' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 1-6-1999, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the appellant, herein, filed a suit for possession in the Court of Sub-Judge, Bagh, on the basis of right of prior purchase alleging that the suit land which is purported to have been gifted by Ali Akbar, the predecessor-in-interest of respondents Nos.2 to 4, to respondent No,1 was in fact a sale-deed but the same was garbed as a gift-deed so as to deter the prospective pre-emptors from exercising their right of pre-emption. After, taking necessary proceedings, the trial Court dismissed the suit holding that the plaintiff-appellant failed to prove that the gift-deed was in fact a sale-deed. The appeal filed by the appellant, herein, before the District Judge was also dismissed. An appeal filed to the High Court by the plaintiff-appellant along with an application for allowing him to adduce additional evidence on the ground that important documentary evidence which was not previously in his knowledge might be brought on record.
According to the appellant, Muhammad Alam, respondent No,1, had executed an agreement in favour of Ali Akbar, the predecessor-in-interest or respondents Nos.2 to 4 on 25-4-1992, undertaking to pay the consideration Money of the alleged sale-deed by a certain date. But subsequently, when Muhammad Alam did not abide by his promise a suit titled Ali Akbar v.
Muhammad Alam was instituted on 29-4-1992 for the cancellation of the gift-deed, dated 12-4- 1992, against which the present pre-emption suit was subsequently instituted. The said suit was dismissed on 25-6-1992 as a result of an application by Ali Akbar the predecessor-in-interest of respondents Nos.2 to 4, stating that he did not institute any such suit.
3. The High Court dismissed the appeal as well as application for adducing the additional evidence holding that the appellant, herein, could not be afforded an opportunity to lead evidence to fill in lacuna in his case. Consequently, the appellant has filed the present appeal; he has also filed an application for the amendment of the plaint in this Court praying that he may be permitted to plead the facts regarding agreement, dated 25-4-1992 and the litigation between Ali Akbar and Muhammad Alam to substantiate his contention that the gift-deed was in fact a sale-deed.
4. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the appellant, has argued that Ali Akbar, the alleged donor, had filed a civil suit wherein he had stated that an agreement was written by Muhammad Alam, donee, on 25-4-1992, in his favour that he would pay the outstanding consideration of the 'gift' in question and when he did not abide by the said agreement, a civil suit was instituted by Ali Akbar in the-Civil Court for the recovery of the said amount. The learned counsel has argued that this fact was not in the knowledge of the plaintiff-appellant at the time of the institution of the suit and, therefore, the appellant, here in, sought an amendment in this Court to include in the suit the aforesaid facts so as to substantiate his claim regarding the allegation that gift in question was in fact a sale-deed. He has contended that the mere delay in filing the amendment application is not a ground to reject the same. The learned counsel has referred to the following authorities to support his contention that the amendment should be allowed by this Court: ' In case reported as Anwar Hussain v. Manzoor Ahmad (1999 YLR 1511), it has been held that the house in question had already been constructed when the suit land was sold. However, by mistake, the same was not included in the plaint. Thus, the amendment application was allowed observing that the Courts below were not justified in refusing the amendment application.
' In case reported as Mst. Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345), it has been held that as the amendment sought was not causing material change in the nature of the suit or cause of action, the same could be allowed at any stage; it cannot be refused on the ground that as the limitation for filing the suit had already been expired.
' In case L.J. Leach & Co. Ltd. v. Messrs Jardine Skinner & Co. (AIR 1957 SC 357), it has been held that it is correct that this is a general principle of law that ordinarily the Courts would refuse an amendment after the expiry of period of limitation. However, it was observed that this was one of the factors to be considered and did not affect the power of the Court to allow amendment even if the suit would be time-barred on the date when amendment application was made.
5. In reply, Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the respondent, has controverted the arguments of the learned counsel for the appellant that the amendment application made on behalf of the appellant in this Court cannot be refused merely because the same was filed after delay. He has argued that in fact the appellant seeks to bring additional evidence on the record which was refused to him by the High Court. The learned counsel has contended that the amendment can be allowed only if the same is not covered by the pleadings already filed and it does not offend against other principles of law on the point. He has argued that there was already an issue on the point as to whether the gift-deed in question was in fact a sale- deed and, thus, the appellant could lead the evidence in the trial Court on the point, including the documentary evidence which he intends to bring on record as an additional evidence on the pretext of amendment. Thus, the learned counsel has argued that in the instant case, the amendment sought is mala fide so as to open a door for bringing additional evidence on the record which was otherwise refused by the High Court.
6. We have given due consideration to the question of amendment. It may be observed that in the instant case there is already an issue on the point that whether the gift-deed in question was a sale-deed. So the plaintiff-appellant could produce any evidence, including the evidence which he intends to bring on the record as an additional evidence. Therefore, the amendment sought by the plaintiff-appellant is unnecessary; it is well-settled principle of law that only material facts are to be pleaded and not the evidence by which the said facts are proved. Thus, we are of the opinion that the present amendment application in this Court has been filed merely to achieve the purpose of bringing the additional evidence on the record. Obviously, if the plaint is amended in terms that the aforesaid agreement was executed by Muhammad Alain in favour of Ali Akbar and thereafter a suit was also instituted by Ali Akbar for the recovery of the alleged outstanding amount, that would result in the additional issues and the concerned party would be entitled to bring on record the additional evidence which he has been otherwise refused by the High Court.
7. The next point which has been stressed by the learned counsel for the appellant was that the High Court has committed an error in disallowing the plaintiff-appellant to bring the additional evidence on the file because according to the learned counsel, the appellant was not aware of the aforesaid agreement written by Muhammad Alam in favour of Ali Akbar, deceased, or the suit which was filed for the recovery of the alleged consideration amount. He has contended that these facts were not in the knowledge of the plaintiff-appellant before and, thus, the same could not be incorporated in the plaint. He has referred to the following authorities in support of his contention that the additional evidence should be allowed to the plaintiff-appellant:- ' In case reported as Muhammad Rizwan v. Abdul Jabbar (2000 YLR 1844), it has been held that the Appellate Court can allow additional evidence irrespective of the fact as to whether it was capable of pronouncing the judgment or not. The relevant facts of that case were that the District Judge had allowed the amendment but the High Court set aside the order of the District Judge on the ground that the evidence could only be allowed by the Appellate Court if it is not capable of pronouncing a judgment. It was in the aforesaid context that this Court observed that additional evidence can be allowed not only for the reason that the Court is not capable of pronouncing the judgment but also on the other grounds envisaged under Order XLI, rule 27, C.P.C.
' In case reported as The Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad (PLD 1969 SC 60), the question of legality of the order of termination of services of a civil servant was in dispute in writ jurisdiction. The Supreme Court remanded the case to the High Court with the observation that as minutes of the Cabinet meetings were relevant to resolve the issue as to whether the Governor-General acted in pursuance of the Cabinet decision or he passed the relevant order on his own, the said minutes should be brought on the record by the High Court and thereafter the writ petition should be disposed of afresh according to law.
8. Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the respondent, has controverted the arguments advanced on behalf of the learned counsel for the appellant. Hz has argued that he has no quarrel with the proposition that if an amendment can otherwise be allowed, the mere delay itself is not sufficient for disallowing the same. However, the learned counsel has contended that in the instant case there is no necessity for amending the plaint because the facts which the plaintiff-appellant wants to prove could be proved by him even without the man sought. He has argued that the present application is mala fide because the appellant intends to fill in the lacunas in his case. He has argued that the appellant wanted to bring on record a forged agreement and the factum of the fake suit alleged to have been instituted by Ali Akbar against Muhammad Alam for recovery of consideration, which was disallowed by the High Court. He has submitted that the plaintiff-appellant has taken an incorrect stand that he was unaware of the said evidence. He ' has stressed that the appellant has not mentioned in his application as to when and how he came to know about the execution of the aforesaid agreement and the factum regarding the institution of the suit by Ali Akbar against Muhammad Alam. He has cited following authorities in support of his contentions:-- ' In case reported as Muhammad Nazir v. Abdul Rashid (1998 SCR 248), it has been held that additional evidence cannot be allowed to a party in order to fill up the lacunas or omissions or to patch up the weaker parts of its case. It was also observed that the lapse or negligence on the part of a party or his counsel would not entitle him to bring the additional evidence on the record on the ground that there was a 'substantial cause' for allowing the same.
' In case reported as Abdul Qayyum v. Bashir Ahmad Khan (1996 SCR 22), it was held that it a party by his negligence fails to bring the evidence on record, such party cannot be given an opportunity to fill up the lacunas in his case by adducing additional evidence at appellate stage.
' In case reported as Taj Din v. Jumma (PLD 1978 SC (AJ&K) 131), it was observed that an additional evidence cannot be brought on the record if the same was not produced at the proper stage due to negligence of a party or his counsel.
9. After giving due consideration to the arguments raised with regard to the question of allowing additional evidence, we have come to the conclusion that nothing has been brought on the record in support of the contention that evidence which the plaintiff-appellant wants to bring on record in support of his claim was not in his knowledge. He has not mentioned as to when and how he came to know about the existence of the same; only an ambiguous averment has been made that the evidence was not in the knowledge of the plaintiff-appellant. A perusal of the provision contained in rule 27 of Order XLI, C.P.C., would reveal that the Appellate Court must be very cautious while allowing additional evidence. A party which seeks to bring additional evidence on record must convince the Court with proof that such party could not lead the evidence at proper stage due to some substantial cause. In the instant case not to speak of the said proof, it has not been mentioned in the application made in the High Court as to when and how the plaintiff-appellant came to know about the evidence which he seeks to bring on record; even no affidavit has been filed. Thus, we are of the view that irrespective of the contention of the learned counsel for the respondent that the agreement in question is a forged document and the so-called suit which is alleged to have been instituted by Ali Akbar against Muhammad Alam in the Court of Sub-Judge was not instituted by him, the fact remains that we have not been persuaded that the plaintiff- appellant remained unaware of the aforesaid evidence which he now intends to bring on record, despite the fact that the preemption suit has been pending in the Courts below for about seven years besides, as stated above, he has not mentioned in the application as to when he came to know about the existence of the said agreement or the civil suit alleged to have been instituted by Ali Akbar against Muhammad Alain. The learned counsel for the appellant did not seriously assail the finding of the Courts below that the plaintiff-appellant has failed to prove that the gift-deed in question was in fact a sale.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs.