' SH. AZMAT SAEED, J.---This Regular First Appeal is directed against the judgment and decree dated 5-5-2006 passed by the Civil Judge 1st Class, Lahore.
2. Brief facts leading to the filing of this appeal are that the respondent filed a suit for specific performance against the appellant alleging that the appellant is owner of land measuring 2 Kanals bearing Khasra Nos.2935/1 and 2935/2, Mauza Bhaikeywal, Lahore situated in Plot No,60-E, M.A.
Johar Town, Lahore and had executed an agreement to sell on 4-3-2003 in respect of the said land in favour of the respondent for a total consideration of Rs,1,10,00,000 out of which a sum of Rs,10,00,000 was paid by the respondent to the appellant as earnest money/advance payment at the time of the execution of the agreement. It was contended that, it was further agreed between the parties that the appellant would obtain adjustment/exemption of the land in question from the Lahore Development Authority and thereafter transfer the same to the respondent and receive the balance agreed consideration. It was also agreed that in case of any shortfall in the area of land pursuant to such adjustment/exemption, the same shall be made good by the appellant from other land owned by him situated in the vicinity. It was also alleged in the plaint that on 27-5-2003 a further agreement was executed inter se the parties whereby the appellant received a further sum of Rs,17,00,000 from the respondent and handed over the possession of the property in dispute to the respondent. On the failure of the appellant to execute the sale deed and to inform the respondent about the status of exemption/adjustment by the Lahore Development Authority, the respondent filed the suit for specific performance against the appellant.
3. The appellant entered appearance and filed his written statement admitting his ownership of the land in dispute and did not specifically deny the execution of the two agreements and payment of consideration. However, preliminary objections as to the maintainability of the suit and absence of cause of action were, inter alia, raised. It was also contended that the requisite exemption/adjustment had not been granted by the Lahore Development Authority. The appellant also stated that the respondent had failed to make payment of the balance consideration within the due date. On the divergent pleadings of the parties issues were framed. Subsequently, it appears from the record that additional issues were also framed by the Trial Court on two separate occasions. Thereafter the appellant filed an application under Order VII, Rule 11 of the C.P.C. Seeking rejection of the plaint on the ground that as the requisite exemption/adjustment had not been granted by the Lahore Development Authority, hence the suit for specific performance was devoid of any cause of action and the respondent was only entitled to compensation of double the advance money. The said application was resisted by the respondent who also filed an application under Order XII, Rule 6 of the C.P.C. Seeking that the suit be decreed as prayed for as the issues raised could be decided without recording of evidence on the basis of law applicable as the essential facts were admitted between the parties. The Trial Court after hearing the parties dismissed the application under Order VII, Rule 11 of the C.P.0 filed by the appellant and accepted the application under Order XII, Rule 6 of the C.P.0 filed by the respondent and thereby decreed the suit as prayed for vide the impugned judgment and decree dated 5-5-2006.
4. The learned Counsel for the parties have been heard and the record requisitioned from the Trial Court has been perused.
5. It is contended by the learned counsel for the appellant that the grant of exemption/adjustment by the Lahore Development Authority was a mandatory pre-condition for the specific enforcement of agreements to sell and in the absence thereof no decree for specific performance could have been passed. It is further contended that even otherwise issues had been framed by the Trial Court which could only be decided after the recording of evidence and the suit could not have been summarily decreed as the provisions of Order XII, Rule 6 of the C.P.0 were not attracted and the Trial Court has erred in referring to and relying upon the pleadings and applications of another suit which had not been produced in evidence nor the appellant confronted therewith. In support of his contentions the learned counsel has placed reliance upon the judgments reported as Qureshi Muhammad Anwar and 6 others v. S.A. Qureshi and 3 others 1994 CLC 733, Macdonald Layton and Company Pakistan Limited v. Uzin Export-Import Foreign Trade Co. And others 1996 SCMR 696, Muhammad Ishaq and another v. Mst. Sufia Begum 1992 SCM R 1629, Federation of Pakistan through Cabinet Secretary to the Government of Pakistan, Cabinet Secretariat, Islamabad and 2 others v.
Ally Brothers and Company (Pak) Limited through Managing Director/Chief Executive and another 2001 M LD 1615, Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCM R 322 and an unreported judgment of the Honourable Supreme Court of Pakistan passed on 14-11-2002 in Civil Appeal No,1527 of 1999 titled Rashid ur Rehman Khan v. Riaz Mubarik.
6. The learned counsel for the respondent controverted the contentions raised on behalf of the appellant. It was contended that all the essential facts were admitted between the parties as is evident from the written statement filed by the appellant as well as the application under Order VII, Rule 11 of the C.P.C. It was contended that agreements to sell, payment of consideration and transfer of possession are not disputed and the absence of the grant of adjustment by the Lahore Development Authority does not denude the agreements of their legality or obstruct the specific enforcement thereof. It is further contended that in fact such adjustment has since been accorded in principle by the Lahore Development Authority. Adds that in the facts an circumstances of the case the provisions of Order XII, Rule 6 of the C.P.C. Were squarely applicable and rightly applied by the Trial Court by decreeing the suit in favour of the respondent. In support of his contentions the learned Counsel for the respondent has placed reliance upon the following judgments:--
(i) Amir Bibi through Legal heirs v. Muhammad Khurshid & others (2003 SCM R 1261).
(ii) Sami ul Haq v. Dr. Maqbool Hussain Butt and others (2001 SCM R 1053).
(iii) Abdul Karim v. Muhammad Shafi and another 1973 SCM R 225.
(iv) Sheikh Mahmood Ahmad v. Drt Ghaith Pharaon and 3 others (1987 CLC 2131).
(v) Mst. Taj Bibi and another v. Muhammad Akbar and 6 others 1987 SCM R 1850, and
(vi) Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807.
7. Order XII, Rule 6 of the C.P.C. Empowers the Court to pass a judgment on the basis of admissions made by the parties to their pleadings or otherwise at any stage of the proceedings without waiting for the determination of any other question that may arise between them.
8. The Sindh High Court in its judgment reported as Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon & 3 others (1987 CLC 2131 (Karachi)) with reference to Order XII, Rule 6 of the C.P.0 was pleased to hold as follows:-- "It is again manifestly clear that the above reproduced rule permits any party, at any stage of a suit, where admissions of fact have been made, either on pleadings, or otherwise, to apply to the Court for such judgment as upon such admission he may be entitled to. The admission need not, therefore, necessarily be made only in the pleadings. By laying down "or otherwise" the legislature has not restricted the admission only on the pleadings. These words are, in my opinion, of general application and there is no justification on the basis of the language used in Rule 6 of Order XII to confine them to the admissions made in the pleadings only as the learned counsel for the defendant desires me to do."
' In the L.D.A case reported as Lahore Development Authority through its Director-General & another v. Mian Riaz Ahmad & others (1987 SCM R 1850) the honourable Supreme Court of Pakistan declined to interfere in a judgment passed on the basis of Order XII, Rule 6 of the CPC.
7. The honourable Supreme Court of Pakistan in Amir Bibi's case (Supra) (2003 SCM R 1261) has laid down the following test for application of Order XII, Rule 6 of the C.P.C. Such test is in consonance with and the synthesis of the judgments relied upon by both the parties in this behalf. The relevant observation is reproduced as under:-- "In view of the provisions as contained in Order VII, Rule 6 a 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 but such power is not unfettered and the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categorist and definite. It is bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission.
It would, however, be discretionary for the Court to accept or reject such application."
10. The upshot of the above discussion is that the Trial Court is empowered to pass a decree summarily on the basis of admissions made in the pleadings or otherwise. Such admissions must be specific, clear, unambiguous, categorist and definite and even in the presence of such admissions it is the discretion of the Court whether to pass a decree or reject the application under Order XII, Rule 6 of the C.P.C.
11. Thus, at the very outset, it is imperative to determine and identify the facts which are specifically, clearly, unambiguously, categorically and definitely admitted by the appellant as only such facts would be relevant for the application or otherwise of Order XII, Rule 6 of the C.P.C. A perusal of the written statement reveals that the fact that the appellant is the owner of the land in dispute is admitted. With reference to the rest of the contentions in the plaint, there is a denial simpliciter portraying a text book example of an evasive denial in terms of Order VIII, Rule 5 of the C.P.C. Para 2 of the plaint wherein the factum of the agreements, payment of consideration and handing over possession etc. Is mentioned, has been responded to in one sentence i,e, "the contents of para. No,2 are not correct, hence denied." However, in preliminary objection No,1 it has been contended that the respondent has failed to pay the balance amount within the stipulated period, hence the suit is liable to be dismissed. Subsequently, the appellant filed an application under Order VII, Rule 11 of the C.P.C. Wherein admissions have been made in paras. No,2 and 3 thereof which are reproduced as follows:-- "2. That in spite of best efforts and endeavor of petitioner the petitioner had failed to get the necessary exemption/adjustment etc., for the L.D.A. Whereas the last date agreed upon between the parties for the execution of requisite sale-deed was 31-12-2003, and in this situation the only remedy available to the plaintiff/respondent as explained in the agreement to sell is that he could demand double of the advance amount. The copy of the disputed agreement to sell is annexed herewith for the perusal of this honourable Court, as such, in the light of this submission the filing Of the titled suit for specific performance is uncalled for and is not maintainable because the petitioner/defendant could not get the necessary exemption/adjustment, enabling the petitioner to execute the requisite sale deed.
3. That it is also admitted fact that unless and until the disputed plot is exempted/adjusted in favour of the petitioner by the L.D.A. The petitioner is not in a position to execute the requisite sale- deed so the only remedy available to the plaintiff/respondent is to demand double the advance amount i,e, Rs,27,00,000 + Rs,27,00,000 = Rs,54,00,000 from the petitioner."
12. A perusal of the aforesaid reveals that it is an admitted fact between the parties and not disputed by the appellant that he is the owner of the land measuring 2 Kanals bearing Khasra Nos.2935/1 and 2935/2, Mauza Bhaikeywal, Lahore situated in Plot No,60-E, M.A. Johar Town, Lahore.
It is an admitted fact that the appellant entered into an agreement to sell the said land to the respondent for a total consideration of Rs,1,10,00,000 and a sum of Rs,10,00,000 was paid at the time of execution of the agreement. It is also an admitted fact that subsequently further a sum of Rs,17,00,000 was also received by the appellant from the respondent by way of part payment. It is also an admitted fact that at the time of execution of the agreements the land in dispute had not been adjusted or exempted in favour of the appellant who had undertaken to have the needful done from the Lahore Development Authority prior to its transfer to the respondent. It is also an admitted fact that the balance consideration had not been paid by the respondent to the appellant at the time of institution of the suit. However, the record reveals that the said amount has since been deposited in the Court pursuant to the order of the Trial Court granting a temporary injunction under Order XXXIX, Rules 1 and 2 of the C.P.C. It may be noted that the aforesaid facts had not been disputed by the counsel for the appellant before this Court.
13. The contention of the learned counsel for the respondent that the Lahore Development Authority in principle had agreed to exempt the plot is disputed by the appellant, hence cannot be taken into consideration for the adjudication of the lis at hand at this stage. Similarly admissions, if any, made by the appellant in the previous round of litigation are also irrelevant for the purposes of Order XII, Rule 6 of the C.P.C.
14. In the above perspective it is necessary to examine whether the suit filed by the respondent could be decreed as prayed for by applying the law to the clearly and unambiguously admitted fact as set forth in para. 12 above, while taking into account the legal objections raised by the appellant both before the Trial Court and before this Court.
15. The main thrust of the contentions of the learned counsel for the appellant was that the grant of adjustment/exemption was a mandatory pre-condition for the validity and specific enforcement of the agreements sued upon and in the absence thereof suit could not have been decreed and in fact should have been dismissed. In support of his contentions the learned counsel has very heavily relied upon the judgment of this Court in Qureshi Muhammad Anwar's case (supra) (1994 CLC 733) of which he himself incidentally is the author. The said case pertains to the specific performance of an agreement to transfer leasehold rights of the land, the ownership whereof vested in the Federal Government through the Director Military Land and Cantonments and the agreement was subject to the permission of the owner which apparently was granted subject to change in the terms and conditions of the lease. In the above context it was held that specific performance could not been granted in the absence of such permission or the grant of such permission subject to the disadvantage to the vendor of the leasehold rights. In the unreported judgment of the honourable Supreme Court passed in Civil Appeal No,1527 of 1999 relied upon by the learned counsel for the appellant the permission or N.O.C. From the Government of Pakistan through the Military Estate Officer was necessary for transfer of leasehold rights and such N.O.C.
Had not been issued. The agreement for sale or transfer of such leasehold rights between private individuals was held to be frustrated and not specifically enforceable.
16. In respect of a suit for specific performance of an agreement to sell pertaining to property situated within the cantonment limits requiring issuance of a 'No Objection Certificate' the honourable Supreme Court of Pakistan in its judgment reported as Muhammad Ishaq and another v. Mst. Sufia Begum (1992 SCM R 1629) was pleased to hold as follows:-- "7. From the resume of the law as above stated, it is clear that the said condition in the agreement for sale that the vendor would secure the No Objection Certificate from the Military authorities was not a condition precedent to the said agreement, but rather a condition subsequent. The condition did not go to the root of the agreement to nullify it. It was an internal condition not affecting the agreement. The condition had the effect of releasing the vendees from their obligation to accept the sale-deed if the No Objection Certificate was not obtained by the vendor and thus annulling the agreement for sale.
8. As regards the question whether the condition subsequent was waived by both the parties mutually or by the vendees, they being the parties in whose favour the condition was inserted, the documents exhibited by both the parties show that it was not so waived. The last notice Exh.PW-2/3 sent on behalf of the vendees on 3-7-1978 to the vendor refers to the need of such a No Objection Certificate. Reasonable time having expired on 14-6-1978 much before the issue of this notice, no waiver took place before the agreement became impossible of performance."
' In the judgment reported as Abdul Karim v. Muhammad Shafi and another (1973 SCM R 225) a decree for specific performance of the contract pertaining to property situated in the cantonment was upheld where a N.O.C. Had not been applied for and had neither been granted nor refused. In the judgment reported as Manzoor Hussain and 3 others v. Wali Muhammad and another (PLD 1965 Supreme Court 425) the honourable Supreme Court was pleased to hold as follows:-- "The scheme of the Foreign Exchange Regulation Act, therefore, is not to forbid the making of a contract but merely to insist that the contract shall be performed in a particular manner, namely, by taking the necessary permission of the competent authority. It cannot, therefore, in the circumstances, be said that a contract which violates any of the terms of the Foreign Exchange Regulation Act is ex facie or ab initio void or comes within the mischief of a contract prohibited by section 23 of the Contract Act. It is now well-settled that the provisions of section 23 of the Contract Act have to be construed strictly and the Courts should not invent new categories or new heads of public policy in order to invalidate a contract."
17. The upshot of the above discussion is that where an agreement to sell provides for the obtaining of a N.O.C/permission, the same is a condition subsequent and does not make the agreement void ab initio/violative of section 23 of the Contract Act or otherwise. Where the agreement cannot be performed or consummated without such condition subsequent as a consequence of operation of law or otherwise, the denial of such condition subsequent would result in the frustration of the agreement. Where such permission is granted but subject to such terms and conditions which are patently disadvantages to the vendor or the vendee the agreement may subject to its own peculiar circumstances cease to be specifically enforceable. Where such condition subsequent is not a mandatory legal necessity for the performance of the agreement, it can be waived by the party deriving benefit therefrom.
18. The instant case does not relate to the transfer of leasehold rights in the cantonment requiring a N.O.0 from the owner. It is an admitted fact between the parties that the appellant is the owner of the land in dispute (para. 1 of the written statement). The possession of the property vested in the appellant who transferred the sale to the respondent. The appellant contracted to sell the said land to the respondent after its adjustment/exemption from the Lahore Development Authority. In fact the appellant was under a double obligation; firstly, to obtain its exemption/adjustment of the land and, secondly, to transfer the same to the respondent on the receipt of balance consideration.
The respondent in his application under Order XII, Rule 6 of the C.P.0 has specifically and unequivocally relinquished his claim against the appellant with respect to obtaining and procuring adjustment/exemption of the land from the Lahore Development Authority. He has abandoned any right of compensation on account of such failure and sought the transfer of the land on an "as is where is" basis. Incidentally in the prayer clause of the plaint a decree had been sought in respect of land bearing Khasra Nos. 2935/1 and 2935/2, Mauza Bhaikeywal, Lahore which bears Plot No,60-E, M.A. Johar Town, Lahore only and no prayer for its exemption or adjustment has been made. It is not the case of the appellant that there is any legal impediment to the transfer of the rights of the appellant on an "as is where is" basis without adjustment/exemption by the Lahore Development Authority especially as its possession was with the appellant and subsequently transferred to the respondent. Such request for adjustment/exemption has admittedly not been declined by the Lahore Development Authority. If any loss is occasioned by any act or omission of the L.D.A. Or if the entire property in dispute is not existed or exempted, as the case may be, it shall be on the account of the respondent and no liability in this behalf shall visit the appellant, who can, therefore, have no bona fide grievance in this behalf. In short, in the instant case, the condition subsequent which was not mandatory stood waived by the respondent for whose benefit it had been inserted.
Consequently the suit was neither pre-mature nor barred by law and liable to be decreed on the basis of the admissions on the record. Furthermore, in view of the said unequivocal and clear admissions, evasive written statement and the nature of the defence eventually taken, this Court has no hesitation in holding that in the facts and circumstances of the case the provisions of Order XII, Rule 6 of the C.P.0 were not only applicable but discretion to apply the same has been rightly exercised by the Trial Court.
19. In view of the above, no further triable issue remained outstanding between the parties. Issues Nos .2, 3, 4-A, 4-B and 4-C are squarely covered by the said finding. It is settled law that in the facts and circumstances of the case the respondent was not required to make the balance payment till the condition subsequent of obtaining the adjustment/exemption was satisfied or waived by the respondent. Thus, the respondent could not be penalized or deprived of his remedy of specific performance for not making the payment of the balance payment on the date fixed.
20. In view of the above, this appeal is hereby dismissed and the judgment of the Trial Court is upheld with observations as aforesaid. The parties are left to bear their own costs.