2003 PLP 14 (CLC)

On 30‑3‑1983 the petitioner filed a suit against the respondents. In the plaint it was stated that the petitioner is owner of the suit‑land mentioned in para. 1 of the plaint. In para.2 of the plaint it was stated that one Muhammad Siddique son of Malik Abdullah acting as general attorney of the petitioner had proceeded to sell away the said land in favour of respondent No.1 vide registered sale‑deed dated 22‑3‑1983. It was then stated that sale‑deed is not valid inasmuch as he had cancelled power of attorney on 20‑4‑1976. Thereafter the respondent No.2 tiled a pre‑emption suit and got a decree on 19‑3‑1986: With these averments a declaration was sought that the said sale‑deed and said decree are illegal and void. The suit was contested by respondent No.2, who explained in his written statement dated 10‑12‑1986 that he has obtained a decree and has made a deposit of Rs.86,000 in Court. He then states that the suit is wholly misconceived for the reasons that Muhammad Siddique who transferred the land to him was equipped with power of attorney that was executed and registered on 26‑6‑1976. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit vide judgment and decree dated 8‑12‑1987. A learned Additional District Judge, Sheikhupura, dismissed first appeal of the petitioner on 5‑6‑1989.

2. Learned counsel for the petitioner have argued that the learned Courts below particularly learned Additional District Judge has gone by a technicality while non‑suiting the petitioner. According to the learned counsel the suit could not have been deferred for the reasons that necessary pleadings were not made. Learned counsel for the respondents on the other hand contend that the learned Courts below have rightly refused to consider the evidence in support of un-pleaded facts.

3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the material contents of the plaint above. The sole ground of attack on sale‑deed dated 22‑3‑1983 is that the power of attorney in favour of Muhammad Siddique was cancelled on 20‑4‑1976 while sale‑deed executed and registered on 22‑3‑1983. Now in the course of evidence Muhammad Iqbal the general attorney of the petitioner, vide document Exh.P.1, proceeded to state that the land is in possession of Qasim who was sold the land by Muhammad Bashir that Muhammad Siddique fraudulently sold the land to his nephew/son‑in‑law and this forgery was done on the basis of forged general attorney. Then he states that power of attorney had been cancelled by Muhammad Bashir. Thereafter Muhammad Siddique prepared another power of attorney and that Bashir had not executed this power of attorney. Now on a perusal of this examination‑in‑chief of petitioner's attorney without even a reference to cross‑examination it will be seen that there is no plea in the plaint that the land stands sold to Qasim and in his possession; there is no plea in the plaint that any power of attorney was fabricated by Muhammad Siddique. There is no plea in the plaint that Muhammad Siddique had forged another power of attorney. There is thus no nexus between the contents of the plaint and said evidence of the petitioner in the witness -box. To top it all the petitioner proceeded to produce a document Exh.P.5 which is certified copy of deed of cancellation whereby power of attorney dated 26‑4‑1976 in favour of Siddique has been cancelled. There is no allegation in this document that said power of attorney was not executed by the petitioner or that it has been forged. On the other hand it has been stated in this document that power of attorney was obtained by exercising undue influence.

4. No foundations have been laid in the plaint for the case sought to be set up in the course of evidence. One of the rules firmly entrenched in our jurisprudence and repeatedly affirmed by the Honourable Supreme Court of Pakistan is that in the matter of civil proceedings governed by C.P.C. no party is to be permitted to lead evidence in respect of facts which are not pleaded and even if such evidence comes on record, the same is not to be looked into. Reference may be made to the case of Amir Shah v. Ziarat Gul 1998 SCMR

593. To my mind the learned lower Courts have not committed any error while discarding evidence.

5. Coming to the said contention of the learned counsel for the petitioner, as stated by me above, it is not mere technicality rather a rule of law and violation of the said rule of law is not even denied. It is rather unfortunate that it was as far back as on 10‑12‑1986 that respondent No.2 stated all the facts in his written statement. No attempt was made to amend the plaint while suit remained pending till 8‑12‑1987. No effort was made to cure the fatal defect in the course of first appeal. This civil revision was filed in the year 1989 and has been heard today after about 13 years. Despite the reasoning contained in the judgment of the learned Additional District Judge based on rules of secundum allegata et probata no attempt was made throughout this period of more than one decade to amend the pleadings. This is a civil revision, this Court exercised jurisdiction to correct errors made by the subordinate Judges while deciding matter. To my mind it cannot be extended to correct errors made by the parties or on their behalf. There is no evidence in support of the case pleaded in the plaint and as such no case stands made out to enable this Court to interfere with the impugned judgments and decrees within the parameter of section 115, C.P.C. This civil revision is accordingly dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./M‑1374/L Revision dismissed.