Muhammad Asif Vs Mst. Sumaira Rohi etc

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Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No. 54542/2024

Muhammad Asif Versus Mst. Sumaira Roohi etc.

JUDGMENT

Date of hearing: 10.04.2025

Petitioner by: M/s Ch. Abdul Majeed, Ch. Zahid Majeed, Mian Shahid Rasool and Sajjad Saleem, Advocates.

Respondent No.1 In person.

by:

Respondent No.2 Nemo.

by:

MALIK WAQAR HAIDER AWAN, J:- Through the instant Civil Revision, petitioner has assailed the vires of judgment and decree dated 24.04.2024 passed by learned Additional District Judge, Faisalabad whereby he partially accepted the appeal filed by respondent No.1 while modifying the judgment and decree dated 06.03.2023 passed by learned Civil Judge 1st Class, Faisalabad.

2.Concisely, the facts giving rise to the present Civil Revision are that petitioner/plaintiff filed a suit for possession through specific performance against respondent No.1/defendant on the basis of agreement to sell dated 15.03.2014 (Ex.P-1) (hereinafter called “agreement”). Through the initial plaint, petitioner/plaintiff sought specific performance of the agreement regarding prospective share out of Khewat No.154 situated at Chak No. 87-B, Tehsil and District Faisalabad was mentioned but thereafter, he sought amendment in the

plaint beyond the property mentioned in the agreement by including other Khewats No. 24, 33, 160 and their land which was allowed by learned trial court. Respondent No.1/defendant after appearing before learned trial court and moving a miscellaneous application disappeared later on and thus, ex parte evidence was recorded, resultantly suit of the petitioner/plaintiff was ex parte decreed vide judgment and decree dated 06.03.2023. Feeling aggrieved, respondent No.1/defendant preferred an appeal which was partially accepted by learned appellate court vide judgment and decree dated 24.04.2024, therefore, this Civil Revision.

3.Learned counsel for the petitioner contends that learned appellate court granted the decree on the point which was never raised in the appeal before it and as such the same was in violation of Order XLI Rule 2 CPC. Adds that if learned appellate court wanted to decide the appeal beyond the grounds raised therein, it should have issued notice in this respect to the petitioner. At the fag end of his arguments, learned counsel prays that in these circumstances, the case be remanded to learned appellate court for decision afresh after issuing him notice under Order XLI Rule 2 CPC.

4.Conversely, respondent No.1, who has opted to argue the case herself, has supported the judgment and decree passed by learned appellate court and prays for dismissal of the instant Civil Revision.

5.Heard. Record perused.

6.According to Order VI Rule 17 CPC, pleadings can be amended at any stage of the proceedings. For ready reference, the said provision is reproduced below:-

Amendment of pleading. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

7.Definition of pleading is provided in Order VI Rule 1 CPC. For ready reference, the said provision is reproduced below:- Pleading. “Pleading shall mean plaint or written statement.

8.The Supreme Court of Pakistan in its judgment reported as Muhammad Munir and others v. Umar Hayat and others (2023 SCMR 1339) has emphatically held that a party could not go beyond the scope of its pleadings. It is also a settled principle of law that a party cannot be permitted to lead evidence in respect of a plea not taken in the pleadings or to put it in another manner a party has first to plead and then to prove the said plea. In this regard, it would be expedient to refer to celebrated principle/maxim of law i.e. Secundum Allegata et-Probata (a party can only succeed according to what was alleged and proved). Reliance can be placed upon Amir Shah v. Ziarat Gul (1998 SCMR 593) and Ch. Rab Nawaz v. Mst. Nasreen and others

(2000 YLR 33).

9.In addition to above, it shall be important to mention here that pleading per se is not evidence rather pleading is the basic engine of litigation and whole controversy revolves around it. Light can be taken from the dicta laid down in Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914) and Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommuncation Company Limited and another (2014 SCMR 922) and Muhammad Iqbal v. Mehboob Alam (2015 SCMR

10.Placing the afore-noted case-law in juxtaposition with the facts of present case, it is very much clear and conspicuous that under Order VI Rule 17 CPC, Court can only allow amendment in the pleadings and not the basic documents which have been executed amongst the parties. In the present case, learned trial court allowed the petitioner/plaintiff an amendment which is beyond the basic document i.e. agreement (Ex.P-1). The terms of an agreement, contract or

document could only be amended or negotiated by the parties themselves with their mutual consent and as such it was not the mandate of learned trial court to allow any amendment in the terms and conditions of the agreement against the will of concerned party in the garb of amendment in the pleadings. In this scenario, it can safely be said that learned trial court passed the judgment and decree beyond the jurisdiction vested in it.

11.Epitome of the above discussion is that this Court does not find any illegality, legal infirmity, jurisdictional defect, mis-reading, non- reading of record in the impugned judgment and decree to which no exception can be taken by this Court in revisional jurisdiction. With this observation, this Civil Revision being devoid of merits stands dismissed.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Signed

APPROVED FOR REPORTING

JUDGE

Abis Ali