1985 PLP 2870 (CLC)

This is an application under Order Xll, rule 6 praying that the suit be disposed of in terms of admission made by the plaintiff in its letter dated 21-3-1981. It is also prayed that the plaintiff may be directed to hand over the defendants 33,970 shares of Bahawalpur Textile Mills Ltd. and 25,000 other shares lying with the plaintiff as a security. The facts of the case have been set out in detail in my order dated 6-5-1984 and I need not repeat the same here. Suffice to say that during the pendency of the suit the plaintiff did write a letter dated 21-3-1981 which has also been reproduced in Order dated 6-5-1983. It seems that the suit was filed, the parties negotiated a settlement. The defendants seems to have accepted the condition and paid the amount to the plaintiff as is evident from the defendants, two letters filed by the defendants as well as the plaintiff with its application under Order VI, rule 17, C.P.C. The plaintiff did not file its letter dated 21-3-1981 and defendants letter dated 25-3-1981 with its application but the same were filed by the defendants. All these letters read together, logically connect the sequence for events. The defendants paid Rs.6,82,186.91 against a claim of Rs.5,61,078.08 in the suit. The defendants also paid Rs.20,613 under protest towards expenses of this suit. The plaintiff by its letter dated 21-3-1981 accepted these amounts and replied as follows:- "We have accepted the amounts and, therefore, absolve you of your full liability under the above-mentioned buy-back agreement of Sind at Karachi. We shall be requiring a letter of indemnity duly signed by all the legal heirs of guarantor No.1 Late Wall Muhammad, Akbarji against any claim by any person till such time the heirship certificate or succession certificate is furnished to us. The shares will be delivered to Messrs Hidayatullah Muhammad Fareed & Co. on receipt of the said indemnity bond/heirship or succession certificate." The defendants by their letter, dated 25-3-1981 complied with the conditions laid down by the plaintiff as stated above. However, the Plaintiff did not withdraw the suit as agreed. In the face of these facts the plaintiff is proceeding with the suit perhaps on the ground that there had been some mistake in calculating the balance due from the defendants. For this purpose the plaintiff filed an application under Order VI, rule 17, C.P.C. for amendment of the plaint, but it was rejected on 6-5-1984. Now the question arises whether in view of this letter of the plaintiff can it still proceed with the suit. There is clear admission to withdraw the suit. Mr.Tahir Hussain the learned counsel for the plaintiff has contended that the letter dated 21-3-1981 is marked "without prejudice" and, therefore, it should not be taken into consideration. I am unable to accept this contention. Any letter marked without prejudice during offers or propositions between litigating parties is excluded from consideration and cannot be treated as evidence. Monir in his book Principles and Digest of Law of Evidence, observed that "an admission is not inadmissible in evidence merely because it forms part of an offer to compromise. The important point which makes the admission admissible is the form of the statement, namely whether it is hypothetical or absolute". Although the plaintiff has marked its letter dated 21-3-1981 as "without prejudice" it has in clear and absolute terms having accepted the amount paid to it declared that it will withdraw the suit. It is not a case where parties were negotiating a settlement. Here the parties had agreed to the terms and conditions, and in compliance thereof the defendants remitted the bank draft which was accepted by the plaintiff.A In these circumstances, the statement to withdraw the suit was a firm declaration. The plaintiff's conduct in accepting the payment and making this declaration creates a legal right in the defendants and, therefore, in these circumstances by stating that the letter is "without prejudice" can not rob off the defendants of their legal right. In Crescent Pak Soap & Oil Mills v. Pakistan P L D 1964 Kar. 459 the plaintiff agreed to supply goods to defendant within a date specified by the contract. As the plaintiff failed, the date of delivery was extended during which the goods were supplied and accepted by the defendant. As the defendant failed to pay the price, the plaintiff filed suit for recovery. The defendant pleaded that as the plaintiff failed to supply goods within the time specified in the contract, it has suffered damage and claimed set off. As to extension of time it was pleaded that in these letters it was specifically mentioned that "the extension of time granted to the Contractor was without prejudice to other rights of the parties under the Contract", therefore, they were not admissible. The Court rejected the plea and observed "these words will not override the provisions contained in the rules and Contract Act". The plaintiff having accepted the agreed amount, cannot wriggle out of his commitment. It is significant that till today the plaintiff has not even offered to return the amount paid to it. In the circumstances the suit is dismissed as withdrawn with costs to the defendants. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.