2021 PLP 1111 (CLC)

MUHAMMAD AMEER BHATTI, J.

This revision petition impugns the concurrent findings of facts recorded by the two courts below dated 08.02.2007 and 22.05.2010, respectively, whereby the suit for specific performance of agreement to sell instituted by the respondents was decreed by the learned trial court and appeal whereof preferred by the present petitioner was dismissed.

2. I have heard the learned counsel for the parties and gone through the record of the case.

3. The contents of plaint indicate that a piece of land measuring 12-kanals was alleged to have been purchased by the plaintiffs for a consideration of Rs.1,12,500/- through oral agreement to sell from the defendant. Execution of sale deed was postponed on account of non-sanctioning of mutation in favour of the defendant; however, Iqrar Nama was reduced into writing but the plaint is silent with regard to place, date, marginal witnesses of the oral agreement to sell as well as execution of Iqrar Nama. In response to contents of the plaint, the present petitioner filed written statement where he denied the execution of any oral agreement to sell and he has also specifically denied receiving of any amount or execution of any agreement to sell in favour of the respondents-plaintiffs. The learned trial court framed the following issues:-

1. Whether the plaintiffs are entitled to get a decree for specific performance as prayed in the plaint? OPP

2. Whether the plaintiffs have no cause of action to bring this suit? OPD

3. Whether the suit is false, frivolous and the defendant is entitled to get special costs under section 35-A of C.P.C.? OPD

4. Relief. Parties led their evidence. Petitioner produced two marginal witnesses of the Iqrar Nama whereas two other marginal witnesses of Iqrar Nama were produced by the plaintiffs-respondents. Petitioner's marginal witnesses certainly denied the execution of the agreement to sell whereas the plaintiffs' two witnesses admitted contents of the alleged agreement to sell. The petitioner's foremost contention is that undeniably the stand of the respondents was based on oral agreement to sell whereas, the particulars of oral agreement to sell have not been explained in the alleged Iqrar Nama, which was sine qua non for getting a decree in a case of specific performance. Reliance is placed on Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. (2013 SCMR 1300), relevant portion whereof is reproduced hereunder:- "Suit for specific performance

Oral agreement to sell immovable property

Proof

Plaintiff filed a suit for specific performance of an oral agreement to sell immovable property

Trial Court decreed the suit in favour of plaintiff

High Court set aside judgment and decree of Trial Court

Validity

Perusal of plaint showed that plaintiff had neither mentioned date of striking of bargain nor witnesses in whose presence the oral agreement to sell was arrived at were mentioned

No period was fixed for completion of oral agreement to sell and such fact did not find mention in the plaint

Names of alleged marginal witnesses of the oral agreement were not incorporated in the plaint

." The second limb of his argument is that no one can be allowed to prove his case beyond the scope of pleadings as enunciated by the honourable Supreme Court in a case reported as Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 Supreme Court 965). In another case cited as Mubarak Ali and others v. Khushi Muhammad and others (PLD 2011 Supreme Court 155) it has been held that no one can be allowed to plead and seek relief from the Courts on a plea not founded and embedded in his pleadings. In sequel to the said case law, the judgment reported as Combind Investment (Pvt.) Ltd. v. Wali Bhai and others (PLD 2016 Supreme Court 730) is also referred, which pronounces that none of the parties to a judicial proceeding can be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case cannot rest on such evidence.

4. To prove the oral agreement to sell, all the particulars must have been incorporated in the plaint, which are found missing, extinguishing the legal right of the respondents-plaintiffs. Moreover, the purported agreement to sell which was subsequently reduced into writing was also silent with regard to the particulars of the oral agreement to sell, therefore, the evidence led by the respondents being beyond the scope of pleadings, ought to have been excluded from consideration. Therefore, I have no hesitation in concluding that both the learned Courts below have misread and misconstrued the record of the case as well as enunciation of the apex Court in this regard have binding force in view of Art. 189 of Constitution of Islamic Republic of Pakistan, hence leaving no option with this Court except to exercise the revisional jurisdiction. Consequently, this revision petition is allowed, the judgments and decrees of the two Courts below are hereby set-aside and as a result whereof the suit of the respondents-plaintiffs stands dismissed. No order as to costs. SA/A-31/L Petition allowed.