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---O. XLI, r. 27, O. XIII, rr. 1 & 2 and S. 115-Revision-Suit for possession through pre -emption-Additional evidence-Copy of pedi gree-table to prove relationship with vendors not filed by pre-emptors within prescribed period and their application for permission to produce copy th6reof as additional evidence rejected by trial Court who dismissed suit-Additional District Judge on appeal allowing pre-emptors to produce copy of pedigree table and Jamabandi as additional evidence-held : Provisions of law cannot be made use of by a party to fill up gaps in his case-Trial Court justified in refusing to receive copy of pedigree-table in evidence after party failed to produce same within prescribed time and Additional District Judge committed material irregularity in allowing same-Order of Additional District Judge set aside and appeal remanded for rehearing on merits for decision afresh in accordance with law. -[Pre-emption-Evidence].

Jamshed Ali for Petitioners.

Kalim Ahmad Shah for Respondents.

Dates of hearing : 24th November, 1982 and 2nd March, 1983.

The respondents, Abdul 1lameed and others, filed a suit against the petitioners, Khushi Muhammad and others, for possession of certain land through pre-emption. It was alleged by the respondents that they were owners of the estate and related to the vendors, namely Mst. Khurshid Bibi and Mst. Nazir Bibi, but neither of these qualifications was possessed by the petitioners and, therefore, they (respondents) had a superior right of pre-emption. The Civil Judge, who was seized of the suit, was recording evidence therein when on 28th February, 1981, the respondents prayed for an adjournment to place on record copy of pedigree-table with a view to proving their relationship with the vendors. They were, however, not allowed to do so for the reasons that the copy of pedigree-table had not been produced within the period prescribed by rule 1 of Order XIII of the Code of Civil Procedure nor on the said date although by then the suit had remained pending for about six years. Thereafter, the respondents made an application for permission to produce copy of pedigree-table as additional evidence but the same was rejected on 19th July, 1981. Ulti mately, the suit was dismissed due to the respondent's failure to establish their superior right of pre-emption. The respondents, therefore, went in appeal before an Additional District Judge. During the pendency of the appeal the respondents are said to have made an application under rule 27 of Order XLI read with section 151 of the Code of Civil Procedure; for permission to produce copy of pedigree-table and that of jamabandi as additional evidence. On the appellate record, however, there is no interim or final order regarding the said application. While deciding the appeal, however, with making a reference to the above application, it was held by the learned Additional District Judge that the respondents were entitled to produce copy of jamabandi and that of pedigree-table as additional evidence. He, therefore, accepted the appeal, set aside the judgment and decree of the learned Civil Judge, "brushed aside" the said orders of 28th February, 1981 and 19th July, 1981, and remanded the suit to that Court with the direction that he shall permit the respondents to produce the said copies in evidence and then-, after recording the petitioners' evidence in rebuttal, if any, decide the suit again. The respondents were burdened with costs amounting to Rs. 200. Feeling aggrieved by the learned Additional District Judge, the petitioners have come up in revision to this Court.

2. Learned counsel for the parties-were unanimous that the order made by the learned Additional District Judge was not an order under rule 27 of Order XLI of the Code of Civil Procedure nor it was made in conse quence of the respondents' application for permission to produce additional evidence before him inasmuch as in the order under challenge there was no mention of the said application. According to learned counsel for the parties, therefore, what is to be determined in the present case is whether the learned Additional District Judge had rightly interfered with the order made by the learned Civil Judge, under rule 2 of Order XIII of the Code of Civil Procedure. By that order, as stated above, the learned Civil Judge had not allowed the respondents to produce in evidence the copy of pedigree- table.

3. Assailing the order of the learned Additional District Judge it was contended by learned counsel for the petitioners that the respondents never produced copies of jamabandi and pedigree-table before the learned trial Court and, therefore, no indulgence could be shown to them. It was also pointed out by him that the respondents had made no prayer to the learned trial Court seeking permission to produce copy of jamabandi. In addition it was urged by him that the respondents had not shown sufficient cause for their shortcomings in this behalf. According to him, the provisions of rule 2 of Order XIII of the Code of Civil Procedure were rightly applied by the learned trial Court and the learned appellate Court had committed a material irregularity in making the impugned order. Learned counsel for the appellants also apprehended that the application said to have been made to the learned Additional District Judge for permission to produce addi tional evidence was smuggled into the appellate record after the disposal of the appeal.

4. While replying to the arguments addressed by learned counsel for the petitioners, it was conceded by learned counsel for the respondents that the respondents had not produced copy of jamabandi or copy of pedigree-table before the learned trial Court. It was also not dis puted by hint that no request was made to the said Court seeking permission to produce in evidence copy of jamabandi. It was, however, urged by him that since such a request was made to the learned Civil Judge in regard to copy of pedigree-table and its genuineness was beyond doubt, it should have been allowed to be brought on the record.

5. As indicated above, there is no order whatsoever of the learned Additional District Judge making a mention of the application, under rule 27 of Order XLI read with section 151 of the Code of Civil Procedure, for permission to produce copy of the pedigree-table and that of jamabandi as additional evidence. The application does not bear any writing of his staff either. It is, therefore, doubtful that the application was actually made before the learned Additional District Judge during the pendency of the appeal. Even if it is assumed that the application was submitted when the appeal was pending, learned counsel for the parties agreed that the order made by the learned Additional District Judge allowing the respondents to produce copy of the pedigree-table and that of jamabandi as additional evidence was not passed by him in consequence of the said application. There was also no good ground for making such an order under rule 27 of Order XLI of the Code of Civil Procedure. The learned trial Court had never refused to receive copy of the jamabandi in evidence. It was also not needed by the Court for pronouncing judgment. The learned trial Court did pronounce judgment in the absence of the said copy and the learned Additional District Judge did not decide the appeal, on merits after receiving it in evidence. There was no other substantial cause for receiving the above copy in evidence. There is ample authority for the proposition, that the said provisions of law cannot be made use of by a party to fill gaps in his case. Even if the genuineness of a document is beyond doubt, the Court can refuse to allow its production if it is not relied upon or produced in time and the delay is not convincingly explained. In the present case there was a delay of about 6 years for which no plausible explanation has been furnished.

6. As for copy of pedigree-table, the respondents did make a request to the learned trial Court to adjourn the case to enable them to produce it in evidence but their request was not acceded to. Admittedly, they did not file the said copy within the period prescribed by rule 1 of Order XIII of the Code of Civil Procedure. It was not even produced before the learned trial Court on 28th February, 1981 when the adjournment was sought nor it was appended to the application for additional evidence which was dismissed by the learned trial Court on 19th July, 1981. The reason given by the respondents' counsel for seeking adjournment was that the copy was to be brought by the respondents from their lawyer at Lahore. Sheikhu pura, where the suit was being heard, is not far away from Lahore. The two cities are at a distance of less than 30 miles. If the copy was available with their lawyer at Lahore the respondents could fetch it from these even in the evening immediately preceding the above date. No efforts were, however, made by them in this regard. If it was misplaced by their lawyer at Lahore they could get another copy and file it alongwith the application subse quently made to the learned trial Court seeking permission to produce addi tional evidence. This was also, however, not done by t hem. In the said application the unnamed lawyer at Lahore was referred to as follows :-

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The word indicates that the explanation regarding the Lahore lawyer was coined by the respondents to get over the difficulty created by their culpable inaction. Even if their counsel's statement relating to the availability of the copy with the counsel at Lahore is believed to be true it would follow that the respondents had obtained the copy much before they had asked the adjournment. No explanation is, however, forthcoming for the same not having been filed in the Court within the period allowed by rule 1, Order XIII, of the Code of Civil Procedure or soon thereafter The learned trial Court was, therefore, right in refusing to receive copy of the pedigree-table in evidence. To put it differently, the learned Civil Judge had correctly applied the provisions of rule 2 of Order XIII of the Code of Civil Procedure and was justified in rejecting the respondents' application seeking leave to produce the said copy as additional evidence.

7. In view of the above discussion I hold that the learned Additional District Judge committed a material irregularity in allowing the respon dents to produce copy of the pedigree-table and that of the jamabandi a additional evidence and, therefore, his order under challenge calls for C interference by this Court. Accordingly, I accept this civil revision with costs, set aside his order and remand the appeal to him with the direction that he shall re-hear the appeal on merits and then decide it afresh in accordance with law.

M. Y. H. Revision accepted.

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