2014 PLP 1964 (YLR)

NISAR HUSSAIN KHAN, J.--Instant appeal is directed against the judgment and decree of the learned Civil Judge-VI, Peshawar, dated 24-7-2010 whereby suit of the respondents was partially decreed.

2. I have heard the learned counsel for the parties at length and have gone through the record appended with the memo of appeal.

3. Record of the case transpires that Ziauddin and his brother Allauddin .filed a suit for recovery of possession of a house, 3 Godowns and for recovery of mesne profit, description whereof is given in detail in the heading of the plaint. Claim of the plaintiffs was that they are owners of the suit premises, vide Registered Deed No.245, dated 14-2-1976 while defendant No.2 is owner of 1/4th share in the suit premises in lieu of her dower given by plaintiff No.1, through registered Deed No.1827, dated 11-12-1984. They alleged that some part of the premises remained in their possession, while rest was in possession of the defendant No.1 being a family affair but now he is adamant not to vacate the suit premises despite umpteen demands made by the plaintiffs. The defendant/appellant strongly objected to the contentions of the plaintiffs in his written statement by alleging that the deed so relied upon by the plaintiff was Benami transaction in their favour while actually the suit premises were purchased through the funds provided by the defendant and that is why he is occupying the same. After completion of evidence of the plaintiffs, the defendant's evidence was in progress and his two witnesses were examined but their cross-examination was awaited when all of a sudden, statement of appellant/defendant was recorded, wherein he stated before the court on 12-4-2010 that he would hand over vacant possession of the suit premises to the plaintiffs and defendant No.2 in May, 2010 and he would also make payment of the amount in 1st week of May, 2010. It appears that the plaintiffs now respondents filed an application on 18-5-2010 in the trial court that the case was fixed for today for effecting compromise of the parties while on 12-4-2010 respondent No.1 recorded his statement before the court that he would hand over vacant possession of the suit house but he has not honoured his commitment. Thus, the suit be decreed in their favour. Defendant No.2 also supported the contention of the plaintiffs who is none else but wife of plaintiff No.l. It appears that it was a shrewd move on the part of plaintiffs that he impleaded his wife in the panel of defendants. The application of the plaintiffs was replied in detail by the appellant/defendant wherein he vehemently opposed the stance of the plaintiffs and elaborately stated that he recorded his statement in pursuance of a compromise arrived at between the parties which was obliged by the answering defendant and not responded by the plaintiffs in reciprocity, hence his statement cannot be used against him for decreeing the suit. It is also borne out from the record that prior thereto, defendant also recorded his statement on oath in support of his written statement which was awaiting cross-examination on behalf of the plaintiffs. In that statement, he categorically denied the stance of the plaintiffs and reiterated the same version, what he put-forth in his written statement. Learned trial court after hearing both the sides, partially decreed the suit of the plaintiffs only on the basis of compromising statement of defendant, recorded before the court.

4. Learned trial court while decreeing the suit was swayed and impressed by statement made by the appellant/defendant before the court wherein he stated that he would deliver the possession and pay the due amount in May. 2010 which was taken as admission on his part. Record clearly transpires that the defendant categorically denied the stance of the plaintiffs in his written statement as well as his statement before the court. So much so that when plaintiffs filed application for decreeing the suit on the basis of Court statement of the defendant/appellant, he opposed the same with a detail reply elaborately describing the circumstances under which he made the statement. He stated in his replication that the compromise was reached between the parties who are brothers inter se, in pursuance whereof, he was to pay some amount for which he prepared draft and in reciprocity, the plaintiffs were also to fulfil the terms and conditions of the compromise but he was deceived by them by procuring his statement before the court but they did not perform their obligation in consideration of that statement. The record and the facts of the case support the stance of the appellant that it was not a simple acknowledgement of the rights of the plaintiffs and delivery of possession of suit premises but was having some covenants which were to be fulfilled by the plaintiffs.

5. The appellant/defendant has raised serious factual controversies entailing legal implications on merits of the case which could not have been decided so summarily.

6. Even otherwise, the statement of the defendant relied upon by the trial court cannot be termed as admission. Legally admissions are not conclusive proof of the matter admitted and an admission which is wrong on point of facts and is made in ignorance of legal right has no binding effect on the person making it. The only exception to such admission for becoming conclusive and binding on party making it is when in consequence of such admission other party has altered his position. Consequently, such admission acts as estoppels against party making the same. While in the instant case, the plaintiff by such admission did not alter his position. Rather the plaintiffs obtained the Court statement/admission of the defendant by deception. In terms of Article 36 of the Qanun-e-Shahadat Order, 1984, no admission in civil cases is relevant, if it is made either upon an express condition or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. This Article clearly denotes that even if it is admitted, it may be relevant fact but not a conclusive proof. Only Article 113 of the Qanun-e-Shahadat Order provides such exception that the fact admitted need not be proved. But that Article too is not attracted to the instant case; firstly for the reason that the parties though agreed upon admission of the rights of the others but the plaintiffs did not come forward to unfold their own liability in consideration of the statement of the defendant nor they placed anything in black and white before the court. Rather the discretion has been left with the court in the Proviso that despite the admission, the court may require the proof of the admitted facts, otherwise than by such admission. The statement so recorded, which is vague in itself, could not satisfy the judicial conscience of this court which could be made basis for maintaining the judgment and decree of the trial court, particularly, when precious and substantial rights of the parties are involved therein. Beside that, parties are real brothers inter se, being descendants of the same propositus and litigating for the suit property since long. One party is hell-bent to deprive the other which requires thorough probe and its decision on merits, instead of knocking out one of them on technicalities, particularly, when the court proceedings have not been finally terminated, rather partial suit with regard to Prayer-B is still pending adjudication before the trial court.

7. At this juncture, Learned counsel for the respondents contended that the impugned judgment and decree has been executed and possession has been taken over by the plaintiffs/respondents, hence this appeal is not maintainable. The stance of the learned counsel for the respondents is misconceived, in that, such situation is squarely covered by section 144, C.P.C., according to which when the decree of the trial court/Appellate Court is reversed by the higher forum, the party against whom decree is executed, can be restituted/ restored to its original position of prior to passing the decree. Hence, this argument of the learned counsel for the respondent is not tenable.

8. For what has been discussed above, on acceptance of instant appeal, I set aside the impugned judgment and decree of the trial court and remand the case for decision afresh on merits after recording full evidence. The trial court shall conclude the case within a period of two months positively. Parties shall appear before the trial court on 21st October, 2013. There is no order as to costs. MH/162/P Case remanded.