PLJ 2022 Peshawar (Note) 133
Civil Procedure Code, 1908 (V of 1908)--
----O.XII, R. 6--Specific Relief Act, (I of 1877), Ss. 9, 42 & 54--Suit for declaration, permanent injunction, possession of property--Application for deletion of mutations from heading and prayer clause of plaint--Accepted--Dismissal of revision petition--Pendency of suit--Challenge to--Admissions made therein have wrongly been treated by civil Court to be unqualified and absolute admissions sufficient to provide basis for giving judgment at such a preliminary stage--Court can even require evidence regarding admission, in its discretion as provided by Article 113 of Qanun-e-Shahadat Order, 1984--Even an appropriate judgment has not been pronounced as envisaged by Order XII, Rule 6, C.P.C--No decree has been passed in case--Suit of petitioner has not even been dismissed in respect of said mutations--Only deletion of certain mutations has been made from prayer clause as well as heading of plaint, which procedure of such deletion or powers of Court for such deletion in pleadings of parties, without their request, is also alien to law of procedure--Procedure adopted by civil Court was not at all according to law, and same warrants interference of this Court for its rectification--Order Civil Court, where it had ordered deletion of mutation, from heading and prayer clause of plaint, is declared to have been passed without lawful authority and of no legal effect--Petition partially allowed. [Para 6, 8 & 9] A, B, C & D
PLD 1989 SC 294 ref.
Mr. Mohsin Ali Khan, Advocate for Petitioner.
Mr. Adil Khan Tahirkheli, Advocate for Respondents Nos. 1
to 4.
Date of hearing: 27.1.2022.
PLJ 2022 Peshawar (Note) 133
[Mingora Bench (Dar-ul-Qaza) Swat]
Present: Wiqar Ahmad, J.
versus
AMIR DIL KHAN and 5 others--Respondents
W.P. No. 381-M of 2020 with Interim Relief (N), decided on 27.1.2022.
Judgment
Plaintiff (petitioner herein) filed a suit against defendants (respondents) for declaration, permanent injunction as well as possession of the property in dispute (described fully in heading of the plaint). Defendants in the suit were summoned by the learned civil Court, out of whom Defendants Nos.1 to 4 appeared and contested the suit by filing their separate written statements. From divergent pleadings of the parties, issues were framed and the case was thereafter posted for evidence. Partial evidence in the suit was also recorded. During proceedings, Defendants Nos.1 to 3 filed an application before civil Court for deletion of Mutation No. 2318 attested on 28.04.2011, Mutation No. 2350 attested on 22.07.2011, Mutation No. 2404 attested on 30.04.2012 and Mutation No. 2456 attested on 24.09.2012 (all entered in Moza Karapa Tehsil Daggar District Buner), from heading of the plaint for the reason that plaintiff had earlier filed an application on 07.07.2017 before the civil Court, wherein he had admitted that plaintiff had rightly entered and attested the abovementioned mutations in favour of Defendants Nos.1 to 3. Said application was duly replied by the petitioner but after hearing arguments of learned counsel for the parties, the learned civil Court accepted such application vide its order dated 22.01.2018 and ordered deletion of the above-referred mutations from heading of the plaint. Feeling aggrieved there-from, petitioner filed civil revision before learned revisional Court, which was dismissed vide impugned judgment dated 07.10.2019 by learned District Judge Buner at Daggar. He thereafter filed the instant writ petition with the following prayer:
"It is therefore, humbly prayed that on acceptance of this writ petition, the impugned order dated 07.10.2019 of respondent No. 6 and order dated 22.01.2018 of respondent No. 5 be declared as illegal, without lawful authority, without jurisdiction, null and void and application of the respondents for deletion of certain mutations in the case titled "Muhammad Zarin v. Amir Dil Khan" be dismissed.
Any other remedy which is efficacious and appropriate in peculiar circumstances of the case, may please be graciously granted, though not specifically prayed for."
2. I have heard arguments of learned counsel for the parties and perused the record.
3. Perusal of record reveals that petitioner is aggrieved of order dated 22.01.2018 of the learned civil Court, whereby the civil Court has ordered deletion of Mutation No. 2318 attested on 28.04.2011, Mutation No. 2350 attested on 22.07.2011, Mutation No. 2404 attested on 30.04.2012 and Mutation No. 2456 attested on 24.09.2012 (all entered in Moza Karapa Tehsil Daggar District Buner), from heading of the plaint as well as the prayer clause, on acceptance of application filed by Defendants Nos. 1 to 3/Respondents Nos. 1 to 3. The suit was however kept pending for further proceedings before the civil Court. Background leading to the final development was that petitioner who was plaintiff before the learned civil Court had filed an application for deciding suit pending before the civil Court on basis of special oath of the parties. Paras-2 and 3 of said application are relevant, which are reproduced hereunder for ready reference:
"2۔ یہ کہ من مدعی نے انتقالات نمبرز 2318 مورخہ 28.04.2011، 2350 مورخہ 22.07.2011 ، 2404 مورخہ 30،04،2012 ، 2456 مورخہ 24.09.2012 بحق مد عاعلیہ نمبر 2،1 ، 3 درست اور صحیح درج و تصدیق کئے ہیں ۔ جس کو میں درست تسلیم کر تا ہوں
3۔ یہ کہ انتقالات نمبرز 2358 مورخہ 14.09.2011 ، 2359 مورخہ 14.09.2011 ، 2365 مورخہ 14.09.2011 ، 2372 مورخہ 28.09.2011 ، 2434 مورخہ 26.06.2012 ، 2435 مورخہ 26.06.2012 ، 2467 مورخہ 24.12.2012 ، 2475 مورخہ 14.12.2012 ، 2479 مورخہ 23.01.2013 ، 2480 مورخہ 23.01.2013 جعلی فرضی اور خود ساختہ ہے ۔ جس کے نسبت میں حلف باالقرآن اٹھانے کو تیار ہوں کہ میں نے یہ انتقالات درج و تصدیق نہیں کئےہیں۔"
Said application was taken up for hearing on 26.09.2017 and was dismissed same day. Later, on 02.11.2017, respondents Nos. 1 to 3 filed an application for deletion of the abovementioned mutations from heading and prayer of the suit as according to them, petitioner/ plaintiff had conceded in the earlier application filed by him that he had duly entered and attested these mutations in favour of Defendants Nos. 1 to 3. Reply to this application was also obtained and thereafter the learned civil Court allowed application for deletion of the mentioned mutations, on the basis of admissions made by the petitioner in his earlier application.
4. Learned counsel for petitioner contended in his arguments that petitioner had in-fact not moved such an application and that same had in-fact been substituted on record of the Court. He also placed reliance on judgments of the Hon'ble Supreme Court of Pakistan given in the case of Zafar Ali v. Allah Bachayo reported as PLD 1989 Supreme Court 294, case of Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another reported as 2020 SCMR 171, case of Abdul Razaq v. Abdul Gahffar and others reported as 2020 SCMR 202 as well as judgment of the Hon'ble Sindh High Court given in the case of Mirza Naseem Baig v. K.E.S.C. Employees Cooperative Housing Society Ltd. and others reported as 2019 YLR 2609.
5. Learned counsel for Respondents Nos. 1 to 4 on the other hand stated that in reply to their application filed for deletion of the mutations from plaint, petitioner had not disowned filing of the earlier application and that this was a new plea crafted by learned counsel for petitioner so as to bolster his case before this Court. He placed reliance on judgments reported as 2002 SCMR 1173, 2000 YLR 1449 and 2008 CLC 645.
6. Order XII, Rule 6 C.P.C. no doubt provides for powers of the Court to pass judgment on admissions but for returning such a judgment, the admission has to be clear, unambiguous, unqualified and unequivocal as held by the Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another reported as 2020 SCMR 171. Such admissions are also supposed to be read as a whole and not in piecemeal. The situation in this case as it has emerged was not such that should have resulted into passing of the judgment and deletion of the prayer clause in respect of the mentioned mutations, at the given stage. It is important to be noted that in the pleadings i.e. plaint, petitioner/plaintiff had not made admissions rather he had raised a challenge to the mutations mentioned therein. The application for deciding the matter on special oath had not been filed in pursuance to any agreement between the parties. It had been filed with a different intention i.e. to get the matter decided on special oath. The admissions made therein have therefore wrongly been treated by the learned civil Court to be unqualified and absolute admissions sufficient to provide basis for giving judgment at such a preliminary stage. The Court can even require evidence regarding admission, in its discretion as provided by Article 113 of the Qanun-e-Shahadat Order, 1984. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Zafar Ali v. Allah Bachayo reported as PLD 1989 Supreme Court 294, has held in this respect:
"It is also not incumbent upon the Court to decide an issue on admission as according to the proviso of section 58 of the Evidence Act, the Court is empowered to require the proof of facts which are admitted, by evidence otherwise than by such admissions."
7. This issue of admission in the application should have been read along with other evidence that is to be recorded in the case and at the time of final conclusion of proceedings, the learned civil Court should have considered its effect vis-a-vis the entire controversy in hand. That would have been a better course but same has not been followed.
8. Another aspect of the case is that even an appropriate judgment has not been pronounced as envisaged by Order XII, Rule 6, C.P.C. No decree has been passed in the case. Suit of the plaintiff/ petitioner has not even been dismissed in respect of said mutations. Only deletion of certain mutations has been made from prayer clause as well as heading of the plaint, which procedure of such deletion or powers of the Court for such deletion in pleadings of the parties, without their request, is also alien to the law of procedure. Had the judgment been pronounced and an order for dismissal of the suit in respect of even the mentioned mutations been passed, it would have its own consequences different from the order impugned in the case in hand. In such a situation, the procedure adopted by learned civil Court was not at all according to law, and therefore same warrants interference of this Court for its rectification.
9. In light of what has been discussed above, instant writ petition is partially allowed to the effect that order dated 22.01.2018 of the learned civil Court, where it had ordered deletion of Mutation No. 2318 attested on 28.04.2011, Mutation No. 2350 attested on 22.07.2011, Mutation No. 2404 attested on 30.04.2012 and Mutation No. 2456 attested on 24.09.2012 (all entered in Moza Karapa Tehsil Daggar District Buner), from heading and prayer clause of the plaint, is declared to have been passed without lawful authority and of no legal effect. Order of the learned revisional Court dated 07.10.2019 is also set aside. The matter is ordered to be deemed pending before the learned civil Court, which shall be decided along with other matters in the suit at time of final conclusion of suit, wherein the learned civil Court may also consider plea of respondents Nos. 1 to 3 relating to admissions statedly made by the petitioner/plaintiff in his application filed before the civil Court on 26.09.2017.
(Y.A.) Petition allowed
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