P L D 2012 Sindh 66 (PLP)

SYED HASAN AZHAR RIZVI, J.

This is an application filed by plaintiff under Order XII, Rule 6, C.P.C. with the prayer to pass judgment and decree in favour of the plaintiff against the defendant just to avoid delay the proceedings and unwarranted interference. The application is duly supported by affidavit of plaintiff Tanveer Ahmed. The defendant No.1 has filed counter-affidavit to the present application, wherein it has been stated that the plaintiff has filed the present application with mala fide intention by concealment of true facts and without any cogent reasons. It is, therefore, prayed for dismissal of the present application. I have heard Dr. Muhammad Farogh Nasim learned counsel for plaintiff, Mr. Khurram Iqbal learned counsel for the defendant No.1 and Mr. Qazi Majid Ali, Assistant Advocate General, Sindh. Dr. Mohammad Farogh Nasim, advocate for the plaintiff has argued that defendant No.2 who is subordinate of defendant No.1 has filed their separate written statement and in Paragraph (4) thereof have admitted the contents of paragraph (6) of the plaint whereby they have not disputed about 189-9-58 acres of land, which include Survey No.157, Deh Nangan with share and ownership of the plaintiff with excuse that entries were not maintained due to mistake and report of D.O. (Revenue) City District Government and accepted as correct. He, therefore, prayed that judgment and decree with costs be passed in favour of the plaintiff against the defendants just to avoid delay the proceedings as plaintiff requires no more to wait for further determination. On the other hand, Mr. Khurrum Iqbal learned counsel for the defendant No.1 vehemently opposed the grant of listed application and has urged that defendant No.1 has no knowledge regarding issuance of letter by DDO (Revenue) to plaintiff. He urged that the defendant No.1 has never made any admission. He further urged that the plaintiff has failed to fulfil the terms and conditions of consolidation therefore the consolidation automatically comes to an end. He therefore prayed for dismissal of instant application, as the plaintiff is not entitled for the preliminary decree under Order XII, Rule 6, C.P.C. Mr. Qazi Majid Ali, learned Assistant Advocate General, Sindh has also opposed the grant of instant application. He urged that physical possession of Government vacant land measuring 9512-0 acres was given to the KDA/MDP vide handing over and taking over possession letter dated 1-12-1986. He also urged that the possession of land in question has been handed over by defendant No.1 to the plaintiff and not by defendant No.2 on the terms and conditions mentioned in letter dated 27-4-2004. He therefore contended that if any admission made by defendant No.2 in the written statement is only on behalf of the defendant No. 2 and not binding upon the other contesting defendants. I have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the available material with their able assistance. It is an admitted position that originally the land in question belongs to Sindh Government, which was subsequently transferred to defendant No.1, who in turn allowed consolidation of private lands falling in Taiser Town Scheme No.45 to plaintiff vide letter No.MDA/MPD/T.T.231/2000/473 dated 27-4-2004 on the following terms and conditions:-- (i) Subject to the clear title of land from lessor i.e. D.O. (Revenue), CDGK (ii) Balance 50% consolidation charges should be paid within six (06) months ime positively. (iii) Layout plans prepared according to the KB&TP Regulations - 2002 in accordance with the site plan duly verified by the Engineering Department of MDP, CDGK shall be submitted in MDP, CDGK for approval. (iv) The Outer Development Charges shall be paid to MDP, CDGK at the time of approval of layout plan (v) Procedure of Handing/taking over of physical possession of vacant/free from all encumbrances of surrendered/consolidated land shall be completed with the Engineering Department of MDP, CDGK before submission of layout plan for approval. (vi) The original Survey Nos. shall be surrendered in favour of MDP, CDGK with the D.O. (Rev) CDGK office and such surrendered certificate issued from concerned quarter shall be produced. (vii) The land consolidated against S.Nos.5, 6 & 7, Deh Bijarji Bhutti measuring 02-02-32 (Ac-Gh-Yds) will remain kept in abeyance until & unless registered General Power of Attorney in favour of applicant is produced. (viii) At any stage, if proved that the submitted documents are incorrect/false, the approval of consolidation will be cancelled and the land will be retained in favour of MDP CDGK without giving any notice." The defendant No.1 vide letter No.MDP/MPD/ T.T.231/2000/1093 dated 28-12-2004 has withdrawn/cancelled the consolidation letter dated 27-4-2004 reproduced above on account of non-fulfilment of conditions Nos.(i) & (viii). The plaintiff approached the Court seeking declaration that the action of the defendant No.1 contained in letter dated 28-12-2004 is mala fide, with ulterior motives, oppressive, inoperative in law, unwarranted and is liable to be rescinded and now filed the present application seeking judgment and decree on the basis of admission made by defendant No.2. The provisions of Order XII, Rule 6, C.P.C. provides that any party may, at any stage of a suit, where admissions of fact have been made, either in the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to without waiting for the determination of any other question between the parties and the Court may upon such application make such order, or give such judgment, as the Court may think just. A plain reading of the said rule clearly shows that plaintiff upon an application can move for a judgment on the admissions, whilst a defendant can move for a dismissal of the suit and the Court is empowered to dispose of such part of the suit with regard to which there is no dispute between the parties, but it is a discretionary power of the Court to allow such application. It is the duty of the Court that the suit can be decreed up to the extent of the admission and will proceed with regard to the rest for which the entire plaint or written statement must be read for purposes of finding out the nature of the admission and such admission can only be used for the purposes of the suit in which it is made and in case when one of the defendants only makes an admission in the written statement, it cannot be used against the others unless he appears as a witness. Moreover, where some of the defendants admit the claim, a decree can be passed against them but where such consenting defendants are official defendants and not contesting defendants, a decree cannot be passed. Furthermore, the Court also considers that in case where it is not safe to pass a judgment on admission, the Court may require proof of the fact and refuse judgment despite admission. An admission must be clear, unambiguous, unqualified and unequivocal and it is not a conclusive proof of the matters admitted. From the perusal of the order dated 28-4-2006 passed in this case it reveals that this Court has already observed that 'from the record it is not clear whether the land which was given to the plaintiff was the land of MDA or it was the land of some other private person. Nothing has been placed on record to show what was the criteria of exchange/consolidation of the land and grant of alternate land in lieu thereof'. Perusal of order dated 18-12-2006 reveals that counsel for the parties state that the parties have reached an amicable settlement out of Court and shall file such application and matter was adjourned to 22-12-2006. On 22-12-2006, a statement has been filed by the parties for passing decree on admission, but the Court while passing order on such statement has observed that: "I am not persuaded that a decree on admission can be passed specifically when order dated 28-4-2006 has been passed by this Court." Perusal of record further reveals that despite several directions issued by this Court for production of original record in respect of various survey Nos. claimed by the plaintiff to the Mukhtiarkar (Revenue) and NAB Authorities, but till to date they have not complied with the said directions. On 2-12-2008, Mr. Ahmed Pirzada, Advocate submitted that Board of Revenue may be joined as defendant No.4, which was opposed by the learned counsel for the plaintiff and stated that Board of Revenue is not necessary party inasmuch as the land was granted by the Board of Revenue itself to the MDA and in turn has allowed consolidation to the plaintiff which permission of consolidation was withdrawn. Prima facie, it is clear that the main dispute is between the plaintiff and defendant No.1 and the defendant No.1 has not acknowledged the admission made by defendant No.2 in the written statement, therefore, the admission made by defendant No.2 in their written statement has no bearing upon the defendant No.l. Moreover, the ownership of the land given to the plaintiff is also disputed between the MDA and other private parties, which can only be resolved after recording of evidence in the pending litigation. Resultantly, I find no substance in the instant application, which is dismissed with no order as to costs. M.H./T-17/K Application dismissed.