This regular second appeal is directed against the judgment and decree of Additional District Judge, Gujrat dated 6th of May, 1980 whereby he modified the decree of the learned trial Court dated 24th of May, 1976.
2. Briefly stated the facts giving rise to this appeal are that the appellants purchased land measuring 32 kanals in the Revenue Estate of Dhoria, Tehsil Kharian, District Gujrat from its owner Jamala through mutation No.5050 sanctioned on 22nd of March, 1970. This sale was pre-empted by the respondent by filing a suit on 20th of March, 1971 in which the superior right of pre-emption was claimed on the ground that the plaintiff/ respondent was real brother of vendor. This suit was resisted by the appellants by filing written statement. The learned trial Court framed the necessary issues on which the evidence of the parties was recorded. It may also be mentioned that the sale price, which .Gas recorded in the mutation as Rs.20,000 was also disputed by the respondent. The learned trial Court on 24th of May, 1976 decreed the suit filed by the respondent and held the sale price to be Rs.20,000. Against this judgment and decree, two appeals were filed, one by the appellants and the other by the respondent. The appellants in their appeal challenged the decree on various grounds while the appeal of the respondent was confined only to the consideration for which the sale had taken place. The learned Additional District Judge dismissed the appeal filed by the appellants f but accepted the appeal filed by the respondent and held that the amount of Rs.20,000 mentioned in the mutation was not fixed in good faith and actually paid, and the market value of the land was Rs.13,497.07. He, therefore, decreed the suit of the respondent on the payment of this price. Hence this regular second appeal.
3. The learned counsel for the appellants has been heard. No one appears for the respondent, though the case has been called several times and it is now 12-00 noon and it is not possible to wait any further. The appeal is, therefore, being heard in the absence of the respondent.
4. The learned counsel for the appellants has contended that the appellants during the course of hearing of their appeal filed an application for additional evidence which remained un disposed of and the learned Additional District Judge instead of deciding the aforesaid application proceeded to dismiss the appeal. From a perusal of the record of the Additional District Judge, it appears that such an application was filed before him by the appellants. A reply to the aforesaid application was also called for by the learned Additional District Judge which was duly filed by the respondent on 24th of February, 1980. Thereafter the case was fixed for argument on the aforesaid application on 25th of March, 1980, when the matter was adjourned to 6th of May, 1980. On 6th of May, 1980. The learned lower appellate Court heard arguments and instead of deciding the aforesaid application, proceeded to dismiss the appeal filed by the appellant. Since an application for additional evidence had been filed before the learned Additional District Judge, it was the duty of that Court to decide the same and by not doing so he committed a serious error which has vitiated his judgment. In Muhammad Hussain v . Bulleh Khan 1980 CLC 608, it was held that when an application for additional evidence is not disposed of by the lower appellate Court. Its judgment is not sustainable. Similar view was taken in Mst. Urnari and another v. Faqir Muhammad and others PLD 1983 Lah. 349. In view of what has been discussed above, the appeal is accepted. The decree and judgment of the lower appellate Court is set aside and the case is remanded to it for re- decision. The Additional District Judge shall decide the application for additional evidence filed by the appellants and then decide the appeal afresh. No order as to costs.