' SARMAD JALAL OSMANY, J.--- Briefly stated the facts in this Appeal are that the respondent had filed Civil Suit No,1266 of 2005 before this Court against the appellants wherein it was averred that he had been granted residential Plot bearing No,F-14/A, Block-B, North Nazimabad, Karachi, measuring 2000 sq. Yards in Expansion Scheme No,2(N.N.) per allotment, dated 18-6-1962.
Thereafter he had paid the occupancy of the value of plot etc., however, he was not handed over possession as the said plot was heavily encroached upon. The matter kept on lingering between erstwhile K.D.A. And appellant/plaintiff and during the years 1979 to 1996 correspondence was exchanged between the parties whereby the K.D.A. Kept on assuring the appellant/plaintiff that efforts were being made to get the encroachments removed etc. Finally, he was forced to file proceedings before the Provincial Ombudsman, Sindh, who vide order dated 21-7-1998, directed the K.D.A. To allot an alternative plot approximately for the same value and size to the appellant/plaintiff. No appeal was filed by the K.D.A. Against such order. Thereafter, again, the petitioner started corresponding with the K.D.A. Regarding the plot in question who assured him that they were in the process of locating an alternative plot. In June, 2005 the appellant/plaintiff came to know that two larger plots have become available and consequently applied to the C.D.G.K. (successor to K.D.A.) for allotment of one such plot. Thereafter, it was confirmed by the C.D.G.K. That Plots Nos.G-4 and G-5, Block "B", North Nazimabad, Karachi are available as they have not been allotted to anybody else. However, no action was taken by C.D.G.K. In respect of the appellant/plaintiff's case and hence the suit with the following prayers:--
(A) Declare that the plaintiff is entitled to be allotted a plot of 2000 sq. Yards out of Plots Nos.G-4 and G-5, North Nazimabad, Karachi by way of adjustment for his Plot No,F-14/A, Block "B", North Nazimabad, Karachi.
(B) Grant mandatory injunction directing the defendants to comply with an implement the order of the learned Ombudsman dated 21-7-1998 and issue formal allotment order and hand over vacant quiet and exclusive physical possession of a plot of land admeasuring 2000 sq. Yards out of Plots Nos.G-4 and G-5, Block "B", North Nazimabad, Karachi to the plaintiff.
(C) Direct the defendants to implement summary dated 11-8-2005 (Annexure "J") as approved by D.C.O./defendant No,l.
(D) Prohibit the defendants, their officers or any other person acting on their behalf from disposing off or dealing with Plots Nos.G-4 and G-5, Block "B", North Nazimabad, Karachi, in any manner whatsoever.
(E) Grant any other relief which this Honourable Court deem just and proper in the circumstances of the case.
(F) Grant cost of the suit.
2. In the written statements, filed by the respondents, preliminary objections were taken in terms of maintainability of the suit under sections 42 and 56 of the Specific Relief Act. Insofar as the factual assertions in the plaint are concerned, it was not denied that the appellant/plaintiff had been allotted the plot in question for which he had paid full occupancy value. However, he could not be given possession of the same due to heavy encroachments. Similarly, it has not been denied that the alternative plots do exist but due to ban imposed by the Government of Sindh, the needful could not be done.
3. The appellant/plaintiff had filed an application under Order XXXIX, rules 1 and 2, C.P.C. Bearing C.M.A. No,8053 of 2005 for interim stay which came up for hearing before the learned single Judge on 5-12-2005. On such date learned counsel for the plaintiff/ respondents stated that as the averments in the plaint had been admitted by the appellants/defendants but only an inability has been shown for the grant of alternate plot in view of the ban imposed by the Sindh Government, therefore, the suit be decreed as prayed. Such order was passed upon which the decree was drawn up and hence the appeal.
4. By consent of both the learned counsel it was agreed that this appeal be disposed of at the Katcha Peshi stage.
5. Mr. Manzoor Ahmed, appearing for C.D.G.K. Has firstly submitted that before framing of the issues, the suit could not be decreed on admission as has been done in the instant case for which submission he has relied upon Ali Muhammad v. Muhammad Hayat 1982 SCM R 816 and Anjuman Tajran v. Chief Administrator Auqaf 2001 CLC 136. Secondly, per learned counsel, although there is an admission in the written statement filed on behalf of C.D.G.K. That the respondent was allotted the plot earlier, yet the same is conditional since a ban was imposed by Government of Sindh and hence the same should have been adjudicated before the learned Single Judge. In this regard, per learned counsel, it has only been observed in the impugned judgment that the ban is independent of the issues involved in these proceedings. Learned counsel has invited our attention to the letter, dated 8-12-1999 wherein it has been conveyed by the Secretary to the Governor of Sindh that the ban is with regard to fresh allotment, exchange and alternate plots which covers the respondent's case. Finally, per learned counsel, in the impugned order even the plot number is not mentioned which is to be given to the respondent. Hence, learned counsel has prayed that the appeal be allowed and the suit dismissed.
6. On the other hand, Mr. Khalid Javed Khan has submitted that under Order XII, rule 6, C.P.C. At any stage of the proceedings any party may apply for judgment and decree and even an oral application can be made in this regard. So also this can be done before framing of the issues. For the proposition he has relied Nathu Singh v. Chuttan and others AIR 1999 Lah. 830, Ghulam Muhammad v. Bank of Bahawalpur 1971 SCM R 148, Sultan Wasi Jan v. Sultan Saeed Jan 1983 SCM R 1265, Shaikh Mehmood Ahmed v. Dr. Ghait Pharaon 1987 CLC 2131 and H. Gharibullah v. Mumtaz Begum 1990 CLC 1609. Further more, per learned counsel under Order XII, rule 6, C.P.C. Admission can either be in the pleadings or in some documents attached therewith. Insofar as framing of issues are concerned, under order XIV, C.P.C. This is to be done when the parties are at variance which is not the case in the present matter. In the circumstances, learned counsel has prayed that the appeal be dismissed.
7. We have heard both learned counsel and our conclusions are as follows:--
8. There is no cavil with the argument that under Order XII, rule 6, C.P.C. a suit can be decreed on admissions at any stage of the proceedings and in this regard it is not necessary that issues be framed before such request is made to the Court. Reference can be made to Shaikh Mehmood Ahmed v. Dr. Ghait Pharaon (supra) and H. Gharibullah v. Mst. Mumtaz Begum (supra). However, it is axiomatic that the admission must be clear, unambiguous, unqualified and unequivocal failing which it is incumbent upon the Court to frame issues and decide the case. In this regard, reference can be made to Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Company 1996 SCMR 696, Qatar Airways v. Genyis International (Pvt.) Ltd. 2001 M LD 1615. In the present case, it would be seen that the admission was qualified to the extent of the ban imposed by the Governor of Sindh. We have perused the letter whereby such ban was conveyed to the concerned departments and are satisfied that it not only applies to fresh allotments but also to exchanges and alternate plots. Hence, in our opinion, the admission made was subject to such ban which controversy should have been decided by the learned Single Judge although it may be only a legal one. We also note that vide the impugned order it has merely been observed that the ban in question would not apply as this is independent of the issues involved in the suit. In our opinion this is the only issue involved in the suit i,e, whether the rights acquired by the respondent/plaintiff in respect of the plot in question as far back as in 1965 could be postponed/affected by virtue of the ban.
9. For the foregoing reasons, we would set aside the impugned judgment and decree and direct that the matter be remanded back to the learned Single Judge for decision afresh on the issue aforementioned. The parties would be free to lead evidence if any on such issue. It is further directed that the matter would be decided by the learned Single Judge within three months from today. Appeal stands disposed of along with all pending applications.