' AZIZULLAH M. MEMON, J.---This High Court Appeal is directed by appellant Muhammad Younis against the order dated 9th May 2008 passed by a learned Single Judge of this Court whereby the application under section 12 (2), C.P.C. Filed by the appellant was dismissed with the observations, relevant for the purposes of this appeal, as under:-- "The statement has been produced in Court by the applicant himself as is evident from the order.
The fact that the document was in possession of the applicant and has been produced in Court by him is sufficient to hold that no fraud has been committed with him and he voluntarily withdrew from the ownership of the property. This suit has been decreed on the basis of admission in presence of the applicant on a consent order consciously assented to by the applicant cannot be interfered with. The present application had been filed with ulterior motive as an afterthought.
' After considering the material available on record, I am of the view that the learned counsel for applicant has failed to show any fraud and misrepresentation of fact, hence the application has no merits and for the above reasons same was dismissed by short order dated 8-5-2008."
' Heard learned counsel for the parties.
' The facts giving rise to filing of this High Court Appeal are to the effect that plaintiff/respondent Muhammad Ishaq filed suit bearing No,1397 of 2007 in the original jurisdiction of this Court with the following prayers:---- "In view of the above, the plaintiff therefore, prays that this Honourable Court be pleased to decree his suit against the defendant as under:--
(i) To declare that the plaintiff being the lawful owner and actual purchaser of the property under case viz. Plot No,A-28, Sector No,35-C, admeasuring 160 Sq. Yds., situated in Korangi Township Karachi, is real owner thereof and the defendant No,1 is mere Benamidar/ostensible owner and has no right, title or interest therein.
(ii) To declare that being the purchaser of the above referred property, the plaintiff is entitled to the same and is entitled to have the title deeds in his own name and enjoy all rights of ownership thereof and to the same and have all benefit thereof as its real owner.
(iii) To declare that the title deeds the above-referred property in the name of the defendant No,1 liable to be struck out and the defendant No,1 is bound to surrender the same, transfer the said property into the name of the plaintiff.
(iv) To direct the defendants and everybody through or on their behalf in any capacity to convey the said property to the plaintiff, and in case of failure to do so on his part, to direct the Nazir to convey/transfer the said property into the name of the plaintiff.
(v) Permanently restraining the defendants, their agents, attorneys and every body for and on their behalf from creating any third party charge over the property under case and/or to sell, dispose of the same in favour of anybody under any mode of transfer prescribed in law, also to restrain the defendants Nos.2 & 3 from giving any effect to any representation of the defendant No,1 concerning any matter in relation to the said property.
(vi) Cost of the suit, and, any other relief which this Honourable Court may deem fit and proper under the circumstances of the case may also be granted though not prayed for herein specifically but the plaintiff is found entitled thereto under the law or equity.
' Defendant No,1 Muhammad Younis is son of the said plaintiff and it so happened that during the proceedings of the suit, the defendant/appellant appeared in person before learned Single Judge in the said proceedings of suit and filed an application stating therein that he had admitted the claim of the plaintiff of the said suit and the same may be decided in terms of his admission so made therein; learned Single Judge passed the order in the following terms:-- "Defendant Muhammad Younus has filed a statement in writing, wherein it has been stated that he has settled the matter with the plaintiff amicably outside the Court. It has been further mentioned that he withdrew himself without any coercion and undue influence from claiming any right, in the disputed house and the contents of the statement be treated as part of this proceeding.
' Mr. Muhammad Ilyas Khan Tanoli learned counsel for the plaintiff has no objection.
' Accordingly, the suit is decreed as prayed. The concerned authorities are directed to mutate the property bearing Plot No,A-28, Sector No,35/C, measuring 160 square yards situated in Korangi Township, Karachi in the name of plaintiff."
' The appellant then filed an application under section 12(2), C.P.C. With the prayer that the judgment and decree passed by the learned Single Judge in the said suit may be set aside on the grounds that the same were obtained by means of fraud and/or misrepresentation of the facts and further that he never made any admission to accept the claim of plaintiff in the suit with regard to the property involved therein; further that his signature was obtained on a paper without contents of the same having been either read over to him or explained to him thereby he was defrauded and, therefore, the judgment and decree so passed in the suit are not binding upon him.
' Learned Single Judge dismissed the said application, as stated hereinabove, with the observation as quoted above.
'The order passed by learned Single Judge on 8th April 2008 having been reproduced hereinabove, it clearly comes out of the same that the appellant with his counsel was very much present before learned Single Judge who had taken all care and necessary pains to ensure that the contents of application, whereby the appellant had admitted the stand of the plaintiff, were fully explained to him and that the appellant with conscious mind had accepted the said contents to be true and correctly reduced in writing in the said application.
It is settled principle of law that where a suit has been heard and decided on the basis of admission of the defendant, and the proceedings so recorded are clear enough indicating no ambiguity as well as definite admission is found pertaining thereto, the concerned party cannot subsequently take a `U' turn to say that he had no intention to have had made such admission for the purpose of disposal of the suit.
' In G.R. Syed v. Muhammad Afzal (2007 SCM R 433) Honourable Supreme Court was pleased to record the following observations pertaining to disposal of a suit on the basis of admissions:-- "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 favour 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 parries 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 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,gainst the petitioner/defendahl9#h 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 objection 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 Hied an application under Order Vll, rule 11 of the C.P.C, seeking rejection of the plaint ofi 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 betwee^ the parties.
4. Learned trial Court, after hejfcg 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 impugne 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 an started recording evidende, it has 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,17,000,000 from the respondent/plaintiff and remaining balance of Rs,83,000,000 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 to get 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."
Under the circumstances, the appellant has failed to show any fraud and/or misrepresentation of the facts as alleged by him during the proceedings of the suit was decided on his own admission, hence, his application under section 12(2), C.P.C. Was correctly not found bearing any B merit therein and was rightly dismissed by learned Single Judge. There being no merit in this appeal also, the same is hereby dismissed in limine along with listed application.