BINYAMEEN and 3 others vs Chaudhry HAKIM and another

.SALEEM AKHTAR, J.---This appeal with the leave of the Court arises from the judgment of the learned Judge in chamber, whereby Constitution petition filed by the appellants against the order passed by the learned District Judge, Kasur by which he had allowed the Revision Petition preferred by respondent No, 1 and directed the Trial Court to admit in evidence the document sought to be proved by respondent No, 1 with a right of rebuttal to the appellants, was dismissed. Leave was granted to consider the question whether in exercise of its provisional jurisdiction the learned District Judge acted legally in directing the trial Court to admit in evidence a document which had not been earlier relied upon by respondent No, 1. .

2. The brief facts are that appellants Nos. 1, 2 and 3 filed a suit for declaration with consequential relief of permanent injunction that their father Muhammad Yousuf had gifted the land in dispute through an oral gift on 2-1-1981 and possession was delivered to them. An ex parte decree was passed in their favor as Muhammad Yousuf did not appear and accordingly in pursuance of the decree, mutation was sanctioned on 23-8-1982 in favor of the appellants. Respondent No, 1 alleged to be an influential person of the locality being Ex-Chairman, District Council and M.PA. Filed an application under section 12(A), C.P.C. (12(2), C.P.C.) for setting aside the decree dated 5-7-1981 having been obtained by fraud. During the Trial, respondent No, 1 sought to produce a document describing it as a receipt. The appellants objected to its production on the ground that it was a sale agreement which was neither relied upon nor filed along with the plaint. It was further objected that respondent No, 1 having pleaded that the disputed property was sold to him by an oral agreement, it did not lie at that stage to produce a documentary evidence showing an agreement to sell. The learned Trial Court by its order dated 13-7-1985 held that the document sought to be produced was an agreement of sale and not a receipt and holding the objection raised by the appellants refused to allow the production of the said document and the same was not admitted in evidence. The proceedings in application under section 12(2) continued and evidence of the parties was recorded. The matter was then fixed for arguments when respondent No, 1 filed a revision application on 30th April, 1990 before the District Judge challenging the order dated 13-7- 1985. The learned District Judge by order dated 26-2-1991 accepted the same, inter alia, holding that the document in question had been placed on record under the signature of the Court before framing the issues and as such the Trial Court had illegally refused to admit the documentary evidence. The appellants filed Constitutional petition against this order which was dismissed by the impugned order.

3. The learned Judge in Chamber held that the order of the Trial Court declining to admit the document in evidence amounted to a case decided and the learned District Judge had the jurisdiction to entertain and decide the revision petition under section 115, C.P.C. On merits it was held that the learned District Judge "hag not accepted the reasoning of the Trial Court that the document sought to be produced in evidence was not relied upon by the respondent. It has instead been found by the District Judge that the document though initially not annexed with the plaint was subsequently placed on record by the respondent before the framing of the issues under the signatures of the Court then without contest from the opposite side, so raising a presumption that the document was placed on record with the permission of the Court and consent of the opposite side". According to the learned Judge this finding was not questioned by the counsel for the appellants and if the document were admitted the appellants will have had a right of rebuttal. The question of authenticity genuineness and its relevancy was left open to the Trial Court to decide it in due course.

4. The learned counsel contended that respondent No, 1 having pleaded an oral agreement could not be allowed to prove the same through a written agreement which respondent No, 1 was seeking to do by producing the agreement. From the document placed on record it is clear that respondent No, 1 challenged the decree passed in favor of the appellants on the plea that Muhammad Yousuf had orally agreed to sell the disputed property on 15-12-1980 and the sale price of Rs,3 laces was fixed. It was further alleged that in compliance with this agreement, sale deed dated 17-9-1981 was effected between respondent No, 1 and Muhammad Yousuf. Possession was also alleged to have been given to him on 15-12-1980. Respondent No, I has thus based his case on the plea of oral agreement dated 15-12-1980 which was prior to date of gift dated 2-1-1981 made by Muhammad Yousuf in favor of the appellants. . In order to prove this plea, respondent No, 1 sought to produce during evidence lqrarnama, the disputed document dated 15-12-1980. The contents of the document show that it was an agreement to sell for Rs,3 laces and Rs,25,000 were received by Muhammad Yousuf. This document does not anywhere show that earlier or on the same date there had been any oral agreement between the parties. The appellants thus changed plea of oral agreement to a written agreement. This was not permissible in law and furthermore such a document could not have proved the plea of oral agreement pleaded in application under section 12(2), C.P.C. It is a well-settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellants referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove B those pleas. Variation in pleading and proof is not permissible in law. A party pleading an oral agreement cannot prove it by producing a document which does not speak of the oral agreement but speaks of a written agreement. This would amount to substituting a completely new plea which had not been pleaded. As proof cannot be different from pleading respondent No, 1 should not have been allowed to produce a document to prove a completely different fact and different plea. The Trial Court was competent to decide whether in such circumstances respondent No, 1 could be allowed to produce this document which could. Not have proved the oral agreement and was introducing a completely new case without amending the plaint. The provisional Court, therefore, did not act legally and has committed material irregularity which may cause miscarriage of justice. .

5. The learned counsel contended that respondent No, 1 was debarred from filing application, as he allowed the case to proceed up to the argument stage and filed the revision application after five years of the order passed by the learned Trial Court. . At the time the matter was proceeding before the Court below there was no time limit fixed for filing revision application. However, the practice had been that it should be filed within a period of 90 days and if there is delay it should be satisfactorily explained. In the present case respondent No, 1 sought to file revision petition after a period of 5 years. In spite of the fact that no period of limitation was provided at that time, the learned District Judge was duty bound to have examined whether on the face of such latches he ought to have exercised his discretion in favour of respondent No,

1. The conduct of respondent No, 1 in proceeding with the case up to the argument stage without any objection and resorting to file revision application after 5 years completely manifests his mala fides and intention to prolong the litigation against the appellants who were minors. Such conduct of respondent No, I disentitle him from seeking a remedy by filing a revision petition. We, therefore, allow the appeal, set aside the impugned order of the High Court and the order passed by the learned District Judge with no order as to costs.