SHAHID BILAL HASSAN J. Succinctly , the petitioners instituted a suit for specific performance and rendition of accounts against the respondents. On 11.12.2017, the petitioners filed an applic ation under Order VI, Rule 17, Code of Civil Procedure, 1908 for amendment in plaint to the extent of adding an alternate prayer seeking damages for the non-performance of contract by the respondent No.1. The respon dents filed its reply and the said application was allowed on 22.01.2019. The petitioners submitted amended plaint and the respondents filed amended written statement. Purportedly , the respondents/defendants pleaded certain additional facts and contentions in their amended written statement, which were not addressed in the petitioners' plaint, such as: (a). the frail condition of Mian Ibrahim as alleged in para 5(iii) of On Merits; (b). specific allegation of fraud and forgery in paras 5(iv) to 5(x) of On Merits that petitioner No.1 transferred the shares of petitioners No.2 in his and his wife's name by practicing fraud and forgery; (c). allegation in para 5(xii) of On Merits that petitioner No.1 is engaged in immoral activities. In order to cater the said additional contentions, the petitioners filed an application under Order VIII, Rule 9, Code of Civil Procedure, 1908 seeking leave for filing a rejoinder . The respondents filed its reply . The learned trial Court vide impugned order dated 29.09.2021 dismissed the said application; which has culminated in filing of the revision petition in hand.
2. Heard.
3. It is a settled principle of law that rejoinder/ replication is a supplement of plaint and is also supposed to clarify such ambiguities which are left in the plaint or are pointed out by the defendant(s) in his written statement and that altogether new case cannot be allowed to be presented in the rejoinder/replication as there will be no opportunity for the defendant(s) to controvert such a new case, set up in the rejoinder/replication. Moreover , it is also a settled principle of law that a party cannot lead evidence beyond its pleadings and if anything is brought on record beyond the pleadings, the same will not be considered and even the averments made in the pleadings do not constitute evidence as has been held in Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914). Moreover , Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 demands that fair and reasonable opportunity be given to every party to put and defend his stance and case.
The perusal of the plaint and written statement including the amended pleadings of the parties, divulges that the facts and contention raised in the written statement/amended written statement, submitted by the respondents, have not been pleaded by the petitioners and the same need clarity on their behalf, because, as observed above, the rejoinder and replication is a supplement of plaint and is supposed to clarify the ambiguities, a new case cannot be set up. Therefore, the learned trial Court ought to have granted leave to the petitioners in exercise of powers conferred upon it under Rule 9 of Order VIII, Code of Civil Procedure, 1908 so as to clarify the ambiguities and plead their stance in respect of additional facts and contentions of the respondents, asserted in their written statement/amended written statement.
4. In view of the above, the learned trial Court has failed to exercise vested jurisdiction while passing the impugned order , which has resulted in miscarriage of justice; therefore, the impugned order cannot be allowed to sustain and hold field further . Resultantly , the revision petition in hand is allowed, impugned order dated 29.09.2021 is set aside, consequent whereof the application filed by the petitioners under Order VIII, Rule 9, Code of Civil Procedure, 1908 is accepted and they are allowed to submit rejoinder/replication. No order as to the costs.