ALLAH DITTA Versus GHULAM RASUL

The respondent pre-emptor's suit was dismissed by the trial Court as barred by time. The lower appellate Court passed an order on the 11th of November 1960 under Order XLI, rule 27, C. P. C. permitting the respondent to produce the vendor Ghulam Farid as a witness in the case. After having recorded evidence of the said witness, the learned District Judge has reversed the finding of the trial Court on the question of limitation. As other findings of the trial Court had not been challenged in appeal, a decree for possession by pre-emption of the site in question conditional on payment of Rs. 40.00 has been passed. Feeling aggrieved, the vendee has come up to this Court in second appeal.

2. As already noticed above, the basis of reversal of the trial Court's finding on the question of limitation is the statement of Ghulam Farid vendor, examined by the District Judge by way of additional evidence. The order dated the 11th of November 1960 passed in this respect is a short one and the only reason given is that in the course of arguments it has been felt that in the interest of justice evidence of Ghulam Farid witness is necessary. it has been rightly argued that this is not a valid ground under Order XLI, rule 27, C. P. C. because this jurisdiction is not to be exercised to fill up gaps in evidence of a party that has failed before the first Court (See Muhammad Akbar Khan v. Mst. Motai and others AIR1948PC36 and Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD1966SC684. Further, the deposition of Ghulam Farid is of little evidentiary value as it is not reconcilable with other evidence on the record on the question of price fixed in good faith and actually paid. The learned District Judge has permitted to adduce additional evidence to the pre-emptor without. lawful justification and the order dated the 11th of November 1960 is set aside for the actual reason that no opportunity of rebutter was afforded to the vendee. Excluding the evidence of Ghulam Farid, the finding of the Court as to suit being barred by time revives. The appeal succeeds and is allowed. The judgment and decree of the learned District Judge are set aside and the decree of the trial Court restored.

K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.

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