P L D 2007 Lahore 482 (PLP)

JAWWAD S. KHAWAJA, J.

The respondents-plaintiffs are the legal heirs of Allah Dad. Their case was that the appellant defendant, namely, Rehmat Ullah had executed two agreements (Exh.P.1 and Exh.P-2) on 28-5-1995. Through the first agreement, he agreed to sell the suit land to the respondents for a total consideration of Rs.8,30,

625. This agreement (Exh.P.1) is a registered instrument. The second agreement (Exh.P.2) was in respect of sale of trees and tube-well installed on the above land and the consideration for the same was Rs.200,

000. In their plaint, the respondents acknowledged that the total consideration for the two agreements was Rs.10,30,625.Accoridng to the contents of Exh.P.1, Rs.8,30,625 is stated to have been paid while in the second agreement (Exh.P.2) a sum of Rs.200,000 statedly was paid to the appellant.

2. According to learned counsel, subsequent to the filing of their suit the respondents changed their stance and as an afterthought Muhammad Shafi, one of them, recorded his better statement to the effect that the sum of Rs.2,00,000 mentioned in the second agreement (Exh.P.2) was not intended to be paid and that the amount was only mentioned in the agreement with the object of avoiding pre-emption. When Muhammad Shafi appeared as P.W.2, he deposed to the same effect.

3. Learned counsel for the appellant contends that although the better statement and testimony of Muhammad Shafi (P.W.2) is in direct conflict with the contents of the plaint, the learned Courts below have held that the amount of Rs.200,000 was not payable to the appellant. On this basis, it was argued that the learned Courts below have fallen in error and their decrees are, therefore, not legally sustainable.

4. Learned counsel for the respondents-plaintiffs, however, contended that in the second agreement (Exh.P.2) the appellant defendant had acknowledged receipt of payment of Rs.200,000 furthermore, the most material circumstances of the case is that possession of the suit-land was admittedly, delivered to the respondents-plaintiffs. This constitutes strong circumstantial evidence of the fact that no further amount was payable by the respondents to the appellant.

5. I have considered the submissions of learned counsel for both sides, and have also gone through the concurrent judgments and decrees of the learned Courts below. The factual controversy as to the disputed amount of Rs.200,000 has been duly considered and decided by the learned Courts below. The only issue is whether the evidence of Muhammad Shafi as P.W.2 and his better statement recorded by the learned trial Court on 10-11-1996 could be taken into consideration although the same were at variance with the contents of the plaint. This question must be answered in favour of the respondents-plaintiffs because at a very early stage before the trial Court Muhammad Shafi had appeared and recorded his better statement. The parties were fully aware of the contention between them and issue No. I was specifically framed in this regard in the following terms:-- "Whether the plaintiff failed to make the payment as per terms and conditions of the agreement and time fixed in the agreements for the payment of remaining sale price was the essence of the contract and defendant was not entitled to recover remaining amount of Rs.200,000? OPPs." In these circumstances, it would not be appropriate to give benefit to the appellant, of a technical flaw in the case of the respondents-plaintiffs.

6. The general rule that evidence led by a party cannot override its pleadings, has not to, be applied mechanically as an inviolable mantra. The circumstances of each case will determine the propriety of applying this legal principle. As was observed by Kaikaus, J. in the case titled Imtiaz Ahmad v. Ghulam Ali, "the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy". The primary purpose of pleadings is to put the opposing parties on notice of the case they will be required to prove or answer. The controversy between them is then reduced into issues. Evidence is led, focused on the issues. This procedure ensures that neither side in a case is caught unawares and thus prejudiced. In the present case, on account of the better statement, referred to above, and the specific issue framed in relation to the disputed sum, the parties were fully conscious of the claims respectively set up by them. As a consequence, the parties have led evidence in support of their competing pleas relating to the contentious amount of Rs.200,

000. In the circumstances, the only proper course available to the Courts below was to determine whether or not the plea of the respondents-plaintiffs was believable. They have rightly come to the conclusion that the respondents have successfully proved their case.

7. In the foregoing circumstances, I find no justification for interference in the concurrent decrees of the learned Courts below. This appeal as a result, is dismissed. M.H./R-3/L Appeal dismissed.