1988 PLP 322 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--Respondent No.1, Lai Muhammad and respondent No.2 Mst.Tahira Bibi (who shall be referred to as the contesting respondents) are father and daughter and are the transferees of Property No.BX-1-S-123 situate in Kasaira Bazar, Gujranwala, in equal shares. Appellants Muhammad Zahoor and Muhammad Sultan are the sons of respondent No.1 and brothers of respondent No.2. They had obtained a decree dated 10th May, 1973, against the contesting respondents from the court of Civil Judge, 1st Class, Gujranwala, for a declaration to the effect that they had become the owners of the aforesaid property by purchase for a consideration of Rs.20,000 and for the consequential relief of permanent injunction restraining the contesting respondents from claiming ownership of the suit property. On the other hand the contesting respondents d1so brought two separate suits for a declaration to the effect that the aforesaid decree dated 10th May, 1973, was obtained by fraud and collusion and without notice to them and consequently was ineffective as to their title in the said property. The last mentioned two suits have been consolidated and are pending before the Civil Judge, Gujranwala.

2. The trial Court on the pleadings of the parties framed inter alia, issue No.3-B which reads as under:- "Whether Lal Muhammad (petitioner) is of unsound mind. If so, what is its effect?" This issue was basically founded on the plea taken by the appellants in their written statement by way of preliminary objection in para (1) reading as under:- "That the plaintiff disclosed in the plaint in para No.3 that he is not mentally fit, so until and unless he is mentally examined. He is not competent to file this suit. Hence the suit not maintainable."

3. After the framing of the issues the plaintiffs (contesting respondents) produced their evidence and when the same was about to be concluded, the appellants made an application for taking up the aforesaid issue No.3-B and tried as a preliminary issue. A reply to the aforesaid application was filed by the contesting respondents. In their application the appellants referred to pars. No.3 of the plaint and quoted the following portion: In para 3 of the application it was stated as under:- "That above-quoted statement /admission by the plaintiff on his own initiative affects his legal capacity to institute the suit." In reply the respondent No.1 opposed the application of the appellants and in reply to para 3 stated:- Thereafter, respondent No.1 moved the trial Court for amendment of his written reply on the ground that due to clerical mistake the word was inadvertently omitted in para 3 which should be amended so as to read instead of

4. The learned trial Court, by its order dated 21st October, 1978, on contest came to the conclusion that the amendment was justified as it had occurred due to mistake and was not wilful. The appellants, being aggrieved went up in revision before the learned Additional District Judge, Gujranwala, who by his judgment dated 19th April, 1979: accepted the same set aside the order of the trial Court and dismissed the application of respondent No.1 for amendment/ correction of the reply, on the solitary ground that Order VI rule 17 of the C . P. C . was not applicable to the proceedings of an application of the nature in this case as the reply which was sought to be amended did not fall within the ambit of the word "pleadings" in Order VI rule 1 C.P.C.

5. Respondent No.1 thereupon challenged the order of the learned Additional District Judge in a constitutional petition before the Lahore High Court which was accepted by a learned Single Judge of that court by his judgment dated 17th November, 1982, whereby the judgment passed by the learned Additional District Judge dated 19th April, 1979, was declared to be without lawful authority and quashed.

6. The appellants then came up before this court in a petition and leave was granted in order to consider whether the High Court's constitutional jurisdiction was appropriately invoked and exercised in the circumstances of this case, particularly in respect of an order) passed by a subordinate Civil Court.

7. It has been contended on behalf of the appellants that the legislature in its wisdom by amending section 115 of the C.P.C. conferred revisional jurisdiction on the District Court which was originally invested exclusively in the High Court by means of amending Ordinance XII of 1972, deliberately barring any further remedy by way of revision before the High Court in order to take off some of the workload from the High Courts and for providing expeditious disposal of cases as well as shortening the time consumed in the litigation. In this connection he referred to the bar contained in subsection (4) of the amended provisions of section 115 in which it was inter alia provided that if any application for revision has been made to the District Court against an order, no further proceedings in revision shall be entertained by the High Court in respect of such an order passed by the District Court. In the premises learned counsel went on to the urge that the constitutional jurisdiction of the High Court under Article 199 of the Constitution cannot be invoked in respect of such an order of Civil Court of plenary jurisdiction. In this behalf counsel placed reliance on Noor Muhammad v. Sarwar Khan and others P L D 1982 S C

131. There is no doubt that in several recent judgments this Court had deprecated the tendency to file constitutional petitions against orders of courts having jurisdiction to pass such orders and the cited decision is one of them but we would like to point out that in the cited case it was held that the constitutional petition was not competent because neither the impugned orders passed by the executing court nor that passed by the Additional District Judge in exercise of his revisional jurisdiction "can by any stretch of imagination, be said to be 'illegal' or to have been passed "without lawful authority". It may further be pointed out that the petition in that case was filed against the order passed by the Additional District Judge refusing to interfere with the order of the executing court in revisional jurisdiction. Learned counsel for the respondent on the other hand submitted that the constitutional jurisdiction of the High Court cannot be taken away or eroded by any sub-constitutional legislation like the C.P.C. He submitted the proposition that in several cases of this nature, this Court has laid down that the constitutional jurisdiction is limited and confined to ascertaining whether a Tribunal or court having jurisdiction to decide a matter had not flouted the provisions of relevant statute or had failed to follow law relating thereto as laid down by superior courts. In this connection reference was made to Muhammad Sharif and another v. Muhammad Afzal Sohail etc. P L D 1981 S C 246 and Abdul Rehman Bajwa v. Sultan etc. P L D 1981 S C

522. A bare perusal of sub-Article (5) of Article 199 of the Constitution of Pakistan makes it plain that the constitutional jurisdiction of the High Court extends to reviewing the orders of a court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan. We are, therefore, not in a position to lay down the wide proposition that the constitutional jurisdiction of the High Court is not at all invokable in respect of an order passed by a Civil Court. In saying so we do not in the least mean to water down the general observations made in the aforesaid decisions discouraging vexatious and incompetent constitutional petitions filed against final orders passed by the Civil Courts within the ambit of their jurisdiction unless the order is wholly void or coram nonjudice.

8. The peculiar difficulty confronting the respondents in the circumstances ,of this case was highlighted by the learned counsel for the respondents which according to him arises out of the contentions advanced by the appellants themselves. It was submitted that if the order of the District Judge passed in revision was left in the field, the same would have operated to the prejudice of the respondents and may have proved fatal to the suit filed by the contesting respondents, inasmuch as, in view of the pecuniary jurisdictional value of the suit, there would be no second appeal competent in this case before the High Court and in the first appeal which may have been brought by the contesting respondents against the final judgment passed by the trial Court, the District Judge exercising co-ordinate jurisdiction with the Court that passed the order in revision, would have felt powerless to interfere with the order. Learned counsel for the respondents, therefore, emphatically argued that in this case the contesting respondents had no other efficacious remedy available. In order to bring his case within the ambit of the principle defining the limits of the constitutional jurisdiction of the High Court in respect of orders passed by the Civil Court, as mentioned above, learned counsel referred to Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824 in which this Court had expounded the scope of section 153 and Order V I rule 17 C . P . C . vesting the court with the powers to allow amendments of pleadings and proceedings in a suit. In this context we were invited to peruse the order of the District Judge in which it was observed that in reply to the application for trying issue No.3-B as a preliminary issue, respondent No.1 had "reiterated that he is a man of unsound mind". But later on, "to avoid the consequences of the said admission regarding his unsoundness of the mind, the respondent No.1 made an application seeking amendment of his written) reply." On this assumption the learned District Judge held that the power of amendment vesting in the Court only extends to pleadings under Order VI rule 17 C.P.C. and therefore the Court had no power to allow amendment of written reply to an application. To say the least the learned District Judge wholly misconceived the law by proceeding on this basis and totally ignored the general power of amendment vesting in a Civil Court under section 153 of the C.P.C. which is in the following terms:- "General power to amend. The Court may at any time, and on such terms as to costs or otherwise as it may think fit amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding." Therefore, the learned District Judge proceeded on the assumption that he had jurisdiction under section 115 C.P.C. to interfere with the order in total disregard of the statutory provisions of section 153 and made no attempt to consider the merits of the case. Indeed he based his order on a conclusion prima facie not sustainable on the record before him, namely, that respondent No.1 was avoiding the consequence of his admission regarding the unsoundness of his mind.

9. We may here point out an important aspect of this case. It appears to us that the learned District Judge in proceeding on this basis acted upon certain words in para 3 of the written reply out of context. If this para is read as a whole it will appear that the opening part of it clearly pleads the denial of the averments made about unsoundness of mind of respondent No.1 in para 3 of the application filed by the appellants. It is easy to see in this manner that the word " " was really inadvertently omitted while drafting the reply to the application and therefore the trial Court came to the right conclusion that the omission was an error which could be allowed to be corrected. The law with regard to admissions in the trial of a suit is contained in Order XII rule 6 of C.P.C. which empowers the Court to pass judgment on admissions. But at the same time the proviso to Order VIII rule 5 C.P.C. confers upon the Court a discretion to require any fact admitted in the written statement to be proved otherwise than by such admissions. This proviso is a reproduction of the proviso to section 58 of the Evidence Act which reads as under:- "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 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 pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. " Section 31 of the Evidence Act further lays down that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Evidence Act. Monir in his book on the Law of Evidence has explained the distinction between the evidentiary admissions and admissions in pleadings in the following passage as under:- "Section 58 applies to admissions in pleadings, and not to evidentiary admissions; the rule embodied in it is, therefore, more properly a rule of pure procedure than of evidence. There is a fundamental distinction between admissions in pleadings governed by the present section and evidentiary admissions made relevant by the thirty-first section of the Act. The former are conclusive, but the latter are merely relevant and not conclusive unless they operate as estoppels; the former are made in contemplation of a particular litigation, but not so the latter. An admission in a pleading is a different thing from an evidentiary admission. It is generally understood to be a concession made by one of the parties that a fact alleged in the pleadings of the party opposed to him need not be proved. The section is, therefore, inapplicable where no pleadings have been filed. But an admission in a pleading is binding only in the proceedings in which it is made and may be shown to be wrong in subsequent proceedings." It has been held that where it is shown that an admission was made by mistake the Court can permit it to be withdrawn by amendment, even if such admission is made in the pleadings. In this connection reference may be made to Hollis v. Burton (1892) 3 Ch.D.226). In a recent judgment reported as Obaid-ud-Salam and others v. Faiz Muhammad Khan and others 1987 S C M R 216, where an order of extension of time passed by the trial Court under the N.-W.F.P. Pre-emption Act, 1950, was set aside by the District Court in revisional jurisdiction was challenged in constitutional jurisdiction which was quashed on the ground that the extension was lawfully granted. This Court in upholding the order passed by the High Court in its constitutional jurisdiction observed as under:- "Learned counsel for the petitioners has contended that the decision of the District Court could not have been set aside in writ jurisdiction. He, however, admits that in the order of extension passed by trial Court under subsection (4) of section 23 of the N.-W.F.P. Pre-emption Act was in exercise of a dis cretionary jurisdiction. He is also unable to point out any ground regarding jurisdiction, illegality or irregularity which might have been made the basis of the revisional order under section. 115 C.P.C. We are, therefore, of the view that in the circumstances of this case, the District Judge had acted without lawful authority in setting aside the discretionary order of the trial Court passed under subsection (4) of section 23 of the N.-W.F.P. Pre-emption Act. The High Court judgment is unexceptionable. "

10. We may also refer to another aspect of the matter which seems to have escaped the notice of the learned District Judge. It will be observed that the Court had already framed an issue for the purpose to go to trial on the question of unsoundness of mind of respondent No. l which would be decided on the evidence adduced by the parties as it is an issue of fact and law. Admittedly the plaintiffs had nearly concluded their evidence at the trial. The application made by the appellants at this stage under Order XIV rule 2 C.P.C. was made praying that issue No.3-B be tried as a preliminary issue. The mandatory part of this provision requires the Court to try an issue of law going to the root of the case and capable of being decided without recording evidence and to decide such an issue first. Having regard to the purpose of and prayer contained in the application, the reference to facts mentioned in para 3 is merely narrative in character and was not essential or germane to the prayer made in the application. Similarly the reply to this part was not of much significance so far as the decision of the application before the Court was concerned. It cannot be said that the so-called admission in the reply was made for the purposes of the suit, because the application as a whole was being opposed. In such circumstances the Court would not have been justified to treat such irrelevant matter to constitute an admission for purposes of decision of the issue in question. The party would be entitled to an opportunity to contest the issue on merits on the evidence adduced by the parties, for which the Court has sufficient power as pointed out herein above.

11. For the foregoing reasons we find no merit in this appeal is accordingly dismissed with costs. S.Q./M-262/S Appeal dismissed.