1. ' MAMOON KAZI, J----The respondent filed a suit (Suit No, 375 of 1971) before this Court for recovery of a sum of rS,150,000 against one Shaikh Yousuf Ali, arraigned as defendant No, 1 and the appellants Nos. 1 to 4. During the pendency of the proceedings Shaikh Yousuf Ali died and appellant No, 5 was brought on record as legal representative of the deceased defendant No,
1. Appellant No,2 is the widow and appellants Nos.3, 4 and 5 are the sons of deceased defendant No,1.
2. ' The case of the respondent was that appellant No,3, representing himself to be the duly authorised representative of the shareholders of Al Athar Limited (appellant No,1) proposed to the respondent to sell the entire undertaking of the said company at a price of rS,13,50,000 representing to the respondent that defendant No,2 was making an annual profit of rS,200,000.
3. According to the respondent, appellant No,3 had given an undertaking to supply all the balance- sheets, profit and loss accounts and income-tax assessment orders etc., before entering into an agreement to sell with the respondent. The case of the respondent further was that while he was agreeable to purchase the shareholdings of appellant No,1, the deceased defendant No,1 requested the respondent to advance to him a sum of rS,150,000 which the said defendant promised to keep as "Amanat" as it was said that the said amount was required by the said defendant to overcome his financial difficulties. The respondent was further assured by the said defendant that the said amount of rS,150,000 would be refunded by the said defendant to the respondent in case the sale agreement was not concluded between them.
4. ' The case of the respondent was resisted by deceased defendant No,1 and appellants Nos.1 to 4 who filed a common written statement in the case. It was pleaded by them that the said amount of rS,150,000 was received by the deceased defendant No,1 by way of an advance/part payment towards sale of the entire shareholdings of appellant No,1 and not by way of "Amanat" and also that all the documents had already been inspected by the respondent and an agreement was concluded between the deceased defendant No, 1 and the respondent.
5. ' On the basis of the aforesaid pleadings, the following issues were framed by the Court:-- "(1) Whether the amount of rS,150,000 paid by the plaintiff to the defendant No,1 was by way of Amanat or by way of advance and/or part payment towards the sale price of rS,13,50,000 of the share holdings of Al-Athar Limited, if so, what is the effect?
(2) Whether the plaint discloses any cause of action against the defendants Nos.2, 3, 4 and 5?
(3) Whether the plaintiff is entitled to the refund of the said amount?
(4) Relief."
6. ' The learned Single Judge of this Court decided the case on the basis of the evidence respectively led by the parties. Although he held in respect of issue No,1, which was the most crucial issue in the case, that, the said amount of rS,150,000 was paid to the deceased defendant No,1 not by way of "Amanat" but by way of advance, but he went on to further hold that all the defendants in the suit were severally liable for the payment of the said amount with interest at 10 per cent. per annum from the date of the suit to the date of the payment.
7. ' We have heard Mr. Mohsin Tayabally, learned counsel for the appellants and Mr. Ismail Raisani, learned counsel for the respondent.
8. ' The main contention of Mr. Mohsin Tayabally before us has been that since the suit filed by the respondent was not based on any contract, the learned Single Judge after deciding issue No,1 in favour of the appellants could not have decreed the suit in favour of the respondent, as, there was neither a concluded contract between the parties nor any terms had been agreed nor the Court could go into the question relating to the obligations between the parties.
9. ' We find lot of force in Mr. Mohsin Tayyabally's contention. We would like to point out that no party can put up a case which has not been pleaded in its pleadings, much less if the case is inconsistent with the same. No doubt, the case of the respondent was that after he had expressed his willingness to purchase the entire shareholdings of appellant No,1 one of the conditions was that respondent No,2 would be shown all the documents and papers relating to the company to his complete satisfaction. However, notwithstanding the representation made to the respondent, the said defendant No,1 and the appellants failed to fulfil their part of the obligation by producing the said documents and the only interest shown by them was to realise the balance of rS,12,00,000 from the respondent. However, the respondent did not base his case on the alleged breach of contract, as, admittedly such contract was yet to be concluded between the parties, but the case of the respondent only was that after he had shown his willingness to purchase the shareholdings of the company, the deceased defendant No,1, made a request for rS,150,000 which according to him, were needed urgently to meet his personal requirements, after giving assurance to the respondent that the same would be retained by him as "Amanat". Although, the learned Single Judge rightly came to the conclusion that the said , amount, of :rS,150,000 was not paid to the deceased defendant No,1 by way of "Amanat" but the same had been paid as an advance towards sale price of rS,13.50,000,but once the learned Single Judge had come to this conclusion, the only course open to him was to dismiss the suit as it never had been pleaded by the respondent that there was a concluded agreement between the deceased defendant No, 1 and the respondent or that the former was obliged under such agreement to furnish any documents or that he had committed any breach of contract or that any damages were suffered on that account by the respondent. Neither there was an issue framed on the point nor such an issue could be framed as such was not the case pleaded on behalf of the respondent. The mere facto that no contract could be concluded between the parties did not oblige the deceased defendant No,1 or the appellants to return the said amount of rS, 150,000, unless it was established that the said amount was received by the appellants as earnest money and the said amount was refundable to the respondent or that the former themselves were guilty of a breach of contract.
10. ' We are consequently, of the view that the respondent was not entitled to claim any refund' of rS,150,000 when he had failed to establish that the same had been paid to the deceased defendant No,1 'as "Amanat" Once the respondent had failed to establish his case as pleaded by him, then n decree should have been passed in his favour because, as pointed out earlier, no case of breach of contract had been pleaded on behalf of the respondent.
11. ' For the aforesaid reasons, we allow this appeal and recall the judgment passed by the learned Single Judge. We however, leave the parties to bear their own costs in view of the question raised before us.