1. C.M.A. No.10629 of 2000. By this application under Order XII, Rule 6, read with section 151, C.P.C. the plaintiff seeks judgment against the defendant on the ground of admission of facts set forth in the pleadings.
2. The plaintiff filed the present suit for Specific Performance of Contract and Injunction in respect of an apartment situated on second floor of Plot No.C-5-C having a covered area of 960 square feet, situated in Badar Commercial Street No.5, Phase V, Extension, Pakistan Defence Officers' Housing Authority, Karachi (hereinafter referred as the "said Apartment"), purchased from the defendants, who are owners and builders under an agreement of sale executed between the parties, dated 27- 11-1999 for an agreed consideration of Rs.10,50,000. The plaintiff made payment of the total amount of sale consideration as acknowledged by the defendants vide receipt, dated 27-11-1999, for a sum of Rs.2,50,000 and second receipt for a sum of Rs.8,00,000 dated 17-12-1999. The physical possession of the said Apartment was handed over by the defendant to the plaintiff and acknowledged in writing duly signed by the parties on 17-12-1999. On 20-1-2000, Pakistan Defence Officer's Housing Authority allowed the plaintiff to secure the property by their Letter No.PD/SSI/WL- 5403 allowing the plaintiff to make addition by fixing steel grill and outer door, window and balconies.
3. The defendant in her written statement admitted the sale of the said apartment under the aforesaid agreement of sale, dated 27-11-1999 for a total consideration of Rs.10,50,000 together with the acknowledgement of the receipt of total sale consideration of Rs.10,50,000. It is also admitted that the possession of the said apartment was handed over by the defendant to the plaintiff. The only objection taken by the defendant to the suit is that the plaintiff being a foreigner is required to obtain an N.O.C. from the Government of Pakistan for purchase of immovable property which has been denied to her and as such the said apartment cannot be transferred in favour of the plaintiff by execution of registered sale-deed/sub-lease.
4. Learned counsel for the plaintiff has placed reliance on the admission contained in para.2 of the written statement admitting the execution of agreement of sale on 27-11-1999 and receipt of the total sale consideration of Rs.10,50,000. The admission as to the handing over of the physical possession of the said apartment is contained in the written statement. In addition the execution of the documents is also not denied, photocopies whereof are annexed to the plaint. The original documents, filed by the plaintiff in Court are as under:--
(1) Original Sale Agreement, dated 27-11-1999 executed between the plaintiff and defendant.
(2) Original payment receipts, dated 27-11-1999 of Rs.2,50,000 issued by the defendant.
(3) Original payment receipt, dated 17-12-1999 of Rs.8,00,000 issued by the defendant.
(4) Original Letter dated 17-12-1999 pertaining to handing over of physical possession to the plaintiff by the defendant.
(5) Original Letter No.PD/SSI/WL-5403, dated 20-1-2000 of Pakistan Defence Officers Housing Authority regarding grant of permission to the plaintiff with regard to fixation of steel grills.
(6) Letter No.PD/107-G dated 14-9-2000 of Pakistan Defence Officers Housing Authority declaring rooftop over all commercial building is common property of tlat/shop.
(7) Copy of complaint, dated 29-3-2000 to the Deputy Inspector-General of Police.
(8) Notice, dated 10-2-2000 sent by the defendants' counsel Mr. Iftikhar Javed Qazi.
(9) Reply of plaintiff through her counsel vide letter, dated 28-3-2000.
(10) Original Letter No.3/13/2000/PE(III), dated 28-6-2000 of Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad with regard to the processing of case of the plaintiff for issuance of N.O.C.
(11) Copy of N.O.C. vide No. SO/(MC)HD/Proty/6-1/00, dated 15-7-2000 from Government of Sindh, Home Department, Karachi.
(12) Copy of NOC vide No.SECY(RS&EP)BOR/NOC/2000-167, dated 19-7-2000.
(13) Original Letter regarding N.O.C. vide No.3/13/2000-PE-III, dated 8-1-2001 of Government of Pakistan Ministry of Interior and Narcotics Control (Interior Division), Islamabad for purchase of flat in question.
(14) Original Letter vide No.3/13/2000-PE(III), dated 10-1-2001 of Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad.
(15) Original Letter No.3/13/2000/PE(III), dated 14-2-2001 issued by the Government of Pakistan, Ministry of Interior and Narcotics Control, (Interior Division), Islamabad for confirmation and validity of NOC of Government of Pakistan.
5. The learned counsel for the plaintiff stated that it is due to unwarranted steps taken by the defendant to deprive the plaintiff and avoid the specific performance of the agreement, the defendant made complaints to various authorities to prevent the issue of N.O.C. and thereafter its withdrawal vide Letter No.S0(MC)(HD)/6-1/2000, dated 20-12-2000, issued by the Government of Sindh. However, the matter finally rests with the letter issued by Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad bearing No.3/13/2000/PE(III), dated 14- 2-2001 confirming the validity of NOC of Government of Pakistan who is competent to grant the N.O.C. and as such the only objection to the execution of registered sale-deed in favour of plaintiff by the defendant with respect to the said apartment is removed.
6. Learned counsel for the defendant has opposed this application on the ground that the N.O.C. has been withdrawn by the Government of Sindh Home Department vide Letter No.SO(MC)(HD)/6- 1/2000, dated 20-12-2000 and Letter No.SO(MC)(HD)/6-1/2000, dated 12-2-2001 and has also produced these documents.
7. From the pleadings and documents available on record it appears that differences developed between the parties and the matter was referred to the police and it is only after these incidents that the defendant has taken steps to seek the withdrawal of N.O.C. granted by the Government to the plaintiff. In this context the learned counsel for the defendant further stated that the plaintiff after entering upon the said Apartment tried to take over control of the entire building which is not acceptable to the defendants. It is an admitted fact that neither of the parties can claim their exclusive right to the common spaces staircases or of common utilities in a building comprising of several apartments. However, this is not a valid ground for refusal of execution of sale-deed either and the aggrieved party can seek remedy from the Court if necessary.
8. Reliance is placed on the case of Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon and 3 others 1987 CLC 2131 and H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609.
9. In Shaikh Mahmood Ahmed's case (supra) where an application was made under section 151, C.P.C. stating that the plaintiff was repeatedly offered to collect the cheque in respect of his dues payable by the defendants. The statement was considered to be sufficient admission of the liability and order was passed accordingly. In H. Gharibullah's case (supra) the Court held the statement of admission of liability by the defendants in their written statement and also observed that omission of specific denial in the written statement constitutes an admission leading to the judgment against the defendants who admitted the claim in their written statement under Order 12, Rule 6 the point also came under consideration in the case of Mercantile Fire & General Insurance Co. of Pakistan v. Messrs Imam & Imam Ltd. 1989 CLC 2117 and it was observed that in order that an admission may qualify, as such, under Order 12, Rule 6, C.P.C., the same 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.
10. In Shaikh Mahmood Ahmed's case (supra) plaintiff lodged a claim for recovery of amount. In response the defendant moved an application alongwith a cheque for part of the amount was enclosed. The Court held the same to be an admission and decreed the suit to the amount of the cheque submitted alongwith the application in Court and passed judgment to the extent of admission without prejudice to the right of the plaintiff to proceed with the balance amount of claim.
11. In view of the above admission contained in the pleadings, the statements made in paragraphs Nos.2, 3 and 4 to the effect of admission of the fact of execution of agreement of sale. Both the receipts, dated 27-11-1999 and 17-12-1999 described the plaintiff as a National of Netherlands and even her Passport No.N-75300265 is mentioned therein which confirms the fact that defendant was aware that the plaintiff is a foreign national since that time. These receipts of the amount of sale consideration and the handing over possession of the property that is the subject-matter of the claim are all admitted and are clear, unambiguous, unqualified and unequivocal admission. The only objection pertaining to issue of N.O.C. has been overcome. These admissions are further supported by the original documents produced before the Court details whereof are already mentioned hereinabove. The documents are also admitted by the learned counsel for the defendants at the time of hearing of the application.
12. The above facts lead to the conclusion that the plaintiff is entitled to the specific performance of the contract and the injunction restraining the defendants from interfering and to the relevant injunction as prayed. Accordingly, this application under Order XII, Rule 6 (bearing C.M.A. No.10629 of 2001) is allowed and the suit is decreed in favour of the plaintiff as prayed but with no order as to costs. The listed applications are accordingly disposed.