2002 PLP 418 (MLD)

(i) cause of action arose against defendant on payment of the entire sale price of 30-6-1969.

6. It is interesting to note that in the written statement filed by the respondents on 9-3-1972, execution of agreement to sell dated 2-7-1968 (Exh.P.1) by late Musharaf Ali was generally denied to have been prepared after the death of late Musharaf Ali and it was generally asserted that had such an agreement been in existence, the appellant would have sought its implementation during late Musharaf Ali's lif . In answer to para. 2 of the plaint, the respondents only pleaded that The respondents in their written statement did not at all plead: (i) That Rs.8,500 were not paid by the appellant to late Musharaf Ali, the predecessor-in-interest of the respondent; (ii) That agreement was not registered or that the registration had been obtained by impersonation or fraud; (iii)-That Rs.2,000 were not paid as balance of sale price by the appellant to late Musharaf Ali through receipt dated 30-6-1969 or that the said receipt was forged and fabricated; (iv) That possession of the suit land was not transferred by late Musharaf Ali to the appellant and that the respondents did not intend to interfere in appellant's possession; (v) That mutation of sale in favour of the appellant was not entered at Mutation Register No.2541 dated 29-10-1969 ; (vi) That owing-to consolidation proceedings sanction of mutation was not refused by the Revenue Officer; and (vii) That entire 'amount of sale consideration was not paid by the appellant on 30-6-1969 to give cause of action to appellant.

7. I am conscious of the fact that after filing an evasive, vague and general written statement of above nature on 9-3-1972, respondents on 16-11-1972 filed their suit for declaration and perpetual injunction challenging the above-said agreement and receipt etc. since the record of the said suit is not before this Court, therefore, it cannot be said that as to whether the learned Civil Judge considered the effect of section 10, C.P.C. or not as subject-matter as well as the parties in both the suits were identical. Respondents plaint in their suit cannot take the place of written statement in appellant's suit and legal consequences of filing a non-rebutting, nonspecific, vague and general written statement cannot be avoided by the respondents. It is, therefore, important to reproduce provisions of rules, 2, 3, 4 and 5 of Order VIII, C.P.C. which read as under:-- "(2) New fact must be specially pleaded.

The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defenses, as, if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or fact showing illegality. (3) Denial to be specific.

It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of the fact of which he does not admit the truth, except damages. (4) Evasive denial.

Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount; but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with service circumstances, it shall not be sufficient to deny it alongwith those circumstances. (5) Specific denial.

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." The principles of law are well-settled that: . "Defence not raised in the written statement will be taken to B have been admitted and cannot be subsequently relied upon by the defendants as a matter of right. In the case of "Mst. Gul Resha and another v. Mst. Hayadara and others" reported as 1968 SCMR 979, Hon'ble Supreme Court of Pakistan was placed to observe at page 981 as under:-- "The specific plea in the plaint that suit was within time not having been controverted in the written statement, it must- be deemed to have been admitted that the suit. was within time." "Plea of `not known' does not amount to 'not admitted'." In the case of "Lakhmi Chand v. B. Ram Lal Kapoor Vakil" reported as A.I.R. 1931 Allahahad 423 (relevant at 424), a Division Bench of High Court of Allahabad held that: "A distinction is to be drawn between this pleading of `not known' and the pleading in regard to other paragraphs of the plaintiff which was `not admitted". We consider that it cannot be held that the pleadings `not known' is tentamount to the pleadings `not admitted' and therefore we consider the defendants not having made the correct pleading laid down by Order VIII, rule 5, cannot claim that the plaintiff be put to the proof of allegations in para. 1 of the plaint. " In the case of "Muhammad Altaf and others v. Painda Khan through legal heirs" reported as 1989 MLD 4227 (Lahore) (at page 4228) it was held:-- "Order 8, rule 3 of the Code of Civil Procedure requires that the denial of any fact on the part of a defendant has to be specific. In Barket Ullah v. Hanif and others (PLD 1955 Lah. 350) it was held that the denial due to lack of knowledge does not amount to specifically denying the fact stated." "Every allegation of fact in the plaint will be taken to be admitted if it is not denied specifically or by necessary implication or stated to, be not admitted." In the case of "National Bank of Pakistan . v. General Tractor and - Machinery Co. Ltd. and another" reported as 1996 CLC 79 (at pages 83 and 84), the effect of provisions of Order VIII, rule 5, C.P.C. read with Article 103 of Qanun-e-Shahadat Order, 1984 was set down as under:-- "The first sentence of para.9 of the written statement is entirely vague and meaningless. and is, in fact, an example of the utter frivolity in pleadings which, unfortunately, has become prevalent and needs to be curbed. There is, however, no denial, in para. 9 of the written statement, of the signature on, and the contents of the letter 'of 10th August, 1972. The defendants must, therefore, be taken in view of the provisions of Order 8, rule 5, C.P.C., to have .admitted the signature. on, and the contents of, the letter. That being so, it was not necessary for the plaintiff to prove either-the signature on or the contents of the letter in view of Article 103 of the Qanun-e-Shahadat Order, 1984, which provides:-- "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-of 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. " Notwithstanding the above position, the learned counsel chose, at the time of admission and denial of documents, to refuse to admit the contents of the 'letter "for want of knowledge", while admitting the signature of defendant No. 1 thereon. This was indeed unfortunate to say the least, because, in view of their admission in the written statement, the purported refusal, on the part of the defendants, to admit the contents of the letter. was vexatious and inconsequential. Besides, there is nothing on the record to show why the defendants should not be bound by the admission, in their written statement; and, indeed, in view of that admission, they are estopped from denying the contents of the letter." An evasive denial must be construed as an admission. In the case of "Malik Muhammad Miskeen and 2 others v. Government of Pakistan through Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and 10 others (PLD 1993 Azad J & K 1j, relying upon AIR 1964 SC 538 and AIR. 1965 Nagpur 27, Azad Jammu and Kashmir High Court held as under:-- "In Badat & Co. Bombay's case AIR 1964 Supreme Court 538, the rules of procedure envisaged in rules, 3, 4 and 5 of Order 8 of the Code of Civil Procedure were construed as: "Rules 3, 4 and 5 of Order 8 of C.P.C. from an integrated code deal with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not .do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is, necessary. But under the proviso to Rule 5 the Court may, in its discretion, require and fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Court presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the original side of the Bombay High Court the pleadings are drafted by, trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the designedly made vague denials and thereafter sought to rely upon them for non-suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality and the traditions and conventions of a Court wherein such pleadings are filed. " In Nimar Cotton Press's case AIR 1956 Nagpur 27, it was observed:-- An express denial of an allegation in a statement of claim is called a traverse. When the matter is within the knowledge of the defendant, he generally denies any statement which he disputes. When it is not within his own knowledge, he usually does not admit it. The proceedings under Article 226 are civil proceedings and subject to the rules made by the High Court to regulate proceedings under that Article, are regulated by the Code of Civil Procedure. Hence averments in the petition under: Article 226 which are not traversed by the respondent must be held to be admitted. The tenor of the aforesaid authorities leads to the conclusion that it is enjoined upon defendant to traverse an allegation made in the petition, expressly or by necessary implication. Otherwise, it has to be deemed as an admission of the allegation. In Badat & Co. Bombay's case (AIR 1964 Supreme Court 538), the learned Judges of the Supreme Court (India) extensively dealt with the proposition and concluded that written statement must deal specifically with each allegation of fact in the plaint and when defendant denies such a fact, he must not do so evasively but answer the point of substance; when the denial of the fact is not specific but evasive, such fact shall be taken as admitted. The scope of the proviso to rule 5 was also construed. It was observed that the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the result of accidental slip or omission. The proviso cannot be availed by a party who designedly made vague denials. " In view of the above quoted provisions of rules, 3, 4 and 5 of Order VIII, C.P.C. and the principles settled in the above cited judgments, I am of the opinion that in absence of specific pleadings by the respondents-defendants in their written statement denying receipt of entire sale price, execution of receipt dated 30-6-1969, entry of sale in mutation register (though not sanctioned because of pending consolidation proceedings) and transfer of possession thereto, the same shall be treated to have been admitted by the respondents-defendants requiring no proof thereto under Article 103 of 'Qanun-e-Shahadat Order, 1984.

8. The only controverted fact was the execution of agreement to sell i.e. Exh.P.1 which was concurrently held by the Courts below to have been validly and genuinely executed in favour of the appellant by the late vendor Musharaf Ali, i.e. predecessor-in-interest of the respondents. As no proceedings there against were filed by the respondents, therefore, these findings have become final and conclusive.

9. The learned Additional District Judge while deciding Issues Nos. 2, 3 (partly) 5, 6 and 1 has not only ignored the above discussed state of written statement filed by the respondents but has also excluded from consideration the effect of Exh.P.5 and Exh.P.10 i.e. application dated 16-8-1969 of late Musharaf Ali for sanctioning of mutation in favour of the appellant and proceedings of the Revenue Officers thereupon recorded at the back of Exh.P.10 on 16-8-1969 reading as under:-- Execution of Exh.P.5 and Exh.P.10, and filing of the same before Revenue Authorities by late vendor Musharaf Ali has neither been denied nor any evidence thereto has been presented to disprove the said documents by the respondents which therefore, stand proved. Contents thereto contains admission that after execution of agreement to sell dated 2-7-1968, late Musharaf Ali had received the entire sale price and possession of the suit land had also been transferred to the appellant and in view of his advanced age and infirm health, wanted the completed sale to be incorporated in- Mutation Register. Furthermore, statements of P. Ws. regarding execution of receipt (Exh. P.2) for Rs.2,000 are consistent, credible and confidence inspiring as against the evidence of D.Ws., which is shaky, evasive and non-committal. The learned Additional .District Judge also failed to take notice of ,interim order dated 6-10-1972 which records respondents' no objection to protect appellant's possession through an order for maintenance of status quo. Khasra Girdawari exhibited as Ex.P.3, P.8, Exh.D.5 and order, dated 23-10-1973 of District Collector, Muzaffargarh Exh.P.6 and order, dated 9-2-1974 of Additional Commissioner, Multan Division, i.e. Exh.P7 proving possession of the appellant on the suit land have not even been averred to by the learned Additional District Judge. He has generally observed that the, suit land was in possession of tenants and concluded therefrom strangely that: "prima facie Mst Sughran etc. were the owners in possession of the suit land `under tenants'." The Revenue Record exhibited by the appellant, the respondents no objection .(the interim order, dated 6-10-1972) to maintenance of status quo in favour of the appellant, clearly proves that the appellant was in possession of the suit land under agreement to sell (Exh.P.1) thereby leading to the conclusion that tenants on suit land were holding under appellant which fact has also been affirmed by the tenants in their deposition while appearing as P. Ws. Wherefore, the learned Additional District Judge wrongly concluded that respondents were in possession as owner under tenants. The entire sequence of evidence, documentary evidence and statements of P.Ws./C.Ws., do not in any way reflect adversely upon execution of receipt by late Musharaf Ali acknowledging receipt of Rs.2,000 as the balance of the sale price. The learned Additional District Judge failed to consider and appreciate thee effect of documentary evidence procedure by the appellant specially Exhs.P.1, P.3, Exh.P.4, Exh.P.5, Exh.P.10, Exhs.D.5; Exh.P.6. P.7, P.8, and P.9 on the factum of payment of entire sale price through receipt Exh.P.2 and transfer of possession thereof. It. was under the impression of this incorrect observations regarding nonpayment of the sale price by the appellant to late Musharaf Ali through Exh. P.2 that he held the respondents to be in possession through the tenants and thereby decided Issues Nos.3, 5, and 6 against the appellant.

10. In view of what has been stated above, findings, of the learned Additional District Judge on Issues No.3 (Partly), 5 and 6 are held to be the result of non-reading and misreading of evidence on record and the same are set aside. The learned Additional District Judge decided Issue No. 1 regarding non maintainability of appellant's suit in view of his observations on Issues Nos.3, 5 and 6 that an amount of Rs.2,000 was still payable by the appellant to t he respondents under agreement to sell i.e. Exh.P.1 and that the possession had not been transferred to the appellant by late vendor Musharaf Ali. Since findings of learned Additional District Judge on Issues Nos.3, 5 and 6 have been set aside, therefore, his findings on Issue No.1, against the appellant and in favour of the respondents are also set aside and appellant's suit is held to be maintainable under the law.

11. As a -result, this appeal is accepted and the impugned judgment and decree, dated 30-3-1986 passed by the learned Additional District, Judge, Muzaffargarh are set aside and the findings of learned Civil Judge vide his judgment and decree dated 25-4-1982 are affirmed. The parties are left to bear their own costs. Q.M.H./M.A.K./I-74/L Appeal allowed.