1992 PLP 1459 (CLC)

This R.SA. is directed against the judgment and decree, dated 26‑7‑1969, by which the learned District Judge, Gujranwala, had dismissed the appeal of Muhammad Hussain plaintiff‑appellant (who after his death is now represented by his legal representatives) against the judgment and decree, dated 7‑6‑1968, whereby his suit was dismissed by the learned trial .fudge on account of the sale in question being in violation of Martial Law Regulation No.64.

2. The plaintiff‑appellant had brought the suit against the defendant respondent for possession of the disputed land on account of the same having ' been purchased by him from his father Rehmat Ullah.

3. The suit was contested by Noor Muhammad defendant‑respondent on various grounds and in view of the pleadings of the parties a number of issues, including issue No.l which is reproduced hereunder, were framed:‑ `Whether Rehmat Ullah father of the defendant sold the suit property to the plaintiff? OPP.

4. After recording the evidence of the parties, the learned trial Judge at the time of hearing the arguments allowed the learned counsel representing the defendant‑respondent to raise an objection against the sale in question on account of its being in violation of paragraph No.25 of MLR No.64 which prohibited the sale of a piece of land if such sale reduced the remaining land of the vendor in a revenue estate below the subsistence holding or economic holding. He alleged that in this case the remaining land of Rehmat Ullah vendor, after the sale in question had been reduced to less than subsistence holding. The learned trial Judge, accepting this contention declared the sale as in violation of the aforesaid provision of law and ultimately dismissed the suit on this ground alone, without touching any other issue.

5. On appeal the learned District Judge also took the same view and dismissed the appeal of the plaintiff‑appellant fie, therefore, came up to this Court in Regular Second Appeal.

6. It is argued on behalf of the appellant that there was no objection in the written statement of the defendant‑respondent regarding the violation of any provision of paragraph No.25 of Martial Law Regulation No.64, nor there was any issue to that effect but the learned counsel representing the defendant‑respondent while addressing argument on issue No.1 happened to irrelevantly agitate the question of violation of the aforesaid provisions of the Regulation and the learned trial Judge allowing himself to be misled by those arguments, happened to record an erroneous finding thereon and dismissed the suit. According to the learned counsel, even the learned District Judge, Gujranwala, could not appreciate the legal position and wrongly affirming the findings of the Court below, dismissed the appeal of the plaintiff appellant.

7. Learned counsel for the defendant‑respondent on the other hand, with reference to Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, submits that a law point can be agitated and the findings recorded thereon even if that point is not taken up in the pleadings of the parties and no issue is framed thereon.

8. The general and the well‑accepted principle of law is that the parties cannot 'go out of their pleadings and set up a different case at a subsequent stage by jumping surprise on each other. If the learned counsel representing the defendant‑respondent in the trial Court was of the view that the objection regarding the violation of any provision of the said Regulation had a material bearing on the suit, he should have taken up this objection in the written statement and if he could not initially mention it therein, then he could incorporate it by seeking amendment therefor but he could not short‑circuit the whole procedure and abruptly raise this point at the time of argument. The law, as recently enunciated by the Supreme Court in. Mst. Jannat Bibi 'v. Sher Muhammad and others 1988 SCMR 1696, does not favour the view and the course adopted , by the Trial Court and the lower appellate Court.

9. Therefore, the appeal is accepted, the impugned judgments and decrees of the Courts below are set aside and the case is remanded to the Trial Court with the direction that it should decide it afresh in accordance with law. The defendant‑respondent shall be at liberty to move the Trial Court for the amendment of his written statement in order to incorporate the aforesaid objection therein and the Trial Court shall deal with his request on merits.

10. Parties are directed to appear before it on 8‑12‑1991. Being an old matter, the learned trial Judge shall decide it within a period of three months and if any party goes in appeal, the appellate Court shall dispose it of expeditiously. H.B.T./M‑154/L Appeal accepted.