' This revision petition is directed against the order, dated 26-10-1995 passed by learned Civil Judge, Jhang whereby the petitioners' application seeking to produce additional evidence was dismissed.
2. The relevant facts are that the petitioners filed a suit for recovery of Rs,4,50,000 against the respondents on 7-7-1992 wherein initially the respondents were proceeded against ex parte and ex parte evidence was also recorded, when the said respondents filed an application seeking to set aside the above said order. This application was accepted, resultantly the written statement having been filed issues were framed and the affirmative evidence of the petitioners was also recorded. It is a matter of record that the petitioners reserved their right for producing evidence in rebuttal. It was, thereafter, that the evidence of the respondents was also recorded and then opportunity for the production of the evidence in rebuttal was granted to the petitioners, whose counsel made a statement that no such evidence is required to be produced. The case was then adjourned for arguments when on 22-10-1995, the petitioners filed an application for additional evidence thereby submitting that the Predecessor in interest of the petitioners had been murdered and their source of income has also been burnt to ashes and that the petitioner No, I is a Parda Nashin lady while petitioners Nos. 2 to 8 are minors and since substantial rights of the petitioners are involved, therefore, it is necessary that petitioner No, I's statement he recorded in her capacity as next friend of the minors.
3. The application afore-referred was resisted on the ground that the petitioners are estopped by their conduct to file the present application and there is no justification for filling in the lacunas in the evidence already recorded. It was submitted that the attorney of the petitioners had been prosecuting the case, who had also appeared as a witness, therefore, there is no justification for allowing the petitioner No,1 to appear in the case all over again.
4. The learned Trial Court proceeded to dismiss the said application vide his order, dated 26-10- 1995 on the ground that the learned counsel for the petitioner having made statement thereby closing his side, could not be permitted to produce additional evidence, particularly in view of the law laid down in case of Jhanda through Legal Heir v. Muhammad Younas (PLD 1994 Lah. 100).
5. At the hearing, learned counsel for the parties were apprised of the rule laid down in case of Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) that the concept of filling in lacunas cannot be recognized and applied in the Islamic system of jurisprudence, which is being progressively applied to the Courts and Tribunals which are vested with the powers to receive evidence. It was also held that the Courts have ample powers to collect evidence and allow the parties to produce the same so that complete and ultimate justice could be done in the case whereupon learned counsel for the parties took time to reappraise their case in the light of rule laid down in the judgment afore-referred. It appears that the learned counsel for the respondents having found it difficult to displace the rule laid down in Zar Wali Shah's case (supra) came up with another argument that an order admitting or declining to admit evidence, oral or documentary, does not amount to ' a case decided' within the meaning of the words used in section 115 of C.P.C., therefore, the revision petition itself is incompetent. Reliance was placed on the cases of Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others (1969 SCMR 965) and Sheikh Mukhtar Ahmad v. Muhammad Sadiq and 2 others (PLD 1996 Lah. 340). I am afraid, the reliance of the learned counsel for the respondents on the judgments noted above is absolutely misplaced for the rule laid down in case of Nawabzada Malik Habibullah Khan (supra) is no more good law as the Supreme Court in a later judgment in case of Rehman Dad and another v.
Major Raja Sajawal Khan etc. (1976 SCMR 350) has declared and ordained that an order finally deciding a question whether a party is entitled to produce evidence is 'a case decided' within the meanings of the words used in section 115 of C.P.C., hence revisable. In the case of Sh. Mukhtar Ahmad (supra), the rule laid down in the case of Rehman Dad and another reported as 1976 SCMR 350 was not brought to the notice of the learned Judge, therefore, the said judgment, I would say in all humility, does not lay down good law.
6. Coming to the merits, learned counsel for the petitioners argued that the stage of additional evidence could arise during the course of recording of evidence and even, thereafter, therefore, the argument that the learned counsel for the petitioners having himself closed his case could not be allowed to maintain an application for additional evidence is legally not tenable. Learned counsel for the respondents on the other hand maintained that the attorney of the petitioners having appeared has made statement in the case and if the petitioner No,1 is permitted to appear, it would tantamount to allowing her an opportunity to appear in the case for the second time, which is not justified under the law.
7. There is much force in the argument of the learned counsel for the petitioner. The additional evidence may also be sought when the evidence in the case had already been recorded and closed by the Court or even by the party himself by making a statement. The very word ' additional' connotes that something is to be added or supplemented meaning thereby that some statement is to be got recorded in addition to or as supplement to the evidence already recorded. The additional evidence in this case has been sought to be produced on behalf of the minors by the next friend that too consisting of her own statement. No doubt, the attorney of the petitioners had appeared in this case but the next friend would be the best witness inasmuch as she being the mother of the minors would be the appropriate person to depose as to the facts of the case, particularly when her previous nonappearance has also been sufficiently explained that the predecessor in interest of the minors had been 'murdered and their only source of income had been burnt to ashes by the opponents.
8. The provisions of additional evidence has been enumerated and included in the explanations added by the Lahore High Court in Rule 2 of Order XVIII of C.P.C., which reads as follows:- "Explanation-I.---Nothing in this rule shall affect the jurisdiction of the Court, of its own accord or on the application of any party, for reasons to be recorded in writing, to direct any party to examine any witness at any stage.
' Explanation-II. ---The expression "witness" in Explanation-I shall include any party as his own witnesses."
The plain reading of the above said rule would show that the only condition attached to the production of additional evidence is that there should be some reasons for allowing a party to produce any witness at any stage and the witness has been defined to include any party as his own witness. In the instant case, it would be seen -that the additional evidence sought to be produced would not simply advance the case of the plaintiff-petitioners but would be necessary to do ultimate justice and even otherwise help the Court in reaching just and final conclusion. These are the enough reasons for allowing additional evidence by recording the statement of petitioner No,1 as next friend of the minors. The reliance of the learned Trial Court on the case of Jhanda (supra) is also misplaced inasmuch as it was not a case of additional evidence while on the contrary the question being examined was that of plaintiff having closed his affirmative evidence could not have been permitted to record his statement in affirmative after the close of defence evidence. The testimony to that extent was discarded in the circumstances of the case. Manifestly, the ratio of the case afore-referred could not be applied in the facts and circumstances of present case.
9. For the reasons afore-noted this revision petition is, accepted and the impugned order, dated 26-10-1995 passed by the learned Civil Judge, Jhang is set aside, resultantly the application of the petitioners seeking to produce additional evidence is accepted with the rider that the respondents would also be entitled to rebut the statement of the petitioner by examining one of them. There shall be no order as to costs.