hence the same is liable to be set aside. In support of his contention, the learned counsel relied upon Anjum Hayat Mirza v.
Rehmat Khan (1996 SCM R 1230), Messrs Journalist Publication (Pvt.) Limited through Chief Editor v.
Mst Mumtaz Bequmalias Mustari Bequm through her duly constituted Attorney and others (2004 SCM R 1773) and Muhammad Siddique v. Muhammad Sharif (2005 SCM R 1231).
4. On the other hand, the learned counsel for the respondents supported the impugned order passed by the learned first Appellate Court. Submits that written statement was filed by the respondent on 6-6-1998, evidence of the petitioner was started on 20-1-2001 and was closed on 27-9-2003. During all this period, the petitioner failed to move any such application for additional evidence. Submits that in the application for additional evidence, the ground raised was death of the counsel, whereas the counsel died on 28-11-2005 two years after closing of the evidence.
Submits that Superior Courts have discouraged filing of application for additional evidence in order to fill in the lacunas. Further submits that the petitioner has not moved any application for production of postman, therefore, even if the application is allowed, the same would not serve any purpose as it is settled law that in the absence of postman Talb-i-Ishhad cannot be proved.
Submits that the appeal was filed on 4-5-2010 and the application for additional evidence was filed on 8-6-2012. Even at this stage, no explanation is given for filing the application after such a long delay. Adds that the application for additional evidence is not maintainable as no application was filed before the learned trial court. In support of his version, he relied upon Shtamand and others v. Zahir Shah and others (2005 SCM R 348), Mad Ajab and others v. Awal Badshah (1984 SCM R 440), The Secretary to the Government of West Pakistan, Communication and Works Department and The Advisor, Town Planning v. Gulzar Muhammad (PLD 1969 SC 60), Hidayatullah and 2 others v. Haqnawaz and another (1990 CLC 1095 (Peshawar), Abdul Hameed and 14 others v.
Abdul Qayyum and 16 others (1998 SCM R 671).
5. I have carefully examined the contentions as agitated on behalf of parties in the light of provisions as contained in Order XLI, Rule 27, C.P.C. It is worth mentioning that the suit was filed on 21-3-1998. The evidence of the petitioner was started on 20-1-2001 and was closed on 27-9-2003. In this way proper opportunity to lead evidence was afforded to the petitioner. Admittedly no application for additional evidence was filed during the trial and the petitioner woke up from a deep slumber after a considerable period and moved application for additional evidence before the Appellate Court. Receipts/acknowledgement dues were not allowed to be placed on record by the learned Civil Court when the petitioner appeared as P.W. In the witness box, therefore, he had the knowledge that the said A.D's. Have not been placed on record. No efforts were made to bring the same on record as exhibits. Further it is settled principle of law that A.D's. Cannot be placed on record by the petitioner as the same were to be placed on record by the postman. Admittedly no application for the production of postman was moved by the petitioner.
6. Even the ground mentioned in the application is "after recording of affirmative evidence, the counsel for the petitioner namely Raja Muhammad Hanif Satti, Advocate died and the petitioner has to engage another counsel. That inadvertently the above said 10 A.Ds. Already attached with the file of the learned trial court could not be exhibited. It is further mentioned in the application that after the death of original counsel for the petitioner, the new counsel for the petitioner in the learned trial Court due to rush of work and in-advertently could not produce above said documents in the documentary evidence of the petitioner/plaintiff/appellant. Whereas the counsel of the petitioner was expired on 28-11-2005. No reason is given for not filing application during the period 27-9-2009 to the date of death of the counsel.
7. It is also pertinent to mention here that the petitioner has not denied that his counsel expired on 28-11-2005, the evidence was closed on 27-9-2003, therefore, this very ground forwarded by him could not be considered sufficient. Further application for additional evidence could not be allowed on flimsy grounds. The petitioner could be allowed to produce additional evidence on three grounds mentioned in Order XLI, Rule 27, C.P.C. Which are as under:-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,
(c) Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reason for its admission.
8. It is settled principle that provisions of law with regard to the additional evidence are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch-up the weak parts of his case and fill up omissions in the Court of appeal. This power ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on the main issue in the case. The Hon'ble Supreme Court of Pakistan in The Secretary to the Government of West Pakistan, Communication and Works Department and The Advisor, Town Planning v. Gulzar Muhammad (PLD 1969 SC 60) held in the following words:-- "Normally, where important evidence having a material bearing on the merits of a case is subsequently discovered there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. In the present case the appellant has adopted the last course without disclosing as to why it could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. But in an appeal it is now well settled that additional evidence should not be admitted in order merely to enable one of the parties to the litigating to fill in gaps in the evidence."
9. For all what has been discussed above, no illegality, perversity or infirmity could be pointed out by the learned counsel for the petitioner warranting interference in the order impugned, resultantly, the instant revision petition being devoid of any merit is hereby dismissed.