2005 PLP 106 (MLD)

Nemo for Respondents. This civil revision assails the judgments and decrees dated 14-5-1996 and 15-4-1998 passed by the learned Civil Judge and the learned Additional District Judge, Liaqatpur dismissing the petitioner's suit and appeal, respectively.

2. Precisely, relevant facts are that the petitioner filed a suit for declaration with permanent injunction, as consequential relief with the averments that he is owner in possession of land measuring one Kanal described in the plaint, which was purchased by him from the respondents for an amount of Rs.23,

000. It was also pleaded that the petitioner paid the entire price and took over the possession under the sale, completing it under law prayer with regard to permanent injunction was also made by the petitioner restraining the respondents from interfering into his lawful possession.

3. Respondents being defendants in the suit filed a concessional written statement averring that they have no objection if the suit of the A petitioner is decreed. The learned trial/Judge who was seized of the matter relying on the judgment in the case of Kaloo Khan v. Nisar Muhammad Khan (1972 SCMR 602) dismissed the suit on the ground that no cause of action was left with the petitioner after the admission by the respondents claim of the petitioner vide his judgment and decree dated 14-5-1996.

4. The petitioner aggrieved of the decision dated 14-5-1996 filed an appeal before the learned Additional District Judge but remained unsuccessful as it was dismissed vide judgment and decree dated 15-4-1998, thereafter, the petitioner filed the instant revision petition which after completion, has now been laid for hearing. The respondents who are the real brother were served and one of them i.e. Faqir Muhammad appeared in person on 8-5-2003 and requested for adjournment of the case to engage a counsel but thereafter did not appear on the last date of hearing on 9-2-2004. Today, as well nobody has turned up on behalf of the respondents to defend this petition. The case has been repeatedly called. Respondents are proceeded against ex parte.

5. The learned counsel for the petitioner submits that both the Courts below fell into an error of law in ignoring specific provisions dealing with the situation, when the parties are not at issue and the Court was obliged to decree the suit of the petitioner. He further submits that under Order VIII, rule 5 of the Civil Procedure Code, the trial Court was bound to pass a decree on admission made by the defendants and its failure in this behalf amounts to illegality and material irregularity as envisaged by section 115, C.P.C. In support of his submissions he referred to judgment in the case of H. Gharib Ullah v. Mumtaz Begum (1990 CLC 1609), He further referred to the Notification No.766 79/1/70 LRI, dated 23-8-1979 whereby earlier Notification No.29, dated 28-5-1931 was cancelled with immediate effect and contended; that oral sale within the area forming part of earlier State of Bahawalpur was permissible.

6. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record appended herewith. Undeniably the respondents/defendants conceded claim of the petitioner whereunder he had prayed that he be declared owner in possession of the property in question on account of sale by the respondents because he had already paid the entire sale price and has taken over the possessions of land subject of sale. The learned trial Judge while dismissing the suit was persuaded by the judgment in the case of Kaloo Khan (supra) in this precedent case leave to appeal was refused on the ground that the defendant had admitted that he will not interfere into the title and possession of the plaintiff but in the instant case only sale by the respondents was admitted but rest of the cause of action was not conceded by the respondents thus, ratio of this judgment was not applicable to the circumstances of the case in hand. Order VIII, rule 5 envisaged that the allegation of facts in the plaint if not denied specifically or by necessary implication, those shall be taken to be admitted unless Court requires in its discretion, to prove such admission. Similarly Order XV, rule 1, C.P.C. mandates that where at the first hearing of the suit it appears to the Court that the parties are not at issue on any question of 'law or of facts, the Court may once pronounce the judgment. Likewise Order XXIII, rule 3, C.P.C. provides; that where a suit has been adjusted wholly or in part by any lawful agreement, or compromise the Court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance therewith, so far as it relates to the suit, in view of these provisions the trial Court was bound to reduce compromise into writing and to pass a judgment on the basis thereof since, they were not at issue. In the case of Directorate of Small Industries, Government of Balochistan through Sales Manager, Karachi Airport, Karachi v. Civil Aviation Authority through Director-General and another (1993 MLD 1836), H. Gharibullah v. Mst. Mumtaz Begum and others (1990 CLC 1609) and H. Gharib Ullah (supra) it was held that the Court was bound to pass a decree on admission made by the defendants in terms of rule 5 of Order VIII, C.P.C. Both the Courts below acted illegally and with material irregularity in ignoring these provisions of law and the judgments, which were binding on them, thus, their this failure negatively, reflects on their judgments.

7. The Appellate Court refused to decree the suit of the petitioner mainly for the reasons that remedy of suit has been invoked to avoid payment of stamp duty/mutation fee and other incidental charges of the transaction, with mala fide intention. To my mind, the suit of the petitioner could not have been dismissed for this reason alone because it is highly presumptive to assume that remedy to suit has been used as a device to save the stamp duty etc. Only one Kanal of land was involved in the suit and charge of even registered sale-deed would not have been less than the expenses of a suit. Sale of one Kanal of land in the rural area in the year 1996 at a price of Rs.23,000 does not appear to have been undervalued. Though no court-fee vas payable on a suit with valuation of Rs.23,000 yet the petitioner could have been required to have registration of the decree if ultimately passed, in order to check his bona fides.

8. For what has been discussed above I am of the considered view that all the provisions of C.P.C. controlling situation, like the one in hand, which produced above, escaped notice of the two Courts below, thus their judgments cannot be allowed to be sustained under law. I accordingly accept this revision petition and set aside the judgment and decrees dated 14-5-1996 passed by the learned Civil Judge and 15-4-1998 passed by the learned Additional District Judge, Liaqatpur with the result that the suit of the petitioner will be deemed pending before the trial Court which shall be decided afresh in terms of the observations, above-noted. The parties are directed to appear before the trial Court on 6-4-2004 for further proceedings in accordance with law. There will be no order as to costs. H.B.T./A-273/L Revision accepted.