1. ARSHAD NOOR KHAN, J. --- By this order I intend to dispose of application under order XII, Rule 6, C.P.C., (C.M.A. No. 3084/07) filed by the plaintiff seeking therein decree of the suit on the basis of admission contained in the written statement and application under Order VI, Rule 17, read with Section 151, C.P.C. (C.M.A. No. 3175/08) filed by the defendant seeking therein amendment in the written statement, as the facts, circumstances and law involved in both of these applications are common to each other.
2. The facts leading rise to the present applications in brief are that the plaintiff through Official Assignee filed suit for recovery of Rs. 11,10,99,874/- against the defendant stating therein that the plaintiff is a registered trust formed on 4.3.1958 by well-known educationist late Mr. Abdul Rehman's Muhammad Qureshi popularly known as Mr. A.M. Qureshi, who used to run 18 Educational Institutions in Karachi, besides Islamia College Complex situated on property bearing Plot No. 490, Jamshed Quarters, M.A.
3. Jinnah Road, Karachi. The, defendant is managing the management, control of the education system for the province of Sindh. The plaintiff trust executed a rent agreement with Islamic Education Society on 5.8.1961 in respect of the afore-said property known as Islamia College Building Complex on monthly rent at the rate of 0.4 Anna per square feet per month, which comes to Rs. 58,000/, per month and being the society as tenant was under the obligation to pay all the taxes, charges including electricity, water, conservancy charges, property tax or any other type of taxes or charges, besides cost of repairs and white wash etc. The Islamic Society was. Running, managing and controlling the various colleges and schools till 1.9.1972, when the defendant took over the charge in pursuance of MLR 118, whereby all the assets and belongings of the plaintiff trust stood vested in the defendant. After promulgation of MLR 118 in the year 1971 the suit was filed by Miss Anita Ghulam Ali and others against the plaintiff trustees bearing No. 153/1971 under Section 92, C.P.C. Wherein this Court vide order dated 15.3.1972 appointed Official Assignee as Receiver for management of the plaintiff trust and to collect arrears of rent from the defendant (tenant) as such the Official Assignee wrote several letters for payment of arrears of rent but defendant did not paid the rent. Later this suit was dismissed having become infructuous and the authority of Official Assignee came to an end vide order dated 1.10.1976 because of promulgation of MLR 118. The management, control and possession of tile suit property was taken over under MLR by the defendant, therefore, by operation of law the defendant become tenant of the plaintiff trust and liable to pay rent in accordance with the rent agreement dated 5.8.1961 for the period from 1.9.1972 to 31.7.2001 The plaintiff trust on 22.8.1990 addressed a letter to the Education Minister for payment of the outstanding dues whereupon the Education Minister observed that the trustees are entitled as rightful proprietor of the suit property. The order and the directions made by the Education Minister on 7.10.1990 were not implemented by the defendant in respect of the suit property, therefore, the plaintiff submitted an application on 30.11.1990 to the Chief Minister, who vide order dated 30.11.1990 directed to implement the order of the Education Minister, but all in vain. The plaintiff moved another application to Chief Minister on 26.2.1991 and Chief Minister was pleased to endorse on this application, why his previous orders were not implemented and further directed for payment of rent due as ordered by the Education Minister and report compliance, but the implementation was not made. Therefore the plaintiff served a legal notice on the defendant to clear all the arrears of rent, which was not responded by the defendant. It is further stated in the plaint that the plaintiff further moved another application dated 16.7.1995 to the Chief Minister for implementation of the previous orders of the Chief Minister and Education Minister, who ordered to put up summary. He further averred in plaint that apart from the suit property two more properties, namely: Government !Slamia Women College and Marie Colaco School, which were private properties of late Mr. A.M. Qureshi, were also nationalized under MLR 118 alongwith the suit property.
4. It is further averred in the plaint that despite repeated and persistent requests of the plaintiff no heed was paid by the defendant though the claim of the plaintiff was candidly admitted by the defendant, therefore the p!Aintiff constrained to file the suit for recovery, as stated above.
5. The defendant filed written statement, inter-alia, admitting therein the nationalization of the suit property under MLR as well as the correspondence regarding payment of all the arrears of rent as well as the orders passed by the Chief Minister and Education Minister regarding payment of arrears of rent. The plaintiff has, therefore, filed the present application under Order XII, Rule 6, C.P.C.
6. Stating therein that the defendant has admitted the claim of the plaintiff in his written statement as such the suit may be decreed in terms of the admission contained in the written statement.
7. The defendant has filed counter-affidavit to this application refuting the claim of the plaintiff and has also filed an application seeking therein amendment in the written statement as according to the defendant there was typographical mistake in para 17 of the written statement and inadvertently the word 'not' was missing due to typographical error. The plaintiff has filed counter- affidavit thereby denying the said mistake being typographical or incidental mistake in the written statement and further more that the admission contained in the written statement could not be lightly allowed to deny the same by filing application for amendment in the written statement to resile from the admission.
8. The learned counsel for the plaintiff vehemently contended that the claim of payment of arrears of rent has been admitted by the defendant in his written statement which is the whole and substantial claim of the plaintiff, which has been admitted by the defendant as such the suit may be decreed in view of Order XII, Rule 6, C.P.C. He further contended that admission made by the defendant in his written statement could be allowed to resile by allowing an application for amendment in the written statement and because of such amendment, if allowed, the whole complexion of the written statement will be changed and the claim of the plaintiff will become controversial, which is not the spirit of Order VIII, Rule 5, C.P.C. In support of his contention he has relied upon the case of Secretary to Government (West Pakistan) now NWFP Department of Agriculture and Forests Peshawar v. Qazi Abdul Kafeel reported in PLD 1978 SC 242 and the case of Quaid Jauhar v. Hajiani Hajra Bai reported in PLJ 2002 Kar 100.
9. Mr. Khizr Askar Zaidi, learned AAG vehemently contended that there was an accidental and typographical mistake in para 17 of the written statement and because of the said omission the contents of para 26 of the plaint have been typed in the form of admission, which is bona fide error apparent on the face of record as such the defendant may be allowed to amend the same and since he has filed application for amendment in the written statement as such the claim of the plaintiff under Order XII, Rule 6, C.P.C. Could not be granted.
10. A perusal of the content of the plaint shows that the plaintiff have claimed arrears of rent on account of nationalization of their properties by way of promulgation of MLR 118 on 1.1.1972 and have also claimed that prior to nationalization all the demised premises, the previous management was tenant and was paying rent at the rate of Rs. 58,000/- per month to the plaintiff and after nationalization, the defendant became the tenant of plaintiff and that till 2001 handsome amount of Rs. 11,10,99,874/-were accumulated against the defendant for which repeated applications were submitted before the Education Minister as well as before the Chief Minister, who while admitting the claim of the plaintiff have directed to pay the arrear of rent. All the said fact, as discussed above have been admitted by the defendant in their written statement. A perusal of the written statement shows that it has been drafted keeping in view the earlier direction of the Education Minister and the Chief Minister, therefore, the whole written statement of the defendant shall be considered for the purpose of assessment about the admission of the defendant in their written statement and mere amendment in one paragraph of the written statement will not serve the purpose, for the reasons that the claim of the plaintiff made in the plaint have been repeatedly admitted by the defendant in various paragraphs of the written statement. The contents of para 9 of the plaint, which is to the extent of submission of application by the plaintiff on 30.11.1990 to the Chief Minister whereby the Chief Minister directed to implement the order of the Education Minister immediately, is not denied by the defendant by mentioning in para 7 of the written statement that 'contents of para 9 of the plaint need not reply'. The said reply of the defendant in his written statement tantamount to admission of the whole contents of para 9 of the plaint. By virtue of Order VIII, Rule 5, P.P.C. Denial of the allegation must be specific and in absence of specific denial the contents of the plaint shall be deemed to have been accepted. In para 16 of the written statement, the averment contained in para 25 of the plaint have also been admitted whereas in para 25 of the plaint, the plaintiff has asserted that the defendant had deposited Rs. 10,00,000/-with the Official Assignee for expenditure and, in case, if the claim of the plaintiff is not accepted by the defendant, such heavy amount of Rs. 10,00,000/- could not be deposited by them for the expenditure. Para 17 of the written statement speaks about admission of contents of para 26 of the plaint and para 26 of the plaint speaks about the undertaking of defendant recorded in order dated 10.10.2003 with regard to payment of arrear of rent and para 18 of the written statement bears the admission of para 27 of the plaint regarding deposit of Rs. 10,00,000/- with the Official Assignee. All the said admissions of the defendant in his written statement, if consider in juxtaposition with the contents of the plaint, it emerges out without any iota of doubt that the defendant has admitted almost all the substantial claim of the plaintiff and mere amendment in para 17 of the written statement will not reflect on the other admissions of the defendant contained in the written statement as discussed above.
11. The admissions contained in the written statements are altogether different in nature with regard to amendment in the pleadings as the admission contained in the written statement cannot be allowed to resile by the defendant, which is not the spirit of Rule 5 of Order VIII of C.P.C. And by allowing such type of amendment in the written statement, the nature and complexion of the written statement would wholly be changed and it may become controversial, which is not the spirit of law. The point regarding amendment to resile from the admission contained in the written statement came for consideration before the Hon'ble Supreme Court in the case of Secretary to Government (West Pakistan) now NWFP Department of Agriculture and Forestry, Peshawar, supra wherein the Hon'ble Supreme Court after examining the scope of Order VIII, Rule 5, C.P.C. Was pleased to observe that admissions made in written statement have altogether different legal significance than admissions generally. The relevant observation made by the Hon'ble Supreme Court is usefully quoted here below for the sake of convenience:--- "It is well-settled that admissions made in a written statement have altogether different legal significance than admissions generally. In this respect reference may be made to Order VIII, Rule 5, C.P.C. Which runs as under:- "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
12. Now the Trial Court and the High Court both have, essentially in the exercise of their discretionary jurisdiction, refused permission to the appellant Government to amend its written statement so as to enable it to withdraw the said admission. On my part, therefore, I see no reason to take a different view, as the learned Additional Advocate-General has been unable to show that the view taken by the Court below was either perverse or unreasonable. In actual fact the view taken by the said two Courts would seem to be the only view which, in the light of all the facts and circumstances of this case, could be taken, because (1) there is nothing in the parties' contract to show as to who would be the competent authority, and (2) in the written statement filed by it, the appellant Government had not denied that the Chief Conservator was the competent authority."
13. The said point also come for consideration before the learned Division Bench of this Court in the case of Quaid Jauhar, supra, wherein while relying the case of Secretary to Government (West Pakistan) now NWFP Department of Agriculture and Forest, Peshawar, supra, the Hon'ble Division Bench of this Court was pleased to observe that the amendment in the written statement could only be allowed to the extent, which is permissible under the law and the amendment in the written statement could not be allowed leniently.
14. After evaluation of whole material available on record, I am of the firm opinion that the defendant not only made admission in par-a 17 of the written statement but have also made categorical admissions of the claim of plaintiff in various paragraphs of the written statement and amendment in one paragraph will neither brush aside the remaining admissions of the defendant in the written statement, as discussed above, nor the said admissions could be allowed to resile so as to convert the said admitted facts into controversial fact, which is against the spirit of Order VIII, Rule 5, C.P.C.
15. For all the afore-said reasons and circumstances, I find much force in the contentions advanced by the learned counsel for the plaintiff duly supported with the observation of the Superior Courts, and the application under Order XII, Rule 6, C.P.C. Is, therefore, allowed and suit is decreed in terms of the admission made by the defendant in his written statement, with no orders as to cost.
16. Consequence upon grant of application under Order XII, Rule 6, C.P.C. The application under Order VI, Rule 17, C.P.C. Merits no consideration and is hereby dismissed. .