A suit for the recovery of a sum of Rs.50,000 instituted by the respondents against the petitioners and Mst. Fateh was contested by the petitioners and was decreed to the extent of Rs.37,750 by the learned trial Court vide judgment dated 19-12-1989. Appeal preferred there-against by the petitioners was dismissed by the learned Additional District Judge, Chiniot on 24-10-1994. This is revision petition there-against.
2. In assailing the concurrent judgments of the two Courts below it is contended by the learned counsel that agreement dated 10-8-1983 Exh.P.1 which was the basis for the suit, was not proved in accordance with law, which was forged and result of collusion between the plaintiffs and defendant No. 1 and that the provisions of Article 127 of Qanun-e--Shahadat Order, 1984 have been ignored and overlooked by the two Courts below in the matter. It is further contended that Ilyas was an aged man of feeble health who was not read out the contents of said agreement and even there was no evidence that the had taken any money/loan as was recited in the said agreement.
Reference has been made by him to Hamid Qayyum and 2 others v. Muhammad Azeem through Legal Heirs and another (PLD 1995 SC 381); Syed Mansoor Ahmed v. Mst. Maqbool Begum and others (1990 SCM R 1259); Amirzada Khan and another v. Itbar Khan and others (2001 SCM R 609) and Taleh Bibi and others v. Mst. Maqsooda Bibi and another (1997 SCM R 459) in support of his contentions that the execution of such an agreement Exh.P.1 was not proved in accordance with law. It is further contended that application for permission to lead additional evidence i.e. Production of Mutation No.481 and Mutation No.522 was wrongly rejected by the Appellate Court.
On the contrary the learned counsel for the respondents contends that Exh.P.1 was an acknowledgement admitting the liability which was duly proved by producing the scribe and the witnesses and that there was continuous change in the stance of the petitioners/defendants.
According to him the respondents/plaintiffs had produced cogent and convincing evidence which was duly considered by the Courts below and findings returned in their favour. It is contended that such findings of fact do not call for interference by this Court in revisional jurisdiction. It is contended' that mutations sought to be produced as additional evidence had no direct relevancy to the matter in issue and the learned Appellate Court was perfectly justified in rejecting the application, which was not only belated but also without any sound justification.
3. The material on the record has been perused with the assistance of the learned counsel for the parties and considered.
4. The perusal of agreement dated 10-8-1983 Exh.P.1 which is in the nature of an acknowledgement would show that it bears a thumb-impression of Ilyas son of Chawa, the predecessor-in-interest bf the parties. In order to prove its execution Abdul Hafeez Petition-Writer was produced as P.W.1 whereas Mukhtar Ahmed and Falak Sher attesting witnesses were produced as P.W.2 and P.W.3 respectively. Said Ali one of the plaintiffs appeared as P.W.4. The petitioners/defendants produced Sher Muhammad D.W.1, Mohabbat D.W.2 and Mst. Mundan one of the defendants appeared as D. W .3. It was on consideration and appreciation of the evidence on the record that Issue No. 1 was decided by the trial Court in favour of the respondents/plaintiffs and the suit was decreed to the extent of Rs.37,750. The said judgment has been maintained by the learned Appellate Court who had to observe that a new case was sought to be pleaded before him as the stance of the petitioners in appeal before him was that the agreement was induced by undue influence. The perusal of the written statement filed by the petitioners does not show that any such plea was taken by them. Their case rather was that the agreement was forged etc. Needless to reiterate that the foundations of the case is laid by the parties in their pleadings i.e. Plaint and the written statement. They cannot deviate from the case set up in the pleadings except by seeking amendment therein in accordance with law. They are supposed and bound to be consistent with the pleas taken in the pleadings. Any shift and drift in their stance is not countenanced by the Courts. The principle is well stated at page 1396 in Justice Monir's Principles and Digest of the Qanun--e-Shahadat by Mr. Justice (Retd.) Khalil-ur---Rehman's Khan "that a party, litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold to approbate and reprobate, to the detriment of his opponent; and that this wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one on which the position was taken up, provided the second suit grows out of the judgment in the first. The learned Additional District Judge thus, was fully justified to note that plea not taken in the pleadings could not be taken at a subsequent stage or in appeal. Suffice it to observe that had such a plea been taken by the petitioners before the trial Court in their written statement, issue accordingly would have been framed enabling the parties to produce evidence far and against respectively.
5. Insofar as the execution and proof thereof is concerned suffice it to observe that the scribe and the attesting witnesses had consistently deposed to support the assertion of the respondents/plaintiffs. As observed above there appears a thumb-ingression of Ilyas thereon, the authenticity of which was not assailed by the petitioners. Concurrent findings of the Courts below about the execution of Exh. P.1 thus, hardly can be questioned in presence of such evidence on the record. Drifting and variant stance of the petitioners about Ekh.P.1 rather causes adverse reflection qua their defence.
6. Application under Order 41, rule 27, C.P.C. Was filed before the First Appellate Court on 15-3-1992 to place on record Mutation No.522 sanctioned on 24-11-1986. It may be observed that the suit remained pending before the trial Court till 19-12-1989 when it was decreed as mentioned above.
No attempt was made by the petitioners to produce the said mutation before the trial Court throughout this period, if at all it had any relevancy. Such a belated move was rightly turned down by the learned Appellate Court while dismissing the said application. No illegality has thus been committed by him. The precedents cited by the learned counsel for the petitioners, which had their own peculiar facts and circumstances, are not attracted to the instant case.