2003 PLP 542 (SCMR)

‑‑‑‑O.VI, R.17‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Amendment in pleadings‑‑‑Power of Supreme Court to grant such permission ‑‑‑Scope‑‑ Petitioner instead of availing suitable remedy at proper stage for an appropriate relief, raised such matter before Supreme Court on the ground that necessary amendment in pleadings could be allowed at any stage and that Supreme Court had unlimited power to grant such permission to do complete justice‑‑‑Validity‑‑‑No such request could be entertained by the Supreme Court at such belated stage. (d) Limitation‑ ‑‑‑‑ Plea of‑‑‑Principle of estoppel ‑‑‑Applicability‑‑‑Party would be debarred from raising plea of limitation on general principle of estoppel arising from his conduct, particularly when such plea taken belatedly involved an inquiry of facts. Muhammad Buta v. Habib Ahmed PLD 1985 SC 153 fol. Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 2nd July, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 18‑7‑2001 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in the revisional jurisdcition. The relevant facts giving rise to this petition are that Muhammad Shafi, respondent herein, filed a suit against Mst. Noor Khatoon (deceased petitioner, widow of his brother Mahboob Khan, and her son Niaz Hussain, petitioner No.2, for partition of Havaili jointly owned by him and his brother Mahboob Khan in equal share. The respondent sought separate possession of his share in the Havaili measuring 6 Marlas. The petitioners pleaded in the written statement that Havaili was exclusively owned by Mst. Noor Khatoon and she made will of the Havaili in favour of Niaz Hussain vide will deed dated 17‑8‑1949 and since then Niaz Hussain was in possession of the Havaili. The respondent ultimately succeeded in suit and the trial Court vide judgment dated 10‑12‑1985 passed a preliminary decree in his favour with the declaration that respondent was owner of 7/8th share in the Havaili. Upon dismissal of appeal preferred by the petitioners against the judgment and decree, vide judgment dated 28‑2‑1998, by the learned Additional District Judge, Chakwal, they filed a civil revision in the Lahore High Court, Rawalpindi Bench, and a learned Single Judge having diluted upon the matter in detail, dismissed the revision petition vide the impugned judgment. The plaintiff as well as the defendants in the suit claimed that Havaili‑ was purchased by them from Gopi Chand. Mst. Noor Khatoon claimed ownership of the Havaili through a mutation whereas in the Excise and Taxation record relating to the suit property produced before the trial Court, Muhammad Shafi respondent and Mahboob Khan, his brother, were the owners of the property. The learned Judge in the High Court having examined the record affirmed the finding of the two Courts below relating to the title of the suit property and dismissed the revision petition. Learned counsel for the petitioners in support of this petition, has argued that respondent, except banking upon the record of Excise and Taxation Department which would not be an evidence of title, produced no other evidence in support of his claim of share in Havaili and that the Havaili being an evacuee property was owned by the Central Government which fact being evident in the Revenue Record, was pleaded in the High Court but unfortunately this important aspect of the matter escaped the notice of learned Judge, in the High Court. Learned counsel contended that during the pendency of the civil revision, a Civil Miscellaneous bearing No. 11‑C of 2001 was moved on behalf of the petitioners for permission to bring on record the documents including Jamabandis for the years 1939‑40 to 1979‑80 as additional evidence to show that the suit Havaili being an evacuee property was transferred in the name of Niaz Hussain in 1978 by the Settlement Department but the said application was not allowed. Learned counsel argued that since the fact relating to the true character of the property came to the notice of the petitioners when the matter was in the High Court, therefore, the same could not be brought on record in the suit or appeal for want of knowledge. In nutshell, learned counsel submitted that in view of the ownership of land of Central Government, the decree in the suit concurrently passed in favour of respondent, would not be sustainable. The learned counsel for the petitioners when is confronted with the averments of written statement filed on behalf of the petitioner No. l in the suit wherein she stated that she being exclusive owner of the Havaili bequeathed the same to Niaz Hussain, her son; through will in 1949 and did not state at any stage that it was an evacuee property, the learned counsel frankly conceded that in the jamabandis in existence at the time of filing of the written statement, one Jaswant Singh was the owner of the property and not Gopi Chand but the evacuee interest in the property was neither pleaded in the written statement . nor at any subsequent stage. The introduction of new facts and setting up a different plea in conflict to the pleading, changing of the character of suit, cannot be allowed to be taken at a subsequent stage without amendment of the pleadings. In the present case, the petitioners made an attempt to set up a different plea before the High Court by moving a miscellaneous application but it appears from the judgment that same was not urged before the Court. It is not denied by the learned counsel that petitioners were not aware of the entries in the Jamabandis relating to evacuee character of property, therefore, they would be estopped to set up a new case before the High Court or before this Court to challenge the decree in the suit passed by the Court of first instance and affirmed by the Appellate Court. The petitioners instead of availing a suitable remedy at the proper stage for an appropriate relief, preferred to agitate the matter before this Court and learned counsel has made an attempt to convince us that the necessary amendment in the pleadings can be allowed at any stage and that this Court has unlimited power to grant such permission to do the complete justice. We are afraid, no such request can be entertained at this belated stage. It was held in Muhammad Buta v. Habib Ahmed (PLD 1985 SC 153) that a defendant has been held to be debarred from raising the plea of limitation on the general principle of estoppel arising from his conduct. This will be particularly so if the plea belatedly taken involves an inquiry on facts. We having heard the learned counsel for the petitioners and perused the record with his assistance, have not been able to find out any legal or factual infirmity in the judgment of the High Court and for the reasons given above, this petition having no substance is dismissed. Leave is refused S.A.K./N‑87/S Leave refused.