' MUHAMMAD ALI MAZHAR, J.--- The plaintiff has brought this application under Order XII, Rule 6, C.P.C. And prayed that the suit may be decreed to the extent of the specific performance of contract in terms of prayer clause (a) of the plaint.
2. The brief facts of the case are that the defendant No.1 had announced a housing scheme namely Highway Housing Project in the year 1978. The plaintiff got booked a commercial plot No.CA/15 measuring 120 sq.Yards and paid the entire sale consideration but the defendant failed to handover the possession of the plot. In paragraph 4 of the written statement, the defendant No.1 stated that the execution of the lease and its registration was only possible after payment of lease money and stamps duty by the plaintiff. In paragraph 5, it is further stated that plaintiff never approached the defendant No.1 for registration of lease and taking over possession of the plot.
3. The learned counsel for the plaintiff argued that the plaintiff deserves decree not on the basis of admission made in the written statement but also on the basis of a statement filed by the defendant No.1 on 27-1-2009 in which it was clearly stated that the defendant No.1 is still willing to settle the matter amicably by handing over the possession of the subject plot and executing the lease through Nazir of this court subject to the payment of the outstanding lease charges within the period of 15 days. The learned counsel argued that in view of aforesaid offer, the plaintiff paid a sum of Rs.2160 on account of lease charges, hence, there is no impediment if decree is passed in view of the admission made in the written statement and the subsequent statement only to the extent of specific performance (i.e. For execution of lease and possession of the plot) and so far as the claim of damages is concerned, it will remain intact and the matter will proceed on merits. In support of his arguments, the learned counsel for the plaintiff relied upon the following case-law:-- -
(1) 2007 SCMR 433 (G.R. Syed v. Muhammad Afzal). Court is empowered under Order XII Rule 6, C.P.C. To pass a judgment on the basis of admissions of facts made by the parties to their pleadings at any stage of proceedings. High Court concluded that admission of defendant was specific, clear, unambiguous, categorical and definite, therefore, trial Court had rightly granted decree under Order XII Rule 6, C.P.C. Supreme Court declined to interfere with the judgment passed by High Court. Leave to appeal refused.
(2) 2001 CLC 1224 (Mrs. Haseena v. Mrs.Shafqat Malik). Under Order XII, Rule 6, C.P.C., the admission has to be clear, unambiguous, unqualified and unequivocal and the amount recoverable must be due and recoverable in the action in which the admission is made. Reference in this connection may be made to the case of Premsuk Das Assaram v. Udaram Gunga Bux ILR 45 Cal. 138, the view of Mooker Jee and Rankin, JJ. In the case of J.C. Galstaun v. E, D. Sasoon AIR 1924 Cal. 190, the case of Devi Narain v. Hassanand AIR 1927 Sindh 25, the opinion of Broadway, C.J. And Abdul Qadar, J., in the case of Abdul Rehman & Brothers v. Parbati Devi AIR 1933 Lah. 403 and the dictum of A.S. Farooqui, J. In the case of Kassamali Bhoy v. Shaikh Abdul Sattar PLD 1966 Kar.
75.
4. The learned counsel for the defendant No.1 argued that there is no admission on the part of defendant No.l. The contents of the written statement are to be read as a whole and not in piecemeal. Mere picking up isolated sentences from the written statement does not justify the decree on admission. The defendant No.1 in the paragraph 4 of its written statement has specifically pleaded gross misconduct and breach on the part of the plaintiff and undue delay in performing her part of the contract. He further argued that the factual background of filing the statement dated 27-1-2009 arose when on 15-12-2008, the learned counsel for the plaintiff submitted before the court that defendant No.1 did not inform the amount of stamp duty and registration charges, therefore, plaintiff was not in a position to deposit the same and he further submitted that the matter may be settled amicably and the case was adjourned. On 28-1-2009, the plaintiff and the authorized person on behalf of the defendant No.1 appeared in the court, and counsel for the defendant No.1 agreed to file a statement in writing for the outstanding amount of lease charges, registration fee and stamp duty. The statement was filed without prejudice to the rights, interest and pleas taken by the defendant No.1 in the subject suit and a conditional offer was made to the execution of the lease of the plot upon payment of outstanding lease charges subject to disposal/withdrawal of the suit by the plaintiff. On 28-1-2009, the learned counsel for the plaintiff sought time to seek instructions and ultimately on 3-2-2009, he specifically submitted that the plaintiff is not ready to withdraw the suit to which the counsel for the defendant No.1 submitted that as regard to the offer to execution of lease deed the same is also withdrawn and he conveyed his no collection if the plaintiff withdraws the amount of R.2,160 which was deposited on account of lease charges. In view of above submission the court passed an order that the matter to proceed on merits and to be fixed for settlement of issues. He further argued that no clear, unambiguous, unqualified and or unequivocal admission was made, warranting the decree of suit under Order XII, Rule 6, C.P.C. Which is presently lacking in the matter as no such admission has been made by the defendant No.l. It was further contended that the suit for specific performance is time barred and the matter is already sub-judice in the Hon'ble Supreme Court of Pakistan in Civil Appeal No.301 of 2006 (Messrs Highway Housing Project v. Mrs. Shabeena Farhat), hence passing of any order would prejudice the pending appeal in the apex court. In support of his arguments, the learned counsel for the defendant No.1 has relied upon the following case-law:---
(1) 2013 CLC 535 (Syed Haider Zaidi v. Mst.Alam Ara Begum). To pass judgment on admission is within the discretion of the court which should be exercised in judicial manner and is not a matter of right. It is also well-settled that for the purposes of decreeing the suit on admission it is necessary that the admission must be clear, specific, unambiguous, definite and categorical and court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission.
(2) PLD 1966 (W.P.) Karachi 75 (Kassamali Alibhoy v. Shaikh Abdul Sattar). An admission in order to be made the basis of a decree under Order XII, Rule 6 of the Civil Procedure Code, 1908 must be unqualified and unconditional. When factual admission is accompanied by a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified. Where such a legal defence is raised its consideration must wait until the suit itself comes to be tried. The Court cannot in such a case proceed under Order XII Rule 6 of the Civil Procedure Code, 1908 and pass a final judgment upon such admission.
(3) 1971 DLC 703 (Wazedunnessa Khatun v. Daliladdin alias Dalu and others). An admission must be unqualified and unconditional, therefore, when factual admission is accompanied with a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified. If the plaintiff wants to have a judgment on the admission of the defendant, the said admission must be positive, clear and unequivocal and that admission cannot be split up.
(4) PLD 2003 Karachi 253 (Messrs Gerry's International (Pvt.) Ltd. v. Messrs Qatar Airways). Order XII, Rule 6 and Order VIII, Rules 3, 4 and 5. Judgment on admission. Suit for settlement of accounts by Airline Company against its Sales Agent. Plaintiff alleged in the plaint that statement of accounts issued by defendant showing amount of sale proceeds of airline tickets was annexed therewith.
High Court considering reply in written statement as evasive partly decreed the suit to the extent of amount shown in such statement. Validity. Defendant in written statement had denied plaintiff's claim. Non-commenting upon such statement of account in written statement would not constitute admission of defendant nor any inference of the nature could be drawn to believe something for which law required proof through leading evidence by parties nor same could be treated as admission of liability by defendant.
(5) AIR 1986 Supreme Court 1509 (Dudh Nath v. Suresh Chandra). Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the plaintiff has to stand on his own strength.
5. Heard the arguments. In the application filed by the plaintiff under Order XII, Rule 6 read with section 151, C.P.C., the plaintiff has claimed the decree for specific performance on the basis of admission made in paragraphs 4 and 5 of written statement filed by the defendant No.
1. The examination of paragraphs 4 and 5 revealed that no clear, specific, unambiguous, definite and categorical admission has been made by the defendant No.1 in its written statement warranting the decree of suit under Order XII, Rule 6, C.P.C. In fact in paragraph 4, it is alleged that the plaintiff deliberately kept away from approaching the defendant No.
1. It was further stated that the execution of lease and its registration was only possible after making payment of lease money and the stamp duty and the personal appearance of plaintiff before the Registrar concerned. It was further stated that after lapse of 22 years, the plaintiff is trying to shift the burden on the defendants. The plaintiff has not prayed in the application that the suit be decreed only against the defendant No.1 but in the prayer clause the relief of specific performance and the damages have been claimed against the defendants Nos.1 and 2. The defendant No.2 has also filed his written statement in which he has claimed the set off through his counter claim of damages. The defendant No.2 has also not admitted anything which lay warrant decree under Order XII, Rule 6, C.P.C. The No.3 in its written statement has also lodged its counter against the plaintiff and claimed that it has no concern with the defendant No.1. Chronology of the orders passed in the suit do show that the matter was fixed in the court on 12-1-2009 on which date it was agreed that the plaintiff as well as authorized person of the defendant will appear in court to negotiate compromise. Counsel for the defendant No.1 agreed to file a statement in writing with the details regarding the dues of lease, registration charges and stamp duty required to be paid by the plaintiff in case of compromise. The matter was adjourned for 28-1-2009, the order of that date show that on the basis of statement filed by the defendant No.1 the counsel for the plaintiff sought time to seek instructions from his client whether she is going to withdraw the suit or not and for that specific purpose, the Matter was adjourned to 3-2-2009. The order dated 3-2-2009 shows that learned counsel for the plaintiff Mr.Badar Alam informed the court that the plaintiff is not ready to withdraw the suit and he wants to make an application under Order XII, Rule 6, C.P.C. The counsel for the defendants also given his clear statement that the offer given for the execution of lease deed is also withdrawn and he will have no objection if the plaintiff withdraws the amount which was deposited on account of lease charges. Keeping in view the aforesaid situation the learned single judge observed that now the matter is to proceed on merits and he further ordered that the suit be fixed for settlement of issues. The statement filed in pursuance of the order passed by this court only shows that offer was given to settle down the controversy so that the entire suit may be disposed of and nothing was said in a way that on the basis of this statement the suit may be decreed to an extent of specific performance but the other claims of the plaintiff including the damages will proceed further. The fate of this statement is clear from the order dated 3-2-2009 which amply demonstrates that the counsel for the plaintiff conveyed the intention of the plaintiff not to withdraw the suit and simultaneously, the offer given by the defendant No.1 for an amicable solution was also withdrawn and the court clearly observed that the matter will proceed on merits and the matter was posted for settlement of issues. The record further shows that when the suit was filed, the office raised the objection that the suit is barred by Article 113 of the Limitation Act and vide Order dated 22-9-2004, learned single judge of this court rejected the plaint. The order was assailed in H.C.A. No.241 of 2004 and vide order dated 14-12-2005 the learned divisional bench had set aside the impugned order. Perhaps this order has been challenged by the defendant No.1 in the Hon'ble Supreme Court by way of Civil Appeal No.301 of 2006 but in this regard, nothing was placed on record.
6. The grant of decree under Order XII, Rule 6, C.P.C. Is a very serious matter which cannot be taken lightly and for passing any decree under Order XII, Rule 6, C.P.C., it is incumbent upon the court to first prudently and cautiously examine the complexion of admission if any on the basis of which the plaintiff is claiming decree. So far as the written statement is concerned, I feel no hesitation in my mind to grasp that nothing is said in the written statement unconditionally or unequivocally, which may be termed or treated a clear and or unambiguous admission for which without going into any further controversy this court may pass decree out rightly. So far as the subsequent statement is concerned it is also not unconditional but it only paved a way to settle down long pending controversy by way of an amicable solution which means to say that an offer was given and in lieu thereof, the plaintiff was supposed to withdraw the suit. It was not filed with the intention or with the clear admission that let the suit be decreed for the purpose of execution of lease and possession but after partial decree the rest of the claim of the plaintiff will continue and be decided on merits later on.
7. Learned counsel for the plaintiff referred to the case of G.R.Syed (supra). There is no cavil to the well settled proposition expounded by the Hon'ble Supreme Court that under Order XII, Rule 6, C.P.C, court is empowered to pass judgment on admission at any stage of proceedings where admission is specific, clear, unambiguous and definite. In the case of Mrs.Haseena (supra), while referring to various dictums, the court held in fact the same proposition of law that the admission must be clear, qualified and unequivocal.
8. On the other hand, the counsel for the defendant No.1 referred to my own judgment rendered in the case of Syed Wasiar Haider Zaidi (supra) in which I held that to pass judgment on admission is within the discretion of the court which should be exercised in the judicial manner and not as a matter of right. If the question involved cannot be conveniently disposed of, the court may exercise discretion in rejecting the application. It is also well settled that for the purpose of decreeing the suit on admission it is necessary that the admission must be clear, definite and categorical that the court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. In the case of Kassamali Alibhoy, the court held that factual admission is accompanied by a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified and where such a legal defence is raised its consideration must wait until the suit itself comes to be tried. In the case of Wazedunnessa Khatun (supra) the similar findings were rendered by the learned Dacca High Court. In the case of Messrs Gerry's International this court held that the defendant in written statement denied the plaintiff's claim for which law required proof through leading evidence by parties. The Supreme Court of India in the case of Dudh Nath reported in AIR 1986 Supreme Court 1509 held that admission must be taken as a whole it is not permissible to rely on a part of admission ignoring other. In the case in hand also there is a same situation in which the plaintiff asserted on the basis of statement of the defendant No.1 that they agreed to execute the lease but on the other hand the plaintiff ignored the remaining part of statement which shows that it is merely an offer for the resolution of entire controversy by way of amicable solution so the court cannot accept that portion as admission ignoring the rest of the statement and the contention raised in the written statement filed by the defendants in which they refuted the claim of plaintiff.
9. As a result of above discussion, I am of the firm view that neither the written statement nor the subsequent statement filed by the defendant No.1 in court can be treated unqualified, unconditional, clear, specific and or unambiguous or unequivocal admission. Consequently, this application is dismissed. Let the suit be fixed in court for settlement of issues on the next date.