' Brief facts of the case are that the respondents filed a suit for possession on the basis of exercise of right of pre-emption regarding land falling in Khewat No,42, Khasra Nos,1, 10, 11, 20 and 21 of Square No,40, measuring 39 Kanals and 7 Marlas, situate in village 14/8R, Tehsil and District Khanewal. This land was owned by Salabat Khan etc. And was purchased by the appellant for an ostensible price of Rs,19,675. However, fictitious sale price of Rs,34,431 was shown in the mutation dated 23-10-1971. In the plaint the grounds taken to support the plea of superior right of pre- emption were: (i) co-sharers in the Khewat, (ii) colateralship and (iii) owners in the estate. It was contended that the vendee did not have any such qualification. The suit was contested and a number of issues were framed, out of which issues 1 and 2, which are material for the disposal of the suit, read as under:--
(1) Whether the suit land is pre-emptible? OPP
(2) Whether the suit land is a colony land? OPD
2. The learned trial Court, after recording evidence, decreed the suit on 10-5-1986 against Rs,34,431.
' The appellant filed an appeal which remained pending before the learned Additional District Judge for quite some time. During the course of hearing of the appeal an application under Order 41, Rule 27, C.P.C. Was moved by the appellant praying for grant of permission to lead additional evidence. This application is dated 11-12-1986. It was contested. However, the same was allowed and ultimately documents Exh.D-15 to D-18 were permitted to be brought and exhibited on record.
No evidence in rebuttal was led qua these documents.
' Subsequently, on 13-4-1988 another application was moved for permission to place on record eight more documents. This application admittedly has ramained undisposed of. The learned Additional District Judge vide judgment dated 9-9-1989 dismissed the appeal and maintained the judgment and decree passed by the learned trial Court.
4. It was, inter alia, contended by the learned counsel for the appellant that the learned trial Court did not take into consideration nor discussed the evidentiary value of documents Exh.D-15 to D-18 and proceeded to decide the appeal on the basis of evidence which formed part of the record of the learned trial Court and that the application for additional evidence 13-4-1988 should have been disposed of in accordance with law, but no attention was paid to the same and this has resulted in grave miscarriage of justice.
5. While arguing the case on merits, Mirza Manzoor Ahmad, learned counsel for the respondents sought to justify the non-consideration of documents Exhs.D-15 to D-18 by pointing out that these documents were, in fact, irrelevant and, therefore no valid grievance could be made about their non-consideration by the lower appellate Court. He took me through these documents and tried to establish that, in fact, these documents have no bearing on the controversy involved in the case.
As regards the grievance of the learned counsel for the appellant that the second application for additional evidence dated 13-4-1988 has remained undisposed of all that Mirza Manzoor Ahmad could say was that since the judgment of the learned lower appellate Court makes no mention of the said application, it should be presumed that the same, though moved, was not pressed at the time of arguments.
6. Mian Parwaiz Akhtar, learned counsel for the appellant, submits that he was a counsel in the appeal before the learned Additional District Judge. He made a statement at the Bar that he did press the application dated 13-4-1988 and requested the learned Additional District Judge to deckle the same. I have no reason whatsoever to disbelieve the statement made by the learned counsel at the Bar.
7. It is well-settled that it is the duty of the lower appellate Court to decide the application moved for additionl evidence and the failure on its part to do so would render its decision to be liable to be set aside in appeal. See Zahooruddin v. Haji Hussain and others PLD 1991 Kar. 205 and Muhammad Hussain v. Bulleh Khan 1980 CLC 608. In this view of the matter, I have no option but to accept the appeal, set aside the judgment and decree of the learned lower appellate Court and remand the case, for fresh decision in accordance with law. The learned Court shall first decide the application dated 13-4-1988 and then proceed to dispose of the appeal, after hearing the learned counsel for the parties, in accordance with law.
8. I have intentionally avoided to give my views on the relevancy/evidentiary value of documents Exh.D-15 to D-18 for the reason that the case is being sent back to the learned lower appellate Court and, in the circumstances, it would be only just and proper to allow the said Court to look into these documents and render its views with regard thereto as well.
' Costs to follow the event.