IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition for leave to appeal has been filed against the judgment dated 7th September, 2006 passed by Lahore High Court, Lahore whereby R.F.A. Filed by petitioner has been dismissed.
2. Precisely stating facts of the case are that the petitioner/defendant, who is owner of land measuring 2 Kanals, as described in the plaint, entered into agreement of sale of the said land in favor of respondent/plaintiff on 4th February, 2003 for a total consideration of Rs,11,000,000. Out of the total sale consideration, a sum of Rs,1,000,000 was paid by the respondent/plaintiff as earnest money at - the time of execution of the agreement. As the suit-land came under the scheme known as M.A. Johar Town, Lahore, as such it was agreed between the parties that the petitioner/defendant would obtain adjustment etc. Of the land in question from the Lahore Development Authority and thereafter transfer the same to the respondent/plaintiff and receive the balance agreed consideration. Subsequently, on 27th May, 2003 an additional agreement was executed between the parties and petitioner/ defendant received further Rs,1,700,000 from the respondent/plaintiff. The remaining amount of Rs,8,300,000 was to be paid by the respondent/plaintiff on completion of document and transfer of the suit-land. The petitioner/defendant also handed over the possession of the land in dispute to the plaintiff as per the agreement. Later, on the failure of the petitioner/defendant to execute the sale-deed and to inform the respondent/plaintiff about adjustment of the land in question by the Lahore Development Authority, the respondent/plaintiff filed a suit for specific performance against the petitioner/defendant on the ground that petitioner/plaintiff is intentionally avoiding to get adjustment etc. Of the land to avoid execution of the agreement whereas the respondent/plaintiff has always been ready and willing to perform his part of the agreement. The suit was contested by the petitioner/defendant by way of filing written statement admitting the ownership of the land in dispute. Furthermore, he 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 by him that the requisite adjustment etc. Had not been granted by the Lahore Development authority. He also stated that the respondent/plaintiff had failed to make payment of the balance consideration within the due date. On the divergent pleadings of the parties, issues were framed.
3. Subsequently, the petitioner/defendant 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 adjustment had not been granted by the Lahore Development Authority, hence the suit for specific performance is devoid of any cause of action and the respondent/plaintiff is only entitled to receive an amount equal to double of the earnest money advance paid by him by way of compensation. This application was resisted by the respondent/plaintiff, who also filed an application under Order XII, rule 6, 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.
4. Learned trial Court, after hearing both the sides, dismissed the application filed by the petitioner/defendant and accepted the application of respondent/plaintiff and decreed the suit as prayed for vide judgment/decree, dated 5th May, 2006. Feeling aggrieved by the judgment/decree of the trial Court, the petitioner/defendant preferred R.F.A. Before the Lahore High Court, Lahore but without any success, as the same has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.
5. Learned counsel contended that once the trial Court had framed the issues and started recording evidence, it had no jurisdiction to reject the plaint merely on the basis of admission of the petitioner/defendant in terms of Order XII, rule 6 of C.P.C. According to him the judgment relied upon by the learned counsel was not applicable in view of the nature of the controversy involved in the case.
6. A perusal of the written statement demonstrates that the petitioner had admitted the execution of the agreement to sell dated 4th February, 2003 in respect of the land in question. It may be noted that on receipt of Rs,27,00,000 an earnest money possession of a part of the suit property has been delivered to the respondent. Learned Civil Judge in view of such admission framed an issue whether the plaintiff was entitled to get a decree as prayed for. We inquired from learned counsel for the petitioner that in view of the provision of Order XII, rule 6, C.P.C. Was there any impediment for the trial Court to decree the, suit? His contention was that agreement could only to be put into operation subject to obtaining adjustment etc. Papers by the petitioner and as L.D.A.
Had not granted the requisite adjustment which was due to the reason that the petitioner could not make payments to L.D.A. Which required to be paid before adjustment could be granted and such failure of the petitioner who due to the failure of the respondent to make the payment of the balance consideration within the stipulated period, therefore, it would not be executable. In this behalf it may be noted that initially in pursuance of agreement, dated 4-2-2003 plaintiff (respondent) and defendant (petitioner) entered into agreement for a sale for total consideration of Rs,11,00,0000 out of which respondent paid earnest money of Rs,10,00,000 at the time of execution of the agreement. As the land, subject-matter of the agreement, had fallen under the scheme known as M.A. Johar Town, Lahore, therefore, the petitioner (defendant) agreed to obtain adjustment of the land from L.D.A. And thereafter transfer the same to the respondent/plaintiff and receive the balance consideration. Subsequently, on 27th May, 2003 an additional agreement was executed between the parties in pursuance whereof the petitioner received further Rs,17,00,000 from the respondent/plaintiff and remaining balance of Rs,83,00,000 was to be paid by respondents on completion of documents and transfer of the suit-land. As it has been noted hereinabove that admittedly petitioner handed over the possession of the land in dispute to the plaintiff as per the agreement, therefore, in the meantime it was obligatory for the petitioner to have obtained adjustment from L.D.A. Which he failed to do. As such respondent filed suit for specific performance alleging therein that the petitioner is intentionally avoiding getting adjustment etc. Of land from L.D.A. Whereas the respondent had always been willing to perform his part. Under the circumstances, everything was admitted therefore, arguments of the learned counsel that without obtaining adjustment from L.D.A. The agreement was not capable of implementation has no force because after the execution of the same the petitioner executed another document dated 24th September, 2003 in which the period of performance of contract was extended upto 31st December, 2003 with further stipulation that in the meantime he would get adjustment etc. From L.D.A. This document is also admitted by the petitioner, therefore, the petitioner would have obtained adjustment certificate from L.D.A. Before the expiry of the stipulated period because facts available on record reveal that respondent was always ready and willing to perform his part of obligation.
7. It is a settled proposition of law that under Order XII, rule 6 of C.P.C. The Court is empowered to pass a judgment on the basis of admissions of facts by the addressee made by the parties to their pleadings, at any stage of the proceedings. The learned High Court to adjudge the controversy between the parties placed reliance upon the judgment of this Court in case of Amir Bibi v.
Muhammad Khurshid and others 2003 SCM R 1261 and applying the rules laid down therein concluded that as the admission of the petitioner was specific, clear, unambiguous, categorical and definite, therefore, the trial Court had rightly granted decree under Order XII, rule 6 of C.P.C. As such under the circumstances, reiterating the principle laid down in the reported judgment we are of the opinion that the impugned judgment admits of no interference.
8. As a result of the above discussion petition is dismissed and leave declined.