' This Constitutional petition is filed by the petitioner who is defendant in a suit for pre-emption filed by the plaintiff Muhammad Rafique who is cited as respondent No,3 in this petition. It was alleged in the written statement that some improvements were made by the petitioner/ defendant in the land in question after the purchase of the and before the suit for pre-emption could .To cover the controversial point Islamic No,2 was framed as follows: "(2) Whether the defendant has spent Rs,18,625 on improvements of suit land? OPD"
' The suit was instituted on 10-4-1995 and the issues including the aforesaid issue were framed on 18-7-1995. The parties had concluded their evidence. The statement of the respondent/plaintiff Muhammad Rafique was being recorded in rebuttal that a petition for appointment of the Local 'Commissioner and additional evidence was filed in order to assess the value of the improvements inter alia the garden allegedly planted by the defendant before filing of the suit. The application was resisted on the ground that a specific issue existed on which the parties had already led the evidence and that the appointment of the Local Commissioner would amount to the giving of chance to the petitioner/defendant to fill in the lacunae left in his evidence.
2. The learned trial Judge dismissed the application with the observation that the suit was instituted in April, 1995 and since then, it was open for the defendant either to apply for appointment of Local Commissioner or to examine the appropriate evidence to prove the aforesaid issue. Since he failed to do so, therefore, it was not considered proper to allow the petition for additional evidence. The petitioner went in revision against the aforesaid order of the learned trial Judge which was also dismissed with the similar observation vide order, dated 23-2-1999.
3. In this Constitutional petition, both the orders of the Courts below have been challenged on the ground that those are illegal, unlawful and against all the canons of justice and hence not sustainable in the eyes of law. In this regard. Learned counsel -- submitted that the appointment of the Local Commissioner would have brought on record the creditable evidence in respect of valuation of the improvements effected on the suit land and as such, would have advanced the interest of justice.
4. Learned counsel for the petitioner was confronted with the proposition that since the matter has not yet been finally decided in respect of the improvements by the Courts below, therefore, the Constitutional jurisdiction of this .Court would not be available to the petitioner at this stage as the interlocutory orders would emerge into the final order and, therefore, could be challenged if any prejudice was caused while assailing the final order.
5. Learned counsel for the petitioner while relying on AIR 1960 Punjab 407 Sodhi Sukhdev Singh v.
State of Punjab, and 1988 MLD 2949 (Lahore) Mian Muhammad Farooq v. Election Tribunal, Punjab and others contended that if the order in question was palpably wrong and illegal, the power of judicial review would be available to scrutinize the interlocutory orders under the supervisory jurisdiction of the High Court.
6. I have considered the foregoing submissions and find that normally the Superior Courts would not intervene nor would interfere with the interlocutory order passed by the subordinate Courts during the proceedings before them. However, this rule would not be absolute if the order passed appears to be materially wrong or suffered from a patent error effecting the final decision.
7. Keeping the above interpretation of law in view, the impugned order has to be examined to find out whether or not the same was just or unjust. It is clear from the record that a pre-emption suit was instituted in April, 1995. The issues were framed on 18-7-1995 including the issue in respect of improvements on the suit land. It was the duty of the petitioner/defendant to discharge the onus in respect of issue No,2 which pertained to the improvements concerned. Both the parties, examined evidence but at the conclusion of the trial, the petitioner/ defendant abruptly moved an application for the appointment of the Local Commissioner to make the assessment about the value of the improvements on which he had allegedly spent Rs,18,625 as would be clear from issue No,2. It is clear that evaluation could not exceed that limit nor a local commissioner could be appointed to put the petitioner/ defendant on a premium against his adversary. The onus was heavily on the petitioner/defendant to bring on record that the improvements allegedly effected by him amounted to the aforesaid value. The appointment of the Local Commissioner at such belated stage would not advance the interest of justice. Rather it may cause some complications in the trial by protracting it further. Even otherwise, a party cannot be allowed to fill in lacunae or to cover up the weaknesses in its evidence by deploying such devices which. May otherwise not be ordinarily available. In the instant case, the appointment of the Local Commissioner and allowing additional evidence would have given undue premium to the petitioner/ defendant over the respondent/plaintiff to fill in the lacunas in his evidence thereby misusing the provisions of law.
8. In view of the above discussion, I do not find any patent or material defect with the impugned orders passed by the Courts below. The petition being misconceived is dismissed in limine.'