' Through this Constitutional petition Muhammad Nawaz petitioner-plaintiff, in a pending suit in the Court of learned Civil Judge Ist Class, Jhang, filed by him against respondents Nos.3 to 5 has challenged an order passed by the learned trial Court affirmed in revision whereby his application for production of registered sale-deed by way of additional affirmative evidence has been refused.
2. Briefly stated facts of the case are that the petitioner filed a suit against respondents Nos.3 to 5 seeking declaration to the effect that the defendants have no right or interest in a plot mentioned in the plaint and that they should not interfere with his possession by dismantling floor and construction of water channels, etc. and using the same as public thoroughfare. This suit has been contested by the respondents. Evidence in affirmative was closed by the learned counsel for the petitioner on 5-12-1990. However, he did not produce in evidence a registered sale-deed which is about 40 years old and which is the documentary evidence of his title regarding property in question. It was indicated, however, in the statement made by the learned counsel for the petitioner that he will produce evidence in rebuttal alongwith the documents. The case, therefore, was fixed for recording of evidence of the other side on 3-10-1991. When the evidence of the defendants had yet to commence on the said date, the petitioner filed an application for production of additional affirmative documentary evidence. The evidence of the defendants was, however, recorded. This application was contested by the respondents on the ground that the petitioner wants to prolong the litigation and having closed his evidence in affirmative, he was not entitled to produce the documentary evidence in affirmative. This application was dismissed by the learned trial Court vide order, dated 13-11-1991. This order was challenged by the petitioner in revision before learned District Judge, Jhang which was dismissed on the ground that the application having been dismissed by the learned trial Court in exercise of his discretion, no interference is possible in revisional jurisdiction of the Court and that the registered sale-deed dated 18-7-1942 cannot be allowed to be tendered in evidence. According to the learned District Court as no reason has been mentioned in the application for non-production of the sale-deed earlier to the filing of the application and as he has been proved to be indolent, he cannot be allowed to produce registered sale- deed by way of additional evidence. Plaintiff has challenged the said orders in this writ petition.
3. Learned counsel for the petitioner has argued that the law favours adjudication on merits and as it is a title suit, 40 years old registered sale-deed which was most relevant piece of evidence and right to produce whereof had been reserved while closing the affirmative evidence, learned trial Court had no jurisdiction to refuse production of the sale-deed by way of additional evidence.
Learned counsel has further contended that mere delay in disposal of the suit is not a ground to refuse the application for production of additional evidence. Reliance has been placed by the learned counsel on case of Rehman Dad and another v. Maj. Raja Sajawal Khan etc. 1976 SCM R 350.
4. As against the above arguments, Mr Khizar Khan, Advocate, learned counsel for the respondents has contended that the petitioner having closed his evidence in affirmative and having reserved right to produce documentary evidence in affirmative, he could not have applied for production of additional evidence. According to the learned counsel, the order passed by the learned two Courts below is quite lawful and valid and intention of the petitioner is just to delay the proceedings in the learned trial Court inasmuch as evidence of the parties has since been recorded and the case is now ripe for final disposal.
5. I have considered the arguments addressed by the learned counsel for the petitioners, statement of closing of evidence made by the learned counsel for the petitioner is reproduced as under:--- {{URDU TEXT}} (sd.)From the above statement, it is quite clear that the learned counsel for the Petitioner reserved his right to produce original sale-deed. The sal-deed sought to be produced in evidence has been mentioned to have been appended with the plants as is clear from the list of documents, certified copy whereof has been appended as Annexure 'K'at page 42 of the paper book and a list o reliance, a copy whereof has been mentioned as Annexure 'L' at page 43 of the paper book.
Consequently, it was not a case where production of registered sale-deed which was the relevant most documentary evidence on the point of title could have taken the respondent with surprise.
The defendants'respondents knew from the very beginning about the basis of the title of the plaintiff. In the statement of the learned counsel, it has clearly been stated that the document shal be produced. Consequently, it was not a case where the petitioner can be said to be negligent or indolent. Law favours adjudication on merits and not on technical knock outs. In such like cases, parties shall be given full opportunity to lead their evidence so that they may not feel that they have not been able to get fair and just trial of their case. Application for production of registered sale-deed as additional evidence was made on the day when the evidence of the defendants had yet to commence, therefore, it was a fit case where a 40 years old registered sale-deed which was the relevant most documentary evidence of title of the petitioner, should have been allowed to be produced by way of additional evidence. Merely because one or two more dates shall have to be fixed for disposal of the suit, is not a ground for refusal to allow production of documentary evidence of title in a title suit. It has been held in case of Rehman Dad and another v. Maj. Raja Sajawal Khan etc. 1976 SCM R 350 that delay in trial per se is not a ground to refuse production of additional evidence if it is necessary in the interest of justice. In the case in hand, it appears that the learned Courts below were not even conscious about the facts and even the existence of their jurisdiction and about the law declared by the Hon'ble Supreme Court of Pakistan in the said judgment and many other cases.
' Resultantly, I hold that the impugned order passed by the learned trial Court and affirmed by the learned Additional District Judge is illegal and without lawful authority and the same is, therefore, set aside with the result that the petitioner is allowed to produce registered sale-deed by way of additional evidence in affirmative. Respondents, however, shall also be given an opporunity to produce evidence in rebuttal if they so like. The suit shall be decided within a period of three months from the date a copy of this order is received by the trial Court.