' By accepting an application under Order XLI, rule 27, C.P.C. For the additional evidence submitted by the respondents, the learned Court in appeal, had set aside the judgment and decree of the trial I Court, dismissing the suit of the respondents, for declaration and permanent injunction and has remanded the case to the trial Court, for summoning three witnesses, named in the application as Court witnesses, and to redecide the matter.
2. Briefly stated the facts of the case are, that 'on the death of Nizam son of Ali, the respondents claiming themselves to be the legal heirs of the deceased, filed a suit that the petitioners should be restrained from seeking the inheritance of Nizam, showing themselves to be his son and widow. It is stated in the plaint, that Nizam had never married and obviously, had no issue, therefore, neither petitioner No,1, is his son, nor petitioner No,2, is his widow; it is averred in the plaint, that in fact petitioner No,2, is the wife of one Sultan and petitioner No,1, is the son of Sultan, born out of the above wedlock. However, petitioner No,2, has illegally got entered a birth entry of the petitioner No,1, in the record showing him to be the son of Nizam. This suit was contested by the petitioners, and inter alia, following issues were framed:---
(1) Whether the plaintiffs are the only legal heirs of the deceased Nizam? OPP
(2) Whether the plaintiffs are owners in possession of the suit property being legal heirs of deceased Nizam? OPP
(3) Whether defendant has got no concern -with deceased Nizam and defendant is son of Sultan Ahmed? OPP
(4) Whether entries of parentage of defendant in his birth certificate are illegal, against facts, collusive, mala fide and ineffective qua rights of plaintiffs and are liable to be cancelled? OPP ' Besides, other issues were also framed, but those are not relevant for the present revision petition.
Anyhow, after putting the parties to trial, and they had full opportunity to adduce evidence, the learned trial Court, through the judgment and decree, dated 20-12-2000, dismissed the suit holding of the above four issues - against the plaintiffs/respondents, whereas other issues except relief, were decided against the defendants/petitioners. Respondents preferred an appeal, while the petitioners filed cross-objections, it seems from the record that the appeal was argued before the learned Court, when an application under Order XLI, rule 27, C.P.C., was moved by the respondents, for producing additional evidence, on the ground that the petitioners' counsel had made certain submissions which has necessitated, that the witnesses namely Ghulam Shabbir son of Sultan Ahmad and Mst. Ameeran Bibi, wife of .Sutlan son of Jalal and one Laqa Muhammad Noon be summoned as Court witnesses, and their statements be recorded. This application, as mentioned above, has been allowed by the learned Appellate Court, and through the impugned judgment the case has been remanded for the examination of the witnesses.
3. Learned counsel for the petitioners by relying upon Abdul Hameed and 14 others v. Abdul Qayyum and 16 others (1998 SCM R 671), has argued that the respondents being aware of the nature of the controversy between the parties, had themselves raised the proposition. Culminating in the framing of the above reproduced issues, led evidence, but after having lost the case at the trial Court, cannot seek the indulgence of the Court for the exercise of discretion to allow them additional evidence with the object to fill up the lacunas and weaknesses of their case, when the respondents, had failed to produce/examine such witnesses at the trial stage, without any reasonable cause.
4. Conversely, the learned counsel for the respondents, has relied upon Zar Wali Shah v. Yousaf All Shah and 9 others (1992 SCM R 1778), and has argued that under the Islamic concept of justice, the proposition qua filling up the lacuna, is not sustainable, as the Courts have to do complete justice, thus, at any stage of the proceedings, the Court can allow additional evidence, so as to determine the real dispute between the parties.
5. Arguments heard. The learned Appellate Court, has held that it is the Court, which has found it necessary to summon the said witnesses and to seek their testimony, and therefore, the rule about filling up the lacuna/weaknesses of the case, is not applicable to the matter in hand. Obviously, according to the Order XLI, rule 27, C.P.C., the Court has the power to seek additional evidence, but such power cannot be exercised without the requirements of the rule having been satisfied. It is settled law, that when the parties are conscious of the nature of the litigation and for no reasonable cause were precluded to produce any evidence at the trial stage, such party in exercise of the discretion as envisaged by the above mentioned rule, cannot be permitted to fill and patch the weaknesses of his case. The Court while exercising its discretion, must feel satisfied, that the evidence now being sought to be produced, is credible in nature, the element of fabrication and manipulation should be excluded; that a litigant, was prevented for a sufficient cause to adduce the evidence at the relevant time. In the present case, the respondent, have not made out any sufficient cause, as to why the above named witnesses, who even according to the averments of the plaint, had some relevance to the issues were not examined by the respondents.
These witnesses were not cited in the list of witnesses, no attempt or effort was made to summon them through the process of the Court. Even after losing the case at the trial stage, the respondents, did not alongwith the appeal move any application for the purposes of examining the witnesses; it seems that after hearing of the appeal, in order to defeat the submissions of the petitioners' side, an attempt was made to improve the weaknesses of their' case, this, as mentioned above, is not permissible under the law. The view taken by the learned Court of appeal, that it is the requirement of the Court that such witnesses be examined, is also not well founded, because the requirements cannot be equated to the desire of the Court. In the facts of the case, the examination of the witnesses could have been of some good to the respondents, but not that such were the necessary witnesses, without which the Court, could not pass a judgment on the basis of the material already available on the record. Even the necessity to examine the Court witnesses, was not felt by the Court itself, after hearing the final arguments, and no suo motu direction was issued to examine them. In the instant case, it is the respondents who moved the application, and that too with an object to circumvent the submission of the petitioners' counsel, as is clear from the contents of the application, therefore, such situation cannot be made corresponding to the rule of requirement of the Court itself. The judgment of the Hon'ble Supreme Court, cited by the counsel for the respondents,. Has to be interpreted in the light of its own facts and is distinguishable from the present case. In that case, the counsel for the parties, had agreed before the Hon'ble Supreme Court, for the comparison of the disputed signatures on a document, but the Hon'ble Supreme Court, found it difficult to make visual comparison, and therefore, found it necessary to remand the matter for additional evidence. This judgment to my mind in no way lays down the rule, that a party, who was negligent; forget to lead evidence; deliberately withheld some evidence, or did not find it necessary to lead any evidence, at the appropriate stage of the case, can apply to the Court, at any time, especially after the hearing of the final arguments of the appeal, that now the evidence should be recorded so as to nullify the effect of the submission made by the opposite party.
6. In the light of above, I find that the learned Court in appeal, has not exercised its discretion and jurisdiction properly, while allowing the respondents to lead additional evidence, and to remand the case. Resultantly, this revision petition is accepted, the judgment and decree of the Court of appeal, is set aside, the case is remanded to the Court of appeal, to re-decide the appeal of the respondents and the cross-objections, filed by the petitioners, deeming them to be pending before the Court. No order as to costs.
Revision allowed.
002 YLR 2094 [Lahore] Before Muhammad Khalid Alvi, J MUHAMMAD JAHANGIR QAMAR---Petitioner versus DISTRICT JUDGE/ELECTION TRIBUNAL, PAKPATTAN SHARIF and 7 others---Respondents Writ Petitions Nos.1293 and 1612 of 2002, decided on 15th April, 2002.
(a) Punjab Local Government Elections Ordinance (V of 2000)- ----S.14(e)--TPunjab Local Government Elections Rules, 2000, R.18(3), proviso---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Disqualification of co-candidate after election- --Petitioner was a candidate for seat of Naib-Nazim but at the time of scrutiny, objection was raised that the co-candidate for the seat of Nazim was unqualified because of not being matriculate---Co-candidate was granted permission by High Court to contest the election and after election the petitioner and his co-candidate were declared as returned candidates---Chief Election Commissioner set aside the result of election on the ground that the co-candidate was disqualified under S.14(e) of Punjab Local Government Elections Ordinance, 2000, resultantly the unsuccessful candidates were declared as returned candidates---Petitioner contended that as the Nazim was declared to be disqualified after the election, therefore, the petitioner could not be de-seated under R.18 of Punjab Local Government Elections Rules, 2000- Validity-Seat of Nazim had not fallen vacant because of a fact surfacing after the election, rather the objection was raised at the very preliminary stage i,e, at the time of scrutiny---Petitioner having been disqualified from the day one in view of proviso to R.18 of Punjab Local Government Elections Rules, 2000, the nomination of both the candidates stood rejected---Chief Election Commissioner had rightly declared the election of the petitioner and his co-candidate as void--- High Court declined to interfere with the order passed by the Chief Election Commissioner--- Petition was dismissed accordingly. (p. 20961 A
(b) Punjab Local Government Elections Rules, 2000--- ----Rr.80, 81, 82 & 83---Constitution of Pakistan (1973), Art.199-Constitutional petition- Disqualification after elections---Declaring unsuccessful candidates as returned candidates--- Returned candidates were disqualified after election for:the reason I , wa that one of the returned candidates sl,not; matriculate at the' time of filing of nomination papers---Plea raised by the petitioners was that the unsuccessful candidates could not be declared as returned candidates as there was other set of candidates also who contested the election---Validity-In presence of other contestants, it could ,not be said that the voters who had chosen the petitioners as their representatives had made a second option for the candidates who had been declared as returned candidates and in absence of the petitioners, their voters might have opted to vote for the other contestants who were also in the run---High Couit in view of fitness of things and scheme of the law provided in Rr.80 to 83 of Punjab Local Government Elections Rules, 2000, set aside the iorder passed by the Chief' Election Commissioner and directed to hold the election afresh--- Petition was allowed accordingly. 20971 B Muhammad Khalid Ashraf Khan for Petitioner.
Pir Masood-ul-Hassan Chishti for Respondent No,2.
Malik Muhammad Ramzan Khalid, Joya for Respondents Nos.3 and 4.
Date of hearing: 11th April, 2002.
' With the concurrence of the learned counsel for the parties, this case is being treated as pacca case.
2. Through this single judgment, I propose to dispose of Writ Petition Nos.1293 and 1612 of 2002 as common questions of law and facts are involved in both these petitions.
3'. Brief facts of the case are that the petitioners in both these cases contested the election of Nazim and Naib Nazim jointly against Muhammad Murtaza and Abdul Rauf candidates for Nazim and Naib Nazim respectively and also against two other couples for Union Council No,58 of Sahiwal.
At the time of scrutiny of nomination papers an objection was raised that Muhammad Irshad petitioner is not matriculate, therefore, not qualified to be a candidate for Nazim. As a result of this objection nomination papers of Muhammad Irshad petitioner candidate for Nazim alongwith his Naib-Nazim were rejected. Both filed Writ Petition No,4038 of 2001 in this Court, which was disposed of on 14-5-2001. The petitioners were allowed to contest the election. However, the question of qualification/disqualification of Muhammad Irshad petitioner was left open by this Court to be determined by the Tribunal after the election. As a result of the election, the petitioners were declared as returned Nazim' and Naib Nazim. Therefore, election was called in question through an election petition by Muhammad Murtaza and Abdul Rauf their closest rivals.
4. During the pendency of the election petition a miscellaneous application was filed by one Muhammad Arshad an elected Councillor 'of Union Council No,58 before the Chief Election Commissioner taking the same objection that Muhammad Irshad petitioner is not matriculate, therefore, not qualified to hold the office of Nazim. The learned Chief Election Commissioner vide order dated 2-11-2001 declared that under section 14(e) of the Local Government Elections Ordinance, 2000, Muhammad Irshad petitioner is not qualified, therefore, he shall cease to hold office of Nazim and shall stand disqualified from being a candidate for election to a Local Government for a period of 4 years.
5. The learned Election Tribunal vide order, dated 16-2-2002 on the basis of order, dated 2-11-2001 passed by the Chief Elections Commissioner without training issues and recording any evidence in the case accepted the election petition and declared the election. Of the petitioners as void and held the respondents namely Muhammad Murtaza and Abdul Rauf as returned candidates as Nazim and Naib-Nazim respectively for Union Council No,58. This ord is being assailed by both the petitioners, who were candidates for Nazim and Naib Nazim jointly.
6. Learned counsel for the petitioners contends. That. Muhammad Irshad petitioner was declared to be disqualified by the Chief Election Commissioner vide his order, dated 2-11-2001, therefore, the seat of Nazim only fell vacant, which should be filled under section 18-A of the Punjab Local Government Ordinance, 2000 through a bye-election as such Muhammad Jahangir Qamar petitioner (Naib Nazim) could not have been non-seated by the Election Tribunal. Apart from this tact, Muhammad Irshad petitioner has also challenged the order of the Chief Election Commissioner dated 2-11-2002 before this Court through Writ Petition No,9358 of 2001. It is further explained with reference to section 2(8) that the Member includes the Nazim and Naib Nazim, therefore, even if the seat of Nazim had fallen vacant still the seat of Naib Nazim was protected. It is further submitted with reference to rule 18(3)(i) of the Punjab Local Government Elections Rules, 2000 that this rule is only applicable to pre-election proceedings and if after the election any vacancy occurs, the same is to be governed under section 18-A of the Punjab Local Government Ordinance, 2000. It is next submitted that by any means, in view of the order dated 2-11-2001 passed by the Chief Election Commissioner the election petition had become infructuous, therefore, the Election Tribunal should not have passed any order. It is finally submitted with reference to rules 80 to 83 of the Punjab Local Government Election Rules, 2000 that respondents Muhammad Murtaza and Abdul Rauf could, by no means, have been declared as returned candidates. Apart from these contesting parties, there were two other couples also contesting the election.
7. As against this, learned counsel for contesting respondents contends that under section 16 of the Punjab Local Government Ordinance, 2000 the candidacy of Nazim and Naib Nazim is joint. Both will swim and sink together. If either of the two is held to be disqualified, the other will also follow the same route. It is next submitted that the petitioner has not come to this Court with clean hands, as is evident from the findings of the learned Chief Election Commissioner because they had tried to use a forged certificate to show that Muhammad Irshad petitioner is matriculate, therefore, they do not deserve exercise of discretionary powers in their favour.
8. I have considered the arguments of the learned counsel for the parties.
9. Through a separate order passed in Writ Petition No,9358 of 2001, I have held that the order passed by the learned Chief Election Commissioner dated 2-11-2001 is a legal and valid order and the said writ petition filed by Muhammad Irshad petitioner has been dismissed.
10: Now the only question left to be . Resolved is whether by disqualification of Muhammad Irshad petitioner the seat of Nazim only has fallen vacant or because of his disqualification Muhammad Jahangir Qamar petitioner has also lost his seat.
11. It is to be noted that the seat of Nazim has not fallen vacant because of a fact surfacing after the election, rather this objection was raised at the very "preliminary stage i,e, at the time of scrutiny. It means that Muhammad Irshad petitioner was disqualified from day one, therefore, in view of the proviso to rule 18 of the Punjab Local Government Election Rules, 2000 the nomination of both the petitioners stood rejected and as such their election as Nazim and Naib-Nazim was rightly declared to be IA void.
12. Coming to the question that respondents Muhammad Murtaza and Abdul Rauf have been declared as returned Nazim and Naib-Nazim, suffice it to say, that in the presence of other contestants. It could not be said that the .Voters who had chosen the petitioners as their representatives must have made a second option for Muhammad Murtaza and Abdul Rauf necessarily. In the absence of the petitioners their voters might have opted to vote for the other contestants, who were also in the run, therefore, it would have been in the fitness of things and scheme of the law provided in rules 80 to 83 of the Punjab Local Government Elections Rules, 2000 that a re-election for Nazim and NaibNazim of Union Council No,58 of District Sahiwal was ordered.
13. For what has been stated above, both these writ petitions are partly allowed in the above terms, no order as to costs.