MIAN SAQIB NISAR, J.--- 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 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 re-decide the matter.
2. Briefly stated the facts, of the case are, that on the death of Nizam son of A.I, 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 were 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 the 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, were of Sultan, Sultan son of Jatal 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 Vs. 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 Vs. Yousaf A.I 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 respondents, 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 loosing the case at the trial stage, the respondents, did not alongwith the appeal moved 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 on 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 ride, 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.