' SALMAN HAMID, J.--- C.M.A. Listed at serial number 1 was dismissed as not pressed on 13-5-2011.
Still office has wrongly fixed it for hearing. Explanation be filed within seven days from the date of announcement of the order passed on C.M.A. Listed at serial number 2.
' C.M.A. 3014 of 2004: Leave was granted to the defendant on 26-5-2003 when this Court came to the conclusion, after hearing lengthy arguments of either side for dates together that intricate questions of facts and law raised in the application for leave, to defend in the suit that require thorough examination by way of recording of evidence which at the stage of leave was not possible and, therefore, decree cannot be claimed by the plaintiff. Since 26-5-2003 (the date of announcement of Order, whereby leave was granted) up to 12-1-2004 this Suit kept coming up for issues and on that day (12-1-2004) by consent of the parties following issues were framed:--
(1) Whether any cause of action has ever accrued to the plaintiff to file the instant suits?
(2) Whether the plaintiff has obtained the guarantees by misappropriation and/or of concealment necessary agreements/ documents of principal debtors?
(3) Whether the plaintiff is entitled to claim the suit amounts of Guarantees No,255 dated 25-4- 1992, 256 dated 25-4-1992 and 445 dated 1-6-1992 issued by the defendant in the capacity of Guarantor, in absence, of principal debtors, if s o, to what extent?
(4) What is the legal effect of the defendant's clear admission of liability in terms of its letter dated 19-11-1995 (Annexure "H/1" to the plaint) and other such admission for payment of the principal amount of Rs,163.50 million under the nine (9) Guarantees issued in favour of the plaintiff?
(5) In view of the defendant's honoring six out of its nine Guarantees issued on the same terms and conditions in favour of the plaintiff, by making payment to the plaintiff in the sum of Rs,90 Million (being the amount of the six Guarantees), can the defendant withhold payment of its remaining three guarantees? If not to what effect?
(6) Whether the plaintiff is entitled to any mark-up, claimed, in absence of any agreement with the defendant?
(7) Whether the suits are liable to be dismissed with special cost?
(8) What should the decree be?
2. Record of the file would show that from that date onwards, it (the suit) kept coming up for evidence until 17-10-2004, when on such date present C.M.A. Also came up for order. This C.M.A. Is pending since such date (17-2-2004). It was finally heard on 26-5-2011.
3. Learned counsel for the plaintiff urged that issues numbers 4 and 5, (reproduced above) goes to the root of the matter. Decision on these issues via, present C.M.A. Set at rest the entire controversy and that the suit, upon admissibility of the liability by the defendant merits to be decreed whereby its fate would be decided. Fortifying his argument, learned counsel for the plaintiff emphasized that the defendant's admission to pay is manifest from the various annexure to the plaint. It was contended that, the defendant in the first instance clearly admitted its liability under the guarantee(s) and just sought time for its payment, however subsequently renegade from it by refusing the claim of the plaintiff. It was further argued that once the defendants have admitted their liability, they cannot wriggle out from the same. In support of his contentions, learned counsel relied upon Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co.
(1996 SCMR 696), Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan (1993 SCMR 1137), G.R. Syed v. Muhammad Afzal (2007 SCMR 433) and State Life Insurance Corporation of Pakistan v. Wali Muhammad Akbar Ji and others (1985 CLC 2879).
4. Skirmishing, C.M.A. Was resisted and opposed by the learned counsel for the defendant. At the outset, erudite counsel pointed out that the leave granting order clearly mentioned that intricate question of law and facts are involved and to resolve these questions evidence is required; thereafter by consent issues were framed and the lis was put up for evidence. It was also emphatically argued that no decision as claimed by .The plaintiff could be given on issues number 4 and 5 (subject-matter of the C.M.A.) and the providence cannot be settled and/or suit cannot be decreed, (if at all) unless Issues Nos.1, 2, 3, 6, 7 and 8 are also not decided for which evidence is inevitable. It was therefore urged that the court to reach to the conclusion whether at all, as alleged by the plaintiff, the defendant had admitted the liability or otherwise all the issues have to be thrashed out inasmuch as that the defendant at no stage of time admitted liability as portrayed by the other side. It was specifically mentioned that in the leave to defend application it was nowhere stated that the defendant has admitted the liability to pay and/or the plaintiff's claim can be granted whereby a decree on admission is available for the plaintiff, which would come to force after decision on issues number 4 and 5. Dismissal of C.M.A. Was looked at by the defendant with costs. In support of his contentions, learned counsel for the defendant relied, upon Izzat Khan and another v. Ramzan Khan others (1993 MLD 1287), Muhammad Zaki and another v. Muhammad Taqi (PLD 1995 Karachi. 416) and Gerry's International (Pvt.) Limited through Managing Director v. Qatar Airways through Area Manager (PLD 2003 Karachi 253).
5. Heard arguments of the learned counsel and perused the record and also looked into the precedents cited by the learned counsel for the parties.
6. Issues only arise when a material proposition of or law is affirmed by one party and denied by the other party. Not otherwise. In the present case the plaintiff says that the liability has been admitted 'by the defendant, therefore, the suit merits to be decreed in terms of Order XII, Rule 6, C.P.C. Which has been attempted to be achieved by the plaintiff through the decision of the C.M.A.
Inasmuch as the two issues (issues 4 and 5) if decided in favour of the plaintiff the suit would be decreed. On the other end the defendant's case is that at no stage of time either prior to the filing of the suit or even thereafter liability to pay under guarantee(s) was ever accepted, expressly or even impliedly. All along the plaintiff have down rightly denied and disputed payment(s) under the guarantee(s). In this respect letters had been written in response to the plaintiff's claim. It would be evident that in all, there were nine guarantees. Six were honoured. Only three were disputed or denied by the defendant on the ground that the agreement(s) from which such guarantees emanated were not produced and/or brought forward or that the same were not executed between the parties. Since according to the defendant the guarantees were an outcome, based on misrepresentation and fraud were invalid and incapable of performance. As against this, the plaintiff's stance was that it was a bank to bank transaction and that all the agreements were in possession of the erstwhile Mehran Bank Limited subsequently amalgamated with the defendant and, therefore, it is the defendants who were in possession of the documents/agreements. This argument, it was urged by the plaintiff's counsel was no good. This may be so. Nevertheless since this in itself raises an issue and is already covered in the issues framed by this court with the consent of parties, hardly provides reasons to the plaintiff to claim a decree on admission, that too, through a decision on the C.M.A., urging that issues 4 and 5 would bring this court to the door of the decree. Plaintiff and defendant because of this reason are at daggers drawn and therefore Issues Nos.3 and 4, the subject-matter of the C.M.A. Cropped up and were framed. These require evidence to come to just conclusion of the case.
7. It would be evident from the Issue No,3 itself that it speaks about that whether the plaintiff is entitled to claim the suit amount under the guarantees issued by the defendant in the capacity of a guarantor in absence of principal debtor and unless and until such issue is decided finally, by way of leading evidence, the two succeeding issues which are subject matter of C.M.A. In my opinion, cannot be decided on their own strength and/or in isolation to first three issues settled by this court by consent of the parties. Therefore, in my opinion all the issues settled by this court have to be thrashed out, which are inter linked for which evidence is required.
8. Coming to the precedent cited by the learned counsel for the plaintiff, it may be observed that in the case of Macdonald Layton & Company Pakistan Ltd. The Supreme. Court of Pakistan held that the court should not grant decree on admission without resorting to objections raised and that once the objections have been raised for grant of a decree upon admissions, discretion for grant of application on admission under Order XII, Rule 6, C.P.C. Should not be exercised by the court.
Therefore, in the cited case the finding rendered by the division bench, setting aside the decree of learned single Judge was found unexceptionable and the order of the learned Division Bench was upheld. This case does not by any stretch furthers the case of the plaintiff. It rather helps the defendant inasmuch as in the present case as well objections have been raised and at no stage of time, the defendant in their pleadings admitted the liability to pay,
9. The other case that was cited by learned counsel for the plaintiff was of Mian Tajammul Hussain and three others, wherein the apex court having come to the conclusion that there was no denial of admission of liability and the genuineness of the documents/letters were not disputed, the order passed by the court below was upheld. However, in the present case it is evident that there are document(s) on record, specially Annexure J/20 to the plaint which clearly stipulates as to why the defendant-Bank is not liable to make payment of the guarantee(s). Therefore, the cited case is clearly distinguishable from the facts and circumstances of the present case.
10. In the case of G.R. Syed, the Hon'ble Supreme Court of Pakistan did not disturb the concurrent findings of the two courts below when it came to the conclusion that the defendant therein admitted the liability in the pleadings and such evidence was found to be specific, clear, unambiguous, categorical and definite and therefore the Supreme Court declined to interfere with the judgment passed by the High Court and the leave was refused. As already observed above, that in the present case there is no admission clear or otherwise on the part of the defendant and the defendants are contesting the matter throughout and, therefore, it was for this reason that at the time of granting leave this court came to the conclusion that intricate questions of law and facts are involved which require evidence whereafter by consent issues were framed. This case too is of no help to the plaintiff inasmuch as the facts of the cited case are not even remotely connected to the facts of the present case and are clearly distinguishable.
11. In the case of State Life Insurance Corporation of Pakistan, again, learned single Judge of this court having come to the conclusion that the undertaking to withdraw the suit was unconditional and that once such undertaking for withdrawing the suit was given and it was also acted upon inasmuch as the defendants remitted bank draft, which was accepted by the plaintiff, the plaintiff cannot later on turn back and decide to contest the case as Legal rights were created in favour of the defendants and, therefore, the suit was dismissed. This case by no stretch is applicable to the facts and circumstances of the present case inasmuch as that first of all in the cited case it was an undertaking given by the plaintiff for withdrawal of the suit by which he attempted to wriggle out which did not find favour to him with the result that the suit was dismissed. Such is not the case here.
12. As against this in the case of Muhammad Zaki and another, cited by the learned counsel for the defendant, this court held that the trial court is vested with discretion to settle preliminary issue of the law only if it was of the opinion that entire suit could be disposed of on the basis of such issues.
Where, however, trial court was of the opinion that it would be necessary to proceed with issues of fact also, then, trial court could settle issues arising out of the pleadings and proceeds to record evidence, if necessary and give final adjudication. Gauging the facts and circumstances of the present case with the citation, it would become evident that there are factual and legal issues involved and unless the factual issues are determined by way of leading evidence, this court cannot come to the correct conclusion whether at all there was an admission of liability or not as alleged by the plaintiff, keeping in view the various correspondence that was exchanged between the parties wherein the defendants have categorically disputed their liability to pay to the plaintiff.
13. In the case of Gerry's International (Pvt.) Limited a Division Bench of this court held that even if the defendants in written statement had not denied plaintiff's claim, such would not constitute admission on their part nor any inference of the nature could be drawn to believe the same for which law require proof through leading evidence. It was further held in the cited case that admission of a party should not merely be confined to the figure claimed but should also include liability to pay. In the present case not once but continuously the defendant has denied to pay under the guarantee(s) which guarantee(s) the plaintiff are trying to assert.
14. In the case of Izzat Khan and another, Full Bench of this court held that the judgments upon admissions were matters of discretion vesting in the court and not of right and where case involved questions which could no be conveniently disposed of on a motion under Order XII, Rule 6, C.P.C., the court should in exercise of its discretion refuse such motion. In the case in hand issues have been framed with regard to the liability to pay under guarantee(s) and circumstances under which the guarantee(s) had been executed. Therefore, it can hardly be said that it is a case of admission and the motion as reflected in the C.M.A. i,e, decision of case on the two issues framed (4 and 5) by this Court, can be decided.
15. Under the facts and circumstances present dispute cannot be decided without first resorting to leading evidence on all issues, including the ones which are the subject-matter of the C.M.A. It is therefore dismissed however, with no order as to costs.