2016 PLP 1251 (CLC)

SAJJAD ALI SHAH, J.

Through this appeal order dated 27.01.2014 passed in Suit No.1216 of 2012 has been impugned, whereby, the learned Single Judge, on the original side, of this Court, in a money suit after rejecting the plaintiff's plea for attachment before judgment (CMA No.11238/2012), decree on admission (CMA No.5459/2012), deposit of the lent money (CMA No.9771/2012) directed the appellant to furnish security equivalent to the suit amount within thirty days. Briefly the respondent, who was son-in-law of the appellant, filed a suit for recovery of US $ 432,707 and GBP-5,000 by asserting that during subsistence of his marriage with the appellant's daughter he had remitted these amounts to the respondent through banking channels, which were payable on demand. The respondent on 31.8.2012 addressed a letter to the appellant demanding to payback the stated amount with 12% interest from May, 2010 till date and upon failure of the respondent to repay the said amount recovery proceedings were initiated. The respondent filed her defence admitting the receipts of the amounts, but asserting that same were returned to the appellant on his visit to Pakistan and some amount was given to his wife as subsistence allowance. The appellant consequently moved three applications i.e. (i) under Order XXXVIII, Rule 5, C.P.C. seeking attachment of various properties of the appellant before judgment, (ii) under Order XII, Rule 6, C.P.C. seeking decree on admission and (iii) under Order XXXIX, Rules 1 and 2, C.P.C. seeking mandatory injunction directing appellant to deposit the suit amount with the Nazir of this Court. The learned Judge, on the original side, after hearing the parties through impugned order came to the conclusion that neither the appellant had made out a case for attachment before judgment nor decree on admission can be passed, but directed the respondent to furnish security of the suit amount with the Nazir of this Court. Mr. Haider Waheed, counsel appearing for the appellant, contends that once the learned Judge, on the original side, had come to the conclusion that the respondent was neither entitled to the attachment before judgment nor decree on admission, no such order could have been passed. On the other hand, Mr. Asim Iqbal, counsel appearing for the respondent, while inviting our attention to the provision of Order XII, Rule 6, C.P.C. pleaded that notwithstanding the fact that there was no such admission on the basis whereof a decree could have been passed, but still it was within the competence of the Court to have directed the appellant to secure the amount of decree, which ultimately could have been passed against the appellant. He further contends that the appellant has admitted the receipt of the amount, therefore, he was bound to discharge burden of pleading the return of this amount to the respondent. We have heard the learned counsel for the respective parties and have perused the record of this case. Since the respondents have not challenged the impugned order, therefore, we would not like to go into the respondent's entitlement to the attachment before judgment or decree on admission, therefore, the only question which remains for our determination is the direction to the appellant for furnishing security after rejection of respondents plea of attachment before judgment. The remedy to obtain judgment on admission has been provided under Order XII, Rule 6, C.P.C. with the intent to shorten the litigation keeping in view that the facts admitted need not to be proved. Additionally, Order XV of the Code of Civil Procedure empowers the Court to at once pronounce the judgment when it comes to conclusion that the parties are not at issue. Even in cases where a portion of claim is admitted the Court may consider such admission for partially decreeing the claim, however, the law has prescribed a very high test of considering the admission by providing that an admission on the basis whereof a claim could be decreed should be specific, clear, unqualified, unequivocal, unconditional and an admission which does not qualify such test cannot be made basis of a decree. It is also to be kept in mind that if an admission is of a lesser value and does not qualify the afore-stated test then it is not open to the Court to pass an order in the alternative such as directing a defendant to furnish security or to deposit claimed amount as such order could be passed once the plaintiff meets the pre-requisite of Order XXXVIII, C.P.C. In our opinion, in recovery suit unless it falls under a summary chapter the concept of calling a party to furnish security for the suit amount is alien to the procedural law except in accordance with the provision of Order XXXVIII, C.P.C. which provides for a preventive action and equips the Court with ample power to direct a defendant either to furnish security, in such sum as may be specified in the order, or to produce and place at the disposal of the Court, when required, the property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, however, such order can only be passed when the plaintiff satisfies the Court through affidavit or otherwise that the defendant, with intent to obstruct or delay execution of any decree, which may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. However, in case the plaintiff fails to satisfy the Court regarding his entitlement to the attachment before judgment in terms of Order XXXVIII, C.P.C., directing the defendant to furnish security would amount to a punitive action totally against the spirit of Order XXXVIII, C.P.C. In the facts and circumstances as discussed above, we are very clear in our minds that once the Learned Judge on the Original Side has rejected the Plaintiff's plea under Order XXXVIII, Rule 5, C.P.C., it was not open for the Court to direct furnishing of surety. We, therefore, set aside the impugned order by upholding the dismissal of all listed applications. SL/F-7/Sindh Appeal allowed.