This appeal is directed against the judgment and decree dated 31.3.2003 passed by the learned Senior Civil Judge/Aala Maga Qazi Dir Payeen at Timargara, whereby the suit filed by the respondent/plaintiff was decreed in his favour to the extent of recovery of Rs, 7,27,000/-.
2. Mr. Mazullah Barkandi, Advocate the learned counsel representing the appellant argued that the suit filed by the respondent/plaintiff was in fact pre-mature as not only Govt. has imposed restrictions on the transportation of timber, but due to dispute of `Qaum' inter se with regard to the payment of royalty also, the time was not being allowed to be transported, therefore, the appellant was handicapped and he could not be burdened for specific enforcement of the agreement in question.
3. It was also argued that in fact the suit filed by the appellant was barred by time; in that the agreement was executed by any between the parties on 13.6.1994, whereas the suit in hand had been filed on 3.6.1999 i,e, after about 5 years of the execution of the agreement, since the period of limitation for enforcement was 3 years, therefore, suit was barred by the law of limitation.
4. It was also argued that the agreement in question Ex. P.W.1/3 had not been signed/executed by the appellant, therefore, he was not bound by the same.
5. On the other hand Mr. Hidayatullah Khan, Advocate the learned counsel representing the respondent/plaintiff argued that in fact the appellant/defendant was not owner of any timber in Compartment No, 295 Lot No, 375, therefore, he could not sell his right of royalty to the respondent/plaintiff. The appellant/defendant himself placed on record copy of affidavit Ex.
D.W.2/1. Said affidavit was executed by 9 persons, who were the owners in the compartment mentioned in the said document. The name of appellant does not appear as owner.
6. It was also argued that the appellant had in Para No, 1 of the written statement admitted having executed the agreement dated 13.6.1994 Ex. P.W.1/3 and he was bound by admission made in his pleadings. Reliance in this regard was placed on Mst Niaz Begum vs. Waris Khan (1995 M LD 690).
7. I have heard the learned counsel for the parties and perused the record.
8. The pivotal point/issue which needs determination in this case is Issue No, 3 which is to the following effect:-- Whether the defendant was bound by agreement dated 13.6.1994 to supply 5000 C.ft Partal and 4000 C.ft Diyar to plaintiff and in case of his failure is he liable to pay Rs, 7,27,000/- to the plaintiff?
9. Answer to this question is in the affirmative. The admitted position in this case is that parties executed agreement dated 13.6.1994 Ex. P.W.1/3 through which the appellant/defendant sold his 60% royalty rights with regard to timber i,e, Partal 5000 C.ft and Diyar 4000 C.ft at the rate of Rs, 81/- per C.ft. Out of Compartment No, 295 Lot No, 375 situated in Jungle known as "Shergah Bar Killay Guldi" Tehsil Dir. In addition to agreement Ex. P.W.1/3 the appellant also executed power of attorney Ex. P.W. 1/2 in favour of respondent/plaintiff, thereby authorizing him to receive 60% royalty amount after selling the above mentioned timber. On refusal of appellant/defendant to hand over the agreed quantity of wood, the respondent/plaintiff brought suit for specific performance of agreement dated 13.6.1994 Ex. P.W. 1/3 and in the alternative for recovery of Rs, 7,27,000/- with Bank rate. The appellant/defendant on service appeared before the Court and submitted his written statement. In reply to Paragraph No, 1 of the plaint, the appellant/defendant stated that the same was correct. By admitting Para No, 1 of the plaint as correct he not only admitted the execution of agreement dated 13.6.1994 but also receipt of Rs, 7,27,000/-cash and execution of special power of attorney in favour of respondent/plaintiff. It is by now settled law that under Article 113 of Qanoon- e-Shahadat Order 1984, admissions in the pleadings are conclusive and have overriding role which does not permit that admission through evidence or unrebutted statements be made basis of adjudication in exclusion to pleadings admission. In the scheme of Qanoon-e-Shahadat Order, 1984 Article 45 of the ibid Order also deals with admissions but such Article applies to evidentiary admissions, whereas Article 113 is a rule of procedure and as per this Article no fact needs to be proved in any proceedings, which the parties thereto or their Agents agree to admit at the hearing or which before the hearing they agreed to admit by in writing under their hand or which by any rule or pleadings at the time they are deemed to have admitted by their pleadings. The Court, however, has discretion that the facts admitted be proved otherwise than by such admissions.
Since the appellant/defendant had in his written statement admitting having executed agreement dated 13.6.1994 Ex. P.W.1/3 execution of special power of attorney Ex. P.W.1/2 and receipt of Rs, 7,27,000/- in cash he was bound by the same and was liable to either hand over the timber mentioned in the agreement or in the alternative was liable to pay the amount received i,e, Rs, 7,27,000/- to respondent/plaintiff.
10. The argument of the learned counsel for the appellant that the suit filed by the respondent/plaintiff was barred by time has no force. In the written statement not only in the preliminary objections, but while replying the factual aspect also, the appellant/defendant taken up the plea that the suit filed by the respondent/plaintiff was "pre-mature". His stand remained the same throughout the trial and now the learned counsel for the appellant took up altogether different plea of (time barred), which was never raised by him in the trial. It is well settled that a party cannot be permitted to raise an altogether new ground of attack of defence, by departing from his pleadings especially when the opposite party has no opportunity of adducing evidence in this behalf or to otherwise have an opportunity of meeting the plea during the course of trial.
Wisdom in this regard has been sought from the following reported judgments:-- (1)Mst. Murad Begum etc. vs. Muhammad Rafique etc. (PLD 1976 S.C. 322); (2)Mst. Salima Bibi vs. Mst. Halima Bibi (1994 SCM R 1856) & (3)Citi Bank vs. Riaz Ahmad, (2000 CLC 847).
11. The appellant/defendant had neither taken the plea of suit being barred by time nor he uttered a single word in his statement recorded before the Court that the suit filed by the respondent/plaintiff was hit by law of limitation and even if there had been any evidence in this regard, the same could not be looked into because no evidence can be led or looked into in support of plea which had not been taken in pleadings. Reliance in this regard is placed on the following reported judgments:-- (a)Din Muhammad & others vs. Sardar Muhammad Zaman (2001 SCM R 1992) and (b)Binyamin and 3 others vs. Chaudhry Hakim & others (1996 SCM R 336)
12. Keeping in view the above mentioned discussion I feel no hesitation in holding that the learned trial Court has properly appreciated the evidence available on record and has reached to a just conclusion. It has committed no illegality warranting interference in the impugned judgment/decree.
Resultantly, the appeal in hand is dismissed with no order as to costs.