Rana ABDUL ALEEM KHAN vs IDARA NATIONAL INDUSTRIAL CO-OPERATIVE

' MIAN SAQIB NISAR, J.---The petitioner as a pre-emptor sought to pre-empt the sale dated 20.8.1990 in favour of respondent No,1 (respondent) the earlier round of litigation. The petitioner's suit was dismissed but ultimately as per the learned counsel for the petitioner vide judgment dated 8.2.1995 passed by this Court the matter was remanded to the Trial Court for deciding the matter afresh. It may be pertinent to mention here that one of the issues involved in this case is about the making of Talbs and this issue having been decided against the petitioner primarily for the reason that he has failed to examine the Postman to prove Talb-e-Ishhad, thus, his (the petitioner's) suit was dismissed vide judgment and decree dated 17.12.2012. However, the appeal filed by the petitioner was accepted by the learned Additional District Judge and the matter was remanded to the Trial Court to receive additional evidence on behalf of the petitioner enabling him to examine the Postman. It may be pertinent to mention here that no ground has been set out by the petitioner in the memo of appeal that he had applied to the Trial Court to produce additional evidence which was refused or moved any application for production of additional evidence before the Appellate Court. Be that as it may, this order of remand has been challenged by the respondent in an F.A.O., which was accepted and the said remand order was set aside.

2. Learned counsel for the petitioner argued that when it is necessary for the Court for the purposes of pronouncing a judgment, there is no bar upon the Court which has a discretion to allow additional evidence and for this to remand the matter. We are afraid that the power under the provisions of Order XLI, Rule 27 of the C.P.C. For allowing additional evidence available is not unfettered nor does the Appellate Court has the discretion to allow additional evidence per its own caprice, rather it (discretion) is structured/limited by the factors enunciated in the said provisions of law i,e,, where the Court from whose decree the appeal has been preferred has refused to admit any evidence which it ought to have admit. In this case, the petitioner never moved the Courts below to produce any evidence in the nature of examination of the Postman which was declined; that the Appellate Court requires any document or examination of witnesses enabling it to pronounce its judgment does not mean that the Court shall provide a delinquent with a chance to make up for his omission and fill up the lacuna of his case and allow additional evidence particularly in the circumstances when neither in the grounds of appeal a case for additional evidence has been set out nor any independent formal application has been moved for the purposes Of producing additional evidence. It is categorically held in a number of judgments including that reported as Muhammad Tariq and others v. Mst. Shamsa Tanveer and others (PLD 2011 SC 151) that, " such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases ", and that too within the strict scope of Order XLI, Rule 27 of the C.P.C. We do not find this to be a case falling within the purview of the provision ibid. The judgment reported as Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811) cited by the learned counsel for the petitioner has no bearing on the facts and circumstances of the case and, therefore, is inapplicable, Consequently, we do not find any reason to interfere in the impugned judgment.

Petition is dismissed accordingly.