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Case Judgement

P L D 1988 Karachi 393

Before Ahmad Ali U. Qureshi, J MUNICIPAL COMMISSIONER, K.M.C. and another--


Appellants

versus Syed AKBAR SHAH and 2 others-- Respondents

Chambers 20th Century Dictionary rel. S. M . Muslim Naqvi for Appellant S. Himayat Ali
Pirzada for Respondent.

Date of hearing: 24th March, 1988

JUDGMENT

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Second Appeal No.5 of 1986, decided on 27th March, 1988. (a) Civil Procedure Code (V of
1908)----0. XII, R. 6-- Judgment on admission--Averments made in written statement
admitting facts mentioned in plaint, whether admission-Plaintiff purchased in auction, a
commercial plot from Karachi Development Authority and subsequently moved the Authority
for surrendering the plot and return of his money--Authority agreed to return the amount after
deducting ten per cent from such amount-Meanwhile Area wherein plot was situated was
transferred to Karachi Metropolitan Corporation with all its liabilities --Corporation also agreed
to return the auction amount to plaintiff on same rate of deduction --On failure to return the
agreed amount, plaintiff filed suit against Corporation, which was decreed by Court under O.XII,
R.S, C.P.C. on basis of admissions, made by defendant-Corporation in written statement--
Appellant's plea the there was no unqualified admission on the part of defendants in the written
statement on tile basis Of which the Court could pass the decree, held, had no substance as all the
material facts on which the claim of plaintiff was based, were admitted by the defendants in their
written statement and arguments so made constituted "admission" within the ambit of O.XII,
R.6, C.P.C and judgment could be validly passed thereon--Contention that the auction amount
was paid to K . D . A . and as such could not be recovered from K.M.C. was found equally
untenable as the latter at the time of transfer of area concerned had accepted all liabilities of the
former.
Chamber's 20th Century Dictionary and Kassamali Alibhoy v. Sheikh Abdul Sattar P L D 1966
(W.P.) Kar. 75 ref. (b) Words and phrases-----"Admission" --Meaning of-- Ordinary
meaning is "an acknowledgement" and "an act of conceding Chambers 20th Century Dictionary
rel. S. M . Muslim Naqvi for Appellant S. Himayat Ali Pirzada for Respondent.

Date of hearing: 24th March, 1988

JUDGMENT

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Brief facts leading to this revision application are that somewhere in 1980 respondent No.l
purchased in auction a commercial plot from Karachi Development Authority (K . D. A . ) and
deposited the first installment of Rs.85,624. However, the respondent No.l did not find this plot
fit for commercial purposes and therefore, moved for the return of his money. The K.D.A. agreed
to return the amount after deducting 10 per cent from the said amount. In the meantime the area
in which this plot was situated in Orangi Town was transferred from K . D . A. to K . M . C .
alongwith the liabilities. The respondent No. 1 then approached the K. M. C. /applicant No.l for
the return of his amount and it was agreed tht the amount will be returned to him by the K.M.C.
after deducting 10 per cent from the said amount. However, neither K . M . C . nor K . D . A .
made any payment to the respondent No.l, who, therefore, filed suit No.1655/1984 for the
recovery of Rs .85,629 from the K.M.C. as well as K .D. A , The suit was decreed in the sum of
Rs.76,500 by the learned Ist Senior Civil Judge, Karachi West vide judgment dated 11-8-1985
ors the basis of admission in the written statement This decree was passed on the application of
respondent No.l plaintiff under Order XII, Rule 6, C.P.C. r/w Section 151 C .P. C.

2. The appeal was dismissed by the learned 1st Additional District Judge, West Karachi vide his
order dated 4-1-1986. This revision application is directed against the aforesaid two judgments.

3. The only ground urged by Mr. S.M. Muslim Naqvi learned counsel for the applicant is that
there was no unqualified admission in the written statement on the basis of which the Court
could pass the decree. It is further urged that the amount, if any, was paid by the respondent No.l
to the K.D.A. and such amount could not be recovered from the K.M.C.

4. I have gone through the plaint as well as the written statement filed by the Defendant
/Respondent No.l. Most of the facts are not disputed. In pare. 15 of the plaint it is averred that the
K.. M. C had accepted all the liabilities of Orangi Township alonwith the Transfer of Orani
Towtasntp from :C.D.A. In pare. 16 it is further averred that the Defendant No,::, who is project
Director Orangi Township K . M. C. , Karachi had intimated the plaintiff /respondent No. l vide
his letter dated 4-5-1983 that the Mayor K . M . C . has accorded his approval for the refund of
the said amount according to provisions of Clause 7 of the terms and conditions of the auction. In
pare. 4 of the written statement the applicant No.1l K.M.C. has admitted the contents of pares. 15
and 16 of the plaint. In pare. 5 of the written statement, besides admitting the contents of pare. 17
and 18 of the plaint, it is further stated by the applicant No.l that the K.M.C. had accorded
approval for the refund of the amount deposited by the plaintiff after forfeiture of 10 per cent of
the total bid amount and assumption of the plot as stipulated in pare of the terms and conditions
of auction.

5. Admittedly the learned Civil Judge decreed the suit of the plaintiff /respondent No.l after
deducting 10 per cent of this amount. The only question that requires consideration by the Court
is whether the aforesaid averments made by the applicant amount to admission of the claim of
the plaintiff on which decree could have been passed by the learned Civil Judge. From bare
reading of the aforementioned pares of the written statement, it would be clear that the K,M,C.
admitted that it has accepted all the liabilities of Orangi Township alongwith the transfer of
Orangi Township from K.D.A. to it. It was also admitted that they agreed to pay the amount
deposited by the plaintiff to him after deducting 10 per cent. Word "admission" is not defined in
-the C . P. C . but its ordinary meaning, according to Chambers 20th Century Dictionary is "an
acknowledgement" and "an act of conceding". Bare reading of the aforesaid pares of the written
statement will clearly show that the K..C. had conceded and acknowledged the claim of the
plaintiff with the condition that they ere entitled to deduct 10 per cent from the said amount
which condition was accepted by the plaintiff /respondent No.l, when he moved application for
decree on the said admission of the applicant,

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6. Mr. S. M. Muslim Naqvi learned counsel for the applicant has relied upon the case of
Kassamali Alibhoy Shaikh Abdul SattBr (PLD 1966 (W .P, Kar.75) wherein it is held that "an
admission in order to be made the basis of a decree under Order-XII, rule-6 of the Civil
Procedure Code, 1908 must be unqualified and unconditional". In the said case the defendant had
admitted the execution of the Promissory Note, but had further pleaded that "it was without
consideration and it was not intended to be used," tinder the circumstances the Court came to the
opinion that it was not an unqualified admission.

7 . Mr. Syed Himayat Ali Pirzada learned counsel for the respondent No.l has relied upon the
case of Sultan Wasi Jan v. Sultan Saeed Jan and others (1983 S C M R 1265). In that case their
Lordships held that "ever. admissions made in the statement recorded under Order X, Rule 1.,
C.P. C. could be treated as conclusive for the purposes of the suit as they were on the same
footing as pleadings in the case and the Court on the basis of such admission was competent to
pronounce judgment under Order XII, Rule 6, C.P.C.

8. Looking to the averments made by the applicant its the written statement, there can be no
dispute that these are admissions of the claim of the plaintiff anti as such the Civil Court was
quite competent B to pass decree under Order XI I, Rule 6, C .P. C . on the basis of such
admissions against the applicant. No other point was urged by Mr. S.M. Muslim Naqvi learned
counsel for the applicant. As such I find no merits in this revision application, which is dismissed
with no order as to cost. A . A . / M-446/ K Revision dismissed.