Law: Civil Procedure Code (V of 1908)

Section: 115,27

Civil Procedure Code, 1908 (V of 1908)-- ----S. 115 & O.XLI R. 27--Application for conducting of DNA test of petitioner during pendency of appeal--Allowed--Powers of High Court--Parameters--Principle of balance of probabilities--No application was filed in trial Court--No exceptional circumstances--Concurrent findings--Challenge to--Power under Order XLI Rule 27 of CPC is not intended to be exercised to fill up lacunas, or to make up any deficiency in case, nor to provide an opportunity to party to raise a new plea--The power essentially has to be exercised cautiously and sparingly and not to facilitate an indolent litigant--Petitioner had brought sufficient evidence on record to prove, on touchstone of principle of balance of probabilities and preponderance of evidence, factum of being Jabbar Din’s daughter--The respondents were not able to rebut evidence and, therefore, two competent Courts concurrently recorded findings in favour of petitioner’s claim--Respondents had not filed any application before trial Court nor appellate Court for recording of additional evidence--The grounds mentioned in application, filed under Order XLI Rule 27 of CPC, did not disclose any exceptional circumstance to justify recording of additional evidence--The remanding of matter and setting aside of concurrent findings by two competent Courts was not in consonance with legislative intent unambiguously manifest from principles--Petition allowed. 1988 SCMR 1782, PLD 1986 SC 88 & PLD 1989 SC 112 ref. ORDER Athar Minallah, J.--Shamshad Bibi (‘petitioner’) has sought leave against the order, dated 24.5.2022, whereby the High Court allowed the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (‘CPC’) and has remanded the matter to the trial Court for recording of additional evidence. The civil revision was also subsequently allowed and the concurrent findings of the two competent Courts were set-aside. 2. The petitioner asserted in the plaint that she was the daughter of Jabbar Din and granddaughter of Mst. Karima Bibi. The dispute is regarding the inheritance mutation incorporated in the revenue record after the passing away of Jabbar Din and his mother…

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