1983 PLP 74 (CLC)

6. The learned District Judge was of the view that the nature of the rights claimed in each suit being different, it was not proper to consolidate the two suits, and that the consolidation of the suits had adversely prejudiced the defence plea of the vendee in the respective suits. He framed the following issues and remanded the suit of Ahmad Khan for fresh trial‑‑ (1) Is the suit property urban immovable property and so not subject to the right of pre‑emption as claimed by the plaintiff ? O. P. D (2) Is the suit filed by Ahmad Khan collusive with Ghulam Akbar ? O. P. D. (3) Was the suit land sold for Rs. 12,000 and the same was actually paid? O. P. D. (4) If not, what is the market value of the suit land/plot ? O. P. P. (5) Has the defendant made any improvements, if so of what value ? (6) Relief.

7. Learned counsel for the appellant argued that‑ (i) the remand order stands vitiated as it proceeds on the erroneous view of the law that the suits, where the nature of the right claimed is different, are not to be consolidated ; (ii) the suit of the appellant merited to be decreed under Order XII, rule 6, C. P. C. in view of the admission contained in the written statement filed by the respondent in the suit of Ghulam Akbar that section 15 of the Punjab Pre‑emption Act applies to the plot in dispute. The admission so contained in this written statement can be acted upon as the appellant being rival pre‑emptor was impleaded as a defendant in view of the provisions of section 28 of the Punjab Pre‑emption Act and as both the suits were consolidated and were being heard concurrently and one set of evidence‑‑ in both the suits was prepared ; (iii) No objection was made to the framing of issues and though issue as to the nature of the plot in question was not specifically framed, yet the parties led their evidence to prove the nature and the character of the plot in suit by leading evidence and in these circumstances, non‑framing of a specific issue, was of no consequence as the parties were fully cognizant of the controversy raised ; (iv) issue No. 2 does not arise from the pleadings as collusion was not asserted and the allegation at best was that Ahmad Khan filed the suit at the behest of Ghulam Akbar. Issue in this respect was also framed ; The other issues, viz. Issue No. 3, 4. 5 acid' 6 were framed by the trial court in the original proceedings and the parties led their evidence in respect of these issues and; as such, there was no question of framing of these issues and that the remand in any case, in respect of these amounts to providing another opportunity to the respondent to fill in the lacuna, so as to improve his case, and (v) the lower appellate court had made out a case for the respondent, which he himself had failed to assert in his memo. of appeal and that in the circumstances, it will be appropriate for this court to decide the matter finally on the basis of the evidence on record as the matter is pending since 1975.

8. In reply, learned counsel for the respondent: argued that‑ (i) firstly, no admission in the form of conceding the suit can be called out from the written statement filed in the shit of Ghulam Akbar and, secondly, assuming there is one, the same cannot be made a basis for decreeing the suit as it was not contained in the written statement filed in the suit of Ahmad Khan. It was asserted That despite consoli dation of the suits. there remain two suits independent and distinct and their concurrent, hearing does not mean that the written statement in one suit can be treated as the written statement of the other suit as well ; (ii) a specific issue as to the nature and character of the plot in dispute was not specifically framed and this resulted into miscarriage of justice as the parties were not fully cognizant of the real controversy arising in the suit though they have led some evidence in respect of the character and the nature of the suit plot. The remand, as such, was in the interest of justice and the parties ; (iii) though issue Nos. 3 to 6 were earlier framed by the trial Court, but as the suit was remanded for fresh trial, where both the parties will have the opportunity to lead evidence, no prejudice has been caused to anyone and, as such, the remand order in respect thereof merits not to be interfered with, and (iv) issue No. 2 can be re‑framed )to depict the assertion trade in the written statement in this respect. (v) in case the court considers the remand to be improper, the District Judge be ordered to dispute of the appeal on merits as by disposing of the suit on merits by this Court, the parties will be deprived of a right of appeal.

9. I propose to deal first with the submission of the learned counsel for the appellant that his suit merited to be decreed under Order X11, rule 6, I C. P. C. in view of the fact that inn the written statement filed in the suit of Ghulam Akbar, it was asserted that section 15 of the Punjab Pre‑emption Act was applicable. The questions that arise are : whether there is at all an admission made by Fazal Dad respondent ; whether the admission, if any made in the written statement filed in the suit of Ghulam Akbar the rival pre‑emptor in which suit Ahmad Khan was a co‑defendant, can be made the basis for granting a decree under Order XII, rule 6, C. P. C. The first thing to be kept in mind for finding out an admission in the pleadings is that the pleading or written statement as a whole is to be read and not a single line or one para. contained therein. The assertion made by Fazal Dad respondent in the two written statement submitted in two suits have been noted above. No doubt, in 'the written statement filed in the suit of Ghulam Akbar, it was asserted that the suit land was Shamilat of village Wara Thal and was not included in the Town Committee. Khewra and so section 15 of the Act applies. It is also true that in the other written statement submitted in the suit of Ahmad Khan, it was averred that the site in dispute was situated within the limits of Town Committee, Khewra and that it being an urban immovable property, provisions of section 16 of the Punjab Pre‑emption Act apply. But it is important to note that in both the written statements, in addition to the abovesaid averments, it was further asserted that the plot or the land in dispute had virtually formed part of the town and had assumed the character of urban. immovable property. In view of the above, it will pot be just and proper to draw out an admission by reading only one of the preliminary objection taken in the written statement. So, by reading the written statement as a whole, I am of the considered view that admission in the form of conceding the suit cannot be culled out even from the written statement submitted in the suit of Ghulam Akbar. I may add that despite the fact that the two suits were consolidated and were given concurrent hearing, still the suits remained two distinct and separate suits and the written statement of one cannot be utilized in the other suit for the purpose of Order X11, rule 6, C. P. C. so as to read any admission or concession for seeking a judgment on admission, as a party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. It was observed in 'Ramabai Sharini Nadgir v. Government of Bombay (A I R 1941 Bom. 144) that it frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit, and certainly not for all time". In the instant case, if the two suits had not been ordered to be heard together, could the assertion made in one written statement be used as an admission in the other suit as a binding admission entitling the plaintiff in the other suit to obtain a judgment on admission ? The answer obviously would be in the negative, as the two suits despite the concurrent hearing remained distinct and independent suits. The latter question anyhow becomes inconsequential as I have recorded the view that admission of the nature which will entitle the appellant to seek judgment under Order XII, rule 6 cannot be drawn from the written statement filed in the suit of Ghulam Akbar. Moreover, admittedly no application was moved by the appellant for granting judgment on the basis of the so‑called admission under Order XII, rule of C. P. C;. Even under section 58 of the Evidence Act, the Court may in its discretion require any fact admitted to be proved otherwise than by such admission. There is sufficient justification in the instant case for requiring the appellant to prove the fact alleged i.e the nature of the site in question and the applicability of the relevant provision of law under which the right was claimed in view of the assertions made in both the written statements. For the above reasons, there is no merit in this submission and the appellant cannot claim judgment on the basis of any so‑called admission.

10. Coming to the question of legality of remand, it was not disputed that the entire basis for directing remand was the view that the two suits should not have been consolidated. Learned counsel for the respondent has not supported this view as the reason given i. e. the nature of the right being asserted was totally different, is wholly irrelevant for the purposes of ordering concurrent hearing of the suits under section 28 of the Punjab Pre‑emption Act. Section 28 provides that when note suits, than one arising out of the same sale or foreclosure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right. It is therefore, apparent that the basis on which the right is claimed or the section of the Pre‑emption Act which recognizes that right, is not relevant for hearing the pending suits concurrently. There was thus no prejudice caused by ordering the concurrent hearing of the suits and resultantly the remand could not legally be ordered on this score'.

11. As regards framing of issues by the trial Court, it will be seen that even the learned counsel for the respondent could not support the act of the first appellate court in remanding the case after framing issue Nos. 2 to 6, as issue No. 2 admittedly does not depict truly the assertion made in the written statement and as the other issues were framed by the trial court itself and the parties had led their evidence in support of the said issues. The learned appellate court in these circumstances should have disclosed reasons for framing these issues again and for remanding the matter for fresh trial in respect of these issues specially. It is well‑settled that remand cannot be made in order to provide another opportunity to a party to lead evidence so as to fill in the lacuna or to prove the deficiency. The remand as regards these issues was, therefore, wholly unjustified. This brings me to the respective submissions made with respect to issue No. 1 framed by the first appellate court. The trial court with reference t0 the rival claims of pre‑emption had settled the issue as under :‑ The above issue as framed by the trial court and issue No. 1 framed by the first appellate court failed to depict the entire controversy raised in the pleadings of the parties. The appellant in his plaint asserted that the suit land was of village Wata Thal and he being owner in the estate had superior right of pre‑emption. The respondent asserted that the site in dispute was situated within the limits of Town Committee Khewra and even if it was not so included it was situated in a Mohallah which had practically become a part of Khewra Town and had assumed the character of urban immovable property. The failure of the trial Court to frame a specific issue bringing out the real controversy between the parties is inconsequential in the instant case as the parties were fully cognizant of the real controversy and all the evidence produced was directed towards establishment of the nature and character of the plot/land in suit. It may be added that the framing of the issue by the trial court in general or wide form, the framing of an issue in a particular form, the non‑framing of issue in respect of a question arising out of pleadings looses significance in all those cases where the parties were cognizant of the real controversy and had in fact produced evidence in respect thereof. Reference in this connection may be made to Faqir Muhammad etc. v. Sheikh Nasim Ahmad (P L D 1979 Lah. 356) and Mst. Sardaran and others v. The Muncipality, Lyallpur (P L D 1961 Lah. 35). In this view of the matter, no prejudice was caused on account of failure of tile trial court to frame proper and specific, issue. I am refraining myself from making a detailed mention of the statements made by the witnesses in this respect purposely because of the order that 1 propose to pass in this appeal, lest it may prejudice the case of any of the parties.

12. This brings me to the question whether the matter should be remitted to the learned lower appellate court for decision on merits treating the appeal as still pending or to decide the matter myself here. The plea of the learned counsel for the appellant is that in view of the fact that the matter is quite old this court should itself decide the case on merits instead of remanding it. Learned counsel for the respondent, on the other hand, submitted that though there is no legal bar yet this court should not decide the question on merits itself as it will deprive the parties of the right of appeal. I am aware of the view taken by the learned Judge of the Supreme Court in Fateh Ali v. Pir Muhammad anus another (1975 S C M R 221) as in that case such a plea as to right of appeal was repelled by observing that the High Court was under no obligation to make an order of remand and was fully competent to dispose of the issue left undetermined by the first appellate court. But in this case, it will be appropriate to require the first appellate court to decide the appeal on merits in accordance with law. The question of taking additional evidence, if at all required for the just decision of the case, will also be decided by the first appellate court in accordance with law.

13. For the reasons given above, the appeal is accepted, the order of remand dated 24‑3‑1977 is hereby set aside. The appeal filed by the respondent will resultantly be treated as pending and shall be decided within three months of the receipt of the record by the learned first appellate court. In the circumstances of the case, there will be no order as to costs. S. Q. Appeal accepted.