This revision petition is directed against the judgment & decree dated 28.02.2020 and judgment & decree dated 26.08.2020, respectively passed by the learned Senior Civil Judge-III, Quetta ("trial Court") and the learned Additional District Judge-III, Quetta ("the appellate Court"), whereby Suit for Recovery of Property i.e., Gold 2351.762 Grams or in alternative prevalent market price filed by the plaintiff/respondent was decreed against which appeal filed by the petitioners was dismissed by the appellate Court.
2. Brief facts leading to file the instant petition are that the plaintiffs/respondents filed Suit for Recovery of Property i.e. Gold 2351.762 Grams or in alternative prevalent market price before the trial Court with the averments that the plaintiff and defendants entered into a contract whereby the plaintiff had given 2351.762 grams gold to defendants for a period of one year and it was decided that the petitioners/defendants would pay 90 grams per month in the shape of gold to the plaintiff against the utilization of such gold by the defendants.
3. The petitioners/Defendant No. 1 and 2 filed their written statement and admitted that on 14.04.2021 the private parties entered into a contract and started business for a period of one year commenced from 0I.O4.2011 to 3I.O3.2012 and worth of gold was determined as Rs. 3950/-per gram.
The Defendants No. 1 and 2 also admitted the execution of agreement dated 14.04.2011 and further admitted that after execution of agreement dated 14.04.2011 it was agreed between the parties that the defendants would pay 190 grams gold every month to Respondent No. 1 including profits which will be determined by the defendants on the basis of sale.
4. The parties led their evidence. After conclusion of trial, the trial Court vide judgment and decree dated 28.02.2014 decreed the suit, against which the petitioners filed RFA No. 51 of 2014 before this Court which was accepted vide judgment and decree dated 26.07.2014 and the case was remanded to the trial Court with direction to reframe proper issues arising out of the pleadings and afford opportunity, if the petitioner leads further evidence. On remand the trial Court framed one additional issue, plaintiff led evidence. On conclusion of trial, the trial Court vide judgment and decree dated 28.02.2020 decreed the suit. The defendants filed appeal before the appellate Court which met the same fate vide judgment and decree dated 26.08.2020, hence this petition.
5. Learned counsel for the petitioners stated that the judgment passed by the Courts below are contrary to law and facts based on misreading and non-reading of evidence which caused grave miscarriage of justice. The plaintiff failed to prove the case on the strength of his own evidence, despite lengthy cross-examination the defendants' witnesses remained firmed. Both the Courts below have not considered the directions contained in remand order by this Court. The appellate Court failed to dilate upon each and every issue as envisaged under Order XLI Rule 31, CPC. Learned counsel lastly prayed for remand of the case to the appellate Court for re-writing of the judgment.
6. Conversely learned counsel for plaintiff/private respondent vehemently opposed the contention of petitioners stated that the judgment of both the Courts below are well reasoned and according to law. Both the Courts below have appreciated the evidence in its true perspective. The petitioners failed to point out any illegality, misreading and non-reading of evidence.
7. Heard. Perused the record. It appears from the record that the parties signed an agreement and promissory note on 14.04.2011. During trial the PW-2 produced both the documents as Ex-P/1 and Ex- P/2 without an objection of other side. The petitioners did not question the authenticity of both the referred documents, meaning thereby the petitioners accepted the terms mentioned in the agreement. Under Section 2(d) of the Contract Act. Every promise and every set of promises forming the consideration for each other is an agreement". The promise must be absolute and unqualified. The unequivocal acceptance of an offer is binding contract even non-execution of a formal document cannot absolve the parties from their agreement. All agreements are the contract as mentioned in Section 10 of the Contract Act, which reads as under:
10. What agreement are contracts. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in Pakistan and not hereby expressly repealed, by which any contract is required to be made in writing or the presence of witnesses, or any law relating to the registration of documents.
8. It is Settled proposition of law that no party can unilaterally add or resumed the terms of contract. As per above referred section the parties to the contract should be free from any coercion. A person signing a contract on his freewill is bound to its terms and condition.
9. The petitioners/defendants in written statement have admitted the agreement and did not deny the signing of the same, meaning thereby the parties had signed the agreement with consent which is essential requirement of the contract. It appeared that the contract was signed by the parties without coercion, threat, fraud or misrepresentation. The parties are legally bound of their words and deeds.
10. Though under Article 79 of the Qanoon-e-Shahadat Order 1984 the document shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution. The plaintiff is under legal obligation to prove the contents of documents by producing two attesting witnesses if alive but some departure is permissible if the defendants have not denied the execution of it.
11. It is a settled position of law that admitted facts need not be proved in terms of Article 113 of the Qanun-e-Shahadat, 1984. Article 113 reads as under:
113. Facts admitted need not be proved. No fact needs to 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 of 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.
12. In the case of Muhammad Essa Godil (2014 YR 1901) it was held that "Admission made by a party and/or his witness in pleadings and/or affidavit-in-evidence would be binding upon such party." In this regard reliance is also placed on the case of Mst. Baswar Sultan versus Mst. Adeeba Alvi 2002 SCMR 326, whereby it has been observed as under: "Admission of the respondent in her first written statement is binding upon her which is also corroborated by her own further admission made in the cross-examination with regard to due execution of agreements and passing of consideration besides overwhelming oral and documentary evidence of the appellant/plaintiff and her marginal witnesses. Mere fact that subsequently the respondent/defendant denied the execution of the agreements and also of receipt of amount stated therein and because numbers of National Identity Cards of the respondent/defendant and marginal witnesses were not mentioned in the agreements were doubtful as erroneously held by the High Court keeping in view the overwhelming oral and documentary evidence of the appellant/plaintiff and inconsistent conduct and denial of admitted facts on the part of the respondent/defendant who did not come with clean hands consequently the Appellate Court and the revisional Court had drawn incorrect conclusion from the proved facts."
13. The petitioners have admitted the agreement but have taken the plea that they paid the profit and original gold to the plaintiffs. In such circumstances the burden of proof shifts on shoulder of defendants/petitioners to prove that they made payment of profit and original gold to plaintiff.
None of the defendants' witnesses mentioned the date, time, year of payment, mere bald assertion that payment was made do not absolve the defendants from their responsibility Even Defendant No. 2 in his deposition did not deny the execution of documents.
14. The scope of revisional jurisdiction is limited. The High Court while exercising revisional jurisdiction cannot interfere in the concurrent findings arrived by Courts below unless the findings of Courts below is result of misreading and non-reading or perverse or observed appraisal of some material evidence. The revisional Court cannot substitute the concurrent findings of Court below with its own merely for the reason that another view is possible. Reliance is placed on the case of Khudai Dad v. Ghazanfar Ali Shah 2022 SCMR 933.
In view of above, the petition being devoid of merits is dismissed.