ORDER SHEET
HIGH COURT OF SINDH, KARACHI
Suit No.286 of 2003
Date Order with signature of Judge
For hearing of CMA No.3552 of 2009
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Syed Waqar Haider Zaidi ……………..…………….Plaintiff
Versus
Mst.Alam Ara Begum…………… .…………………Defendant
Date of hearing 12-10-2012
Kh. Shams-ul-Islam, Advocate for the plaintiff.
Mr.M.M.Aqil Awan, Advocate for the defendant.
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Muhammad Ali Mazhar, J: This is a suit for specific performance, cancellation and injunction. The brief facts of the case are that the plaintiff entered into an agreement to sell with defendant on 20.11.2002 in respect of Bungalow No.B-173, Block-2, Gulshan-e-Iqbal, Karachi in total sale consideration of Rs.75 lacs and in view of the terms and condition of agreement, the plaintiff made some part payment. It was agreed that balance sale consideration will be paid at the time of execution of conveyance deed and or general power of attorney in favour of the plaintiff. After signing the agreement the plaintiff repeatedly requested the defendant to fulfill her contractual obligation, but she failed to do so. The plaintiff sent a legal notice calling upon her to perform and execute conveyance deed but to no avail. Since the defendant failed to perform the agreement, the plaintiff filed this suit. During pendency of the suit the defendant expired, hence vide order dated 9.8.2004 amended title was filed and the legal heirs of the defendant were impleaded. The defendant had already filed her written statement.
2. The plaintiff earlier filed CMA No.7021/2003 in which it was stated that the defendant made certain admissions in different paragraphs of her written statement and in view of her admissions the suit may be decreed in favour of the plaintiff. This application was heard by the learned Single Judge of this court and vide order dated 13.12.2005, the application was dismissed. The plaintiff filed HCA No.39/2006 against the order of the learned Single Judge which was also dismissed in limine by the learned Division Bench of this court vide order dated 1.3.2006.
3. Earlier to the institution of this suit, two sons and one daughter of the defendant (Mst.Alam Ara) filed suit for declaration, cancellation and permanent injunction in the court of Senior Civil Judge, Karachi East on 8.2.2003 in which they prayed that all the properties left by their deceased father particularly property i.e. Bungalow No.173, Block-2, Gulshan-e-Iqbal, Karachi has been inherited by all surviving legal heirs. They also prayed for declaration that the mutation letter issued in favour of their mother i.e. defendant No.1 in the present suit be cancelled. When this fact brought into notice of this court that a Suit No.376 of 2003 is pending in the civil court, the same was called from civil court and vide order dated 2.3.2009 both suits were consolidated and the plaintiff of the present suit was also impleaded as defendant No.4 in Suit No.492 of 2008 (Old No.376/2003). Though earlier application moved under Order 12 Rule 6 CPC was dismissed and the aforesaid HCA was also dismissed in limine, the plaintiff has moved another application in the year 2009 under Order 12 Rule 6 CPC that the defendant Nos.1 and 1-A as well as CDGK in their written statement in Suit No.492/2008 categorically admitted that Mst.Alam Ara entered into the sale agreement with the plaintiff, hence, the plaintiff has again prayed that on the basis of admission made by the defendant No.1 in Suit No.492/2008 this suit may be decreed. The defendant Abdul Samad Khan filed counter affidavit in which he denied the contention raised by the plaintiff. It was stated that if disclosure of facts made by the deceased defendant No.1 will be read along with contents of the paras 5,6,8, 10 and 11 of written statement, it will become clear that other legal heirs of the deceased late Abdul Monim Khan had interest in the property. It was further stated that if both the written statements will be read together it will transpire that no admission was made by her, which can be termed unequivocal and unambiguous. He further stated that the matter requires evidence and on the basis of the said written statement, no decree can be passed.
4. Kh.Shams-ul-Islam, learned counsel for the plaintiff argued that the defendant as well as her elder son admitted the execution of agreement in their written statement filed in Suit No.492/2008 . He further argued that the total sale consideration was Rs.75 lacs and out of which Rs.15 lacs was paid and Rs.60 lacs would be paid at the time of execution of conveyance deed. It transpired from the written statement of CDGK that the suit property was mutated in the name of defendant No.1 on the basis of deed of relinquishment executed in her favour by all sons and daughters. He further argued that the admission made by defendant No.1 in Suit No.492/2008 came into the knowledge of plaintiff after tagging of the aforesaid suit with this suit, though he admitted that he moved the application under Order 12 Rule 6 CPC on the basis of admission made in the written statement filed in the present suit, which was dismissed and the said order was challenged in HCA, which was also dismissed. In support of his arguments the learned counsel referred to 2003 SCMR 1261 (Amir Bibi v. Muhammad Khursheed) in which the hon’ble Supreme Court held that in view of Order 12 Rule 6 CPC, the court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case, but such power was not unfettered and the admission on the basis whereof a decree was sought must be specific, clear, unambiguous, categorical and definite. Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the court to accept or reject such application. He further referred to 2007 SCMR 433 (G.R.Syed v. Muhammad Afzal), in which the apex court again relying upon its own judgment supra held that the court is empowered under Order 12 Rule 6 CPC to pass judgment on the basis of admissions of facts made by the parties to their pleadings, at any stage of proceedings, if it is concluded that admissions of the defendant were specific, clear, unambiguous categorical and definite. Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the court to accept or reject such application.
5. Conversely, Mr.M.M.Aqil Awan, learned counsel for the defendants argued that the matter is pending since 2003 and but no issues have been framed so far. He further argued that the defendants have already filed the consolidated issues, but the plaintiff is avoiding unnecessarily and instead of filing proposed issues he has filed this application, which was earlier dismissed but the same application has been repeated on the grounds that the defendant No.1 made some admissions in the written statement filed in suit No.492/2008. Learned counsel also referred to an undated order of this court passed by learned Single Judge earlier in which the question of maintainability of suit was also decided. In fact the maintainability of the suit No.492/2008 was in question and according to counsel for the plaintiff in this suit he raised objection that the said suit was time barred. Learned Single Judge held that the question of limitation is mixed question of law and facts and to prove the fact of mutation in favour of Mst.Alam Ara Begum evidence is required. It was further held that whether the suit is barred by time or not, this fact can only be decided after recording of evidence. Vide order dated 2.3.2009, both suits were consolidated and it was ordered that the leading suit shall be suit No.286/2003. He further referred to order dated 17.3.2008, related to the decision of CMA No.4555/2007, filed by the defendants with the prayer that the earnest money of Rs.15 lacs be allowed to be paid/refunded back to the plaintiff and in case of refusal the defendants may be allowed to deposit the same with the Nazir of this court. On this application, the court allowed the defendants to deposit Rs.15 lacs with the Nazir of this court, which was received by the defendant No.1 being a part payment of the agreed sale consideration and the court further directed that if said amount is deposited, the Nazir shall invest the same in some Government profitable scheme. The learned counsel concluded that there is no admission in the written statement and the controversy cannot be resolved unless the issues are settled and evidence is recorded in this case. In support of his arguments learned counsel referred to PLD 2003 Karachi 253 (M/s.Gerry’s International (Pvt) Limited v. M/s.Qatar Airways), in which learned Division Bench of this court held that mere non-denial to a fact in the written statement could not be considered as an admission and that too be equated as unequivocal, clear and unambiguous. He further referred to the judgment of hon’ble Supreme Court in the case reported in 1996 SCMR 696 (Macdonald Layton & Company Pakistan Ltd. V. Uzin Export-Import Foreign Trade Co.), in which it was held that essential provision of Order 12 Rule 6 CPC provides summary and speedy remedy in cases where admission was made by defendant in the pleadings or outside the same. In order to attract this provision, it is necessary that the admission should be unequivocal and undeniable. The court in deciding such application exercise its discretion which is regulated by the well-recognized principles. To pass judgment on admission is within the discretion of the court which should be exercised in judicial manner and is not a matter of right. However, if it involves questions which cannot be conveniently disposed of in an application, the court may exercise discretion in rejecting the application.
6. Arguments heard. There is no doubt that Order 12 Rule 6 CPC enables a court upon application by either party to dispose of the suit with regard to which there is no dispute between parties. The entire plaint or written statement is required to be read for the purposes of finding out the nature of admission. It is also well settled that for the purposes of decreeing the suit on admission it is necessary that the admission must be clear, specific, unambiguous, definite and categorical and court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. Earlier, the plaintiff filed an application under Order 12 Rule 6 CPC for decreeing the suit on admission, which was dismissed by the learned Single Judge of this court. The plaintiff preferred HCA, which was also dismissed in limine.
7. So far as the decree on admission in the case in hand is concerned, the application was already dismissed, so the question of decreeing this suit on admission does not arise. The plaintiff has moved the present application on the plea that defendant No.1 in this suit, who was also defendant No.1 in Suit No.492/2008 made certain admissions in her written statement, therefore, the plaintiff wants decree on admission in this suit, which was allegedly made in the written statement filed by the defendant No.1 in suit No.492/2008. Though both the suits under the order of this court have been consolidated, but the decisive point in this case is to see whether the alleged admission made by the defendant No.1 in Suit No.492/2008 can be treated her admission in Suit No.286/2003 and on the basis of said admission, this suit can be decreed or not. The plethora of the case law is available through which it is well settled that for passing decree on admission the admission must be unambiguous, unequivocal and undeniable. In the Suit No.492/2008 the plaintiff of this suit is defendant No.4, while the plaintiffs are two sons and one daughter of deceased defendant Mst.Alam Ara Begum. So it is clear that the Suit No.492/2008 either can be dismissed or it can be decreed in favour of plaintiffs in that suit and not in favour of the present plaintiff in Suit No.286 of 2003.
8. At this juncture, I would like to refer the case of Naseer Ahmed & another v. Asghar Ali reported in 1992 SCMR 2300, in which the hon’ble Supreme Court has held as under :-
“13. It is noteworthy that the alleged admission relied upon by the appellants was not made in the suit in hand, but in another suit. In law a party is bound by admission recorded in the pleading in a suit, in which it is filed and not in a subsequent suit. Reference in this connection may be made to para. 821 Vol.I of Taylor’s Law of Evidence (1931 Edn.) wherein it is laid down that:-
“With respect to admission by pleading the law at present seems to be that statements which are contained in any pleading, though binding on the party making them for all the purposes of the cause, ought not to be regarded in any subsequent action as admission.”
This rule has been stated in Monir’s “Laws of Evidence”, 4th Edn., Vol.I at page 679, as under:-
“….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.”
In the aforesaid judgment the dictum laid down by the apex court, makes it clear that in law a party bound by admission recorded in the pleading in a suit, in which it is filed and not in any other suit. In AIR 1941 Bombay 144, while referring to the Evidence Act, the learned court held that a party is not bound by an admission in his pleading except for the purposes of the suit in which the pleadings is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case as on particular ground and to make an admission, but that admission is not binding in any other suit and certainly not for all time.
9. The mere consolidation of two suits and the written statement filed separately in both suits will not change their status and the same will remain two distinct and separate statements and the written statement of one suit cannot be utilized in another suit for the purposes of Order 12 Rule CPC, so as to read any admission or concession for seeking a judgment on admission as a party is not bound by an admission in his pleadings except for the purposes of suit for which the pleadings delivered. Reference can be made to 1983 CLC 74. The another judgment reported in 1993 MLD 1287, the full bench of this court held that where the case involved questions which could not be conveniently disposed of on a motion under Order 12 Rule 6 CPC, court should in exercise of its discretion refuse motion.
10. Learned counsel for the parties relied upon various case law, in which the guiding principle was that the admission should be clear, specific, unambiguous categorical and definite on the basis of which decree can be passed and the court is bound to examine the plaint and written statement to ascertain the nature of admission in that case. There is no cavil to the proposition expounded in the case law referred to above. Here the position is entirely different in which plaintiff wants decree in his suit on the basis of admission made by the defendant No.1 in her written statement of another suit which is neither possible nor warranted under the law.
11. For the foregoing reasons, the application is dismissed.
Karachi.
Dated.7.12.2012 Judge