P L D 1966 (W (PLP)

(4) That the promissory note read along with the agreement of the same day amounts to a bond and as such the suit could not be filed on it under Order XXXVII of the C. P. C. The plaintiff filed a counter affidavit in which he repudiated all the aforesaid objections. It is, however, not necessary to refer to it for present purposes as regards the details.

3. Awari, J. by his order dated 11‑3‑1965 gave leave to the defendant to appear and defend the suit on condition of his furnishing security to the extent of Rs. 2,50,000 only. Against this order the plaintiff filed a Letters Patent Appeal which has been admitted. Along with this appeal plaintiff also filed an application under Order XXXVIII, rule 5, C. P. C. which was dismissed by the Division Bench on 17‑3‑1965.

4. The plaintiff then filed two petitions before the Supreme Court for special leave one against the order of Awan, J. dated 11‑3‑1965 referred to above and the other against the order of the Division Bench dated 17‑3‑1965 whereby an application for attachment before judgment had been dismissed. To these petitions I shall refer presently.

5. The plaintiff in support of his present application under Order XII, rule 6 of the C. P. C. filed an affidavit in which he relied upon the various admissions of the defendant made directly or indirectly with regard to the amount for which the decree on admission is sought. These may be referred in seriatim. (a) In para. 4 of the affidavit it is stated that the defendant in his application for leave to defend admitted that he had received Rs. 6,30,200.32 (the correct figure is Rs. 6,29,200.32) while he denied? the receipt of the remaining amount of the promissory note namely Rs. 2,10,799.68. (b) That the defendant in Suit No. 168/64 which he had instituted before the institution of the present suit and in respect of which he had asked for the stay of the present suit under section 10, C. P. C., has sought a declaration that the promissory note in question for Rs. 8,40,000 may be declared to be without consideration to the extent of Rs. 2,10,799.68 only and that the promissory note was thus not enforceable to that extent. That in this way the consideration of Rs. 6,30,200.32 was admitted (the correct figure is Rs. 6,29,200.32). (c) That at the time of hearing of the petition for special leave before the Supreme Court Mr. Safdar Shah the counsel for the defendant in reply to the question put by one of the Honourable Judges expressly stated that the liability to the extent of Rs. 6,30,200.32 (the correct figure is Rs. 6,29,200.32) was not denied. The defendant filed a counter affidavit opposing the prayer for a decree on admission. In para. 4 of that affidavit he said that it eras correct that he admitted that he had received a sum of Rs. 6,29,200.32 but that admission must be read with the defences taken by him in his application for leave to defend.

6. Then in para. 6 of the same affidavit he admitted the contents of para. 6 of the affidavit of the plaintiff which refer to the suit in which he had claimed the declaration. But he added that the admission in that suit could not be taken into consideration in the present suit and that the admission in any case was not such which entitled the plaintiff to a decree under Order XII, rule 6, C. P. C.

7. It‑may be noted that the aforesaid two paragraphs of the counter affidavit were in answer to the admission which was referred to in points (a) and (b) set out above. Coming to the third admission alleged in the plaintiff's affidavit which is alleged to have been made by Mr. Safdar Shah, Bar‑at‑law before the Supreme Court the defendant gave an evasive reply in para. 7 of his counter affidavit. He said that the plaintiff who had sworn the affidavit was not present in the Supreme Court of Pakistan when his petitions for special leave were taken up and so the facts alleged in paras. 10, 11, 12 and 13 of his affidavit (which related to the proceedings before the Supreme Court), could not be true to his personal knowledge. The defendant then went on to state that or this reason he was not in a position either to admit or deny, the statements made in paras. 10, 11, 12 and 13 of the aforesaid affidavit of the plaintiff. The learned counsel for the defendant Mr. Safdar Shah, however, in answer to my question orally stated that his admission before the Supreme Court was not with reference to the present suit but with reference to the defendant's suit (Suit No. 168/64) in which he had claimed. that it be declared that the promissory note was without consideration to the extent of Rs. 2,10,799.68 only and was therefore not enforceable to that extent. Asked as to why this was not stated in the counter affidavit which he himself had drafted he replied that as the plaintiff had not disclosed in his affidavit whether he was deposing to these facts from his own knowledge or from information, he had reserved the reply with regard to the aforesaid paragraphs 10 to 13 of the plaintiff's affidavit. He added that the affidavit of the plaintiff was defective as it did not contain the verification clause. This reply was obviously unsatisfactory. If the ground for withholding the reply to paras. 10 to 13 of the plaintiff's affidavit was the absence of proper verification then no part of that affidavit should have been replied to by the defendant. However, the fact remains that it has been disputed by Mr. Safdar Shah that an admission was made by him before the Supreme Court that his client did not deny his liability to the extent of Rs. 6,29,200.32 for the purposes of the present suit.

8. The question which then arises is whether upon the admission of the defendant with regard to the receipt of the amount of Rs. 6,29,200.32 as set out in clauses (a) and (b) of para. 5 above read with reply in paras. 4 and 6 of the counter affidavit, a decree can be passed under Order XII, rule, 6, C. P. C. The contention of Mr. Safdar Shah is that the admission of the receipt of the amount of Rs. 6,29,200.32 is not an unqualified admission and must be read subject to the four legal objections which have been raised by the defendants with regard to the right of the plaintiff to a decree in this suit. These four objections have been set out in the earlier para. of this order. Briefly they refer to the question whether the liability was under the agreement or under the pro‑note of the same day; whether the promissory note was not intended to be acted upon; whether the suit was premature and whether the promissory note amounts to a bond and the suit under the summary chapter of the C. P. C. was not competent. Upon the basis of these objections 'it was urged in the application for leave to defend that the plaintiff was not entitled to a' decree in this suit which was liable to be dismissed.

9. Shortly put the question is this. When a defendant makes an admission on a point of fact but asserts that the claim is not recoverable in the suit because of the legal objections raised therein, can the Court then take the factual admission as an unqualified one and pass a decree on that admission? Having given my careful consideration to the question I have reached the conclusion that the answer to it must be in the negative. An admission in order to be made the basis of a decree under Order XII, rule 6, of the C. P. C. must be unqualified and unconditional. Therefore, when factual admission is accom?panied with a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified. When such a legal defence is raised the consideration of it must wait until the: suit itself comes to be tried. The Court cannot in‑ such a case proceed under Order XII, rule 6, of the C. P. C. There is not: much case law on the point but I may refer to two judgments which are of assistance. The first of these is a judgment of a Division Bench of the Calcutta High Court by Mookerjee and Rankin, JJ. in the case of J. C. Galstaun v. E. D. Sassoon (A I R 1924 Cal. 190). In this case a decree under Order XII, rule 6, C. P. C. was sought upon admission of the defendant in two letters with regard to a certain sum of money. The third admission was made by the defendant before the Registrar in insolvency proceedings. Repelling the contention that a decree on admission could be passed in these circumstances to the extent of the amount mentioned in the admissions their Lordships made the following observations and supported them with reference to decided cases: "The written statement of Galstaun makes it abundantly clear that he had in substance taken a two‑fold defence, namely, first, that the conduct of the plaintiffs had been such as to absolve him from liability under the guarantee, and secondly, that the suit was premature. We are not prepared to construe his statement in the deposition to imply that he had abandoned these defences in their entirety. This case is in some respects similar to that of Koramall v. Momgilal where reference was made to the observation of Lopes, L. J., in Landergan v. Feast. There must be a clear admission that the money is due and recoverable in the action in which the admission is made. There is no such admission here. The defendant's statement that the action is premature may be untrue, but we cannot go into that, Lindley, L. J., said:‑-- The first thing necessary is an admission that the sum is due and recoverable in the action, and I can find no such admission here. The affidavit gives the defendant's view that the action was brought too soon? To the same effect are the observations of Fry, L. J., in Hughes v. London Edinburgh & Glasgow Assurance Co., Ltd. that he held a strong view that final judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal."

10. The second case is a judgment of a Single Judge of the Judicial Commissioner Court of Sind reported in Devi Narain v. Hassanand (A I R 1927 Sind 25). It was held in that case that in order to entitle the plaintiff to have judgment on an admission there must be a clear admission that the money is due and recoverable in the action in which the admission is made. The judgment of Calcutta High Court was followed by the learned Single Judge in this case. I am respectfully in agreement with the view taken in the above cases. I am of the opinion that the admission in the present suit is not an unqualified one and I cannot embark upon a decision of the legal objections raised in this case at this stage in order to grant a decree to the plaintiff under Order XII, rule 6, C. P. C. I therefore, dismiss the plaintiff's application. I further order that the case shall be set down for hearing in August 1965, on the reopening of the Court after summer vacations. S.A.H.???????????????????????????????????????????????????????????????????????????????????? Application dismissed.