1993 PLP 1287 (MLD)

The appellant No.l 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.l again moved an application for appointment of receiver, which was allowed to the extent of 20 shops owned by appellant No.l. Respondent N0.3 filed an appeal against the order of appointment of receiver which is pending in this Court as H.CA. 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. The appellants applied for a decree of the suit to the extent of 20 shops i.e. Shops Nos.l 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.MA. 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. 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. 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. 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. 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." He also placed reliance' on the following . observation appearing in M. Narayanswami Naidu and others v. Parvati Bai and others AIR 1949 Mad 379. "Admissions by person in previous proceedings for obtaining letters of administration ‑‑ Admissions are binding upon those claiming under such person." 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 arc 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. Even if it amounts to clear admissions, it will not act as a bar to the suit." 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 a 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." 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. Judgments upon admission under Order XI1, Rule f>, C.P.C. are matters of discretion and not of right. Where the case involves questions which cannot be conveniently disposed of on A a motion under this rule, the Court should in the exercise of its discretion, refuse the motion. For the foregoing reasons, we do not find any force in the abovct appeal. Consequently the appeal is dismissed. H.B.T./1‑215/K Appeal dismissed.