MUHAMMAD AMEER BHA TTI, J.--- Application seeking permission for additional evidence at the stage of arguments after recording evidence of both the parties, has been allowed by the learned trial Court vide order dated 16.02.2013 and revision petition whereof filed by the respondent No.3 and 4 was accepted on 02.05.2013 by the learned Additional District Judge and the permission to lead additional evidence was declined; hence this constitution petition.
2. Precise contention of learned counsel for the petitioner is that during recording of evidence, in response to the petitioner's stand that notice of Talb-i-Ishhad was received by a lady namely Nabeela, the defendants/respondents denied any relationship with the alleged lady and categorically stated that they did not know any Nabeela nor she was residing with them. Subsequently , after closing of evidence of both the parties they acquired the knowledge that the said lady was widow of son of respondents/vendees, the petitioner/plaintif f moved an application for production of Nikahnama of the said lady to establish that she was legally wedded wife of son of respondents/vendees who now has died, therefore, this evidence, which was earlier not available with them, was rightly allowed by the learned trial Court to be produced. It is contended that the learned first appellate Court has committed material illegality and irregularity while setting aside said well-reasoned order; hence the same may be set aside restoring the order of the learned trial Court.
3. On the other hand, learned counsels for respondents No.3 and 4 contend that in application for additional evidence the petitioner has hot disclosed date and source of information of acquiring knowledge of the discovery of evidence which was essential to determine right of the petitioner to lead evidence at belated stage. Further contends that admittedly Mst. Nabeela was not the vendee of the suit property and service upon another person instead of original vendee has not been approved by Hon'ble Supreme Court as a valid service in view of the law laid down by the Hon'ble Supreme Court in Dayam Khan and others v. Muslim Khan (2015 SCMR 222). Even if, the petitioner is allowed to lead evidence to strengthen his case with regard to effect of service of notice of Talb-i- Ishhad upon Mst. Nabeela, who allegedly happens to be daughter in law of the vendee, it will not improve the case of the petitioner rather it will confirm or strengthen the case of respondents that the service was not effected upon vendees which is mandatory in view of the ratio laid down by Hon'ble Supreme Court referred ibid; hence the learned Revisional Court has not committed any illegality or irregularity while setting aside permission granted by the learned trial Court.
4. Arguments heard. Record perused.
5. There is no cavil with the proposition that view of Hon'ble Supreme Court of Pakistan which has the binding force in view of Article 189 of Constitution of Islamic Republic of Pakistan, 1973 which is obvious and leaves no room for the petitioner who admitted and tried to further prove that notice of Talb-i-Ishhad was received by daughter-in-law of the vendees namely Mst. Nabeela which was denied by the vendees in their testimony . Even if it is allowed to be proved by permitting to tender this document, same would be useless as Hon'ble Supreme Court has not approved the substituted service as valid one in case-law referred supra, whereas the matter is still at the stage of evidence before the learned trial Court, therefore, this Court is not in a position to make declaration about a lis pending before trial Court, hence I confine myself to the extent that permission is to be granted or not hence I am of the view that all this development has occurred during course of evidence of the defendants. It is also specifically mentioned in the application of the plaintif f/petitioner that a few days before of filing of that application, he succeeded to get information regarding relationship of Nabeela with the vendees which was specifically denied in their testimony by defendants, therefore, to unearth that evidence it took some time, hence it could not be held a case where grant of permission to lead this evidence amounts to fill in the lacuna. Consequently , it is held that the plaintif f/petitioner moved the application promptly . It is settled law that the matter shall be decided on merits and no question does arise of filling the lacuna, therefore, 1 am not in agreement with the view taken by the learned Revisional Court which is inconsonance with the facts and circumstances of the case, hence not sustainable.
6. In view of above, this petition is accepted and the order passed by the learned Revisional Court dated 02.05.2013 is hereby set aside, as a consequence whereof, the order of the learned trial Court is hereby restored.