1. C.M.A. No,12159 of 2012.---By this application, under Order XIV, Rule 1 read with section 151, C.P.C., filed by the plaintiffs with the prayer to include/add the Issues Nos.1 to 10 mentioned in the application to secure the ends of justice.Counter-affidavit to the listed application has been filed on behalf of defendant No,1 denied the contents of the listed application being false and misconceived and prayed for dismissal of the same with costs.
2. ' I have heard the rival contentions of the parties. The contention of the plaintiffs is that the Issues incorporated by them in the listed application are very necessary and essential to arrive at just decision in the matter. On the other hand, the contention of the learned counsel for the defendants is that Order XIV Rule 11, C.P.C. Does not allow for the framing of additional Issues once Issues have already been framed. His further contentions is that the provision of Order XIV Rule 5, C.P.C. Only empowers this Court to frame additional Issues as may be necessary for determining the matters in controversy and the proposed Issues as suggested by the plaintiff are not necessary for determining the matters in controversy and are either entirely irrelevant or superfluous.
3. ' It appears that Issues were framed by this Court on 16-11-2009 and Mr. Abdul Ghafoor Qureshi, Advocate (Ex-Additional Registrar, 0.S.) was appointed as Commissioner to record evidence of the parties. I have perused the Issues already framed by this Court as well as the Issues proposed by the plaintiffs through the listed application and found that there is no material difference between them and the Issues framed by this Court almost covered the Issues proposed by the plaintiff through the listed application. Therefore, I find no substance in this application and dismiss the same with no order as to tosts.
4. C.M.A. No,12160 of 2012: This is an application filed by the plaintiffs, under Order XII Rule 6 read with section 151, C.P.C. Seeking judgment and decree in favour of thee plaintiffs in view of admissions made by the defendants in Paras 8, 10, 12, 19, 24 and 25 of their written statement.
5. ' Mr. Abdul Abid contended that plaintiff No,1 (now deceased) was suffering from Cancer in Colon and was operated by lady Doctor defendant No,2. According to him it was evident from the hand written report/case summary wherein it was admitted that said surgical injury created by them from irresponsibility/negligence which caused death of the plaintiff No,1 because wound of ureter never even healded/fill and the patient/plaintiff No,1 was not treated properly and only an unnecessary operation had been carried out. He urged that such negligence was also admitted by the defendants in their written statement. He, in order to show admissions on the part of the defendants, referred to Paras 8, 10, 12, 19, 24 & 25 of the written statement. According to him in view of such clear admission the plaintiffs' allegation as to negligence stood established. In support of his submissions, he placed reliance on the cases of H. GHARIBULLAH v. MST. MUMTAZ BEGUM AND OTHERS (1990 CLC 1609), SULTANA BIBI AND ANOTHER v. KARACHI ELECTRIC SUPPLY CORPORATION AND ANOTHER 1999 CLC 273, KANEEZ BEGUM v. KARACHI ELECTRIC SUPPLY CORPORATION (2001 CLC 875) and NAZAR ALI SIDDIQUI v. PAKISTAN THROUGH THE SECRETARY GOVERNMENT OF PAKISTAN AND 2 OTHERS (1986 CLC 1370).
6. ' Conversely, Mr. Furqan Ali, learned counsel for the defendants strongly opposed the listed application being false and misconceived. He argued that defendants have denied committed any crime or negligence in their written statement. He made reference to paragraphs 8, 10, 12, 19 24 & 25 of the written statement and submitted that statements made therein clearly show that (i) the proximal one third of the left ureter was mildly injured during surgery despite exercise of all reasonable care and skill by the defendants Nos.2, 3 and 4, however, the same was entirely incidental and iatrogenic to the removal of the cancerous mass and its encroachment on adjoining organs; (ii) the same was immediately identified and duly repaired/stitched during the course of surgery and (iii) the plaintiff No,1 subsequently developed a leak in the distal region of the left ureter and the same was completely independent of the mild surgical injury and/or subsequent repair and is likely to have been caused as a result of the said portion being densely adherent to the cancerous mass. He further urged that it is evident that the plaintiff No,2 is misleading this Court by stating that the defendants have made admission in their written statement, which establish that they were negligent and the listed application has absolutely no legal or factual basis. He, however, submitted that in this matter Issues have been already been framed and Commissioner was appointed to record evidence and matter can be decided as a whole at once instead of deciding the same in piecemeal. He, therefore, prayed for dismissal of the instant application with heavy cost.
7. I have given due consideration to the arguments advanced by the plaintiff No,2, Mr. Furqan Ali, learned counsel for the defendants and the relevant case-law. It is settled law that under Order XII, Rule 6, C.P.C. The Courts are empowered to pass judgment against some of the defendants on the strength of the admission made by them without waiting for the determination of any other question between the parties and for the purpose of decree on admission under the said provisions of law an admission may not necessarily be made in the pleadings and even such admission contained in a document whose genuineness is not in dispute can be taken into consideration and form the basis of judgment. The fact nevertheless, remains that it is settled law that the admission, to constitute the basis of a judgment or decree, must be unequivocal. I have no hesitation in observing that if hand written report/ case summary or any document the contents whereof were binding on the defendants had contained a clear admission of liability judgment in favour of the plaintiffs could have been pronounced. However, what is to be seen is whether any clear admission of liability can be inferred from the case summary.
8. ' Indeed the existence or the contents of the case summary have not been disputed by the defendants. The defendants have gone to contend that during surgery the proximal one third of the left ureter was attempted to be dissected away from the cancerous mass however since the same was so closely adherent to the extensively spread cancerous mass that despite exercise of reasonable skill and care, the same was mildly injured as such iatrogenic injuries are highly likely in such difficult open abdomen surgeries. Whether this explanation is plausible or otherwise can only be determined after recording of evidence but the fact remains that by accepting a particular state of affairs to exist at a certain point of time the defendants have not admitted any liability for negligence. In any event quantum of damage sustained still requires a proof.
9. ' It appears that Issues have already been settled in the matter and Commissioner was appointed for recording of evidence of the parties vide order dated 16-11-2009. The defendants filed written statement in the matter on 10-11-2007. The plaintiffs filed listed application on 15-11-2012, which shows that plaintiffs suddenly wake up after nearly five (5) years for seeking judgment on admission. In view of the above, I am of the opinion that the application merits dismissal.
10. ' Before parting with this order, it may be observed that parties may approach the learned Commissioner for recording of their evidence by filing affidavits-in-evidence of their respective witnesses and the Commissioner may conclude the commission preferably within four (4) months from today.