This Civil Revision has been directed against the impugned judgment and decree of learned Additional District Judge-V, Kohat dated 15.9.2012 in Appeal No, 48/13 of 2012 whereby the appeal of the respondent/plaintiff was partially accepted against the judgment dated 19.3.2012 of learned Civil Judge-III, Kohat which was dismissed by the learned Civil Judge-III, Kohat in Civil Suit No, 107/1 decided on 19.3.2012.
2. Facts which led to this Civil Revision are that Respondent No, 1 instituted a civil suit for specific performance of an agreement to sell against the present petitioner in the Court of Senior Civil Judge, Kohat whereby respondent also prayed for a decree of Rs,3,00,000/- in respect of various claims, fully described in the heading of the plaint.
3. The trial Court after recording evidence of both parties, decreed the suit of respondent vide his judgment dated 19.3.2012 but to the extent of Rs, 130,000/- as earnest money paid to petitioner, in connection of purchase of the disputed property.
4. Petitioner's appeal before the appellate Court below against the said decree/judgment was also dismissed vide impugned judgment/decree dated 18.9.2012, hence the instant revision petition.
5. The learned counsel for the petitioner submitted that as the earnest money was not paid to the present petitioner, therefore, he could not be held responsible for giving back an amount which he has never received. Further he submitted that the earnest money was paid back to the respondent by one Javed Khan and even if he considers himself still aggrieved and claimed that he has not received the earnest money he can sue for return of that very money one Wajid Khan, who was the person, who had received the earnest money.
6. On the strength of above mentioned ground prayed for acceptance of instant civil revision for setting aside the impugned judgments of both the Courts below.
7. On the other hand, the learned counsel for the respondent while arguing his case, raised a number of ground in support of the impugned order/judgment passed in favour of respondent concurrently by both Courts below. He contended that as petitioner himself has admitted in his pleading that he had received the earnest money could not be permitted to change its earliest stance taken in his pleading before the trial Court. Further stated that petitioner with connivance of his son and one 'Wajid Khan deprived the respondent of his money to the tune of Rs, 130,000/- which fact is fully proved by respondent, therefore, he could not be deprived of the amount which he has paid to petitioner and moreso, when such fact is also admitted by petitioner himself.
8. Arguments heard and record was perused with the assistance of both the learned counsel.
9. From the plain reading of written statement of petitioner which is still intact, petitioner has admitted in unequivocal terms that he had received the earnest money, however, stated therein that the very amount was given back to respondent through one Wajid Khan, the real person who was involved in and remained acquainted with respondent in completion of agreement to sell.
10.It would be better to reproduce the exact words used therein in his written statement duly verified and signed by the petitioner before the trial Court.
Para-4 of preliminary objection are reproduced below:-- {{URUD TEXT}} The petitioner has further confirmed its this stance in the body of the written statement referred to as para-I of the written statement.
11.During the course of recording of evidence, petitioner when appeared in the witness box, as a witness deposed on oath that he had not received any earnest money but it was Wajid Khan who received the said money which was returned back to respondent by he himself.
12.The main controversy, which we have to settle as that whether petitioner could be resolved from the responsibility which he has admitted in his written statement and whether he be allowed to change his stance adverse to his own pleadings which is so far, not amended at any stage of the proceeding before any forum below.
13. It is now settled law that no one would be permitted to lead evidence in respect of facts not alleged in his pleadings. The principle "Secundum allegata et probata" shall be strictly given effect to resolve civil responsibilities arising out of the pleadings of parties. Since, petitioner categorically admitted in his written statement, that he had received earnest money however, stated that the earnest money received by him had been returned back to respondent by one Javed Khan, in such a situation onus of proof shifted to petitioner to prove that he had returned back the earnest money to respondent. For this purpose Article-117 of Qanoon-e-Shahadat Order, 1984 has to be given reference in this regard as:-- Who ever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
14.Similarly, Article-119 reads as under:-- The burden of proof as to any particular facts lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lies on any particular persons.
Article-118 of Qanoon-e-Shahadat Order, 1984 also described such rule in the same words as the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
15.It was legal responsibility of respondent as well as burden of proof also laid on him in the first instance to prove that he had given the earnest money to petitioner. In this respect, he had adduced, unrebutted evidence on record and had proved that the earnest money was paid to petitioner but even otherwise, respondent in case of admission by other party was not bound to prove admitted facts.. Article-113 of Qanoon-e-Shahadat Order, 1984 postulate as:-- No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.
Provided that the Court may, in its discretion require the facts admitted to be proved otherwise than by such admissions.
16.As there was no confusion in the categorical admission of petitioner that he had not received the earnest money, therefore, the learned trial Court also accepted these admission on behalf of petitioner and relieved the respondent to prove otherwise than by such admissions and as such did not framed any issue in this respect and shifted the burden to petitioner to prove its stance of giving back the earnest money and, as such Issue No, 6 was framed in such a manner:-- "Whether the earnest money of Rs, 130,000/- was returned back to the plaintiff through Wajid Khan?
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17.Petitioner adduced evidence in support of this issue, but failed as the evidence adduced by Wajid Khan DW-2 and the other DW-3 are contradictory inter se and the fact that earnest money was given back to respondent was not proved.
18.As far as admission in pleading is concerned, Article-31 of Qanoon-e-Shahadat Order, 1984 is worthwhile to mention herewith:-- Article-31--Admission by party to proceeding or his agent.--(1) Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them are admissions.
I further fortify myself in this respect of the judgment of apex Court reported as PLD 2000 SC 792 titled Daulat Khan Vs. Ahmad where the apex Court has held:-- "Admissions, question of facts having been expressly and unequivocally admitted in the pleading would not require any proof.
Likewise in case title Messers Muhammad Amin Vs. Pakistan through Secretary Ministry of Communication and 5 others reported as 2000 CLC 1559, the august Karachi High Court also held similar view that direct admissions in pleading or even by implication in both eventualities are proof in themselves".
19.As the petitioner never applied to the trial Court for casting additional issue in respect of that whether respondent has paid the earnest money personally to petitioner nor ever prayed for amendments in his pleading, so in this later stage and that too in revisional stage, could not resiled from his pleading to agitate a new case in terms of, that petitioner has not received the earnest money but some other person Javed Khan has received the earnest money and respondent should have instituted suit for recovery of earnest money against Javed Khan. Even otherwise, while exercising revisional jurisdiction, this Court cannot dilate upon the controversial facts as it is the sole responsibility of the Courts below. While exercising revisional jurisdiction, this Court has to adjudged that whether any irregularity, illegality has been occasion by the lower Courts or whether proper jurisdiction was exercised, by Courts below or exercised jurisdiction not vested in them.. This Court cannot go beyond the mandate of revisional jurisdiction conferred on this Court under Section-115 of CPC.
20. I find no reasons to interfere in the concurrent judgment of Courts below therefore, as a result of my these detailed reasons, this revision petition is dismissed. However, no order is to cost.