' SYED MUHAMMAD FAROOQ SHAH, J.---The applicant has assailed the impugned order dated 6-11- 2010, whereby an application under Order XLI, Rule 27 read with Order XVI, Rule 2, C.P.C. Filed by him in Civil Appeal No.95/2006, before District Judge, Noshehro Feroze was rejected.
2. Succinct, relevant averments made in the captioned revision are that the learned appellate Court had erred to decline the prayer of the applicant/appellant to examine the witness, namely, Manzoor Hussain son of Muhammad Paryal, the clerk of Mr.Faiz Muhammad Leghari, who has been shown as witness in the agreement to sale, though being attesting witness, his evidence is very much material and essential.
3. Heard the learned counsel representing the parties and perused the record.
4. Learned counsel for the applicant contended that the said witness could not be examined due to unintentional mistake of counsel appearing for the applicant before the learned trial Court; he further submitted that in the larger interest of justice and to reach at exact conclusion of the trial, the learned appellate Court be directed to record the additional evidence of Manzoor Hussain. It is submitted that if his evidence would not be recorded then it would be fatal to the case of the applicant, as the party may not be penalized due to mistake of his counsel. To support his contention, the learned counsel placed his reliance on 2012 SCM R 1258.
5. Conversely, learned counsel for the respondents contended that the applicant has failed to prove his case before the learned trial Court, with the result his suit was dismissed vide judgment and decree dated 15-8-2006, and 22-8-2006, respectively, and the appeal is pending adjudication from 22-9-2006, till date, though the applicant by availing full opportunity to adduce evidence closed his side of evidence after examining all the necessary witnesses before the trial Court, therefore, producing additional evidence before the learned appellant Court was unnecessary and the learned appellate Court has rightly declined the prayer of applicant to examine the above named witness. Learned counsel for the respondents vehemently stated that the applicant is causing deliberate and intentional hurdles and delaying tactics to proceed with the appeal and instead filed instant civil revision before this Court, which shows that the applicant is interested to linger-on the case and due to the instant revision the appeal filed by the applicant is pending on the file since years together. Learned counsel further submitted that lacunas left by the applicant, if any, cannot be allowed to fill up at this belated stage. In support of his contention, the learned counsel relied on the cases of Town Committee, Juharabad v. Falak Sher (2003 CLC 71), Khizar Yasin and others v. Mst. Khadija Bibi and others (2003 CLC 1622), Muhammad Ali v. Qaisar Jehan BeRum (2004 CLC 1424) Muhammad Ameer Khan alias Ameer Muhammad Khan and 3 others v.
Muhammad Khan and 2 others (2006 CLC 738), Rehmat All v. Farooq Ahmed Hashmi and others (1992 M LD 1631), and case of Nazir Hussain v. Muhammad Alam Khan "and 3 others (2000 YLR 2629).
6. A bare perusal of the provisions contained in Rule 27 of the Order XLI, C.P.C. Would reveal that the appellate Court must be conscious while allowing a party to adduce additional evidence. A party which intends to bring additional evidence on record must convince the Court with proof that such party could not lead the evidence at proper stage due to some plausible reasons and sufficient cause. In the instant case, the applicant closed his side of evidence and during appeal when he came to know about the evidence which he considered necessary to bring on the record, he has filed application under Order XLI, Rule 27, C.P.C. Mistaken legal advice or intentional inadvertence of advocate as alleged cannot be allowed to be a good ground for allowing additional evidence, particularly the applicant had availed ample opportunity but did not like to examine second attesting witness of sale agreement. After the closure of evidence by both the parties, the applicant was not allowed to improve upon his case by adducing evidence as there were no cogent reasons for permitting him to do so, as sufficient plausible reasons have not been shown for not adducing the evidence before the trial Court, which was sought to be produced before the learned appellate Court as additional evidence. It is well settled law that the party who had the opportunity to produce evidence in the trial Court but did not avail of the opportunity should not be allowed to improve its case by producing evidence at the appellate stage, as under the above mentioned provisions, a party cannot be allowed to fill up the lacunas at appellate stage, who has been unsuccessful in the trial Court. I am fortified by the case-law e.g. Shaikh Javed and others v. Shaikh Hassan All (2010 SCM R 166), Kodal Khan v. Sufaid Gul and others (PLD 1965 W.P. Peshawar 259), and Allanditta v. Ghulam Rasool (PLD 1975 Lahore 138).
7. In the case of Tajuddin v. Juma (PLD 1978 Supreme Court (AJ& K) 131), it was held that an additional evidence cannot be brought on the record if the same was not produced at the proper stage due to negligence of a party or his counsel. Learned counsel for the respondent has rightly contended that a party by his negligence fails to bring the evidence on record, cannot be given an opportunity to fill up the lacunas in his case by adducing additional evidence at appellate stage.
That additional evidence cannot be allowed to a party in order to fill up lacunas or omissions or to patch up the weaker parts of its case and the negligence on the part of a party or his counsel would not entitle him to bring the evidence on record on the ground that there was a substantial cause for allowing the same.
8. Case-law relied upon by learned counsel for the applicant is not attracting in the facts and circumstances of present case and is distinguishable as in the cited ruling, re; Syed Sharful Islam v.
Hafiz Muhammad Amin (2012 SCM R 1258), the agreement to sale was executed by "Pardanashin" ladies and Court below did not sent the thumb impressions to the finger prints expert for comparison which was essential for the just decision of the case.
9. Whatever mentioned above, in the light of aforementioned case-law, I reached at the irresistible conclusion that nothing has been brought on the record in support of the contentions that the evidence which the applicant wants to bring on record in support of his claim was not in his knowledge, therefore, I see no illegality, infirmity or improper exercise of discretion; on the contrary, the impugned order is reasonable and does not suffer from any jurisdictional error. The revision application having no merits for consideration is accordingly dismissed.