1. This petition is directed against the order dated 24-11-1996 passed by the Additional District Judge, Khanewal whereby the application of the petitioner for additional evidence under Order 41, Rule 27, and C.P.C. was dismissed.
2. 2.Brief facts giving rise to the filing of the instant petition are that petitioners/plaintiffs filed a suit for declaration that they and respondents are owner in possession of property in dispute as heirs of Abdul Karim. Petitioners are sons and daughters of the sister of the respondents. The suit was dismissed on 28-1-1996 against which appeal of the petitioner is pending in the lower appellate Court. In the afore referred application it was submitted that production of order of Claim Commissioner dated 5-5-1959 was necessary in the interest of justice and goes into the roots of the merits of the case and would reveal that the respondents had obtained the house in question in lieu of the claim which they had tendered as heirs of Abdul Karim referred above. The application of the petitioners was dismissed solely on the ground of having been submitted at late sage and that petitioners should have moved such an application during the trial.
3. 3.Learned counsel for the petitioners contends that the evidence sought to be produced goes in the roots of the merits of the case and shall advance the interest of justice. The application could not be moved in the trial Court as the order dated 5-5-1959 of the Claim Commissioner was traced out during pendency of the appeal by the petitioners. He further submits that unless the additional evidence sought to be produced is allowed fair and just decision of the case is not possible. In this connection he has relied upon PLD 1992 SC 811, 1992 SCM R 1778 and PLD 1991 SC 1051.
4. 4.Learned counsel for the respondents on the other hand submits that at this stage petitioners cannot be permitted to produce additional evidence. Order of the Claim Commissioner sought to be produced in evidence is dated 5-5-1959. Its non-production during trial in fact would amount to permit them to fill in the lacuna of the case. He has supported the order of the Additional District Judge.
5. 5.I have heard the learned counsel for the parties and perused the record with their assistance.
6. Learned Additional District Judge has not considered the importance of the document sought to be produced in additional evidence. He has thrown out the application of the petitioners on the short ground that they could have conveniently produced such document before the trial Court and at appellate stage there is no justification to permit them for production of such evidence.
7. Petitioners have clearly submitted in the application that they have been able to trace out the order of the Claim Commissioner during pendency of the appeal. Non-production of such evidence is neither intentional nor wilful but because of the reasons explained in the application.
8. Court has to see the importance of the evidence which the party wants to produce. If it is necessary, indispensable and goes into the roots of the case for its just and fair decision, delay in making such application is not sufficient ground to decline their request. Judgments of the Supreme Court referred by the learned counsel for the petitioners clearly laid down that for advancement and interest of justice the additional evidence can be allowed to be brought on the record at any stage. The importance of the document sought to he produced is such that refusal to bring it on record is likely to prejudice the case of the petitioners. Petitioners are claiming the property as being ancestral. The documentary evidence referred in the application is of paramount importance for just decision of the case. Court itself could summon such evidence while exercising suo motu power as observed by the Supreme Court in the judgment referred in Mst. Fazal Jan v. Roshan Din and others PLD 1992 SC 811.
6. For the reasons stated above the impugned order is not in conformity with the law laid down by the Superior Courts in relation to the intention behind acceptance or rejection of an application for additional evidence. Consequently, I allow the revision petition and the impugned order is set aside and the petitioners are permitted to produce the additional evidence before the appellate Court as prayed for in the application for additional evidence.