Written statement---Amendment ---Through amendment in written statement one cannot resile from the admission if made earlier in his written statement.
Malik MUHAMMAD ALTAF vs MUHAMMAD ASHRAF (deceased)
2024 CLC 205
Suit for specific performance of an agreement to sell---Amended written statement, alterations in---Permission of Court---Suit was decreed by the Trial Court but the appellate Court while accepting the appeal set aside the judgment and decree passed by the Trial Court---Validity---Record showed that a direction to file amended plaint was passed on the application filed by respondent No.1, himself---After direction of the Trial Court, appellant amended the heading, paragraphs Nos.1 and 2 of the plaint to the effect that the claimed property was reduced from 21-marlas to 17-marlas---However, while filing the amended written statement, preliminary objection No.3 was added in the amended written statement taking a somersault and in deviation of earlier stance, where respondent conceded that he was willing to perform agreement and pass on 17-Marlas, another stance had been adopted that he was ready to transfer 17-Marlas earlier but now he did not want to perform the agreement---Reply to paragraph No. 3 was also altered to the effect that since last date of performance of agreement was 30.10.2006 which had elapsed, therefore, he was not willing to perform the agreement and the suit property had already been transferred by respondent No. 1 to his wife/respondent No.2---Respondent No. 1 had not just resiled from his original stance but at the same time he had failed to seek any permission or leave from the Trial Court, while making alterations in the amended written statement, which was not permissible by law---Appellant in his pleadings and evidence asserted that he remained ready to pay the remaining consideration whereas the respondent No.1 had refused to accept the same---Against the said stance, defendant had also taken a specific plea that the appellant did not have the capacity or willingness to pay the remaining consideration but his own conduct during trial suggested other way of around---Firstly, respondent took the stance that he was willing to perform agreement dated 23.06.2006 even after filing the suit, later he resiled from the said stance---Secondly, respondent No. 1 very cleverly transferred the suit property to his wife/respondent No.2, when the suit remained dismissed for non-prosecution for a while---Said conduct itself was sufficient to suggest that respondent No.1 was avoiding to perform his obligations as per the agreement---Trial Court also reached to the logical finding that the appellant had supported the version in the plaint, regarding his willingness and readiness to perform that argument, by documentary evidence and presence in the office of Sub-Registrar---Said fact was further supported from the fact that appellant when directed by Trial Court to deposit remaining consideration, wasted no time to deposit said amount---Said finding of the trial Court had been brushed aside on the reasoning which was not appealing---Respondent No.1 during his cross-examination admitted that during the pendency of the suit he kept making alteration in the suit property---Said Improvements in the suit property which were followed by transfer of the property to his wife were sufficient to show the ill intention of respondent No.1, who had also failed to produce any witness or document in support of his specific stance and failed to prove his version taken in the written statement.
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