1. ' SAJJAD ALI SHAH, J.---The appellant through instant appeal has impugned Order dated 7-12-2012 passed in Suit No,286 of 2003 at the Original Side of this Court whereby the appellant's application under Order XII, Rule 6, C.P.C. Was dismissed.
2. ' Mr. Khawaja Shamsul Islam appearing for the appellant has contended that the original respondent No,1 (now deceased) on 20-11-2002 entered into an Agreement to Sell her Bungalow No,B-173, Block-2, Gulshan-e-Iqbal, Karachi (hereinafter referred to as "subject property") with the appellant against total sale consideration of Rs,75,00,000/-. The appellant as per the terms of the said agreement paid a sum of Rs,15,00,000/-. Whereas the remainder was payable at the time of execution of conveyance deed and since the respondent No,1 avoided the execution of conveyance deed, therefore, the appellant filed a Suit seeking Specific Performance of Agreement dated 20-11-2002. Per counsel, the original respondent No,1 in her written statement admitted the execution of Sale Agreement leading to filing C.M.A. No,7021/2003 under Order XII, Rule 6, C.P.C.
3. Which was dismissed. The appellant thereafter filed H.C.A. No,39 of 2006 which met the same fate.
4. Per counsel, in the meanwhile the respondent No,1 expired and her legal heirs were impleaded as defendants. Per counsel during proceedings it transpired that the legal heirs of the respondent No,1 had filed Civil Suit bearing No,376/2003 against their mother (original respondent No,1) seeking cancellation of mutation order dated 10-10-1994 effected in her favour after the death of her husband on the ground that the property ought to have been mutated in favour of all the legal heirs of deceased i,e, respondents Nos.1(a) to 5 when this fact was brought to the notice of this Court the file was summoned and both Suits were consolidated. Per counsel, the appellant after going through the pleadings of Suit No,376/2003 came to know that the respondent No,1 in that suit had pleaded her exclusive ownership and the sale of the subject property in favour of the appellant and consequently moved fresh application seeking a decree on the basis of admission made by the respondent No,1 in Suit No,376/2003 (New Suit No,492/2008), however, the said application after hearing has been dismissed through impugned order.
5. ' Mr. Shamsul Islam pleaded that in view of categorical statement made by the respondent No,1 admitting the execution of sale agreement and receipt of Rs,15,00,000/- the second application is not only competent but the suit is liable to be decreed on the basis of such admission. He further contended that though the property subject matter of these proceedings was originally owned by the husband of the respondent No,1 i,e, father of the respondents Nos.1(a) to 5 but after his death all the legal heirs had executed relinquishment deed in favour of the respondent No,1 and therefore, she became absolute owner of the subject property and the admission made by her is binding on all legal heirs and therefore the suit is liable to be decreed. Counsel to further support the maintainability of the second application contends that when the first application was moved deed of relinquishment had not surfaced nor the admission of the original respondent No,1 in Suit No,376/2003 (492/2008). In support of his contention counsel has placed reliance in the case of Amir Bibi v. Muhammad Khursheed (2013 SCMR 1261) and G.R. Syed v. Muhammad Afzal (2007 SCMR 433).
6. ' On the other hand, Mr. Arshad Khan Tanoli for the respondents contended that firstly the admission made by the respondent No,1 is not specific, clear, unequivocal, unambiguous, categorical and definite and secondly the said admission was made by the respondent No,1 in Suit No,376 of 2003 (New Suit No, 492 of 2008) on the basis whereof the instant suit seeking specific performance cannot be decreed. However, counsel was not in a position to make any submission regarding the relinquishment deed or its consequences on the defence of the respondents Nos.1(a) to 5. However, to support his contention regarding inadmissibility of admission made in one suit in other counsel has placed reliance on the case of Naseer Ahmed and another v. Asghar All (1992 SCMR 2300), and to plead that non-denial of document in the written statement would not amount to admission reliance has been placed on the case of M/s. Gerry's International (Pvt) Limited v. M/s. Qatar Airways (PLD 2003 Karachi 253) and Macdonald Layton and Company Pakistan Ltd v. Uzin Export Import Foreign Trade Company (1996 SCMR 696) where it was held that in cases where objection to the maintainability of the claim or the suit has been raised then Order XII, Rule 6 should not be resorted.
7. ' On the other hand, Syed Sultan Ahmed Advocate appearing for KMC has, stated that the respondents Nos.1(a) to 5 had executed a registered relinquishment deed on the basis whereof the property was transferred and mutated in favour of the respondent No,1 and consequently the respondent No,1 is the absolute owner of the property.
8. ' Mr. Shamsul Islam, in rebuttal contended that the registered relinquishment deed was executed by the respondents Nos.1(a) to 5 in favour of their mother on 14-11-1992, cancellation whereof was never sought even in Suit No,376/2003 (Suit No, 49212008) the respondents did not challenge the relinquishment deed and consequently such deed has attained finality and bars the respondents from taking any defence than what was taken by their predecessor-in-interest/the respondent No,l.
9. ' We have heard the learned counsel for the respective parties and perused the record as well as the case-law cited at bar.
10. ' The facts gathered from the pleadings and summarized are that the subject property after the death of the husband of original respondent No,1 and father of the present respondents had devolved upon them. The present respondents executed a registered relinquishment deed dated 24-10-1992 in favour of their mother i,e, original respondent No,1 and in consequent thereto, subject property was mutated by the City District Government in her name vide Mutation Order dated 10- 10-1994. Thereafter, the respondent No,1 admittedly on 20-11-2002 entered into an agreement of sale with the appellant No,1, received Rs,15,00,000/- out of total sale consideration and upon receipt of balance sale consideration was to handover the possession on 10-1-2013 and just three days before the cut of date i,e, 7-1-2013 she entered into a fresh agreement whereby the time for performance i,e, handing over possession on her request was extended till 31-1-2013. The record reflects that on her failure to perform her part of the agreement appellant in March 2003 filed suit for specific performance and in that suit when the original respondent No,1 filed her written- statement she disclosed that the respondents Nos.1(a)(c)&(e) had filed suit bearing No,376/2003 against her i,e, their mother original respondent No, 1 and one sibling i,e, respondent No,1(b) seeking cancellation of the mutation made by the City District Government in her favour on the ground that it was made without letters of administration. Admittedly, the respondents did not seek cancellation of registered relinquishment deed executed by them in favour of their mother i,e, original respondent No, 1 .
11. ' The original respondent No,1 after being served filed written statement in suit filed by the appellant seeking specific performance of agreement dated 20-1-2002 wherein she admitted the execution of both the agreements but pleaded that the actual sale consideration agreed between the parties was Rs,125,00,000/- but since the appellant himself has prepared the agreement, therefore, he showed the sale price at Rs,75,00,000/- Additionally she stated that her children-respondents Nos.1 to 5 backed out from their consent and opposed the sale and ultimately filed Suit No,376 of 2003 seeking cancellation of the mutation in favour of the respondent. On the basis of admission made by the respondent, the appellant moved an Application under Order XII, Rule 6, C.P.C. Which was dismissed vide Order dated 28-11-2005. The dismissal order was impugned through High Court Appeal No,39 of 2006 which also met the same fate on 1-3-2006. It appears that thereafter vide Order dated 9-4-2007 Civil Suit No,376 of 2003 (seeking cancellation of mutation filed by some of the respondents against their mother original respondent No,1) was summoned and vide Order dated 17-3-2008, it was directed that the said suit be registered in the High Court and both the suits be fixed together for settlement of issues and ultimately vide Order dated 2-3-2009 both the suits were consolidated.
12. ' It appears that in the Suit No,376 of 2003 filed by the respondents Nos.1(a) (c) and (e) against the original respondent No,1 i,e, their mother and respondent No,1(b) sibling seeking cancellation of mutation, written-statement was filed by original respondent No,1 which was adopted by respondent No,1(b) wherein the original respondent No,1 in para 3 of her written statement made the following admission:-- "That the contents of paras 4 and 5 as stated are denied. In this regard it is submitted that since the defendant No,1 is exclusive owner of the suit property, as such question of inheritance by the plaintiffs does not arise. However, in order to clarify it is stated that the defendant No,1 had entered into an agreement of sale with one Syed Waqar Haider Zaidi vide agreement of sale dated 20-11- 2002, for total sale consideration of Rs,75,00,000/- out of which an amount of Rs,15,00,000/- is received by the defendant No,) as earnest money whereas the balance amount of Rs,60,00,000/- was to be paid by the purchaser at the time of execution of sale deed. The defendant No,1 negotiated with the buyer with the consent of the plaintiffs and all other legal heirs but later on the plaintiffs back out from their consent and opposing the sale of the house in question. The plaintiff has no right to oppose the sale of suit property. It is categorically denied defendant No,1 is taking undue advantage due to mutation order dated 10-10-1994 as there was clear understanding between all legal heirs that amount of sale in respect of the suit property shall be distributed amongst all legal heirs according to their share."
13. ' This led the appellant to move yet another application under Order XII, Rule 6, C.P.C. Seeking a decree on the basis of above reproduced admission which did not find favour with the learned Judge on the Original Side who accepted the plea of the respondent that admission made in different suit cannot be used for seeking a decree in the suit seeking specific performance and consequently dismissed the application through impugned order.
14. ' It has further come on record that the respondents Nos.1(a) to 5 out of which some had filed Suit No,376/2003. (New Suit No, 492/2008) against original respondent No,1 their mother on the ground that after death of their father mutation of the subject property in the name of original respondent No,1 without obtaining letter of administration was illegal had in fact relinquished their shares by executing relinquishment deed dated 24-10-1992 which was duly registered before the SubRegistrar-T Division-IV having Registration No,3645 M.F. Roll No,1841 and that relinquishment deed till date has not been challenged by any of the respondents.
15. ' In this background, the only question which requires consideration is as to whether the appellant is entitled to a decree for specific performance of agreement dated 20-11-2002 in this suit on the basis of above reproduced admission made by the original respondent No,1 in consolidated suit filed by respondent No,1(a)(c) &(e) against the respondent No,1(b)(e)(d). The respondents in their counter- affidavit had not denied the execution of registered deed relinquishing their share in favour of original respondent No,1 nor the fact that such relinquishment deed till date has not been challenged. The respondents further have not denied the execution of sale agreement or the extension agreement by respondent No,1 in favour of the appellant nor the fact that they are not bound by the admission made by respondent No,1, obviously such defence in presence of relinquishment deed would not be tenable, on the contrary they have with the permission of the Court deposited Rs,15,00,000/- which were received by the original respondent No,1 as part of total sale consideration. Even otherwise, the only defence which is pleaded before us is that Order XII, Rule 6, C.P.C. Does, not envisage decree on the basis of admission made by the respondent No,1 in other connected suit.
16. ' Perusal of Order XII, Rule 6, C.P.C. Reflects that it empowers the Court to pass judgment on the basis of admission made by the parties in their pleadings or otherwise at any stage of the proceedings without waiting for the determination of any other question that may arise between them. However, the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categorical and definite. There is no denial that the admission made by the original respondent No,1 reproduced above does not meet criteria of an admission on the basis whereof a decree can be passed, except that such admission is in A the connected suit. In our opinion if the provisions of Order XII, Rule 6, C.P.C. Are read in a manner to restrict the admission only to the extent of pleading in the suit wherein the Court is asked to enter a decree in favour of the plaintiff on the basis of admission then the words "or otherwise would become redundant, therefore, there does not appear to be any justification to confine the admission to the extent of pleadings only. In the case of Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon and 3 others (1987 CLC 2131) a learned Single Judge, on the original side, of this Court on the basis of an admission made by the defendant in an application under section 151, C.P.C. Well before filing written-statement entered a decree in favour of plaintiff by holding that "the admission need not, therefore, necessarily be made only in the pleadings. By laying down "or otherwise" the legislature has not restricted the admission only on the pleadings. These words are, in my- opinion, of general application and there is no justification on the basis of the language used in Rule 6 of Order XII to confine them to the admissions made in the pleading only as the learned counsel for the defendant desires me to do."
17. ' Order XII, Rule 6 of the Indian C.P.C. Though was amended in 1976 empowering the Court to decree the suit even on the basis of oral admission and also to suo motu exercise such power but in substance the rule despite such amendment is para material to our Order XII, rule 6, C.P.C. And the Indian Supreme Court in the case of Uttam Singh Dugal and Co. Ltd. v. Union Bank of India and others (AIR 2000 SC 2740) where a decree on admission was sought on the basis of a resolution/minutes of meeting of the Board of Directors which were sent to the plaintiff along with a letter, the defendant pleaded that the resolution or minutes of the meeting of the Board of Directors or the letter through which such resolution was sent to the plaintiff Bank cannot amount to a pleading, as such statements are not made in the course of the pleadings or otherwise, the Court while rejecting the argument held as follows:-- " The next contention canvassed is that the resolution or minutes of meeting of the Board of Directors, resolution passed thereon and the letter sending the said resolution to the respondent bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the course of the pleadings or otherwise. When a statement is made to a party and such statement is brought before the court showing admission of liability by an application filed under Order XII, Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, we do not think the trial Court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial Court has dealt with the same. When the trial Judge states that the statement made in the proceedings of the Board of Directors meeting and the letter sent as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made in dispute. And the Court had a duty to decide the same and grant a decree.
18. We think this approach is unexceptionable."
19. ' Coming back to the case in hand, the respondents in support of their contention that the admission in their earlier suit could not be made basis of a decree in connecting suit have placed reliance on para 13 of the judgment of the Apex Court in the case of Naseer Ahmed (surpa) wherein the controversy in fact was that 431 kanals 7 marlas of land was purchased by the appellant on 20- 11-1973 and the suit to preempt sale was filed on 9-9-1974 on the ground that he was owner of the estate. The appellant also asserted that they too were owners of the estate and had further improved their status prior to institution of the suit by acquiring two pieces of land in the same estate the first being of 1 kanal and the second admeasuring 4 kanals. It appears that in that suit where the appellant had purchased 1 kanal respondent filed written-statement admitting that the land purchased by the appellant was agricultural; was cultivated; on which the land revenue was also paid whereas the suit in respect of 4 marla on the basis of statement made by the appellant was decreed in favour of rival preempt, the appellant to defend the purchase of 431 kanal 7 marla of land claimed himself to be the owner of the estate. However, the respondent in this suit denied that 1 kanal land was agricultural and claimed that it was residential. The Court after coming to the conclusion -that the admission of respondent regarding agricultural estate of 1 kanal land was factually incorrect allowed -him to withdraw such admission by amending the pleadings and the apex Court while placing reliance on the case of Muhammad Zahoor and another v. Lal Muhammad and 2 others (1968 SCMR 322) wherein it was held that "where it is shown that an admission was made by mistake the Court can permit it to be withdrawn by amendment, even if such admission is made in the pleadings". The apex Court while placing reliance had affirmed the amendment so allowed and thereafter though not pleaded by any of the parties observed as follows: - "13. It is noteworthy that the alleged admission relied upon by the appellants was not made in the suit in hand but in another suit. In law a party is bound by admission recorded in the pleading in a suit, in which it is filed and not in a subsequent suit. Reference in this connection may be made to para.821, Vol. I of Taylor's Law of Evidence (1931 Edn.) wherein it is laid down that:- "With respect to admission by pleading the law at present seems to be that statements which are contained in any pleading, though binding on the party making them for all the purposes of the cause, ought not to be regarded in any subsequent action as admission."
20. ' This rule has been stated in Monir's "Laws of Evidence", 4th Edn.. Vol.1 at page 679, as under:- " an admission in a pleading is binding only in the proceedings in which it is made and may be shown to be wrong in subsequent proceedings."
21. ' The respondent in his deposition dated 23-11-1988 amply explained the mistake suffered by him and the circumstances under which in reply to a question put to him in cross-examination he stated that the land was agricultural in character. The High Court accepted this explanation and rightly found that the admission was factually incorrect and belied by the entries in the revenue record."
22. ' The judgment of course leaves a ground open for the person who had made a particular statement in previous proceedings which is being used as an admission in the subsequent proceedings, to explain the-context in which it was made, and also permits him to prove that the admission was either made on wrong assumption of facts or understanding or was materially incorrect. In this context the apex Court held that a statement in previous suit ought not to be regarded in any subsequent action an admission. However, the attention of the apex Court was not drawn to the words "or otherwise" appearing in Order XII, Rule 6, C.P.C. Nor it was pleaded that Article 31(3) (b) of the Qanun-e-Shahadat Order, 1984 envisages admission made otherwise than in proceedings. It is also important to observe here that in a recent judgment i,e, Federation of Pakistan v. Durrani Ceramics and others (2014 SCMR 1630) (para 34) the apex Court applied the admission made by the Federation in a previous case. In the previous case it was asserted by the Federation that a cess was not a sales tax, whereas, in the subsequent proceedings it was pleaded that cess was an additional sales tax. The apex Court while applying the admission of the Federation in the previous case held that the cess is one of the cost added to the price of the product for the calculation of sales tax, it cannot therefore, be termed as another sales tax.
23. ' However, the case of Naseer Ahmed (supra) earlier in time was not referred in the subsequent case and the rule of application of precedents keeping in view that in both cases Hon'ble Bench comprised of three Members, goes in favour of the earlier verdict.
24. ' In view of what has been discussed above, with heavy heart we B dismiss this appeal.