' Brief facts of the case are that some Sikandar Khan etc., sold land measuring 401 Kanals, 3 Marlas to the appellants through Mutation No,103 dated 20-6-1969 in consideration of Rs,2,50,000. This sale was sought to be pre-empted by respondents Nos.1 and 2 by filing separate suits claiming that they are owners in estate while vendees/appellants are strangers. Initially the issues in the case filed by respondent No,1 were framed on 20-7-1971 in which Issue No,6 was as follows:-- ' Issue No,6: Whether 1/5 money has not been deposited within time? OPD ' However, at later stage the suit filed by respondent No,2 was consolidated with the suit of respondent No,1 and consolidated issues were framed on 13-7-1977. Proceedings were held in the suit filed by respondent No,
1. In the consolidated issues the trial Court omitted to frame the issue with respect to Zare-e-Punjum. Parties led their respective evidence. Learned trial Court vide judgment and decree dated 14-10-1981 dismissed both the suits. Only respondent No,1 filed appeal while respondent No,2 felt satisfied and did not come forward to contest her right. The appellants also filed cross-objection to the appeal of respondent No,1 challenging the findings of the trial Court with respect to Zare-e-Punjum apart from other matters which have since been abandoned.
During the hearing of appeal two applications were filed by respondent No,1 for production of additional evidence, first was filed on 9-3-1983 to produce Jamabandi for the year 1969-70 and the second application was filed on 2-5-1982 for producing Jamabandi for the year 1965-66. First application was contested by the appellants by filing its reply, however, the second application was not replied. Learned Lower Appellate Court vide its judgment and decree dated 3-5-1982 allowed both these applications and consequently the suit of respondent No,1 was decreed against which appellants have come up in this second appeal.
2. Learned counsel for the parties have agreed to address their arguments only on two issues i,e, issue of superior right and whether Zar-e-Punjum was deposited in time.
3. Learned counsel for the appellants contends that on 18-9-1970 respondent No,1 was directed by learned trial Court to deposit Rs,50,000 as Zar-e-Pujum before 21-12-1970. Respondent No,1 on 16- 12-1970 filed an application that he may be allowed to submit personal security instead of cash deposit. On this application on the same day i,e, 16-12-1970 learned trial Court varied its earlier order and directed respondent No,1 to deposit Rs,35,000 till 21-12-1970. The appellants were served in the case on 20-10-1970 and 21-10-1970 . For the next date of hearing i,e, 21-12-1970. The point being raised is that when the application was filed, by respondent No,1 the appellants had already been served, therefore, they deserved prior notice before the trial Court could vary the order. Relies on PLD 1967 SC 418, PLD 1974 SC 134, 1997 SCM R 1267 and 1998 M LD 1652.
4. As against this learned counsel for the respondents contends that under section 22 of the Punjab Pre-emption Act, 1913, the trial Court can very the order for the deposit of Zar-e-Punjum and no vested right is created in favor of the defendants.
5. In my view although it is appropriate that the defendants be given a right of hearing when they have already been served in the case but no vested right is created till such time that the order passed by the. Court was not complied with by the plaintiffs in time and he comes forward after the lapse of that period for the extension of time or for varying the terms of order. In such case of course a vested right would be created in favor of the defendants and order cannot be varied without hearing them. In the instant case respondent No,1 had applied for the variation of the order on 16-12-1970 much before expiration of period fixed by trial Court, therefore, it cannot be said that vested right was created in favor of the appellants.
6. Learned counsel for the appellants contends that plaintiff tendered in evidence Exh.P.1 Jamabandi for the year 1977-78 and impugned mutation Exh.P.2 through the statement of his counsel on 25-6-1979 and closed his evidence by reserving his right to appear in affirmative and rebuttal after the evidence of the appellant. The appellants' evidence was closed under Order 17, rule 3, C.P.C. By the trial Court vide order dated 14-11-1979. However, the plaintiff/respondent No,1 appeared as P.W.1 on 8-12-1979. The contention of learned counsel is that the effect of Exh.P.1 and statement of plaintiff recorded on 8-12-1979 is that the plaintiff can be held to be owner in the State in the year 1977-1978 which can be stretched back to the years 1973-74 i,e, the period of previous Jamabandi. Thus respondent No,1 failed to prove his superior right at the time of sale and also at the time of institution of suit. It is next contended that learned Lower Appellate Court illegally admitted two documents i,e, Jamabandi for the year 1969-70 and 1965-66 in additional evidence.
The objections of learned counsel to the admission of these documents in additional evidence are that respondent No,1 filed application for additional evidence at a very late stage; that no right of rebuttal was given to the appellants nor any statement of the appellants or their learned counsel was recorded to the effect of right of rebuttal; that Jamabandi for the year 1965-66 was received on 3-5-1982 i,e, the date on which the judgment was delivered by learned Lower Appellate Court; that no exhibit marks were fixed on the said two documents as required under Order 13, rule 4, C.P.C.; that the manner in which additional evidence was allowed by learned Lower Appellate Court, indicates clear bias on the part of learned Judge, showing that he was all out to decree the suit of respondent No,
1. Learned counsel has relied on AIR 1944 Lahore 172, AIR 1947 Lahore 352, to contend that pre-emption is a weak right and the pre-emptor is an aggressor while vendee is on the defensive. Also relies on PLD 1967 SC 153, 1973 SCM R 252 to contend that preemption is a predatory right and the Courts always require strict compliance from the pre-emptor. Further relies on PLD 1979 BJ 38, PLD 1972 SC 52 and 1987 SCM R 1497 to contend that delay in filing application for additional evidence is fatal, and also that respondent No,1 cannot be permitted to fill in lacunas in his case.
7. On the other hand learned counsel for the respondent No,1 contends that respondent No,1 when appeared as P.W.1 categorically stated that he is owner in the estate but no question was asked by the appellants suggesting that respondent No,1 was not owner in the said estate at the time of sale or the institution of suit. It is next contended that the learned Lower Appellate Court observed as follows:-- 'Learned counsel for the respondent/vendee did not desire to produce any document in rebuttal."
' It is further pointed out that Mr. M.M. Arif was the counsel for the appellants before the Lower Appellate Court, the same learned counsel filed the present R.S.A. There is no assertion in the R.S.A.
Nor is any affidavit from the said learned counsel on record to show that the above observation of learned Lower Appellate Court is incorrect. It is next contended by referring PLD 1975 Lahore 1170 that failure to make an endorsement on a document received in evidence does not make it inadmissible.
8. I have considered the arguments of learned counsel for the parties.
9. It is admitted by learned counsel for the appellants that if two documents admitted by learned Lower Appellate Court in additional evidence are read in evidence then undoubtedly respondent No,1 stands proved to be owner in estate. In this case the documents admitted in additional evidence were brought on record and considered by learned Lower Appellate Court at the stage of final hearing of the appeal. In my view this is the appropriate stage when the Court hears final arguments in the case when it can decide whether any additional evidence is required or not. In the instant case the plea of respondent No,1 from the very beginning was that he was owner in the estate. He led in evidence Exh.P.1 which proved that he was owner in the estate in the year 197778. It was also not suggested by the appellants to P. W.1 that he was not owner in the estate at the time of sale and filing of suit, therefore, learned Lower Appellate Court rightly felt the need of- said two documents to see as to whether respondent No,1 was owner in the estate at the time of sale and filing of suit. The reason assigned by learned Lower Appellate Court are also not in-consistent with the settled principle of law. The objection of learned counsel for the appellants that they were not given the right .Of rebuttal is also baseless in view of the observation of learned Lower Appellate Court that the appellants' learned counsel has himself refused to lead any evidence in rebuttal to the additional evidence. Merely non-marking of exhibits on the documents would not render them inadmissible. The concept of filling up lacuna has gone out of Pakistani Jurisprudence in view of the law laid down by Hon'ble Supreme Court reported in 1992 SCM R 1778. Although the earlier trend of authorities in the sub-continent was that the pre-emption is a weak and predatory right but with the passage of time it is evolved that it is as good a statutory right as any other. At the same time under Islamic Law it is, held by Hon'ble Supreme Court in PLD 1989 SC 314, that pre-emption is not at all piratic right, however, it is loaded in favor of the vendees and all doubts of interpretation should be resolved in favor of vendees. In this case there is no dispute of interpretation of any law. The only question involved is whether the additional evidence received by learned, Lower Appellate Court was proper or not. This does not mean that the provision of Order 41, rule 27, C.P.C. Cannot be used in favor of plaintiffs and are only to be used in favor of vendees. If the plaintiffs' case is made out for the exercise of jurisdiction conferred on the Appellate Court for admitting some additional evidence then whether it benefits the plaintiffs or defendants, is immaterial, the Court will exercise its jurisdiction to resolve the real matter in controversy between the parties by admitting additional evidence.
10. For what has been stated above, I find no merit in this appeal which is accordingly dismissed. No order as to costs.