MUHAMMAD HUSSAIN (Deceased) through his Legal Heirs vs NOOR
This Regular Second Appeal arises from the dismissal of a suit for possession of land, which was rejected by the trial and appellate courts on the ground that the sale violated paragraph 25 of Martial Law Regulation No. 64. The core legal question was whether a court is justified in dismissing a suit based on a legal objection that was neither pleaded in the written statement nor framed as an issue, but raised for the first time during final arguments. The High Court held that the lower courts erred in entertaining this unpleaded objection. The court reaffirmed the principle that parties are bound by their pleadings and cannot set up a different case at a subsequent stage to surprise the opposing party. If a party intends to raise a material legal objection, it must be incorporated into the pleadings through a formal amendment. Consequently, the High Court set aside the impugned judgments, remanded the case to the trial court for a fresh decision, and granted the defendant liberty to seek an amendment to the written statement.
- Can a court decide a case based on a legal objection not raised in the pleadings or issues?
- Is it permissible for a party to raise a new legal objection for the first time during final arguments?
- Must a party seek an amendment to the written statement to introduce a new legal objection?
- Paragraph 25, Martial Law Regulation No. 64
' This R.S.A. 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 Judge 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,1 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. He, 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 SCM R 16%, 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 8-1-1991. 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.