P L D 2015 Balochistan 41
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
RIZWAN AHMAD BALOCH ---Appellant
Versus
ARSHAD KHAN and 2 others ---Respondent
R.F.A. No.71 of 2007, decided on 29th September, 2014
(a) Civil Procedure Code (V of 1908) ---
---O. VI, Rr. 7 & 17---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of
contract ---Maxim: Secundum allegata et probata, principle of ---Applicability ---Departure from
pleadings -- General power of attorney ---Novation of contract ---Ex parte evidence and affidavit
of plaintiff was outright departure from pleadings --- Averments made in the pleadings did not
constitute evidence, evidence led by the party in support of his pleadings should be consistent
therewith ---Pleadings could not be departed except by way of amendment ---Anything stated
outside the scope of such an averment could not be looked into---Rule of "secundum allegata et
probata" would not only exclude the elements of surprise but also preclude the proving of the
facts which were not contained in the pleadings ---Plaintiff himself had established novation of
original agreement by producing/introducing general power of attorney on the basis of which he
himself transferred the subject matter in favour of defendant -- Plaintiff was estopped by his own
conduct ---Appeal was dismissed in circumstances.
Government of West Pakistan's case PLD 1976 SC 469; 1968 SCMR 804; 1996
SCMR 336 and Maj. (Retd.) Barket Ali and others v. Qasim Din and others 2006
SCMR 562 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
---Art. 114---"Estoppel" ---Meaning ---Estoppel would only mean stopped ---Someone would be
stopped from saying something or other or doing something or other or contesting something or
other.
Hadi Shakeel Ahmed for Appell ant,
Hamayun Tareen, Addl. A.G. for Respondent No.3.
Date of hearing: 8th September, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---This, Regular First Appeal has been directed against the
ex parte order and decree dated 13th August, 2007 (hereinafter the "impugned Order/decree")
passed by the learned Senior Civil Judge, Gwadar (hereinafter the "Trial Court"), whereby the
suit filed by the appellant was dismissed .
2. The facts of the case are that on the basis of an agreement dated 29th December 2004, the
appellant on 22nd January 2007, filed a suit for specific performance of agreement with the
averments that respondent No.1 vide agreement dated 29th December 2004, agreed to sell the
property bearing No. 117/1, Khewat No. 13, Khatoni No. 13, measuring 13 acres, Mouza Chib
Kalmati Tehsil and District Gwadar (hereinafter the "property -in-dispute") in sale consideration
of Rs.5,200,000 (Fifty Two Lac), (Rs.400,000 per acre). It was further contended that the
appellant/plaintiff at the time or execution of agreement paid an amount of Rs.4,600,000. The
respondent/defendant No.1 acknowledged the receipt, whereas Rs.600,000 was agreed to be paid
in the last week of January, 2005. However on 12th February, 2005, the remaining amount was
paid by means of cheque of Standard Chartered Bank Clifton, Karachi. It is the case of the
appellant that after making payment of consideration amount, the respondent No.1 (defendant)
was appr oached, but he deceitfully and through misrepresentation transferred the property in
dispute to the respondent No.2 by means of mutation entry No. 249 and failed to honour its
obligation stipulated in the agreement dated 29th December 2004. The record of t he case reveals
that the respondent No.1 was served through courier service, however, notices were also
published in daily newspaper 'Nawa -e-Waqr dated 1st April 2007 and despite the same, they
remained absent and due to their non- appearance, they were pro ceeded against ex parte and the
appellant was directed to produce ex parte evidence.
3. The trial Court vide impugned order and decree dismissed the suit, hence this appeal .
Notices were served through publication in daily newspapers 'Express Karachi' and 'Nawa -e-
Waqt' but despite publication, respondents Nos.1 and 2 did not appear and vide order dated 22nd
October 2013, they were proceeded against ex parte .
4. The learned counsel for the appellant contended that besides his statement, he also produce d
affidavits of P.Ws. namely Ali Lashari, Kaleem Ahmed and Naeem Ahmed in support of his
contentions related to execution of agreement; that the averments made in the pleadings were
substantiated through ex parte evidence and there was no rebuttal, but the trial Court without
assigning, any cogent reason has tailed to appreciate the legal testimony of the appellant as well
as his witnesses; that the trial Court ought to have decreed the suit as the contents of the
pleadings were proved through evidence, but the trial Court non- suited the appellant and thus,
deprived him from his valuable right in the property; that the appellant had paid the
consideration amount through cheques but the documentary evidence has also not been
considered by the trial Court and thus, the impugned order apparently suffers from misreading
and non- reading of the evidence which has caused serious miscarriage of justice. The learned
counsel for the appellant has pointed out that in Para No.4 of the impugned order, where
according to h im, the agreement dated 29th December, 2004 was discarded by the trial Court
merely on unjustified reasons. The Bank statement indicating the payment towards the
consideration amount has altogether been ignored, which requires reappraisal by this Court .
5. We have heard the learned counsel for the appellant and considered the record appended along
with the appeal The appellant while producing ex parte evidence has relied upon the statement of
Ali Lashari and Naeem Akhtar, who stated about the execution of agreement dated 29th
December, 2004, between the appellant and the respondent No.1 in respect of the property -in-
dispute and the payment of consideration amount paid by the appellant. The appellant has
initially filed his affidavit, wherein it was contend ed that he purchased the property in dispute
from respondent No.1 vide agreement dated 29th December 2004 in consideration of
Rs.5,200,000 (Fifty Two Lac) and the said amount was paid as following :--
(1) 1,000,000 (Ten lac) through the property dealer Na eem Akhtar .
(2) 2,100,000 (Twenty One Lac) on 11th December 2004.
(3) 1,500,000 (Fifteen Lac) on 29th December 2004 through cheque.
(4) 600,000 (Six Lac) through cheque (Standard Charter Bank ).
6. The appellant, in his affidavit, further stated that after receiving the consideration amount, the
respondent was under legal obligation to transfer the property in dispute in favour of the
appellant, but he in disregard of the terms and conditions of the agreement, transferred the
property in favour of the respondent No.2. He lastly sought prayer for specific performance of
the agreemen t.
7. The appellant through ex parte evidence brought the above facts on record. The question
emerging for consideration is as to whether the appellant had proved what he has pleaded in his
plaint? The answer is surely 'No'. In Para No.3, the appellant had pleaded as under: ---
"That on payment of entire sale price the plaintiff genuinely expected transfer of agreed
landed property but, to his surprise, defendant No.1, deceived the plaintiff and transferred
same land to defendant No.2, by means of Mutation No.249 and FARD lntekhab Year
2005 entered in revenue record of Tehsil and District Gwadar. In the garb and pretence of
legalization he purchased one stamp paper of Rs .100 on 29- 3-2005, signed it without
execution, of power of attorney managed transfer of land through plaintiff assuring him
exorbitant pecuniary gain. Believing his inducement and pretended honesty the plaintiff
managed transfer of land in revenue record in favour of defendant No.2 at much low
price Rs.25,50,000 unlawfully saving payment of mutation fee in collusion with
defendant No.l."
8. In the above paragraph of the plaint, the appellant had averred that after execution of the
agreement dated 29th De cember 2004, he was induced by the offer of the respondent No.1 for
earning more profit. He, on the basis of power of attorney dated 20th March 2005, transferred the
property in dispute in favour of the respondent No.2. The above, stated ex parte evidence and
affidavit of the appellant is outright departure from his pleadings. The averments made in the
pleadings do not constitute evidence, but the evidence led by the appellant in support of his
pleadings must be consistent therewith as provided under Rule 7 of the Order VI, C.P.C., which
reads as under :--
"Departure - No pleading shall, except by way of amendment, raise any new ground of
claim or contain any allegation of fact inconsistent with the previous pleadings of the
party pleading the same.,
9. The above rule of procedure provides that the pleadings cannot be departed except by way of
amendment under Order VI, Rule 17, C.P.C., therefore, anything stated outside the scope of such
an averment cannot be looked into. The rule of "secundem allegata at probata" not only excludes
the elements of surprise but also precludes the proving of the facts which are not contained in the
pleadings. In the case of Government of West Pak PLD 1976 SC 469, 1968 SCMR 804 and 1996
SCMR 336, it is held, "that no party can be allowed to lead evidence on a fact which has not
been specifically pleaded nor can any evidence be looked into which is outside the scope of
pleadings". In the case of Major (Retd.) Barkat Ali and others v. Qaim Din and others, 2006
SCMR 562, the evide nce led outside the pleadings was not approved and the hon'ble Apex Court
observed as under :--
"The ratio of the afore -referred cases appears to be that a party is not permitted to deviate
from his or her pleadings nor can a Court set up a different plea for a party and decide the
suit on that basis, much less at the appellate stage ."
10. The other aspects of the matter, on the basis whereof the suit filed by the appellant for
specific performance of the agreement dated 29th December, 2004 was not maint ainable as the
appellant in Para No.3 of the plaint and thereby filing his supplementary affidavit stated as
under: --
NIC No. 52101- 27296077
11. The aforesaid supplementary statement of the appellant reveals that the appellant himself
established novation of the original agreement by producing/ introducing general power of
attorney dated 29th March 2005, on the basis whereof he himself transferred the subject matter
of the agreement, i.e. property in dispute, in favour of the respondent No.2 vide m utation entry
No. 249 and dispensed with the original agreement dated 29th December, 2004, he is estopped
by his conduct. 'Estoppel' only means stopped; someone is stopped from saying something or
other or doing something or other or contesting something or other .
12. Article 114 of the Qanun- e-Shahadat Order, 1984, which enacts that, "when one person has,
by his declaration, act or omission, intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief neither he nor his representative shall be allowed, in
any suit or proceedings between himself or such person, or his representative to deny the truth of
the thing ."
13. The nutshell of the above discussion is that the sanctity of the original agreement eroded
when the appellant vide general power of attorney dated 29th March 2005 effected the Mutation
No. 249 in favour of respondent No.2 and entered into a new transaction by novation of the
agreement dated 29th March 2005, as such, the impugned order passed by the trial Court does
not call for any interference by this Court, however, the appellant is at liberty to file a suit for
recovery of amount against the respondents with all just exceptions .
In view of the above, the appeal is dismissed and the parties a re left to bear their own cost .
AG/75/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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