A suit was filed by Haq Nawaz and others, respondents, against Muhammad Nawaz and 2 others, petitioners, pre-empting sale of certain land situate in village Yarak, Tehsil and District Dera Ismail Khan, sold to the respondents by a registered sale deed dated 29-10-1983 for a sum of Rs.90,000.
They based their claim of pre-emption on the ground of their being co-sharers and also participators in immunities and appendages. In the plaint, they alleged that none of the vendees possessed any one of such qualifications.
2. The suit filed by the respondents was contested by the petitioners who, besides denying the superiority of pre-emptive rights claimed by the former, raised legal objections such as want of cause of action, limitation and waiver. The learned trial Court framed as many as 8 issues, including the relief.
3. After recording the evidence of the parties, the learned trial Judge found that-Haq Nawaz was a co-sharer while Gul Muhammad was owner of contiguous land but the petitioners were not possessed of any such right and thus the respondents were found to have got superior right of pre-emption. The suit was also held to be within time. The petitioners' plea of waiver was not entertained and as a cumulative effect of these findings, the suit was decreed on payment of Rs.90,000 as pre-emption money.
4. Dissatisfied with the judgment and decree of the learned trial Court, the vendees-petitioners preferred an appeal in the Court of District Judge. The learned District Judge finding no force in the appeal also dismissed it.
5. Feeling aggrieved, the petitioners have come up in revision to this Court.
6. During the pendency of this petition, the petitioners made an application for "amendment of the written statement as well as for summoning the Naib Saddar Kanungo as additional evidence". The amendment of the written statement was sought with a view to adding thereto the plea of "Sinker" which was not "specifically pointed out in the written statement". The necessity for addition of plea of sinker in the written statement by way of amendment was explained in paras 2 and 3 of C.M.
No.34/89. It was stated "that issue of sinker was not framed in the case probably because it was not specifically pointed out in the written statement" and further that "in appeal before the learned District Judge, this issue was duly argued and since there was no issue on the point, the petitioners were prejudiced and could not lead the desired evidence". It was also averred in the application that the trial Court as well as the parties were misled by the status of respondent Haq Nawaz being a co-sharer notwithstanding joining with him Gul Muhammad respondent who had no such right and thus even the former had lost his right of co-sharer ship. The grievance of the petitioners also is that the petitioners are owners of Khasra No.61 lying contiguous to Khasra No.17 in dispute and thus the respondents are not possessed of their superior right. This application was strenuously resisted by the respondents.
7. At the first instance what is to be determined is whether the petitioners are legally entitled to have their written statement amended so as to add therein the plea of `sinker'. Secondly, if the petitioners are permitted to take up this plea in their written statement, whether the petitioners are legally entitled to adduce the additional evidence in support thereof.
8. Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioners, argued that notwithstanding the establishment of co-sharership of Haq Nawaz respondent in the disputed Khasra number by joining Mulmmmad Gul respondent a contiguous owner, former's status owner by operation of doctrine of `sinker' envisaged by section 19 of the N.--W.F.P. Pre-emption Act, 1950.
He further submitted that the petitioners were owners of Khasra No.61 which was contiguous to Khasra No.17 in dispute and thus the parties were possessed of equal right of pre-emption and the suit had been wrongly decreed. It was in this background that Mr. Sanaullah Khan maintained that not only addition of plea of sinker in the written statement was essential, but permission to adduce evidence in proof of the above plea was justified. In support of these submissions the learned counsel placed reliance on (1) Bashir Ahmad v. Qaiser Ali (PLD 1973 SC 507), (2) Muhammad Siddique v. Zawar Hussain (PLD 1976 SC 572) and (3) Abdul v. Khushi Muhammad (PLD 1981 Lahore 93).
9. In the first precedent of the august Supreme Court in Bashir Ahmad's case, their Lordships had laid down that in view of the objection by the opposite --party as to the frame of the suit, in the declaratory form, the amendment could be allowed even if a fresh suit involving reliefs claimed therein would be barred by time on the date of application for amendment. Obviously the amendment sought in this case has no relevance to the proposition in above-cited case. In the second authoritative pronouncement of the Honourable Supreme Court in the case of Muhammad Siddique v. Zawar Hussain, the majority view upheld the dictum of Peshawar High Court that notwithstanding the withdrawal of stranger from the pre-emption suit, the two appellants had been correctly non-suited on the ground that they having joined a stranger for the purpose of pre- emption suit, were hit by the provisions of section 18 of the N.-W.F.P. Pre-emption Act, 1950 and had, therefore, lost the right of pre-emption. This precedent had obviously amplified the doctrine of `sinker' enacted under the N: W.F.P. Pre-emption Act with which there is no cavil. As stated earlier, the question involved in the case in hand is whether the petitioners should be allowed at the revisional stage to add the plea of `sinker' in the written statement by way of its amendment and in order to prove it they be allowed to adduce additional evidence. No such proposition had fallen for determination in the case of Muhammad Siddique and, therefore, it has no application. The case of Abdul from Lahore High Court has also no relevance for the determination of the controversy involved in this case, for, in a suit for pre--emption errors in plaints occurred on account of mistakes in the copies of sale --deeds and erroneous entries of Jamabandis supplied to the plaintiffs and, therefore, refusal to amend the plaint was not approved which is not the case in hand.
10. Under Order VI, rule 17, C.P.C. An amendment could be made at any stage of the proceedings.
Nonetheless an amendment will be refused by the Court on the ground that it is delayed too long and it will cause injustice or injury to the opposite-party if the leave to amend is granted. The petitioners on their own showing did not take up the plea of sinker in their written statement. They have thus abstained from putting a defence which they could raise in the trial Court as also in the Appellate Court.
The petitioners thus seek to raise a new plea which aimed at improving the original case. In such a situation, the amendment could not be permitted. If any authority is needed, reference may profitably be made to Madanial Jain and others v. Babu Lai Agarwala (AIR 1964 Manipur 5). In Muhammad Lai v. Mohko (PLD 1979 SC (AJK) 15), their Lordships of the Supreme Court of Azad Jammu and Kashmir, after considering PLD 1965 SC 248, 1971 SCMR 121, 1972 SCMR 342 and 1973 SCMR 81 affirmed the proposition that a party who does not raise a point at the trial stage or before the First Appellate Court or the High Court cannot be allowed to raise such point before the Supreme Court at the time of arguments. It is the case of the petitioners herein that they could not specifically take up in their written statement the plea that by operation of doctrine of `sinker' the respondents were not possessed of superior right of pre- emption. This ground for allowing addition of plea of sinker in the written statement by way of amendment is hardly tenable. I am, therefore, clear in my mind that the amendment sought by the petitioners in the written statement having been taken up for the first time at the revisional stage would not only cause prejudice or surprise to the respondents but also aims at improving the original case.
11. 1 am also of the considered view that the petitioners could not be allowed to produce additional evidence in this case as held in Abdul Hamid v. Khurshid Begum (PLD 1965 (W.P.) Lahore 197) that the provisions of Order XLI, rule 27, C.P.C. Are not intended to permit an unsuccessful litigant to patch up the weak portion of his case to fill up the omission. The following remarks of his Lordship Sajjad Ahmad, J. Of the Lahore High Court in the case of Abdul may be cited with advantage: "The provisions [of Order XLI, rule 27, C.P.C.] certainly enable the appellate Court to allow additional evidence if it is required by it to pronounce judgment or for any other substantial cause, but the legitimate occasion for the exercise of this power is not whenever an unsuccessful party in the lower Court applies to adduce fresh evidence without regard to its default and the reasons thereof for not having produced it at the proper stage in the lower Court. An occasion for the correct exercise of this discretion arises only when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, which needs to be cleared for a proper decision of the case.
In other words, it has to be the requirement of the Court itself for purposes of giving a correct decision upon proper appreciation of the evidence as it stands. Again, whenever the Court decides to invoke its discretion under Order XLI, rule 27 C.P.C. It is bound to give reasons for doing so."
Again in Taj Din v. Jumma (PLD 1978 SC (AJK) 131), it was observed that legitimate occasion for the admission of additional evidence by the Aj,E-ll;0--Court under Order XLI, rule 27, C.P.C. Is when on appreciation of evidence is stands an inherent defect or lacuna becomes apparent or where the discovery is made afterwards by a party and an application is made to supply the defect. The proposition was summed up thus:- "A litigant, for permission to adduce additional evidence at the stage of appeal, has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced at the time the question was being tried or it has come into existence after completion of the trial. Where, therefore, a party has been negligent in producing evidence at the time the issue was being tried and a lacuna had been left and it is not shown as to how the absence of the proposed evidence would result into failure of justice a prayer for additional evidence in these circumstances would not be granted. The record of rights was already in existence when the issue was being tried and the party, with due care, could obtain the copy of this document and produce the same at the time of the trial. At any rate, even otherwise this document does not disclose any kinship between the pre-emptor and the first vendor. It is not permissible, under Rule 27 of Order XLI, C.P.C. To allow fresh evidence to enable a party to patch up the weak points of his case and fill up the omissions in the Court of appeal."
"There is ample authority for the proposition that the said provisions of law cannot be made use of by a party to fill up gaps in his case. Even if the genuineness of a document is beyond doubt the Court can refuse to allow its production if it is not relied upon or produced in time and the delay is not convincingly explained. 1n the present case there was a delay of about 6 years for which no plausible explanation has been furnished.'
12. The learned counsel for the respondents, cited before me Province of Punjab v. Muhammad Hussain (1988 CLC 415) for the proposition that taking of additional evidence appears to be irreconcilable and completely foreign to the exercise of revisional jurisdiction, committed by the Courts below and by its very nature it has to be exercised additionally with reference to the record as it existed before those Courts. I am, however, not inclined to make any observation on this contention of the learned counsel and would leave it for determination at another appropriate occasion.
13. In the light of the preceding discussion, the prayer for amendment of the written statement to add the plea of `sinker' and also for permission to adduce additional evidence cannot be legally entertained at this stage. The result is that the application is rejected.
14. In the judgments of the two Courts below, the superiority of the right of pre-emption claimed by the parties has been elaborately dealt with. The views expressed by them are based on sound reasons and happen to be unexceptionable. Even otherwise the mere fact that the view of the lower Court may by stretch of imagination capably be called in question, does not give rise to a case for exercise of revisional jurisdiction which has limited scope of correcting such errors of the jurisdiction of the Courts below. No such errors have been pointed out by the learned counsel for the petitioners. The concurrent findings of facts recorded by the two Courts below in favour of the respondents are correct and remain sacrosanct for the purposes hereof.
15. The result is that while dismissing the application for amendment of the written statement as also for permission to adduce additional evidence, this revision petition is dismissed. The parties are, however, left to bear their own costs.