2014 Y L R 615

[Peshawar]

Before Abdul Latif Khan, J

QUTAB DIN---Petitioner

Versus

RASHIDAN BIBI and 6 others---Respondents

Civil Revision No.21 of 2012, decided on 20th September, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. XVIII, R. 1 & O. XII, R. 6---Qanun-e-Shahadat

(10 of 1984), Art.113---Suit for specific performance of contract---Limitation---Judgment on
admission---Suit was dismissed on the ground of failure of the plaintiff to prove execution of
agreement to sell and payment of sale consideration---Validity---Attorney for one of the
defendants had admitted the claim of the plaintiff who was not cross-examined by the contesting
defendants---Sale consideration had not been proved---Plaintiff remained silent for considerable
long period and his suit was beyond the period of limitation---Agreement to sell could not be
relied upon without proof of sale consideration---Alleged sale had been made through an
unregistered document for which tangible evidence was required but such evidence had not been
produced---Decree should have been granted to the extent of defendant who had admitted the
claim of plaintiff---No issue existed between the plaintiff and those who had admitted his claim--
-Plaintiff was not bound to adduce evidence against the defendant who had admitted his claim---
Court had power to grant decree at any stage where admission of fact had been made either in
pleadings or otherwise---Facts admitted need not to be proved---Judgments and decrees of courts
below were modified to the extent of defendant who had admitted the claim of the plaintiff and
decree was granted to such extent and to the extent of remaining defendants the same were kept
intact.

Muhammad Waheed Anjum and M. Khurshid Qureshi for Petitioner.

Abdullah Khan Gandapur for Respondents.

 Date of hearing: 20th September, 2013.

JUDGMENT

ABDUL LATIF KHAN, J.---Through the instant revision petition, the petitioner has
called in question the judgment and decree dated 26-10-2011 passed by learned Additional
District Judge-V, D.I.Khan vide which his appeal against the judgment and decree dated 28-
2-2011 of learned Civil Judge, Kulachi, District D.I.Khan was dismissed.

2. Precise facts leading to the instant revision petition are that the petitioner/ plaintiff filed a
suit against the respondents/ defendants for declaration, prohibitory mandatory injunction and
specific performance of contract. The suit was contested by defendants Nos.2, 5, 6 and 7 by
submitting their written statement. The learned trial Court framed six issues including the relief
from the divergent pleadings of the parties. The parties produced their respective evidence as
they wished to adduce. After hearing the arguments of learned counsel for the parties, learned
Civil Judge, Kulachi, D.I. Khan dismissed the suit of the petitioner/ plaintiff vide judgment and
decree dated 28-2-2011.

3. Aggrieved of the judgment and decree dated 28-2-2011, the petitioner/ plaintiff preferred
an appeal which was also dismissed by learned Additional District Judge-V, D.I.Khan vide
judgment and decree dated 26-10-2011, hence the instant revision petition.

4. Learned counsel for the petitioner argued that agreement to sell was executed and proved
by producing petition writer, stamp vendor, marginal witnesses but has been ignored. It was
vehemently contended that out of three vendors Mst. Rashida Bibi and legal heirs of Ashraf
deceased vendor, to the extent of defendants Nos.1, 3 and 4 admitted the claim of plaintiff and
recorded their statement in Court on 10-5-2010 through attorney but has not been considered by
the Courts below, without any justification. He argued that to the extent of concession by
respondents, at least the Courts below were required to pass decree in favour of petitioner. He
argued that admittedly, petitioner is in possession of the suit property, since then. He added that
sale-deed was executed due to the reason mentioned in its contents, that no mutation could be
attested due to embargo on its transfer. He contended that the impugned judgments suffer from
illegality, misreading and non-reading of evidence, hence liable to be reversed.

5. As against that, learned counsel for the respondents argued that suit was hopelessly time-
barred. He contended that alleged agreement to sell has not been proved through tangible
evidence and evidence produced is full of contradictions and rightly disbelieved by the Courts
below. He contended that sale consideration has not been proved which is vital ingredient of sale
and as such the agreement to sell cannot be based for grant of decree, which has been rightly
dismissed by the Courts below.

6. I have considered the submissions of learned counsel for the parties and perused the
record with their valuable assistance.
7. Perusal of the record reveals that agreement to sell dated 28-10-1996 was executed in lieu
of sale consideration of Rs.35,680 vide which Mst. Rashida Bibi widow, Mst. Allah Wasai
daughter of Shahbaz and Shehzad son of Mir Baz allegedly sold the property in favour of
petitioner. The statement of Hidayatullah son of Muhammad Ashraf was recorded in the trial
Court on 10-5-2010, who happens to be the attorney of Mst. Rashida Bibi and Ashraf defendants
Nos.1 and 3. He was also attorney for defendant No.4 namely Hamidullah, who has admitted the
claim of petitioner/plaintiff and deposed that he has got no objection if the suit of the plaintiff is
decreed in his favour. The Courts below have not considered this statement on the ground of
failure of the petitioner to prove the execution of agreement and the payment of sale
consideration. The appellate Court has added to the findings of trial Court to this effect that in
case of cognovit, there is no need of decree to be passed in favour of the plaintiff.

8. Apart from partial admission of respondents the other respondents contested the suit. The
petitioner/plaintiff produced stamp vendor as P.W.4. He appeared as P.W.5 and examined
Muhammad Alam as P.W.6, who has supported the version of the plaintiff and also possession of
the plaintiff over the suit property. Haji Ashraf, who happens to be one of the defendants,
submitted cognovit, deposed as P.W.7 that his father Shehzad has sold the property in favour of
petitioner and has received the sale consideration. Muhammad Rafiq was examined as P.W.8,
marginal witness of the agreement to sell deed, who has admitted his signature on the sale-deed
and Muhammad Khan, the other marginal witness was also examined, who has admitted his
signature on the said deed. Though the marginal witnesses and other two witnesses including
Ashraf, who is one of the affectees has deposed in favour of execution of document, but the sale
consideration has not been proved. In the year 1996, payment of Rs.35,680 was allegedly made,
but no receipt to this effect has been executed. The reason for non-attestation of mutation or
registered deed was mentioned in the agreement to sell deed that due to land reforms, mutations
could not be attested but the plaintiff remained silent for considerable long period and filed the
suit in the year 2010, which is beyond the period of limitation. Without the proof of money
exchange hands, agreement to sell cannot be relied upon, as the sale consideration plays pivotal
role towards the completion of sale. The impugned sale has been allegedly made through
unregistered document for which tangible evidence is required but to this effect, no evidence has
been produced.

9. So far as the cognovit on behalf of defendants Nos.1, 3 and 4 is concerned, it is admitted

before the Court by the attorney for the defendants. The contesting defendants have not cross-
examined the statement nor questioned the same or the authority of the attorney to file cognovit
or depose in favour of the plaintiff and to this effect, the findings of the courts below are not in
accordance with law and modified, for the obvious reason that if the claim of the petitioner,
despite vacuums and lacunae in the execution and proof of the agreement to sell, is admitted by
the other side, to that extent decree ought to have been granted in favour of the
petitioner/plaintiff. Even the respondents/defendants, who have admitted the claim of the
plaintiff, have not come forward, so far as the plea of any lacunae in the admission made on their
behalf by their attorney Hidayatullah is concerned. Issues are normally framed when a material
proposition of facts and law is claimed by one party and denied by the other. In this case, no
issue exists between the plaintiff and those who have admitted the claim. Under Order XVIII,
Rule 1, C.P.C, plaintiff has the right to begin with evidence unless defendants admit the facts
alleged by the plaintiff. In case of admission of the defendant, there is no need to adduce
evidence against those who have admitted the claim of the plaintiff. For ready reference, Rule 1
of Order XVIII, C.P.C. is reproduced below for ready reference:--

"Right to begin... The plaintiff has the right to begin unless the defendant admits the facts
alleged by the plaintiff and contends that either in point of law or on some additional facts
alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in
which case the defendant has the right to begin."
Order XII, Rule 6, C.P.C. empowers the Court to grant a decree in favour of plaintiff at any stage
where admission of fact has been made by the defendant either in pleadings or otherwise. For
convenience, Rule 6 of Order XII, C.P.C. is reproduced below:--

"Judgment on admission...Any party may, at any stage of a suit, where admissions of fact
have been made, either in the pleadings, or otherwise, apply to the Court for such judgment or
order as upon such admissions he may be entitled to, without waiting for the determination of
any other question between the parties; and the Court may upon such application make such
order, or give such judgment, as the Court may think just."

Even otherwise, the facts admitted need not be proved as provided by Article 113 of Qanun-e-
Shahadat Order, 1984 which is reproduced below:--

"Facts admitted need not be proved... 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 or 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."

10. For the foregoing reasons, the instant petition is partially allowed and the impugned
judgments and decrees are modified only to the extent that a decree to the extent of defendants
Nos. 1, 3 and 4, who have filed congovit in favour of the petitioner/plaintiff, is granted in favour
of petitioner/plaintiff whereas the remaining judgments and decrees are kept intact and the
petition is dismissed to that extent. No order as to costs.

AG/623/P Order accordingly.