' ABDUL MAJEED MALLICK, C. J.-These appeals arise out of the judgment and decree of the learned Sub-Judge, Mirpur, dated 8th of June, 1983, whereby Muhammad Shafi, plaintiff's suit was partly decreed for payment of Rs 6,690. As the appeals arise out of common judgment, these are disposed of by single order.
2. Muhammad Shafi, plaintiff filed a suit for recovery of Rs, 4,880 and return of golden ornaments given in the plaint. It was averred that Muhammad Bashir borrowed, in cash, a sum of Rs, 3,OCO from the plaintiff. The plaintiff paid a sum of Rs, 80 to Ch. Qutab Din, to settle the debt of defendant and that defendant was liable to pay Rs, 1,800 for food taken at the hotel of plaintiff, for a period of one year @ Rs, 150 p.m. The plaintiff further claimed that in March, 1979, Muhammad Bashir borrowed golden ornaments weighing 44 tolas, from the plaintiff, in order to give the same as gift to his wife, with the promise that the ornaments shall be returned after a fortnight of the marriage.
On failure of the defendant to return the ornaments and repay the debt, plaintiff filed the present suit. Muhammad Bashir, in his written statement, repudiated the claim of the plaintiff. During the trial, on 27th of June, 1982, Muhammad Bashir filed an application with an offer that he was prepared to admit the suit provided plaintiff reiterated his claim on special oath on Holy Qur'an. He admitted in the application to have purchased the ornaments weighing 3 tolas from the plaintiff @ Rs, 900 per tola, price prevailing at the relevant time i. e. In March, 1979 and stated that a sum of Rs, 1,200 was paid at the time of transaction and the remaining amount to the tune of Rs, 1,500 was yet to be paid. In reply, Muhammad Shafi insisted for proof on behalf of the defendant but proposed that he was prepared to accept the ornaments provided they were placed on the Holy Qur'an. He refused to make statement on special oath, in the terms of offer made by the defendant.
Muhammad Shafi produced Yasin, Muhammad Rafique, Muhammad Sadiq, Raj Muhammad, in support of his claim and appeared himself as a witness. Muhammad Bashir in rebuttal, appeared himself as a witness and in his evidence, admitted to have purchased 3 tolas golden ornaments from the plaintiff on the 5th of March, 1979 at the rate of Rs, 900 per tola and deposed that a sum of Rs, 1,200 was paid at the time of transaction and the balance was yet to be paid. The learned Sub- Judge rejected the evidence of plaintiff, nevertheless, admitted the claim of the plaintiff in the light of admission made by Muhammad Bashir, defendant. The learned Sub-Judge assessed the value of the ornaments in the light of current rates and calculated it to the tune of Rs, 2,230 per tola, and allowed decree in favour of the plaintiff, to the tune of Rs, 6,690.
3. Mr. Riaz Alam, the learned counsel for Muhammad Bashir urged that the learned Sub-Judge fell in error by acting partly on the admission and ignoring the admission as a whole. He cited AIR 1934 Oudh 370 and AIR 1935 Pat.
24. On the other hand, Mr. Ayub Sabir, the learned counsel for Muhammad Shafi, argued that the learned Sub-Judge was wrong to discared the evidence of plaintiff. It was suggested that plaintiff sufficiently proved the case and in the circumstances, the lower Court was not justified to reject part of the plaint.
4. The claim of the plaintiff consists of various items and rests onlA different transactions. The primary claim consists of Rs, 3,000 shown to have been borrowed by Muhammad Bashir at the time of his marriage. This part of the claim was not supported by any evidence. The learned counsel for Muhammad Shafi was unable to show evidence in support of respective claim. The learned Sub-Judge was, therefore, right to reject the claim of Rs, 3,000. The other part of the claim was Rs, 80, alleged to have been paid to Ch. Qutab Din, for settlement of debt of Muhammad Bashir, defendant. This part of the claim was equally not proved as Yasin and Muhammad Rafique who made an attempt to corroborate the plaintiff, failed to state the exact amount paid to Ch. Qutab Din. They were not in a position to give definite time and place as to when and where the amount was paid. Likewise, the claim of Rs, 1,800 was found for devoid of force. Yasin, P. W. Deposed that Muhammad Bashir used to take food from the hotel of the plaintiff and plaintiff seldom charged him stating thereby that Muhammad Bashir was a partner in the hotel. In presence of such evidence of plaintiff, it is hardly reasonable to accept that defendant was liable to pay the alleged amount for food for a period of one year, alleged to have been taken from the hotel of the plaintiff. On these points, this Court is not persuaded to record its disagreement with the learned Sub-Judge.
5. The subordinate Court rejected the claim of the plaintiff in respect of ornaments by disbelieving the manner of delivery of ornaments by plaintiff to defendant. Contrarily, he allowed part of the claim by relying on the admission of Muhammad Bashir defendant. Before dealing with the question of admission, it would be pertinent to record that the ornaments were shown to have been delivered to Muhammad Bashir, defendant in presence of Yasin and Muhammad Rafique.
Muhammad Sadiq goldsmith testified that the ornaments were brought to him for washing when plaintiff told him that the same were to be handed over to the defendant for presentation to his bride, with the promise that the same shall be returned within a fortnight. Raj Muhammad, P. W.
Deposed that he was approached by plaintiff for settlement of dispute with Muhammad Bashir. On his contact, Muhammad Bashir, defendant admitted to have received the amount and ornaments from the plaintiff and asked the witness to stand as surety for him as he promised to hand over the ornaments to the witness for returning it to the plaintiff. His statement is inconsistent and self- contradictory. In earlier part of his statement, Raj Muhammad deposed that he contacted Muhammad Bashir at the instance of the plaintiff when Muhammad Bashir asked him to stand surety for him and promised to hand over the ornaments to the witness for returning it to the plaintiff but in reply to a subsequent question in cross-examination, he stated that he went to Muhammad Bashir only once when he was told by defendant-respondent to advise the plaintiff to file a suit against him. At the time of such reply from the defendant, plaintiff and Muhammad Rafique, P. W. Were shown accompanying him, Muhammad Rafique is cousin of Raj Muhammad and the witnesses were admittedly member of 'Bradari' of the plaintiff. The other set of evidence consists of testimony of Muhammad Rafique and Muhammad Yasin. Both the witnesses admitted their interest in plaintiff, as they accepted that they served in plaintiff's hotel. Their testimony does not ring true as it suffers from inconsistencies and contradictions. According to Yasin, P. W.
Ornaments were left in B his custody for 3 days when they were delivered to Muhammad Bashir by him. But he was unable to state the date and month of delivery of Orna ments to defendant. He also failed to show the presence of Muhammad Rafique at the time of such delivery. According to the evidence of Muhammad Yasin, plaintiff was shown to have acquired receipt from the defendant, Muhammad Rafique contradicted him on this score. Both the witnesses were not in agreement in material details relating to the delivery of ornaments by plaintiff to defendant. The learned Sub-Judge was, therefore, justified to discard the evidence of these witnesses.
6. As stated earlier, the learned Sub-Judge allowed part of the claim by virtue of admission of Muhammad Bashir, defendant. In civil action, admission is classified in two categories, namely, (i) admissions in pleadings ; and (ii) evidentiary admissions. The admissions in pleadings are dealt with by the rules of evidence contained in section 58 of the Evidence Act, whereas the evidentiary admissions are tested in the light C of the provisions contained in sections 17 to 31. Such admissions are available in both civil and criminal actions; whereas admissions in pleadings are considered conclusive. Evidentiary admissions are not held conclusive unless they operate as estoppels. In the present case, admission of Muhammad Bashir, defendant is blended in pleadings and evidence. It is so as in his application, dated 27th of June, 1982, Muhammad Bashir admitted that he purchased golden ornaments weighing 3 tolas from the plaintiff @ Rs, 900 per tola. It was explained that a sum of Rs, 1,200 was paid at the time of transaction and balance of Rs, 1,500 was yet to be paid. The admission made in the application, was repeated verbatim in his statement when he appeared as a witness in defence. The learned Sub-Judge acted upon the admission by accepting that defendant purchased 3 tolas of golden ornaments from plaintiff but refused to act upon the admission whereby it was shown that ornaments; were purchased by the defendant from plaintiff @ Rs, 900 per tola and that part payment to the extent of Rs, 1,200 was made promptly. The learned Sub-Judge failed to assign reason for his such deliberations. It is well-accepted that admission must be taken as a whole or not at all. When an admission was accepted and was acted upon, it was imperative for the Court acting on such admission, to record its opinion by taking the admission as a whole. Departure from the accepted rule for acting on an admission, rendered the act of the Court as misconceived and erroneous. Applying the principle to the present case, the admission of Muhammad Bashir defendant led to the inference that he purchased ornaments from plaintiff @ Rs, 900 per tola and paid a sum of Rs, 1,200 promptly and was liable to pay the balance. In the circumstances, plaintiff-appellant was entitled to decree of Rs, 1,500 only. Thus, the contention of the learned counsel for Muhammad Bashir, appellant prevails.
7. The result of the aforsaid discussion is that the appeal filed by Muhammad Bashir succeeds and counter-appeal filed by Muhammad Shafi fails it is, therefore, ordered that plaintiff's suit is decree for a sum of Rs, 1,500 but the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.