' CHAUDHURY RAHIM DAD KHAN, C. J.-This was plaintiff's letters patent appeal against the judgment and decree of the learned Single Judge of the Azad Jammu & Kashmir High Court dated 21-5-1974 which stood transferred to this Court on its inception under the provisions of law.
2. It arises out of a pre-emption suit instituted by Taj Din appellant to pre-empt the sale made by Yaqub and Imam Din defendants-respondents Nos- 2 and 3 in favour of defendant-respondent Jumma, vide a sale-deed registered on 11th August, 1969. The appellant-plaintiff claims that he has superior right of purchase as being an agnate and owner of the Mahal which right he could exercise on payment of Rs, 1,640 the price actually paid, as the higher price, according to him, was mentioned in the sale-deed to keep off the prospective pre emptors. After the institution of the pre- emption suit on 25-7-1970 but before the expiry of the limitation fixed for a pre-emption suit, Jumma, first vendee who had inferior right, executed a sale-deed on 8-8-1970 conveying the property to defendants-respondents Nos, 4 to 7 who too have equal rights as owner of Mahal with the pre-emptor.
3. The trial Court came to the conclusion that the pre-emptor and the subsequent vendees were both invested with equal rights as owner of the Mahal and that the claim of the pre-emptor as an agnate was not established and as such the pre-emption suit could not succeed. Consequently, the suit was dismissed on 24-2-1973. This decision was maintained by the first appellate as well as the High Court. The pre-emptor, before the first appellate Court, moved an application for permission to adduce additional evidence to establish his relationship with the first vendor which prayer was rejected by the first appellate Court as well as High Court.
4. The first question that requires determination in the present case is whether the re-sale in favour of a person possessed of superior or equal rights, made within the period of limitation, prescribed for pre-emption suit, would defeat the pre-emption suit that was already instituted. It is a well- settled law that a pre-emptor who comes in the Court to pre-empt a sale has to show that he had superior right to pre-empt the sale at three crucial stages I. e. (i) at the time of the sale; (ii) on the date the suit was instituted and (iii) at the stage of the decree by the trial Court. This view finds support from P L D1961 SC 69. Which was also adopted by this Court in Shakar Khan v. Mohammad Lal and others (1). In a case where the original vendee alienates the property in favour of a person who has superior or equal rights to purchas the property as compared with the pre-emptor, such a pre-emptor, in order to B succeed, shall have to make a case against the subsequent vendee and will have to show that he was clothed with superior right than the subsequent vendee to purchase the property.
5. The validity of a re-sale by the first vendee in favour of one of the rival pre-emptors during the pendency of a suit was recognised in a judgment of the Lahore High Court reported in Mohammad Khan v. Khuda flux (2) but the question of the validity of re-sale by vendee in favour of a person possessing equal rights with the pre-emptor who by then had not instituted a suit to pre-empt the first sale came before a Full Bench of Lahore High Court in Mool Chand v. Ganga Jal (3). It was recognised therein that such resale would lead to dismissal of the pre-emptor's suit. After examining the question in detail it was observed :- "No doubt, the rule of lis pendens applies to pre-emption suit but it does not affect the validity of the sale effected by the vendee during the pendency of pre-emption suit to a person possessing a right of preemption equal to that of the pre-emptor."
' This point again came up for discussion in AIR 1941 Lah.
433. Mr. Justice Din Mohammad, who wrote the main judgment, concurred with the view expressed in AIR 1930 Lah. 356 for further reasons that (a) 'the right of pre-emption does not exist independently of its exercise so as to invalidate transactions which take place in defiance of it. It is no doubt a right of preferential purchase but so long as it is held in abeyance, it is ineffective altogether. In fact, under Order XX, rule 14, C. P. C., a claim to pre-emption, if decreed, becomes effective only when the money is paid into Court and, as laid down by their Lordships of the Privy Council in AIR 1916 P C 170, 44 Cal. 675 the vendee is entitled to the rents and profits so long as the purchase money is not paid' and (b) 'the vendee was not a plaintiff in the case but a defendant and as such he could take advantage of every weapon available to him to defeat a person whose sole object was to unsettle a transaction legally entered into. That such devices, so long as they do not transgress any law, are permissible was even recognised by the Mohammdan Law from which the law of pre-emption was borrowed'. This view finds further support from a number of authorities decided by High Courts in Pakistan, i. e. PLD 1954 Lah. 541 and PLD 1963 Pesh.
105. Mool Chand v. Ganga Jal was also referred with approval by the learned Judges of the Federal Court of Pakistan in PLD 1956 FC 97. On this point there is no contest and obviously a pre-emptor in view of the settled law cannot succeed against the second vendee who as owner of Mahal is vested with equal right of pre-emption. We are, therefore, of the view that re-sale, within a period of limitation by the first vendee in favour of a person having equal right with pre-emptor, would defeat the suit of a pre-emptor. In the present case the second sale took place within the period of limitation scribed for pre-emption and as such we are not called upon to determine effect of re- sale that might take place after the expiry of the period of on but before the decree in a pre- emption suit by the trial Court.
' He next question is whether the plaintiff-pre-emptor had succeeded in t he being an agnate of the first vendee was vested with a superior D 1978 SC(AJ& K) 126 (2) 26 P R 108
(3) A 1 R 1930 Lah. 356=1 L R 11 Lab. 258 right of pre-emption even against the second vendee. We have heard the learned counsel for the appellant and examined the evidence produced before the trial Court and agree with the concurrent finding of the Courts below that the claim of the pre-emption based on kinship is without any substance. In support of this claim, there is statement of the plaintiff alone which has not been relied upon by anyone of the subordinate Courts. The learned Advocate for appellant also did not seriously challenge this finding of fact which is against the pre-emptor. However, his grievance is mainly against the order of the first appellate Court by which a prayer made by pre- emptor for adducing additional evidence was turned down. The Advocate for appellant on becoming conscious of the weakness of the evidence produced by him, on the point, applied before the District Judge (first appellate Court) for permission to adduce additional evidence on the point. His application was accompanied by a certified copy of genealogical tree of the proprietors of the village Baiwara, Tehsil Mirpur a document normally attached with the record-of- rights. The learned District Judge rejected the application on the ground that in spite of ample opportunity being given by the trial Court the pre-emptor failed to produce the evidence and that further opportunity to produce additional evidence at the stage of appeal would not be justified.
This point was again agitated before the High Court which was repelled on the ground that the document being a public record was available which could be easily produced before the trial Court. However, the High Court did consider the copy of the genealogical tree, sought to be produced, and came to the conclusion that this genealogical tree does not support the claim of the appellant that he is an agnate. We have examined the evidence and considered the arguments submitted by the Advocates for the parties and are of the view that legitimate occasion for the admission of additional evidence by the appellate Court, under Order XLI, rule 27, C. P. C., is when on appreciation of evidence, as it stands, an inherent defect or lacuna becomes apparent or where the discovery is made afterwards by a party and an application is made to supply the defect. But even then the provisions of rule 27, Order XLI, C. P. C. Impose strict conditions so as to prevent a litigant from being negligent in producing evidence at the time of the trial. A litigant, for permission to adduce additional evidence at the stage of appeal, has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced at the time the question was being tried or it has come into existence after completion of the trial. Where, therefore, a party has been negligent in producing evidence at the time the issue was being tried and a lacuna had been left and it is not shown as to how the absence of the proposed evidence would result into failure of justice. A prayer for additional evidence in these circumstances obviously would not be granted. The record-of-right was already in existence when the issue was being tried and the party, with due care, could obtain the copy of this document and produce the same at the time of the trial. At any rate, even otherwise, this document does not disclose any kinship between the pre-emptor and the first vendor. Is not permissible, under rule 27 of Order XLI, C. P. C., to allow evidence to enable a party to patch up the weak points of his case up the omissions in the Court of appeal. We are supported in the PLD 1958 SC (Ind.) 170 wherein it is held : "It is well-settled that additional evidence should not at the appellate stage in order to enable one of the par certain lacunae in presenting its case at the proper state in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.
' The Supreme Court would not permit additional evidence to be placed in appeal when there was sufficient opportunity for the party seeking to place additional evidence to place all the relevant matters before the High Court."
' Since the appellant before us had adequate opportunity in the trial Court to adduce evidence, and he, after availing that opportunity, himself closed evidence, he at a late stage of appeal cannot be allowed to adduce additional evidence. Hence the appeal is dismissed. In the circumstances of the case, the parties shall bear their own costs.