2010 PLP 661 (CLC)

MUHAMMAD TASNIM, J.

This revision application is directed against the judgment dated 19-8-2003 passed by learned VII-Additional District Judge, Karachi-South, allowing Appeal No.5 of 2000 filed by respondent No. 1 setting aside the judgment and decree dated 16-11-1999 passed in Civil Suit No.1062 of 1996 by learned IV-Senior Civil Judge, Karachi-South.

2. The facts leading to this revision application briefly stated are that Mst. Zarin Fatima, now deceased, purchased Shop No.98, measuring 644.49 sq. ft., on the ground floor of building situated at Plot No.24, Sheet BR-3, Bunder Quarters, New Neham Road Market, Karachi, through registered instrument dated 15-6-1987. That an area about 50 sq. ft., was encroached upon and illegally included in the premises which was let out to respondent No.2 who subsequently vacated and possession was handed over to respondent No.1. On coming to know such fact the applicant approached respondent No. 1 and finally matter was settled and an agreement dated 22-1-1995 was executed between the parties. Such agreement contained that respondent No.1 admitted that the said portion of 50 sq. ft., approximately is owned by the applicant and the possession thereof shall be handed over to the applicant. On refusal to act upon the above agreement applicant sent legal notice to respondent No.1 which was replied by respondent No.1 raising false pleas therein. In the circumstances, suit No.1062 of 1996 for declaration and possession was filed before the learned IV-Senior Civil Judge, Karachi-South. The learned Senior Civil Judge recorded the evidence of the parties and after hearing them decreed the suit vide judgment and decree dated 16-11-1999. Against the aforesaid judgment and decree the respondent No.1 preferred Appeal No.5 of 2000 before the VII-Additional District Judge, Karachi-South, who after hearing the parties allowed the appeal set aside the judgment and decree passed by the learned Senior Civil Judge in Suit No.1062 of 1996. Against the aforesaid appellate order dated 19-8-2003 the present revision application was filed under section 115 of C.P.C.

3. That the aforesaid revision application was originally disposed of by this Court vide order dated 14-2-2006 whereby revision application filed by the applicant was dismissed. Feeling aggrieved against the aforesaid revisional order dated 14-2-2006 the applicant approached the honourable Supreme Court of Pakistan by filing Civil Petition No.162-K of 2006. Initially leave was granted and converted the same into Civil Appeal No.1105 of 2006 and after hearing the parties allowed the appeal, set aside the order passed by this Court on 14-2-2006 and remanded the case to this Court for decision afresh after taking into consideration evidence on record and affording the opportunity of hearing to all concerned. The relevant observations of honourable Supreme Court of Pakistan are quoted hereunder:

"By consent of learned counsel for the parties therefore, this appeal is allowed, judgment of the High Court set aside and case remanded for decision afresh on merits. Civil Revision disposed of by the High Court shall be deemed to be pending and decided after taking into consideration evidence on record and affording an opportunity of hearing to all concerned. No order as to costs."

4. On remand I have heard Mr. Shahenshah Hussain, Advocate for the applicant, and Mr. Nasir Mahmood, Advocate for respondent No.1, and have gone through the record and proceedings of the case.

5. Learned counsel for the applicant raised the following submissions: (i) The documents which are admitted through the pleadings of the parties not to be proved any further under Article 113 of Qanun e-Shahadat Order, 1984. (ii) The Appellate Court recorded the findings in violation of Article 113 of Qanun-e-Shahadat Order, 1984, hence committed serious error of law. (iii) The findings of the Appellate Court holding that there was no agreement between the parties was based on evidence, ignorance of material evidence, consideration of immaterial evidence, hence cannot be sustained.

6. In support of his contentions learned counsel for the applicant has relied upon the following cases:

Messrs Foremost Trading Company v. Messrs Calendonian Insurance Company Limited and others PLD 1988 Karachi 131, Messrs Bengal Friends & Co. Dacca v. Messrs Benode Shah & Co. Calcutta and another PLD 1969 SC 477, Mst. Baswar Sultan v. Adeeba Alvi 2002 SCMR 326 and Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704.

7. As against this learned counsel for respondent No.1 made the following submissions:-- (i) The findings recorded by the learned Appellate Court are strictly in accordance with law and needs no interference in revisional jurisdiction. (ii) Learned Senior Civil Judge recorded his findings contrary to record hence the same was rightly disturbed by the learned Appellate Court.

8. Now taking up the first submission of Mr. Shahenshah Hussain, learned counsel for the applicant, that documents which are already admitted need not to be proved. Reference is made to Article 113 of Order, 1984, which is quoted hereunder:

"

113. Facts admitted need not be proved.

No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleading."

9. A bare perusal of above quoted provision clearly shows that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleading. To further support the above submission learned counsel for the applicant referred to paragraph 4 of the agreement dated 22-1-1995 which is quoted hereunder:

"(4) That presently out of the premises measuring 644-49 sq. ft., owned by the party of the second part, a portion measuring approximately 50 sq. ft., is within the use and occupation of the tenant of the party of the First Part namely: Messrs Habib Bank Ltd., which is presently being used as a bath room. The party of the First Part cloth hereby admit that the said portion measuring 50 sq. ft., presently carved out of the area of the property of the party of the Second Part, is owned by her i.e. party of the second Part."

10. That the learned counsel for the applicant further referred paragraph 4 of the plaint which reads as under:

"

4. That accordingly the plaintiff approached the defendant No.2 and after negotiations, apart from other matters, the aforesaid matter of illegal possession was settled and an agreement dated 22-1-1995 was reduced in writing between the plaintiff and defendant No.2 wherein vide clause 4 of the said agreement the defendant No.2 admitted the claim of the plaintiff in the following words:

(4) That presently out of the premises measuring 644-49 sq. ft. owned by the party of the Second Part (Plaintiff), a portion measuring approximately 50 sq. ft. is within the use and occupation of the tenant of the party of the First Part (defendant No.2) namely Messrs Habib Bank Ltd (defendant No.1) which is presently being used as a bath room. The party of the First Part (defendant No.2) doth hereby admit that the said portion measuring 50 sq. ft presently carved out of area of the property of the party of the Second Part, is owned by her i.e. party of the Second Part (plaintiff).

11. The respondent No.1 filed its written-statement wherein in reply to paragraph 4 of the plaint it was stated as under:

"(4) That the contents of para 4 of the plaint are denied. It is denied that the plaintiff approached defendant No.2 for negotiation about this matter. It is submitted that the contents of agreement are admitted but the plaintiff has violated the terms and conditions of the agreement. He constructed a building on his own plot and covered more than area in his building which was owned by the defendant No.1. "

12. From the perusal of above quoted extract from the agreement dated 22-1-1995, paragraph 4 of the plaint and paragraph 4 of the written statement it is absolutely clear that execution of agreement between the parties was admitted. It is also admitted position that the contents of clause 4 of the agreement were never challenged by the respondents. In this view of the matter the learned counsel for the applicant has rightly argued that things which have already been admitted by the parties need not to be proved through other evidence in view of provision of Article 113 of Order, 1984. Learned counsel for the applicant additionally submitted that the author of the document and marginal witnesses were examined in Court who had accepted the execution of the agreement. Even, respondent No.1 had not denied the execution of the agreement or the contents of the agreement. The legal position as settled by the Superior Court is that once the author of the document is examined in Court and who admits the execution of such document and also admits the contents of the document the document stood proved. In support of the aforesaid submission following judgments can be referred:

(1) Messrs Foremost Trading Company v. Messrs Calendonian Insurance Company Limited and others PLD 1988 Karachi 131 Messrs Bengal Friends & Co. Dacca v. Messrs Gour Benode Saha & Co. Calcutta and another PLD 1969 SC 477.

13. Learned counsel for the applicant has further invited ,my attention to the cases of Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326 and Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR

704. In the first cited case while dealing the provision of Article 113 of Order 1984, the honourable Supreme Court of Pakistan held as under:

"Admission of the respondent in her first written statement is binding upon her which is also corroborated by her own further admission made in the cross-examination with regard to due execution of agreements and passing of consideration besides overwhelming oral and documentary evidence of the appellant/ plaintiff and her marginal witnesses. Mere fact that subsequently the respondent/defendant denied the execution of the agreements and also of receipt of amount stated therein and because numbers of national Identity Cards of the respondent/ defendant and marginal witnesses were not mentioned in the agreements would not be sufficient to hold that the agreements were doubtful as erroneously held by the High Court keeping in view the overwhelming oral and documentary evidence of the appellant/plaintiff and inconsistent conduct and denial of admitted facts on the part of the respondent/defendant who did not come with clean hands consequently the Appellate Court and the revisional Court had drawn incorrect conclusion from the proved facts."

14. Similarly, in the second cited case on the interpretation of Article 113 of Order 1984, the honourable Supreme Court of Pakistan has observed as under:

"(5) It had been claimed through para 3 of the plaint that Siraj Din son of Nabi Bakhsh had died in the year 1966 and that he had left behind his widow, namely, Mst. Barkat Bibi, two sons, namely, Muhammad Din and Muhammad Rafiq and a daughter, namely, Mst. Zainab Bibi. The pedigree-table of said Siraj Din was also drawn in the said paragraph. The petitioners-defendants replied the said averments through their written statement in the following terms:

"

3. Admitted. Correct." The concurrent finding of the learned Appellate and the honourable revisional Court that in view of this judicial admission through the written statement no issue was required to be struck and no further proof of this question was warranted from the plaintiff was a perfectly valid finding."

15. The rule laid down by the honourable Supreme Court of Pakistan in the aforesaid two cases leave no room except to hold that no fact need to be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at time they are deemed to have admitted by their pleadings. Accordingly, I respectfully follow the dictum laid down by the honourable Supreme Court and hold that after admission through the pleadings of the parties it was not opened to respondent No.1 to turn around and refuse to perform his part of obligation under the agreement dated 22-1-1995.

16. With regard to the second submission of the learned counsel for the applicant that Appellate Court recorded the findings in violation of Article 113 of Qanun-e-Shahadat Order, 1984, the relevant cross-examination of respondent No.1 is quoted hereunder:

"...I see Exh.P/5 and say that I had put my signature on this deed of agreement and say that signature on it is my signature. It is correct to suggest that I executed agreement with husband of the plaintiff Sh. Mahmood Ahmed who was looking after the entire affairs of the plaintiff namely Mst. Sareen Khan."

17. He further stated in his cross-examination that:

"...It is correct to suggest that I have stated in my para No.4 of the written statement that "it is submitted that the contentions of agreement are admitted but the plaintiff has violated the terms and conditions of the agreement.""

18. He also stated in his cross-examination that:

"...It is correct to suggest that disputed bath room which is in my possession is constructed and is in existence under the roof of the building belonging to the plaintiff."

19. He further stated in his cross-examination that:

"...I am ready to handover possession of the plaintiff's area which is in my possession as and when it is proved. It is incorrect to suggest that I have devialtive agreement Exh.P/5 wherein I have promised to handover the possession of the bath room to the plaintiff, being his property."

20. The learned Appellate Court while passing the impugned order did not take into consideration the above quoted evidence which is available on record. An examination of above quoted cross-examination would show that respondent No.1 in his cross-examination clearly admitted the execution of the agreement dated 22-1-1995. He further admitted that contents of the agreement are correct. He further stated in the cross-examination that it is correct to suggest that disputed bathroom which is in his possession is constructed and is in existence under the roof of building belonging to applicant. He further added in the end that he is ready to handover possession of the area to the applicant which is in his possession as and when it is proved. He has also admitted that he had promised to handover the possession of the bathroom to the applicant but the same has not been handed over to the applicant.

21. That the learned Appellate Court completely ignored the admissions made by respondent No.1 in the written statement as also during the course of cross-examination and passed the impugned order which is clearly in violation of Provisions of Article 113 of Qanun-e-Shahadat Order, 1984.

22. In view of above factual and legal position it is held that Appellate Court recorded the findings clearly in violation of Article 113 of Order, 1984, hence committed serious error of law. After holding so the findings recorded by the Appellate Court are liable to be set aside.

23. Now taking up the third submission of the learned counsel for applicant, it is stated that apparently findings recorded by the learned Appellate Court are based on no evidence, hence cannot be sustained. Even otherwise, no further discussion on the issue is called for in view of my findings on submissions Nos.1 and 2 of the learned counsel for applicant. Accordingly, I hold that findings recorded by learned Appellate Court are opposed to material on record and which are also liable to be set aside.

24. With regard to submission of learned counsel for respondent No.1 I have gone through the judgment and decree passed by the learned IV-Senior Civil Judge, Karachi-South, same are passed on correct appreciation of evidence and did not call for any interference by any Appellate Court. The findings recorded by the learned Appellate Court are based upon no evidence, ignorance of material evidence and the same has been recorded without adverting to the material available on record, hence bad in law.

25. For the foregoing reasons this Revision Application is allowed, Appellate Judgment passed in Appeal No.5 of 2000 by the learned VII-Additional District Judge, Karachi-South, is set aside and the judgment and decree passed by the learned IV-Senior Civil Judge, Karachi-South in Suit No.1062 of 1996 is hereby restored. However, there will be no order as to costs. H.B.T./Z-6/K Application allowed.