1. ' HAMID ALI MIRZA. J.---This civil appeal by leave of the Court is directed against the judgment and decree dated 29-3-2000 in Civil Revision No,23 of 1997 passed by learned Division Bench of the Peshawar High Court. Whereby said civil revision was dismissed maintaining the judgment and decree dated 16-11-1996 passed by learned Additional District Judge. Peshawar.
2. ' Brief facts of the case are that the appellant filed a suit for specific performance of an agreement in respect of property Bearing No,775/2 situated in Hashtnageri, Peshawar against the respondent.
3. The said suit was contested by filing written statement. Learned trial Court after recording the evidence and hearing the counsel for the parties decreed the suit of the appellant against the respondent who preferred an appeal against said judgment and decree before the District Judge, Peshawar which was heard and allowed by learned Additional District Judge, Peshawar which was heard and decree dated 16-11-1996 thereby set aside the judgment and decree dated 5-5-1991 of the learned Trial Court. The appellant filed Civil Revision No,23 of 1997 which was dismissed by the learned Division Bench of the Peshawar High Court.
4. ' We have heard learned counsel for the parties and perused the record.
5. Leave to appeal was granted by this Court on 25-5-2000 after hearing the learned counsel for the parties to consider the following points in support of petition:--
(i) The execution of the agreement to sell was admitted in the original written statement and in the statement in Court appearing at page 58 tiled by the defendant/respondent wherein she stated, "I have read the agreement deed Exh. PW-1/1, PW-2/1 and PW-3/1 which correctly bears my signature". And again "I have seen the signature of my father and brother as marginal witnesses on the original deed Exh.PW-1/1, PW-2/1 and PW-3/1, which are the signatures of my father and brother". It was therefore, submitted that the appellate and revisional Courts had drawn incorrect inference from proved facts?
(ii) Whether in view of the above admission of the defendant in the written statement and in her statement in Court the learned Appellate Court and the learned High Court were still legally justified to hold that the deed had not been proved because of the non-entry of the number of Identity Cards of the executant and the marginal witnesses of the deed?
(iii) Whether the respondent/defendant could be allowed to plead a case different from the one as stated in the original written statement?
(iv) Whether any oral evidence could be led or could be considered as against the contents of the deed?
6. ' Contentions of the learned counsel for the appellant are that the learned Division Bench of the High Court and learned Additional. District Judge have misread the evidence on record which has resulted grave injustice to the appellant. The learned counsel for the appellant/plaintiff further reiterated the same abovestated submissions made at time of grant of leave to appeal.
7. ' Learned counsel for the respondent submitted that the learned Appellate Court and revisional Court have concurred in arriving at conclusion that consideration for the sale of the property in question was not received by the respondent and the said agreements were not executed by her therefore no interference was required to be made by this Court.
8. ' The appellant/plaintiff examined five witnesses whereas the respondent examined two witnesses in support of their respective pleas raised in the pleadings. P.W.5 Fazal Rahim husband and attorney of the appellant had deposed that the agreements to sale Exh.PW.2/1, PW.1/1 and PW.3/1 dated 10-2-1983. 18-4-1983 and 4-9-1983 respectively were executed between the parties in respect of the property in question and the amounts of Rs,30,000, 72,000 and 55,000 were paid the appellant/plaintiff through the said deeds, P. W,1 Mumtaz is a scribe of agreement Exh.P.W.1/1, dated 18-4-1983 who has deposed that deed was written at the instance of parties which was read over to them and the said deed was entered in the register Waseeqa Naweesi at Serial No,2011 of the year 1983. P.W.2 Muhammad Tahir is also scribe of agreement dated 10-2-1983 who has deposed that payment of Rs,30,000 was made to the executant in his presence and parties and marginal witnesses had signed in his presence on the deed as well as on the register and the said marginal witnesses were related to the executant when one was her brother and another was her father and further that the said agreement was registered at Serial No,1178 dated 10-2-1983 in his Register Wasseqa Naweesi. P.W.3 Ghulam Nabi is also scribe of an agreement dated 4-9-1983 Exh.P.W.3/1 who has deposed that the said agreement was entered in his Register Waseeqa Naweesi at Serial No,6 dated 4-9-1983 which was executed between Mst. Baswar Sultan and Mst. Adeeba Alvi and was written at the instance of the parties and the marginal witnesses had signed on the original agreement and in his register in his presence, so also payment of Rs,55,000 was paid to the executant in his presence. P.W.4 Fazal Rahim son of Khuda Bakhsh had deposed that he knew both the parties and after the execution of first agreement dispute arose between them and he got it settled consequently second agreement P.W.1/1 dated 18-4-1983 was executed between the parties which was signed by the parties and by him and other marginal witnesses and further an amount of Rs,72,000 was paid to the executant Mst. Adeeba Alvi.
9. ' In reply to the appellant/plaintiff the respondent/defendant was examined as D.W.2. She deposed that she was in the need of money therefore, she had told her father to get an advance money from tenant and her father obtained sum of Rs,30,000 from Muhammad Amin (not examined) as advanced security through commission agent Inayatullah (not examined). Later on she came to know that said Muhammad Amin committed fraud and forgery and had made an agreement for sale of the property. She further deposed that her counsel was her nearest relation and had remained family counsel and the latter had told her that he would get the matter patched up consequently he got her signature on the plain document. She further deposed that she did not sell the property to the plaintiff and she only obtained Rs,30,000 from Muhammad Amin who was not known to her. She in the cross-examination stated that she had seen the written statement dated 14-11-1984 which was not signed by her. She admitted that Firdous Khan was her counsel in the case and amount of Rs,30,000 was not returned to the said person and she did not lodge any report/complaint. She further stated she was not knowing if she had told her counsel at the time of drafting written statement that her counsel Abdul Majeed (Note: in fact at time of filing written statement dated 5 4-1984, Mr. Abdul Rehman Khan was her counsel while when written statement dated 14-11-1984 was filed Mr. Firdous Khan was her advocate) had taken her signature on a plain blank stamp paper. She admitted that she had read the original Exhs.P.W.1/1, P.W.2/1 and P.W.3/1 which correctly bore her signatures. She also admitted that she had seen the signatures of her father and brother as marginal witnesses on the original deeds P.W. 1/1, P.W.2/1 and P.W.3/1 which bore signatures of her father and brother.
10. ' The contention of learned counsel for appellant that the learned revisional and Appellate Courts have misread the evidence with regard to execution of agreements and payment of consideration to the respondent by the appellant has merit and substance.
11. ' So far the execution of the sale agreement by the respondent in favour of appellant the former in the cross-examination herself admitted her signature and those of her father and brother as marginal witnesses of said agreement and also admitted that same were read over to her. P.W.1 Mumtaz, scribe of agreement, dated 18-4-1983, P.W.2, Muhammad Tahir, scribe of agreement dated 10-2-1983 and P.W.3 Ghulam Nabi, scribe of agreement dated 4-9-1983 have deposed that agreements were written by them at the instance of the parties and were entered at stated serial number of their respective registers. P.Ws.2 and 3 also deposed that amounts stated in the agreements were also paid to the respondent in their presence. So far the payment of Rs,30,000 as per agreement dated 10-2-1983, the respondent herself admitted to have received. In the first written statement dated 5-4-1984 filed by her counsel Mr. Abdul Rehman Khan (Wakalatnama dated 19-3-1984 is on the record) would show that the respondent did not state about fraud having been committed upon her but took plea in defence that time was essence of the contract and failure -on the part of the appellant/plaintiff frustrated the agreement. The respondent, however, in paras. 2 and 3 of first written statement stated that the appellant/plaintiff failed to get regular deed executed in her favour within time specified in the agreement dated .10-2-1983 and that she was under no obligation to execute regular deed in favour of appellant/plaintiff and advance amount paid towards consideration stood confiscated. the respondent subsequently took the plea that the agreements were fictitious, forged and fraudulent in amended written statement filed on 14-11-1984 for which also she stated that it was not signed by her. The execution of agreements by the respondent/defendant stood proved because of her own admission in the first written statement and in the cross-examination and the oral evidence adduced by the appellant/plaintiff. The admission in the first written statement of the respondent would be binding upon her under Article 113 of Qanun-e-Shahadat which for the sake of convenience is reproduced hereunder:-- "113. Facts admitted need not be proved.---No fact need be proved in any proceedings 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 admission."
12. ' Reference may also be made to Muhammad Zahoor v. Lal Muhammad and others (1988 SCM R 322) at pp.327-328 wherein it was observed: ' "Section 31 of the Evidence Act further lays down that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Evidence Act.
13. Minor in his book on the Law of Evidence has explained the distinction between the evidentiary admissions and admissions in pleadings in the following passage as under:-- 'Section 58 applies to admissions in pleadings, and not to evidentiary admissions; the rule embodied in it is, therefore, more properly a rule of pure procedure than of evidence. There is a fundamental distinction between admissions in pleadings governed by the present section and evidentiary admission made relevant by the thirty-first section of the Act. The former are conclusive, but the latter are merely relevant and not conclusive unless they operate as estoppels; the former are made in contemplation of a particular litigation, but not so the latter. An admission, in a pleading is a different thing from an evidentiary admission. It is generally understood to be a concession made by one of the parties that a fact alleged in the pleadings of the party opposed to him need not be proved. The section is, therefore, inapplicable where no pleadings have been filed.
14. But an admission in a pleading is binding only in the proceedings in which it is made and may be shown to be wrong in subsequent proceedings."
15. 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 would not be sufficient to hold that 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.
16. ' The next contention of the learned counsel for the appellant that the respondent cannot be permitted to adduce oral agreement or statement to contradict or vary the terms of proved agreement executed by the respondent/defendant in favour of the appellant/plaintiff has force and merit.
17. ' The evidence discussed above proved the due execution of the agreement by the respondent/defendant in view of overwhelming oral and documentary evidence adduced by the appellant/plaintiff therefore the respondent/defendant cannot be allowed to lead oral agreement or statement to contradict, vary, add or subtract the terms of agreements which were reduced in writing under Article 103 of Qanun-e-Shahadat. In the circumstances the submissions made by the learned counsel for the appellant have merit and substance.
18. ' In view of aforesaid reasonings as per evidence on record we find merit and substance in the contentions of the learned counsel for the appellant consequently the impugned judgments and decrees of the learned Division Bench of the Peshawar High Court and Additional District Judge are set aside and judgment and decree dated 5-5-1991 of the learned Senior Civil judge, Peshawar are restored and the appeal is allowed. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.