Departure from pleadings

2022 YLR 2354 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XXXVII, Rr. 1 & 2 & O, VII, R. 16Suit for recoveryArticle 76 of Qanun-e-Shahadat, 1984Departure from pleadingsContradictory dates in respect of lost cheque

Respondent/ plaintiff filed suit for recovery against defendant/appellant on the basis of a cheque, which was decreed by Trial Court

Held, that respondent/plaintiff was required to prove as to whether he was entitled to recover certain amount from appellant/defendant on the basis of cheque and evidence of respondent was materially discrepant and inconsistent on several counts

Due date of cheque was 07.05.2012 and in the plaint respondent/ plaintiff categorically stated that on 02.05.2012 he was going to encash the cheque but it was lost on the way and it remained unexplainable that as to why the cheque which was encashable on 07.05.2012 was being taken for encashment on 02.05.2012

Perusal of police report and statements of respondents during his examination and cross-examination showed four different dates of the loss of cheque

Respondent in his cross-examination also stated that he came to know about the lost cheque on the day of its encashment

Respondent failed to prove his case as the stance put forth by him was hit by the legal maxim "secundum allegata et probata" (no one could be allowed to prove a fact which was not pleaded under the law ) and "allegans contraria non est audiendus" (a person alleging contradictory facts should not be heard)

Appeal was allowed and suit for recovery was dismissed.

2019 CLC 1096 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O. VI, R. 7Departure from pleadingsEffectAnything stated outside the scope of suit, averments cannot be looked into

Order VI R. 7, C.P.C. not only excludes the element of surprise, but also precludes the party from proving what has not alleged or pleaded.

2016 YLR 539 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

IngredientsBurden of proofDeparture from pleadingsEffect

Onus would be on the beneficiary in case of disputed transaction to prove the execution, correctness, validity and legality of the gift

Donee was bound to prove that donor had made gift to him/her voluntarily, without duress and in all senses and he/she had accepted the same and possession was delivered to him/her in its wake

If any of the ingredients/ components was missing then claim of the donee should be rejected outright

Donee had to prove the ingredients of gift by leading cogent, convincing, sound and incontrovertible evidence

Party was required to first allege material fact in the pleadings before leading evidence with regard to the same

No one could be allowed to spring a surprise on its adversary

Defendant had demolished her own case by making a departure from the stance adopted in the written statement

Donor did not go to the Patwari Halqa nor did she report the alleged factum of gift made in favour of donee

Nothing was on record as to when, where and in whose presence donor declared to have made a gift of suit land

Donee had not accepted the gift made in her favour

Impugned mutation did not bear signatures or thumb impressions of alleged donor or donee

Neither the donor nor the donee appeared before the Revenue Officer who attested the gift mutation

Findings of Appellate Court had to be preferred to that of the Trial Court

Donee had failed to discharge the onus with regard to correctness, validity and legality of impugned mutation

Ingredients of valid gift were missing in the present case

Suit was rightly decreed by the Appellate Court

No illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court

Revision was dismissed in circumstances.

2015 PLD 41 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O. VI, Rr. 7 & 17Specific Relief Act (I of 1877), S. 12Suit for specific performance of contractMaxim: Secundum allegata et probata, principle ofApplicabilityDeparture from pleadingsGeneral power of attorneyNovation of contractEx parte evidence and affidavit of plaintiff was outright departure from pleadings

Averments made in the pleadings did not constitute evidence, evidence led by the party in support of his pleadings should be consistent therewith

Pleadings could not be departed except by way of amendment

Anything stated outside the scope of such an averment could not be looked into

Rule of "secundum allegata et probata" would not only exclude the elements of surprise but also preclude the proving of the facts which were not contained in the pleadings

Plaintiff himself had established novation of original agreement by producing/introducing general power of attorney on the basis of which he himself transferred the subject matter in favour of defendant

Plaintiff was estopped by his own conduct

Appeal was dismissed in circumstances.

2015 YLR 590 PESHAWAR-HIGH-COURT Judicial Precedent

O.VI, R.7Departure from pleadingsScope

Parties are not allowed to go beyond their pleadings and any such statement made during trial, would not be admissible.

2014 YLR 931 PESHAWAR-HIGH-COURT Judicial Precedent

O.VI, R.7Departure from pleadingsValidity

Parties cannot go beyond its pleadings and could not make a departure therefrom.

2013 YLR 2481 PESHAWAR-HIGH-COURT Judicial Precedent

O. VI, R. 7Departure from pleadingsScope

Departure from pleadings was confined to the parties who were bound by their pleadings and could not depart from the same without leave of the court.

2013 CLC 1850 PESHAWAR-HIGH-COURT Judicial Precedent

O. VI, R. 7Departure from pleadingsScopeLitigant could not be allowed to raise new ground during evidence not raised in the pleadings

After disclosure of positions of the parties in their pleadings, no evidence which deviated from or was contrary to the pleadings had to be looked out of consideration

Rights and obligations of the parties were to be determined keeping in view only such pleas which had been taken by them in their pleadings

Evidence adduced was to be considered only in respect of stance taken in the pleadings.