FAHIM AHMED SIDDIQUI, J. Through the instant application, the applicant/Defendant No.1 is seeking production of certain documents viz. power or attorney executed by her offspring in her favour as additional evidence.
2. The contention of learned counsel for the Defendant No.1 is that it has come on the record during deposition of witnesses that the power of attorney executed by the legal heirs in favour of Defendant No.1 was misplaced. He submits that the executants of the power of attorney are the offspring of Defendant No.1 as well as legal heirs and power of attorney executed by the sons in favour of mother is just a formal proceeding in the case and the same may be permitted to produce. According to him, the power of attorney was earlier executed in favour of mother but the same was misplaced by the then advocate of the Defendant No.1, as such she has a right to produce the same through additional evidence. In response to a query, he frankly admits that the power of attorney which was allegedly previously executed could not be traced-out and the same is missing and has been lost; as such the sons of the Defendant No.1 has executed a fresh power of attorney which is required to be produced as additional evidence. He submits that it will not cause any harm to the parties to suit as the other side shall have another opportunity to cross-examine Defendant No.1. He has plated reliance on Khurshid Ali and 6 others Appellants v. Shah Nazar Respondent (PLD 1992 Supreme Court 822), Haji Abdul Razzak through L.Rs and others Plaintiffs v. Muslim Commercial Bank Ltd. and others Defendants (2016 YLR 2197), Piracha Multipurpose Corporation Plaintiff v. Province of Sindh and others Defendants (1992 CLC 1627), Muhammad Hanif Petitioner v. Mst. Parsan Bibi and others Respondents (1996 MLD 1158), Allama Muhammad Inayatullah Petitioner v. Ghulam Rasool and others Respondents (1994 MLD 1984).
3. Mr. M.S. Qureshi, Advocate for Plaintiff No.1 strongly opposed these applications. His contention is that the instant application amounts to fill up lacuna in the case which cannot be allowed. He submits that Defendant No.1 has categorically stated in his deposition that she is attorney of LRs in both suits but when she realizes that the power is actually not available in the record then she files the instant application. According to him, she herself says that the said power of attorney was not filed. He submits that it has come on the record during cross-examination conducted on 26.04.2016 that the power was not filed. According to him, since she knows on 26.04.2016 that power was not filed, as such she should have immediately filed the listed application but the same was filed after a huge delay on 03.04.2018, as such, the same is time barred. He submits that now the case is fixed for final arguments and on the date when the case is fixed for final arguments listed application was filed with an aim to fill up lacuna with unexplained delay.
4. Mirza Atif, Advocate for Plaintif fs Nos. 2 to 3 has adopted the arguments advanced by learned counsel for Plaintif f No.1.
5. I have heard the arguments advanced and have gone through the relevant recor d specially the case law cited by the learned counsel for Defendant No. 1 /applicant. All case laws produced during course of arguments pertain to such documentary evidence which was already available but could not be produced due to various reasons. In the present case the alleged power of attorney is said to be missing or lost; therefore, a fresh power has been executed by the same persons which is certainly a new and fresh documents executed at the time when both the suits are at the verge of finalization. I am of the view that any new document, which was not in existence at the time of filing suit or even at the initial stage of suit, cannot be considered as a piece of additional evidence. I am of the view that if such practice is allowed then it will amount to open a Pandora Box which may result in similar and never ceasing practice from both sides. As far as the plea that the documents are lost is concerned, law has provided a mechanism for establishing a lost or missing documents and the same course ought to be adopted by the Plaintif f No.1 through examination of witnesses instead of creating a fresh similar document.
6. In the existing circumstances, I find no merits in the listed application as such the same is dismissed. Needless, to say that the case laws cited by Defendant No.1 are entirely distinguished to the case in hand.