SHTAMAND and others vs ZAHIR SHAH and others

ORDER

' JAVED IQBAL, J.-- This petition for leave to appeal is directed against the order dated 11-5-2004 passed by the Peshawar High Court, Peshawar, whereby the civil revision preferred on behalf of petitioners has been dismissed and order, dated 214-2004 of learned Additional District Judge, Swat, has been kept intact.

2. Precisely stated the facts of the case are that the petitioners/plaintiffs filed, suit against the respondents in the Court of learned Senior Civil Judge, Swat seeking declaration that they were owners to the extent of their claim in the properties mentioned in the heading of the plaint.

Perpetual injunction restraining the respondents, to alienate the said property in any manner was also sought. Decree for possession as alternate relief was also claimed. The said suit was resisted by the defendants/respondents by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 194-2003. Feeling aggrieved with the said judgment and decree, the petitioners filed appeal in the Court of learned Additional District Judge, Swat. It was during the pendency of the appeal that the petitioners also filed an application for grant of permission to adduce additional evidence. The said application was resisted by respondents. The learned Appellate Court after hearing the learned counsel for the parties dismissed the said application vide judgment/order dated 21-4-2004". Being aggrieved the petitioners approached the Peshawar High Court by means of revision which has been dismissed, hence this petition.

3.Mr. Fateh Muhammad Khan, learned Advocate Supreme Court entered appearance on behalf of petitioner and mainly contended that the provisions as contained in Order 41, rule 27, C.P.C. Have been misinterpreted and misconstrued which resulted in serious miscarriage of justice. It is urged vehemently that the application preferred on behalf of petitioners for additional evidence should have not been dismissed as the entire controversy revolved around sale-deed (Exh.P.W.2/1) dated 23-1-1932 which was a registered document. It is pointed out that the officials of the office of Sub- Registrar could have proved that the sale-deed was registered which would have a substantial bearing on merits of the case. It is further contended that delay per se cannot be considered as a convincing ground for the rejection of the application moved for additional evidence.

4. We have carefully examined the contentions as agitated on behalf of petitioners in the light of provisions as contained in Order 41, rule 27, C.P.C. It is worth-mentioning that the suit was filed on 6- 6-1994 and proper opportunity of hearing to lead evidence was afforded to the petitioners, who woke up from a deep slumber after nine years and moved an application for additional evidence.

Mr. Fateh Muhammad Khan, learned Advocate ' Supreme Court when asked pointedly that why the application for additional evidence, was moved with inordinate delay, no satisfactory answer could be given except that the application could have been accepted by imposing cost. We have gone through the judgment of learned trial Court which is indicative of the fact that the sale-deed (Exh.P.W.2/1) dated 23-1-1932 has been taken into consideration and discarded for the reason that it had no nexus with the property in-question which was not mentioned therein. In such view of the matter the question as to whether the sale-deed was registered or otherwise, would have no substantial bearing on the merits of the case. In fact the petitioners want to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in Order 41, rule, 27, C.P.C. The application for additional evidence cannot be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at Appellate stage in the absence of any reasonable justification which is lacking in this case. In this regard we are fortified by the dictum laid down in cases titled Rehmatullah v. Fazal Baqi 1998 SCM R 670, Mad Ajab v. Awal Badshah 1984 SCM R 440, Nazeef v. Abdul Ghaffar PLD 1966 SC 267 and Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143.

' No illegality, perversity or infirmity could be pointed out warranting interference in the order impugned being well-based. The petition being devoid of merit is dismissed and leave refused.