' This petition under section 115, C.P.C. Is directed against the order, dated 9th May, 1982 of the learned Additional District Judge, Multan whereby he rejected petitioner's application for production of additional evidence.
2. The facts in brief giving rise to this petition are that the petitioner had instituted a suit for declaration to the effect that he was in cultivator possession of the land in dispute and had right to have the same on temporary cultivation and further that the order, dated 22nd November, 1978 of the learned Collector, Lodhran was of no effect qua his rights in the property as a consequential relief he sought injunction restraining the respondent from interfering in his possession except in due course of law. This suit was resisted by the respondent and the learned trial Court vide the judgment and decree, dated 25th October, 1981 dismissed the same. The petitioner assailed the afore-mentioned judgment and decree in appeal. During the pendency of the appeal he moved an application for permission to produce registered `Tamleeq Nama', dated 30th June, 1980 and a copy of the plaint in the suit filed by Bashir Ahmad against the petitioner and others. The application was dismissed vide the impugned order on the ground that the afore-mentioned documents pertained to period after the institution of the suit and were not required for proper decision of the appeal.
3. Learned counsel for the petitioner contended that the respondent No, 2 through his counsel on 19th October, 1981 tendered copy of sale-deed, dated 17th April, 1979 (Exh. D/5) to prove that the petitioner had purchased the land measuring 19 Kanals and 3 Marlas which if added to his holding would render him ineligible to have the land in dispute for temporary cultivation. It is argued that on the same day the evidence of the respondent/defendant was closed and arguments were heard thereby depriving the petitioner to lead evidence in rebuttal. It was argued that the document (Tamleeq Nama) sought to be produced before the first appellate Court was to prove that the afore-mentioned land purchased by the petitioner had been gifted in favour of his wife and thus he was no more owner of the land and his holding remained below the prescribed limit of four Acres. The second document sought to be produced was copy of the pre-emption suit having been filed by Bashir Ahmad against the petitioner in respect of transaction of sale referred to above. It was stated that the learned Additional District Judge did not apply his conscious mind to the facts of the case and arbitrarily rejected his application for production of documents which ought to have been allowed for the aforesaid reason. He relied on Rahim Dad v. Sajawal Khan (1).
The points raised by the learned counsel for the petitioner require consideration. Admit. Notice.
4. At this stage Mr. Abdul Latif, Advocate have appeared on behalf of respondent No, 2 and has accepted service. Since the matter involved in this case is short and with the consent of the learned counsel for the parties 1 proceed to decide it forthwith.
5. Learned counsel for the respondent No, 2 contends that the order refusing to allow production of additional evidence was passed in exercise
(1) 1976 SCMR 350 ' of discretion in the learned lower appellate Court, therefore, this petition was not competent. He relied on Khuda Bakhsh etc. v. Syed Hamid Ali Shah (1).
6. The perusal of the record shows that the document (Exh. D/5) was tendered by the learned counsel for the defendant/respondent on 19th October, 1981. This document was not either relied by the respondent in his written statement nor the plaintiff/petitioner had notice of it. It was, therefore, necessary that an opportunity ought to have been granted to the petitioner to adduce evidence in rebuttal. The learned trial Court proceeded to hear arguments on the same day and pronounced the judgment thereafter. The documents sought to be produced by the A petitioner as additional evidence were a registered `Tamleeq Nama' and a copy of the plaint in a suit for pre-emption. The discretion exercised in refusing to allow the afore-mentioned documents to be brought on record was manifestly arbitrary and amounted to deprive the petitioner from an opportunity of leading evidence in rebuttal. The revision petition in these circumstances is competent. The impugned order suffers from patent illegailty and is, therefore, set aside. This petition is allowed with no order as to costs.
(1) 1981 SCM R 196