1. ' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the judgment of the High Court dated 19-3-1990 whereby the appeal filed by the appellants, herein, was dismissed.
2. ' Brief facts giving rise to the present appeal are that Muhammad Hussain (who has died and whose legal representatives are on the record) brought a suit for specific performance of the contract in respect of the land measuring 13 Kanals 13 Marlas, comprising survey No,162, situate in village Saroa, Tehsil Sehnsa. The case of Muhammad Hussain, deceased-plaintiff, was that he had purchased the land from Walayat and others and thus the suit land came into his possession as a vendee. Muhammad Ismail brought a suit for possession on the basis of right of prior purchase which was compromised between the parties on the assurance of the pre-emptor that after the suit was decreed in his favour, he would transfer the suit land to Muhammad Hussain through a sale-deed but subsequently he refused to oblige him. Thus, he sought a decree for specific performance of contract against Muhammad Ismail, pre- emptor, for executing the sale-deed of the said land in his favour. The averments made by the plaintiff were denied by the respondents/decreeholders; the suit was resisted on all grounds. The counsel for the appellants filed an application in the High Court for producing additional evidence in form of an attested copy of the document which was allegedly executed by Muhammad Ismail, respondent, at the time of the compromise in the preemption case. The prayer was rejected by the High Court. So far as the merits of the case were concerned, the counsel for the appellants conceded in the High Court that if the additional evidence was Not brought on the record, he had No case. Consequently, the High Court dismissed the appeal.
3. ' We have heard the arguments and gone through the record. The learned counsel for the appellants, Mr. Muhammad Sharif Tariq, vehemently argued that the High Court has committed error in rejecting the prayer for bringing the attested copy of the relevant agreement executed by Muhammad Ismail which would have established the fact that the averments made by him in the plaint are correct. The learned counsel has further contended that the counsel for the appellants who was given the general power to prosecute the case was Not competent to give any concession to the opposite party by stating that he had No case and thus his admission on the question of law is Not binding on the appellants. Therefore, the High Court was Not justified in dismissing the appeal on the basis of admission made by the counsel for the appellants. The learned counsel has cited the following authorities in support of his contentions: ' In Muhammad Yasin v. Mst. Begum Noor PLD 1978 SC (AJ&K) 112), it was opined that an action of a pleader authorised to act on behalf of his client is Not binding upon his client, if such an action is Not shown to have been performed in proper conduct of case.
4. ' In Muhammad Akbar v. Mst. Faziha Begum (1983 CLC 1912), it was held that if a counsel abandons an important point as a result of collusion and connivance with the opposite party or for the ulterior motive, the party is Not bound by his act or a statement.
5. ' In Muhammad Hussain v. Settlement Commissioner (PLD 1984 Lah. 139), it was observed that the provisions contained in Order XIII, rule 2, C.P.C. Are for the purpose of preventing any fraud and Not to penalise the parties for Non-production of the document at proper stage; and that the Court has discretion in such a matter which is to be exercised on sound judicial principles depending upon the facts and circumstances of each case. It was held that if a party had No opportunity to produce the documentary evidence at proper stage, such party may be permitted to produce the same if authenticity of the document is Not disputed.
6. ' In Haji Muhammad Yousaf Khan v. Abdul Aziz Khan [PLD 1983 SC (AJ & K) 188], it was held that an appellate Court has power to record additional evidence to adjudicate upon the controvertial issue effectively and conclusively. It was observed, in the circumstances of the case, that the High Court should Not have remanded the case but should have taken additional evidence in the case itself to decide the question as to whether the suit for preemption was hit by the principle of partial pre- emption.
7. ' In Faizullah v. Mst. Zaini (PLD 1984 Azad J & K 41), it was observed that the question of admission of document lies within the discretion of the trial Court and the discretion exercised would Not be interfered with if the same has been exercised properly. It was further opined that the admission of a document is essentially a procedural matter and as such it may be received liberally for advancing the cause of justice.
8. ' In Umar Hayat v. Nasik Alam (PLD 1977 Azad J & K 78), it was held that if a document was Not placed on the record on the date of first hearing, the same may be produced subsequently, if sufficient cause is shown.
9. ' In The Secretary to the Government of West Pakistan v. Gulzar Muhammad (PLD 1969 SC 60), it was held that if important evidence was discovered subsequently, there are three courses open for the party concerned to seek relief, i,e. (i) to apply for admission of fresh material as additional evidence; (ii) to apply for review of the judgment; or (iii) to appeal from the judgment.
10. ' The first question which needs to be resolved is as to whether the appellants were justified in failing to produce the relevant document when their case was pending in the trial Court or in the first appellate Court. The learned counsel for the appellants, Ch. Muhammad Sharif Tariq, has argued that in fact the aforesaid document was executed when their suit was already pending in the trial Court. In other words his case is that although the document in question was Not in existence when the suit was filed; but the same was in existence when the suit had Not yet been decided by the trial Court. It implies that, according to the counsel for the appellants, the document in question was in the kNowledge of Muhammad Hussain, the predecessor-in-interest of the appellants but he made No effort to adduce the same in evidence. Similarly, No attempt was made to tender the aforesaid document as additional evidence in the Court of District Judge. The application for allowing additional evidence was for the first time submitted in the High Court wherein it had been mentioned that as the appellants could Not find the said document earlier, they could Not produce the same in evidence earlier. It appears that arguments advanced on the point were somewhat at variance with the stand taken in the application, i,e., it was contended before the High Court that the document was Not in the kNowledge of the appellants at the relevant time. We are of the opinion that the reasons given by the learned counsel for the appellants for failing to produce the document at proper stage have No substance because the document, according to the appellants, was in existence when Muhammad Hussain, predecessor- in-interest of the appellants, was alive and had the knowledge of the document in question, because the document was executed by Muhammad Ismail, respondent, when his suit was pending in the trial Court. Most of the authorities cited by the learned counsel for the appellants pertain to filing of documents under Order XIII, Rule 2, C.P.C. i,e., whether a document can be brought on the record after the first date of hearing of the suit. In the instant case, the question does Not relate to the filing of the document at a data, subsequent to the first hearing of the suit; rather the matter pertains to adducining additional evidence at the stage of the second appeal for which No sufficient cause has been shown. It is correct that in proper cases, the Court has discretion to allow additional evidence at appeal stage but the same canNot be allowed to fill up the lacunas or as a matter of routine. It is Not a case of technicality which should be liberally construed in favour of the party concerned; rather it is a case of filling up the lacunas in a case; and No sufficient cause has been shown for Not producing the document in the trial Court. It is settled principle of law that additional evidence under Order 41 Rule 27, C.P.C., can be adduced only for sufficient reasons or if it is necessary for enabling the Court to proNounce judgment. No such eventuality exists in the instant case.
11. ' Coming to the merits of the case it may be observed that irrespective of the fact as to what would be the effect of the admission of the counsel for the appellants in the High Court that he had No case if the aforesaid document is Not allowed to be tendered as additional evidence, the learned counsel for the appellants was allowed to address arguments on merits of the case. The learned counsel has referred to the statements of witnesses, namely, Haji Sain, Kufayat Ali, Lal Din and Muhammad Hussain. The testimony of the said witnesses had been held by the District Judge to be of No avail to the case of the appellants. The contention of the learned counsel for the appellants that Muhammad Ismail had agreed to execute a sale-deed in favour of Muhammad Hussain, deceased, in case the latter accepted his claim and the suit is decreed in favour of Muhammad Ismail, is Not substantiated by the statements of the aforesaid witnesses. It may be observed that in pre-emption suit Muhammad Yousuf was `Mukhtar' on behalf of Muhammad Ismail, plaintiff. Haji Sain has stated that he was Not aware of any compromise in the Court. However, he stated that there was negotiation in a Tunchayae between Muhammad Ismail and Muhammad Hussain wherein Muhammad Ismail pre-emptor had offered Muhammad Hussain that he might get decree of the suit land in his favour on payment of Rs,18,000. The witness does Not state regarding any execution of sale-deed by Muhammad Ismail in favour of Muhammad Hussain after passing of the decree by the High Court. Lal Din, Kufayat Ali, and Muhammad Hussain also made similar statements, i,e., it was decided in the Punchayat' that the land would be decreed in favour of Muhammad Hussain on payment of a certain amount. These witnesses did Not state that the sale- deed was to be executed by Ismail, respondent, after passing the decree. Muhammad Hussain, plaintiff-deceased, had stated in the Court as his own witness that Muhammad Ismail had promised to execute a sale-deed in his favour. His statement is in derogation to the deposition of the other witnesses of the Tunchayar which has already been referred to. Muhammad Yusuf, who was a witness of Muhammad Ismail, has stated that although there had been Tunchayar in the matter, but the decision was Not acted upon according to the decision of the Punchayae.
12. ' The brief survey of the evidence of the parties shows that the decision taken in Punchayat' was to the effect that the suit land would be decreed in favour of Muhammad Hussain. None of the witnesses stated that there was any agreement between the parties regarding execution of any sale-deed. Thus, we are of the opinion that the contention of the learned counsel for the appellants that there is other sufficient evidence on the record which supports his case that Muhammad Ismail had agreed that after the decree in the suit of preemption, the land would be transferred to Muhammad Hussain through a sale-deed is negatived from the evidence on the record. Thus, irrespective of the effect of the admission of the counsel for the appellants in the High Court, we are of the view that findings of the District Judge do Not suffer from any infirmity and , thus, there is No merit in the case of the appellants.
13. ' In the light of what has been stated above, finding No force in this appeal, it is hereby dismissed.
14. No order as to the costs.