' MUHAMMAD EJAZ SWAT!, J.---This, Regular First Appeal has been directed against the ex parte order and decree dated 13th August, 2007 (hereinafter the "impugned Order/decree") passed by the learned Senior Civil Judge, Gwadar (hereinafter the "Trial Court"), whereby the suit filed by the appellant was dismissed.
2. The facts of the case are that on the basis of an agreement dated 29th December 2004, the appellant on 22nd January 2007, filed a suit for specific performance of agreement with the averments that respondent No,1 vide agreement dated 29th December 2004, agreed to sell the property bearing No, 117/1, Khewat No, 13, Khatoni No, 13, measuring 13 acres, Mouza Chib Kalmati Tehsil and District Gwadar (hereinafter the "property-in-dispute") in sale consideration of Rs,5,200,000 (Fifty Two Lac), (Rs,400,000 per acre). It was further contended that the appellant/plaintiff at the time of execution of agreement paid an amount of Rs,4,600,000. The respondent/defendant No,1 acknowledged the receipt, whereas Rs,600,000 was agreed to be paid in the last week of January, 2005. However on 12th February, 2005, the remaining amount was paid by means of cheque of Standard Chartered Bank Clifton, Karachi. It is the case of the appellant that after making payment of consideration amount, the respondent No,1 (defendant) was approached, but he deceitfully and through misrepresentation transferred the property in dispute to the respondent No,2 by means of mutation entry No, 249 and failed to honour its obligation stipulated in the agreement dated 29th December 2004. The record of the case reveals that the respondent No,1 was served through courier service, however, notices were also published in daily newspaper 'Nawa-e-Waqt dated 1st April 2007 and despite the same, they remained absent and due to their non-appearance, they were proceeded against ex parte and the appellant was directed to produce ex parte evidence.
3. The trial Court vide impugned order and decree dismissed the suit, hence this appeal.
' Notices were served through publication in daily newspapers 'Express Karachi' and 'Nawa-e-Waqt but despite publication, respondents Nos.1 and 2 did not appear and vide order dated 22nd October 2013, they were proceeded against ex parte.
4. The learned counsel for the appellant contended that besides his statement, he also produced affidavits of P.Ws. Namely Ali Lashari, Kaleem Ahmed and Naeem Ahmed in support of his contentions related to execution of agreement; that the averments made in the pleadings were substantiated through ex parte evidence and there was no rebuttal, but the trial Court without assigning any cogent reason has failed to appreciate the legal testimony of the appellant as well as his witnesses; that the trial Court ought to have decreed the suit as the contents of the pleadings were proved through evidence, but the trial Court non-suited the appellant and thus, deprived him from his valuable right in the property; that the appellant had paid the consideration amount through cheques but the documentary evidence has also not been considered by the trial Court and thus, the impugned order apparently suffers from misreading and non-reading of the evidence which has caused serious miscarriage of justice. The learned counsel for the appellant has pointed out that in Para No,4 of the impugned order, where according to him, the agreement dated 29th December, 2004 was discarded by the trial Court merely on unjustified reasons. The Bank statement indicating the payment towards the consideration amount has altogether been ignored, which requires reappraisal by this. Court.
5. We have heard the learned counsel for the appellant and considered the record appended along with the appeal The appellant while producing ex parte evidence has relied upon the statement of Ali Lashari and Naeem Akhtar, who stated about the execution of agreement dated 29th December, 2004, between the appellant and the respondent No,1 in respect of the property- in-dispute and the payment of consideration amount paid by the appellant. The appellant has initially filed his affidavit, wherein it was contended that he purchased the property in dispute from respondent No,1 vide agreement dated 29th December 2004 in consideration of Rs,5,200,000 (Fifty Two Lac) and the said amount was paid as following:--
(1) 1,000,000 (Ten lac) through the property dealer Naeem Akhtar.
(2) 2,100,000 (Twenty One Lac) on 11th December 2004.
(3) 1,500,000 (Fifteen Lac) on 29th December 2004 through cheque.
(4) 600,000 (Six Lac) through cheque (Standard Charter Bank).
6. The appellant, in his affidavit, further stated that after receiving the consideration amount, the respondent was under legal obligation to transfer the property in dispute in favour of the appellant, but he in disregard of the terms and conditions of the agreement, transferred the property in favour of the respondent No,2. He lastly sought prayer for specific performance of the agreement.
7. The appellant through ex parte evidence brought the above facts on record. The question emerging for consideration is as to whether the appellant had proved what he has pleaded in his plaint? The answer is surely 'No'. In Para No,3, the appellant had pleaded as under:- "That on payment of entire sale price the plaintiff genuinely expected transfer of agreed landed property but, to his surprise, defendant No,1, deceived the plaintiff and transferred same land to defendant No,2, by means of Mutation No,249 and FARD Intekhab Year 2005 entered in revenue record of Tehsil and District Gwadar. In the garb and pretence of legalization he purchased one stamp paper of Rs,100 on 29-3-2005, signed it without execution, of power of attorney managed transfer of land through plaintiff assuring him exorbitant pecuniary gain. Believing his inducement and pretended honesty the plaintiff managed transfer of land in revenue record in favour of defendant No,2 at much low price Rs,25,50,000 unlawfully saving payment of mutation fee in collusion with defendant No,1."
8. In the above paragraph of the plaint, the appellant had averred that after execution of the agreement dated 29th December 2004, he was induced by the offer of the respondent No,1 for earning more profit. He, on the basis of power of attorney dated 20th March 2005, transferred the property in dispute in favour of the respondent No,2. The above, stated ex parte evidence and affidavit of the appellant is outright departure from his pleadings. The averments made in the pleadings do not constitute evidence, but the evidence led by the appellant in support of his pleadings must be consistent therewith as provided under Rule 7 of the Order VI, C.P.C., which reads as under:-- "Departure - No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.,
9. The above rule of procedure provides that the pleadings cannot be departed except by way of amendment under Order VI, Rule 17, C.P.C., therefore, anything stated outside the scope of such an averment cannot be looked into. The rule of "secundem allegata at probata" not only excludes the elements of surprise but also precludes the proving of the facts which are not contained in the pleadings. In the case of Government of West Pak PLD 1976 SC 469, 1968 SCM R 804 and 1996 SCM R 336, it is held, "that no party can be allowed to lead evidence on a fact which has not been specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings".
In the case of Major (Retd.) Barkat Ali and others v. Qaim Din and others, 2006 SCM R 562, the evidence led outside the pleadings was not approved and the hon'ble Apex Court observed as under:-- "The ratio of the afore-referred cases appears to be that a party is not permitted to deviate from his or her pleadings nor can a Court set up a different plea for a party and decide the suit on that basis, much less at the appellate stage."
10. The other aspects of the matter, on the basis whereof the suit filed by the appellant for specific performance of the agreement dated 29th December, 2004 was not maintainable as the appellant in Para No,3 of the plaint and thereby filing his supplementary affidavit stated as under: -- NIC No,52101-2729607-7) {{ URUD TEXT }} {{ urdu text }}
11. The aforesaid supplementary statement of the appellant reveals that the appellant himself established novation of the original agreement by producing/ introducing general power of attorney dated 29th March 2005, on the basis whereof he himself transferred the subject matter of the agreement, i,e, property in dispute, in favour of the respondent No,2 vide mutation entry No, 249 and dispensed with the original agreement dated 29th December, 2004, he is estopped by his conduct. 'Estoppel' only means stopped; someone is stopped from saying something or other or doing something or other or contesting something or other.
12. Article 114 of the Qanun-e-Shahadat Order, 1984, which enacts that, "when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceedings between himself or such person, or his representative to deny the truth of the thing."
13. The nutshell of the above discussion is that the sanctity of the original agreement eroded when the appellant vide general power of attorney dated 29th March 2005 effected the Mutation No, 249 in favour of respondent No,2 and entered into a new transaction by novation of the D agreement dated 29th March 2005, as such, the impugned order passed by the trial Court does not call for any interference by this Court, however, the appellant is at liberty to file a suit for recovery of amount against the respondents with all just exceptions.
' In view of the above, the appeal is dismissed and the parties are left to bear their own cost.