1. ' SYED HAIDER ALI PIRZADA, J.---This High Court Appeal is directed against the order, dated 5-11-1989 passed by the learned Single Judge of this Court whereby dismissing. the applications under Order XII, Rule 6, C.P.C. and section 151, C.P.C. being C.M.A. Nos.5018 of 1988 and 2092 of 1989.
2. ' The facts leading to the filing of the above High Court Appeal arc that the appellant No,2 was allotted Plot No,10-A, Group-I, Commercial Area, Liaquatabad, Karachi on which she constructed a market consisting of 72 shops and premises on the first floor. The appellant No,2 sold out 20 shops bearing Nos.1 to 10 and 35 to 44 to appellant No,1.. The appellant No,2 appointed late Muhammad Ramzan, respondent No,1, as her general attorney to look after the property. In 1964 the respondent No,2 served a notice on appellant No,2 for demolition of the premises in question which are known as Hasina Cloth and Gola Market, Liaquatabad, Karachi. The appellant No,2 filed Suit No,32/64 in the Court of VIIIth Senior Civil Judge First Class, Karachi. Respondent No,1 Muhammad Ramzan appeared on her behalf as her attorney and got his deposition recorded before the said Court on 12-3-1971, 19-3-1971, 26-3-1971, 2-4-1971 and 13-4-1971. It is the case of the appellant that in the said deposition, respondent No,1 stated as follows:--- "I am attorney of Mst. Haseena Begum, the plaintiff in these cases. I produce power of attorney (general) as Exh.P.1. I also produce previous power-of-attorney as Exh.P/2. The disputed plot was allotted to Haseena Begum, the plaintiff in the year 1954 in the month of December by the then Rehabilitation Department. The plaintiff was put in possession of the plot by the Welfare Officer on 14-12-1954. The plaintiff is my relation. I look after the property of the plaintiff. I work as an attorney to collect the rents and manage all other business of the plaintiff in the entire market called "Hasina Market" which was completed by the year 1955-56. The market consisted of shops. In all 72 shops were constructed and were let out to different persons "
3. ' However, respondent No,1 thereafter disputed the ownership of the appellant No,2 and alleged that she was only a "Benami". He filed Suit No,424 of 1972 but the same was dismissed in default.
4. Appellant No,1 filed Suit No,372 of 1983 in this Hon'ble Court for declaration, rendition of accounts and also cancellation of lease. It may be mentioned here that Muhammad Ramzan had purported to gift the property in question to the respondent No,3 and in the written statement filed by Muhammad Ramzan, it was disclosed that on the basis of said gift, respondent No,3, his wife had obtained lease from K.M.C., respondent No,2. It is in these circumstances a prayer for cancellation of the lease was also made. It is alleged that the respondent No,3 admitted the ownership of appellant No,2 to the extent of 20 shops and made an application that she should transpose as plaintiff No,2. This request was allowed and she was transposed as plaintiff No,2 in the said suit.
5. During the pendency of the suit, the respondent No,2 K.M.C. cancelled the lease in favour of respondent No,3. The contention of respondent No,2 K.M.C. was that lease was never granted and that this lease deed was bogus document. Mr. S. Mohsin Inam, with whose signatures the late Muhammad Ramzan had filed allotment order of 1972 in his favour had filed an affidavit in Suit No,424 of 1972, stating therein that he had never issued the said allotment order and that his signatures were forged.
6. ' The appellant No,1 had applied for appointment of receiver, which application was not allowed and the respondents were directed to furnish security. However, after the alleged lease in favour of respondent No,3 was cancelled, the appellant No,1 again moved an application for appointment of receiver, which was allowed to the extent of 20 shops owned by appellant No,1. Respondent No,3 filed an appeal against the order of appointment of receiver which is pending in this Court as H.C.A.
7. No,15 of 1987. However, the prayer of staying the order of appointment of receiver was refused by the Division Bench of this Court which was upheld by the Supreme Court.
8. ' The appellants applied for a decree of the suit to the extent of 20 shops i.e. Shops Nos.1 to 10 and 35 to 44 on the basis of the admission of Muhammad Ramzan made before the VIIIth Civil Judge First Class, Karachi in Suit No,321 of 1964, a substantial part of the deposition has also been reproduced in the earlier part of judgment. This application was registered as C.M.A. No,5018 of 1988. The appellant No,1 also made C.M.A. No,2092 of 1989 under section 151, C.P.C. for withdrawal of the rent deposited by the tenants with the receiver (Nazir). The above two applications were dismissed on 5-11-1989. Being aggrieved by the aforesaid order of the learned Single Judge, the appellants have filed the present High Court Appeal.
9. ' We have heard Mr. Muhammad Sharif, Advocate appearing for the appellants. Mr. Mushtaq Memon, learned counsel appearing for respondents 1 and 3 and Mr. Yasin Kiyani, learned counsel appearing for respondent No,2.
10. ' The appellants moved an application under Order XII, Rule 6, C.P.C. praying to enter judgment in their favour on the admission of Muhammad Ramzan alleged to be contained in his deposition recorded in Suit No,321 of 1961 filed by the appellant No,2 in the Court of VIIIth Civil Judge, Karachi.
11. The said Muhammad -Ramzan appeared as attorney of appellant No,2. The said Muhammad Ramzan admitted in his deposition that disputed plot was allotted to appellant No,2.
12. ' This is the admission in the deposition relied on by the appellants in support of the application. Mr. Muhammad Sharif placed reliance on a decision in a case Galstaun, J. v. Mirza Abid Hussain and others AIR 1924 Oudh 19. The relevant portion of the judgment is reproduced herein below:--- "Statements made by persons from whom the parties to the suit have derived their interest in the subject-matter of the suit are admissible as admissions, only when the admissions are of a date prior to the date of the transfer. Statements made by persons in possession of property, and qualifying on affecting their title thereto are receivable against the persons claiming through them by title subsequent to the admission."
13. ' He also placed reliance on the following observation appearing in M. Narayanswami Naidu and others v. Parvati Bai and others AIR 1949 Mad.
14. 379.
15. "Admissions by person in previous proceedings for obtaining letters of administration -- Admissions are binding upon those claiming under such person."
16. ' There is no cavil with this proposition. This is well-settled proposition. The question, however, arises as to how far this admission is applicable. It appears that proceedings were initiated when the K.M.C. issued notice to the appellant No,2. We find it difficult to subscribe the proposition that this admission is conclusive. In Dolat Singhji v. Khachar Mansur Rukhad and another AIR 1936 PC 150 their Lordships of Judicial Committee ruled that admissions of the facts are only relevant, and are not conclusive and therefore may be shown to be wrong. Their Lordships observed:--- "Evidence Act expressly provides that admissions are not conclusive proof of the matters admitted.
17. Even if it amounts to clear admissions, it will not act as a bar to the suit."
18. ' In Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311, Their Lordships observed at page 317 as under:- - "An admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. This is, however, subject to two well-recognized exceptions. First: such admissions become conclusive and are binding on a party making them, only if it amounts to a representation on a matter of fact made to the other party, who in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made, it operates as estoppel and becomes in 4 way conclusive, inasmuch as the party making it is not then permitted to show that the admission is really hit by rule of estoppel in section 115 of the Evidence Act, 1872."
19. ' In these circumstances, it cannot be accepted that there was an admission of, fact and that the plot of land was allotted to the appellant No,2 as admitted by late Muhammad Ramzan.
20. Judgments upon admission under Order XII, Rule 6, C.P.C. are matters' of discretion and not of right.
21. ' Where the case involves questions which cannot be conveniently disposed of on a motion under this rule, the Court should in the exercise of its discretion, refuse the motion.
22. ' For the foregoing reasons, we do not find any force in the abovel appeal. Consequently the appeal is dismissed.