ORDER SHEET

HIGH COURT OF SINDH, KARACHI

      

HCA No.176 of 2004

HCA No.177 of 2004

 

   Date                            Order with signature of Judge.

 

Present:  Mr. Justice Muhammad Ather Saeed &

                         Mr. Justice Muhammad Ali Mazhar.

 

 

Date of hearing   :        25.01.2011& 24.9.2011

 

Appellants           :        Mst. Ghazala Rehman

 

Respondents        :        Mst. Najma Sultana and others

 

 

 

Mr. Sardar A. Jamal Sukhera, Advocate for the Appellant

 

Mr. Rizwan A. Siddiqi Advocate for the Respondent No.1

 

Dr. Farogh Nasim Advocate for the Respondent No.2

 

 

 

Muhammad Ali Mazhar,J.:- These High Court Appeal are  directed against a common judgment dated 24.4.2003 and the decree passed by the learned single Judge of this court in Suit No.1057 of 1999 and Suit No. 501 of 1992.

 

 

1. The facts forming the background of the case are that the appellant and Respondent Nos. 1 and 2 are daughter of late Hassanally A. Rehman while Mst. Sughra Hassanally was widow of late Mr. Hassanally A. Rehman who died at Karachi in May 1999 and except appellant and respondents No. 1 and 2, there is no other legal heir of late Mr. Hassanally A. Rehman. The respondent No.1 also died in July 1999 at London, her daughter was brought on record in the month of December 2000.

 

2. That respondent No.1 had filed a suit No. 501 of 1992, claiming therein that Mst. Sughra Hassanally who was defendant No.1 (hereinafter referred to as late mother of the Appellant and Respondent Nos. 1 and 2) had gifted bungalow bearing No. G-3, Cosmopolitan Cooperative Housing Society, Karachi on 29th March 1992 and the same was accepted by the Appellant and respondent Nos. 1 and 2. It was further claimed that on 21.3.1992, an affidavit was also signed by late Mst. Sughra Begum, thereafter, the gift was revoked by her vide notice dated 18th June 1992. It was further averred that respondent No.3 (defendant No.4 in suit) was liable to mutate the property in equal shares in favour of respondent Nos. 1, 2 and the appellant. In the suit, the plaintiff had prayed for the following relief(s):-

 

             I.      Declaration that the plaintiff is absolute and exclusive owner of one third share in property bearing No. G-3, Cosmopolitan Society Karachi East and the defendant No.1 has no right, title or interest in the same and consequently the defendant No.4 is required to mutate the same in favour of plaintiff.

 

          II.      Permanent Injunction restraining the defendant No.1 or anybody claiming for or on her behalf from interfering with plaintiff’s possession and enjoyment of property No. G-3, one third share.

 

       III.      Defendant No.4 be directed to record mutation of one third share in property No. G-3, Cosmopolitan Society, Karachi East in favour of plaintiff.

 

      IV.      Costs of the suit be borne by the defendant No.1

 

         V.      Any other relief that this Honorable court deem fit and proper.

 

 

3. Along with the plaint, the plaintiff/respondent No.1 had also filed an injunction application for restraining the defendant No. 1 in the suit from disputing plaintiff’s title in respect of one third share in property No. G-3, till the pendency of the suit. The learned single judge passed the order directing the parties to maintain status quo till next date with regard to possession of disputed premises.

 

4. The dairy of the Additional Registrar (O.S) shows that on 4.11.1992, the notices were returned unserved on the defendant No.1 (late mother) and the Appellant. The summon was never served on the late mother nor the appellant at any time. On 4.10.1995, the defendant No.2 was debarred, the plaint/application was struck of against defendant No.1 and defendant No.4 was declared ex parte. The respondent No.2 did not file any written statement in spite of the fact that gift was revoked on 8th June 1992. She was debarred from filing the written statement though she received copy of the plaint on 23rd September 1992, thereafter no effort was made by her at any time to assert her rights.

 

5. The Respondent No.2 filed her separate Suit No. 1057 of 1999 for cancellation, declaration, partition, permanent injunction and damages with the following prayers:

 

i.                  declare that the plaintiff is entitled to her due share in the suit property, along with relatable adjustments and damages in her favour along with markup till date, while canceling any other document(s) adverse to such interest, including the alleged gift and mutation, if any, as explained in para 14 above, while declaring such documents to be void and also directing the Defendants Nos. 1 and 3 to deposit the same in Court with its Nazir;

 

ii.                Partition the suit property while giving the plaintiff her share along with the necessary and relatable adjustments in her favour relating to the damages/financial losses suffered by her till date;

 

iii.             Additionally award damages to the plaintiff of an amount of Rs. 34,00,000/- (Rupees Thirty Four Lacs) along with mark up/interest from the date of accrual till the date of payments;

 

iv.             Permanently restrain the Defendants, their agents, officers and servants from disturbing the plaintiff’s possession in the suit property or encumbering the same in any manner by creating third party interests or otherwise and from interfering with the physical possession of the suit property by the plaintiff, while further restraining them from installing squatters and encroachers any further;

 

v.                Direct the defendant No.5 to evict the encroachers/squatters in the suit property, while also directing him to lodge necessary FIRs against the Defendant Nos. 1 and 4 in relation to the events disclosed in paras 12 and 14;

 

vi.             Direct the defendants No. 1 and 4 to deposit the original bills, conveyance deeds, and other documents in Court stolen by them on 10.6.1999, as explained in para 12 above;

 

vii.           Declare that the plaintiff is entitled to her share in view of the gift pertaining to shares in different companies, marked as Annexure G while directing the Defendant No.1 to part possession of the share scripts or compensate her in relation thereon, and till disposal of the suit deposit such gift declaration and shares scripts in Court;

 

viii.        Award any other relief;

 

ix.             Award costs.

 

However, in the amended plaint, besides few new paragraphs, prayer clause (i.a) was also added in which a declaration was claimed that the purported declaration of gift dated 12.2.1998 marked as Annexure E to the written statement of the Defendant No.1 and the mutation of the suit property in the name of the Defendant No.1 purportedly evidenced through extract marked as Annexure F to the written statement filed by the Defendant No.1 or otherwise is completely without jurisdiction, unlawful, mala fide, unenforceable and of no legal effect, while canceling the latter documents.

 

6. The written statement was filed by the appellant/defendant No.1 in which it was stated by the Appellant that the late mother had gifted the entire property to her. The basis of acceptance of the gift was declaration that they had taken possession of the property was only symbolic but no actual possession or transfer nor indeed there is any document that any possession was transferred pursuant to the gift deed which was subsequently revoked. Nor in the plaint it was averred by the plaintiff (Respondent No.2) that after taking possession she or any of her sister exercised any right pursuant to the possession alleged to have been taken on the gift deed and/or affidavit. She had also filed gift deed and mutation of property in her name.

 

7. The respondent No.2 then amended the plaint and claimed relief against the documents filed with the written statement. In the amended plaint, a new paragraph 14-A was inserted by the plaintiff in which it was inter alia stated that the Defendant No.1 filed written statement and counter affidavit in this case and it has transpired that the Defendant No.1 has secured execution of a declaration of gift dated 12.2.1998 from the late mother of the plaintiff gifting the entire suit property to the Defendant No.1/appellant. The declaration confirms an illegal and so-called oral gift dated 18.10.1997. The said oral or declaration of gift has also been unlawfully registered and necessary entries in the form of mutation are indicated in an extract filed as Annexure F to the written statement of the Defendant No.1. Two documents purportedly confirming the gift and mutation executed and effected behind the plaintiff’s back without any notice to her. These two documents i.e. Annexure E and F along with the so-called oral gift are completely without jurisdiction, unlawful, illegal, fraudulent, void ab-initio and of no legal effect since no such gift could have been executed once the earlier gift marked as annexure B to the plaint was validly executed and had taken effect.

 

8. On 15th March 2000, Suit No. 1057 of 1999 was fixed for hearing of miscellaneous applications. The counsel for the appellant could not attend the court and when the matter was called. The hearing of the applications was deferred. By then all the parties in the suit had also not filed their respective written statements nor they were debarred from contesting the case. The case was not fixed for framing of the issues. The appellant counsel was not present, however, the counsel for the Respondent No.2 requested the court to frame preliminary issues.

 

9. On 6th June 2000, an urgent application was moved for hearing of arguments on the issues without recording evidence, for which again no notice was issued and the matter was adjourned to 12.6.2000 for arguments. However, on that date, the matter was further adjourned to 17.8.2000 for settlement of final issues which order was not complied with.

 

10. Heard the arguments. Learned counsel for the appellant argued that when two issues were framed by the learned Single Judge the matter was not fixed for settlement of issues even all the defendants had not filed their written statement. He further argued that the preliminary issues were framed on the date when the appellant counsel was not present and the suit was only fixed for hearing of applications. He further argued that both the issues settled as preliminary issues were the issues of mix question of law and facts and could not be decided without recording evidence of the parties. He further argued that the interim orders were operating in Suit No. 501 of 1992 only in respect of possession and as per diary of Additional Registrar, the name of late mother of the appellant was struck off from the plaint therefore, there was no impediment for executing the registered gift deed in favour of the appellant, by her late mother. He further argued that though the gift deed was drawn but the possession was never delivered by the late mother to the appellant or to the respondent Nos. 1 and 2 in pursuance of earlier declaration of unregistered oral gift. He further averred that on 12.6.2000, the matter was adjourned by the learned Single Judge to 17.8.2000 for settlement of final issues and arguments if any but the said order was never complied with and no final issues were settled in the suit. He further argued that the late mother of the appellant and respondent Nos. 1 and 2 never parted with the possession of the property either to the appellant or the respondent Nos. 1 and 2 pursuant to the gift deed of 1992. She continued to live in that house till such time she gifted and mutated the property in question in the name of the appellant. He further argued that there is nothing on record to show that the respondent Nos. 1 and 2 contributed any thing as a token of their possession including the payment of utility bills or property tax etc. The learned counsel further added that the gift deed executed in 1992 was revoked by the late mother and thereafter, she executed a registered gift deed on 12th February 1998 in favour of the appellant and the appellant had accepted the gift with possession and her name was also mutated in the record of rights and since then the appellant is continuously paying the taxes and other dues for the property in question. In support of his contention learned counsel has relied upon the following case law:-

 

1. 2010 SCMR 342 (Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another). In this matter, the honorable supreme court has held that under the Mahommedan Law, a gift, in order to be valid and binding upon the parties, must fulfill the following three conditions (a) declaration of gift by the donor; (b) acceptance of gift by the donee; and (c) delivery of possession of corpus. On the fulfillment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the pre-requisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registerable under the Registration Act, 1908. In was further held that the gift-deed was executed on 15.2.2002 while the donor died on 23.5.2002. During this period, the respondent-plaintiff did not get the property mutated in her favour. The failure to clearly establish the twin requirement of acceptance of gift and delivery of possession was fatal to the claim of the respondent/plaintiff.

 

2. 2000 MLD 1729 (Mst. Farida Sajid v. Syed Muhammad Baqir Ali Shah and others). In this matter, the learned divisional bench of Lahore High Court has held that donor was in physical possession of the property at the time when he made the gift and remained in the same house till his death. Donees failed to prove that they were in the joint possession of the property with the donor before the gift. Effect. Donor was required to put the donees in physical possession of the property. Neither there was any evidence on record to show that the donor did so, nor the donor had divested himself of the corpus, rather the donor had been dealing with the property as an owner even after having made the gift. No valid gift was made qua suit property in circumstances.


3. 1972 SCMR 50 (Ashiq Hussain and another vs. Ashiq Ali). In this matter, the honorable Supreme Court has held that a mere recital in the gift deed that possession has been delivered to the donee not enough. There are three essentials of gifts under the Muhammadan Law (i) a declaration of gift by the donor; (ii) an express or implied acceptance of the gift by the donee; and (iii) seisin or the delivery of possession of the gifted property by the donor to the donee. The delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him.

 

4. 2001 SCMR 34 (Azim Khan versus Malik Mobeen Khan). In this case, it was held that it is by now settled law that mere recital in the deed about the delivery of possession would not be sufficient to prove possession unless delivery of possession is positively proved by cogent reason.

 

5. 2003 SCM R 286 (Muhammad Bakhsh versus  Ellahi Bukhsh and others. In this case, it was held that mere recital in the gift deed that possession has been delivered to the donee would not be enough unless the delivery thereof was proved by cogent evidence. Where the possession of the property, the main ingredient of the gift was missing, the gift, could not be given any credence.

 

6. 2003 SCMR 1261 (Amir Bibi through legal heirs vs. Muhammad Khursheed and others). In this matter, the honorable Supreme Court held that in view of the provisions as contained in Order 12, rule 6 a court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power is not unfettered and the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categorical and definite. It is bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. It would, however, be discretionary for the Court to accept or reject such application. In this regard we are fortified by the dictum laid down in East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663), Naseer Ahmad v. Asghar Ali (1992 SCMR 2300). This case has been examined on the touchstone of the criterion as mentioned hereinabove. After having gone through the entire record we are of the considered view that the entire suit could not have been decreed as the claim of respondents has been controverted on various legal and factual grounds which can only be decided on the basis of evidence and not on mere admission.   

 

7. 1996 SCMR 696 (Macdonald Layton & Company Pakistan Ltd vs. Uzin Export-Import Foreign Trade Co and others). In this matter, the honorable supreme court has held that essential provision of O.XII, Rule 6, CPC provides summary and speedy remedy in cases where admission was made by defendant in pleadings or outside the same. In order to attract provision of O.XII, Rule 6, C.P.C. admission should necessarily be unequivocal, clear, unconditional and unambiguous. Such admission should not only be in respect of amount (where dispute related to payment of money) but liability to pay the same to plaintiff. Court while deciding such application for grant of decree must exercise its discretion in judicial manner and subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter. Court should not grant decree on admission without resorting to objections raised.

 

 

11. Conversely, the learned counsel for the respondent No.2 argued that in the paragraph 4 of the plaint, the respondent No.2 (plaintiff in Suit No. 1057 of 1999) had clearly stated that the mother of the plaintiff had gifted the suit property on 11.3.1992 at Karachi in the presence of two witnesses to her three daughters as mentioned in para 1 above in equal shares. The gift was reduced in writing through a “Declaration of Gift” dated 29.3.1992, on which the two witnesses also effected their signatures. The Gift was duly accepted by all the three beneficiaries i.e. the daughters, Najma Rahman, Defendant No.1/appellant and the plaintiff/respondent No.2, respectively. Collaterally, the declaration of gift has also mentioned the factum of possession being enjoyed by the beneficiaries. After referring to para 4 of the plaint the learned counsel referred to the written statement filed by the appellant/defendant No.1  in the Suit and argued that in the written statement the appellant/defendant No.1 clearly mentioned that the contents of para 4 of the plaint are not denied. He averred that since the factum of oral gift and the crux of the whole suit was mentioned in paragraph 4 of the plaint which was not denied by the defendant No.1, therefore, this was a case of clear admission on the part of the appellant/defendant No.1, hence,  no further evidence was required to be led by the parties. The learned counsel further argued that the gift executed by the mother in favour of three daughters could not be revoked and he further argued that in the declaration of oral gift it is clearly mentioned the possession of the property in question was delivered/handed over to the donees and all the donees collectively accepted the oral gift and also stated that they are in joint possession of the property. He further argued that the declaration of oral gift was executed by Mst. Sugra Hassanally in presence of two witnesses and all the donees have also signed the declaration of oral gift in presence of the witnesses. The revocation of gift vide letter dated June 8, 1992 was illegal as after making a valid gift, the gift could not be revoked. The learned counsel further referred to the amended plaint filed in suit No. 1057 of 1999 in which besides amending the prayer clause a new paragraph 14-A was also added in which it was stated that after filing the written statement by the appellant/defendant No.1 in the above suit, it transpired to the plaintiff that the defendant No.1 has secured a declaration of oral gift on 12.2.1998 from the late mother of the plaintiff which was unlawfully registered and the mutation was also effected unlawfully in favour of the appellant. He further argued that the late mother of the plaintiff/respondent No.2 and the appellant could not have executed gift deed and even her signature on the gift and the mutation are fabricated and secured fraudulently by the appellant. The original declaration of gift dated 11.3.1992 was irrevocable. Even otherwise, the said gift was executed when the status quo was operating in Suit No. 501 of 1992. The learned counsel further argued that there is no illegality in the judgment and decree passed by the learned Single Judge as according to the learned counsel ample opportunity was provided to the other side to argue the matter and after hearing the arguments the learned Single Judge decreed the suit. He further averred that keeping in view the clear admission in the written statement regarding the factum and execution of the first gift executed in the year 1992, there was no necessity to call the parties to lead the evidence in support of their pleadings, therefore, the learned Single Judge rightly framed two preliminary issues and further issues were also settled in the judgment to answer the bone of contention between the parties. He further averred that the learned Single Judge had considered the entire pleadings and rightly reached to a conclusion that the gift executed by the late mother in favour of her three daughters was a valid gift and could not be revoked under the provisions of Mohammadan Law. In support of his argument, the learned counsel for the respondent No.2, relied upon the following case law:

 

1. 2007 C L C 1885, (Fateh Muhammad versus Fida Hussain ). In this case, it was held that once admission is made in written statement, no issue is required to be framed nor any further proof is required.  Contents of document could be read and given effect to by court even in the absence of a plea by a party to such effect. Written statement would lose all its force as an authentic piece of evidence and cannot be acted upon or treated as substantive evidence when defendant does not make himself available for cross-examination. 

 

2. 2004 S C M R 704, (Muhammad Rafiq versus Muhammad Ali ). In this matter, the honourable supreme court held that plea not raised in written statement. Effect. Defendant could not be allowed to set up a plea, which had never been pleaded through written statement. 

 

3. P L D 2007 Lahore 83. (Munawar  Hussain versus Amnat Ali). In this case, it was held that when a document is admitted or its execution is proved, then contents of the same are always considered to be proved or admitted. No oral evidence to disprove contents of such document is admissible in terms of Art.70 of Qanun-e-Shahadat 1984. 

 

4. 2005 S C M R 1315, ( Raza Munir versus Mst. Sardar Bibi). In this case, it was held that document once admitted in evidence and brought on record. Effect. Contents of such document could be read and given effect to by Court even in absence of a plea by a party to such effect. 

 

5. 1999 Y L R 2209, (Ashiq Hussain versus Ali Ahmed). In this case,  it was held that if delivery of possession had taken place in gift transaction, revocation of such gift was permissible only by means of a decree of a Court. Suit for revocation of gift after delivery of possession must be governed by Art. 91, Limitation Act, 1908, providing three years for filing a suit for setting aside or cancellation of any instrument. Gift was made in 1962 whereas suit for revocation was filed by the donor in 1978 after about sixteen years of execution of gift deed. Suit filed by donor was liable to be dismissed being barred by time.

 

 

12. The learned counsel for the respondent No.1 adopted the arguments of Dr. Muhammad Faroogh Naseem and fully supported the impugned judgment and decree.

 

13. We have examined the record and proceedings of both the suits and the impugned judgment and decree passed by the learned Single Judge. It appears that after announcement of the judgment, a reference was moved by the office in relation to the market value of the property for preparing decree which was disposed of vide order 8.3.2004 with the direction to prepare the decree and market value may be determined at the time of partition which shows that decree was prepared in 2004. Even, this fact is clearly reflecting from admission note of the appeal dated 19.10.2004.

 

14. The paragraph 33 of the impugned judgment shows that while decreeing the suit No.1057/99, the learned Single Judge had also decreed suit No. 501 of 1992 mutatis and mutandis. The main cause of concern shown by the appellant is that the matter was not decided on merits and the controversy involved in both the suits could not be decided without adducing evidence by the parties. It was further urged that when the issues were framed the suit was not fixed for settlement of issues but it was only fixed for hearing of interlocutory applications. Earlier gift was revoked by Mst. Sughra Begum and subsequently she executed a registered declaration of oral gift in favour of the appellant, therefore, this important aspect could only be decided after recording evidence but no opportunity was afforded and the entire suit was decided on mere arguments.

 

15. We have observed that the Suit No. 501 of 1992 was fixed in this Court on 16.8.1992 for orders on which date notice was issued and the parties were directed to maintain status quo till next date as regards the possession of the disputed premises. Thereafter, it was fixed on 10.1.1993 in court for exparte orders against the defendant No.4 and then on 26.2.1995 for non-prosecution as fresh address of the defendant No.3 was not supplied, therefore, two weeks time was granted for compliance. The court file shows that after 26.2.1995, the matter was again fixed in this Court on 2.3.2000 for final disposal. The chronology of the order sheet shows that this matter was being fixed separately in the court till 5.12.2000 for final disposal and first time the order sheet shows that the matter was fixed in this Court on 25.1.2001 on which date, first time it was mentioned that “Same order as in Suit No. 1057 of 1999”. The order sheet dated 25.1.2001 in Suit No. 1057 of 1999 shows that the arguments of learned counsel for the plaintiff were heard and matter was adjourned for the arguments of defendants advocate and on 22.2.2001, the matter was reserved for judgment.

 

16. The record further shows that the judgment could not be announced, therefore, it was fixed for rehearing in court and after many dates finally on 4.12.2002, matter was again reserved for judgment and the judgment was announced on 24th April 2003 in both the suits. So far as Suit No. 1057 of 1999 is concerned, the order sheet shows that it was continuously being fixed in Court for hearing of applications since 3.8.1999. On 15.3.2000,  at least seven applications were fixed for hearing and only the learned counsel for the plaintiff was present in Court and nobody was present for the defendants except defendant No.3. The order sheet further shows that the learned counsel for defendant No.3 in the earlier part of the day sought permission to attend other cases, as the defendant No.3 had no concern in the matter.

 

17. Out of seven listed applications, the hearing of five applications was deferred and two applications said to have become infructuous. The order sheet further shows that the learned counsel for the plaintiff argued that the suit can be decided under order 10 Rule 1 CPC and order 12 Rule 6 CPC in view of the admission made in the written statement in respect of facts averred in paragraph 4 of the plaint. He further submitted that since it has been pleaded by the defendant No.1 that the gift was revoked at a later stage, this factual controversy if decided in the first instance would be sufficient for disposal of the whole suit as such he proposed that preliminary issue may be framed in this regard. On his proposal, following preliminary issues were framed.

 

i.                  Whether the oral gift made on 11.3.1992 as stated in para 3 of the document, “declaration of gift” dated 29.2.1992, having been completed could be revoked at a later stage? If so what is its effect?

 

ii.                Whether the document, declaration of gift be not acted upon and admitted in evidence within the meaning of section 35 of the Stamp Act, being insufficiently stamped?

 

18. After settlement of above preliminary issues, the written statement filed by the defendant No.2 was taken on record vide order dated 9.5.2000. Thereafter, on an urgent motion of the plaintiff counsel, the matter was fixed in Court on 6.6.2000 on which date the counsel for the plaintiff argued that the Court has already framed preliminary legal issues on 15.3.2000 for which there is no need of evidence at all and the entire suit could be disposed of on the basis of arguments, thereafter,  in spite of various pending applications in the suit, the matter was directly  fixed in court on 12.6.2000 for arguments on which date, though the counsel for the plaintiff and the defendant No.1 both were present but the learned counsel for the defendant No.2 was on general adjournment, therefore, the matter was adjourned to 17.8.2000 for settlement of final issues and arguments if any.

 

19. The order sheet dated 15.3.2000 clearly demonstrates that the learned counsel for the plaintiff argued that the suit can be decided under order 10 rule 1 and order 12 Rule 6 CPC in view of the admission made in the written statement and he further argued that since it has pleaded by the defendant No.1 that the gift was revoked at later stage this factual controversy if decided in the first instance would be sufficient for the disposal of the whole suit therefore, on his proposal preliminary issues were framed.

 

20. The decision of suit on the basis of issues of law and the decision on the basis of order 10 Rule 1 CPC and Order 12 Rule 6 CPC both have altogether different premise. Though, a pure question of law can be decided without adducing the evidence but  for the purposes of decree on admission, the party who wants the decision on an admission of other party has to file an application under Order 12 Rule 6 CPC which is the mandatory for securing decree on admission.

 

21. So far as Order 10 C.P.C is concerned, this entire order germane to examination of the parties by the court in which different mode and methods are provided for examination of parties in which the court has to ascertain from each party or his pleader whether he admits or denies such allegation of fact as are made in the plaint or written statement if any of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. It is further provided under Order 10 Rule 1 C.P.C that the court shall record such admissions and denial. For the convenience and ready reference Order 10 Rule 1 CPC is reproduced as under:-

 

Order 10 Rule 1 CPC

 

“Ascertainment whether allegations in pleadings are admitted or denied. At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

 

A.      the Court may adopt any lawful procedure not inconsistent with the provisions of this Code to

 

(i)      conduct preliminary proceedings and issue orders for expediting processing of the case;

 

(ii)     issue, with the consent of parties, commission to examine witnesses, admit documents and take other steps for the purposes of trial;

 

(iii)    adopt, with the consent of parties, any alternative method of dispute resolution including mediation, conciliation or any such other means”.

 

(Note: Paragraph “A” with further amendment  in Order 10 Rule 1 was added by the Ordinance XXXIV of 2002 (27.7.2002). The preliminary issues were framed by the learned single judge of this court on 15.3.2000. However, vide order dated 10.10.2001, the suit was ordered to be fixed for re-hearing and was again started to be heard on 28.11.2002 and arguments concluded on 4.12.2002, when the above amendment was already brought in force and the court could take judicial notice in view of amendment for just and proper decision).

 

22. It is clear beyond any shadow of doubt that while decreeing the suits, the learned Single Judge has not exercised the powers conferred upon this court under order 10 Rule 1 CPC. Neither the  court ascertained from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party nor recorded such admissions and denials which is mandatory for the court to record while invoking this provision for examination of parties.

 

23. So far as the applicability and invocation of order 12 Rule 6 CPC is concerned, this rule enables a court upon application by other party to dispose of a suit with regard to which there is no dispute between the parties. The entire Order 12 CPC pertains to the admissions. Rule 1 of this Order provides that any party to a suit may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party while Rule 6 of Order 12 CPC unequivocally provides that any party at any stage of a suit where admissions of the fact have been made either in the pleadings or otherwise, apply to the court for such judgment 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 fit. For the application of this rule it is necessary that admission must be clear, unambiguous, unqualified and unequivocal. So far all intent and purpose, it is necessary that for deciding the suit under Order 12 Rule 6 CPC, filing of application is necessary by a party who wants judgment in his favour. For the convenience, Order 12 Rule 6 CPC is reproduced as under:-

 

Order 12 Rule 6 CPC

 

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 her 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.

 

24. Keeping in view the above provision which has been relied by the court in the order dated 15.3.2000, it is clear that while decreeing the suit the prerequisites of the Order 12 Rule 6 were also not fulfilled, therefore, no decree could be passed on the basis of admission without complying with this explicit provision.

 

25. It is manifestly clear and apparent on the face of the record that though, the learned Single Judge in its order dated 15.3.2000 accepted the proposal of the learned counsel for the plaintiff to dispose of the suit under Order 10 Rule 1 CPC and Order 12 Rule 6 CPC but none of the provisions had been applied before passing the judgment and decree but only settled two preliminary issues. It is also clearly transpiring from the order dated 15.3.2000, that while proposing two preliminary issues, the learned counsel himself suggested that since it has been pleaded by the defendant No.1 that the gift was revoked at later stage, this factual controversy if decided in the first instance would be sufficient for the disposal of the whole suit. This suggestion of the learned counsel for the plaintiff  beyond any shadow of doubt makes it abundantly clear that the learned counsel was fully cognizant that the factual controversy is involved in the suit and even the preliminary issues settled by the court are not purely issues of law but issues of mix question of law and facts which could not be decided without adducing evidence.

 

26. It is a fact that when the preliminary issues were framed, only various applications were fixed for hearing but the matter was not fixed for settlement of issues. However, there is no bar under the CPC for the court to settle the issues at any particular stage but it is also a fact that the stage of issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or the defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by other shall form the subject of a distinct issue. The court after reading the plaint and the written statement if any and after examination of the parties as may appear necessary proceed to frame and record the issues on which the right decision of the case appears to depend. For the ready reference Order 14 Rule 1 CPC is reproduced as under:-

 

Order 14 Rule 1 CPC

 

Framing of issues (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

 

(2)     Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

 

(3)     Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

 

(4)     Issues are of two kinds (a) issues of fact, (b) issues of law.

 

(5)     At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after hearing such examination of the parties as may appear necessary, assertion upon what material propositions of fact or of law the parties are variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

 

(6)     Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

 

 

27. According to Order 14 Rule 1 CPC, issues are of two kind (a) issues of fact and (b) issues of law. Order 14 Rule 2 provides that where issues both of law and fact arising in the same suit the court may postpone the settlement of issues of fact until after the issues of law have been determined. The above rule makes it clear that where an issue of law going to the root of the case and capable of being decided without recording evidence, the court is bound to decide such issues first. The settlement of issues of law and fact is provided under Order 14 Rule 2 which reads as under:-

 

Order 14 Rule 2 CPC

 

Issues of law and of fact. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

 

 

28. The crux of the arguments advanced by the learned counsel for the respondent No.2 is that the appellant did not controvert the para 4 of the plaint in her written statement which amounts to admission. We have examined both the written statement filed by the appellant one to the original plaint and amended written statement filed in response to the amended plaint. In both the written statements, the appellant disclosed the factum of revocation of gift by late Mst. Sughra Hassanally and she further submitted that after revocation of earlier gift, the property in question was gifted by Sughra Begum in her favour by virtue of a registered gift deed on the basis of which mutation of the property was also effected in favour of the appellant.

 

29. Along with the written statement, the appellant has also attached copy of declaration and confirmation of oral gift executed in her favour for the property in question. It is also pertinent to mention that the plaintiff in Suit No. 1057 of 1999 herself attached a letter of revocation of gift deed dated 8.6.1992 which was communicated on behalf of Sughra Begum to all her three daughters including the appellant. Though the revocation letter was issued by the advocate but it was apparently signed by Mst. Sughra Begum also. The revocation letter reads as under:-

 

“Letterhead of Advocate

                                                                   June 8, 1992

Ms. Najma Rehman

R/o. G-3, Cosmopolitan Society

Karachi

 

Mrs. Humera Rehman

R/o. G-3, Cosmopolitan Society,

Karachi

 

Mrs. Ghazala Rehman

R/o. Khayaban-e-Jabal

Defence Housing Authority,

Karachi.

                        

Sub: REVOCATION OF GIFT DEED

 

Dear Madams,

 

My client Mrs. Sughra Rehman widow of Late Hassan Allay-A-Rehman Bar-at-Law has given me instructions to address you as under:-

 

That my client is sole and absolute owner of house constructed on plot No. G-3, Cosmopolitan Society, Karachi. She is residing in the same house and is in possession of the same.

 

That you are her daughters. My client out of love and affection had conditionally gifted her said house to all three of you jointly. Before the gift deed could be registered my client was beaten up very cruelly and tortured by her own eldest daughter Najma Rehman.

 

That my client has realized that by gifting the house conditionally she has committed biggest mistake of her life.

 

However she has decided to revoke the gift. My client Mst. Sughra Hassan Ally-A-Rehman hereby Revokes the Gift made by her in respect of her house No. G-3, Cosmopolitan Society, Karachi. Any document signed in this respect hereby stands cancelled. You are informed accordingly.

 

Your’s faithfully

 

Sd/-                                               Sd/-

Sughra Hassanally                                  Advocate

(9.6.92)                      

 

30. The impugned judgment shows that in addition to the issues framed by the court on 15.3.2000, three more issues were framed by the learned Single Judge in the judgment which are as follows:-

 

·        Whether the suit is maintainable in law and on facts?

·        Whether Suit 1057/99 is barred by limitation?

·        Whether the subsequent gift and mutation of the property in favour of Defendant No.1 could invalidate the earlier Declaration of Gift dated 11.3.1992.”

 

31. No issues were framed in pursuance of an order dated 12.6.2000. It is also matter of record that no issue was framed either at the time of settlement of issues on 15.3.2000 or in the impugned judgment relating to the cancellation of subsequent registered gift deed executed by Sughra Begum in favour of the appellant. It is clear from the judgment that the foundation of impugned judgment is mostly based on the averments made in paragraph 4 of the plaint and its non denial in the written statement. However an important aspect can not be lost site which was ignored by the learned single judge that in the written statement besides  no specific denial of para 4 of the plaint, the appellant/defendant No.1 raised many other contentious issues including the revocation of earlier gift and execution of registered indenture gift in her favour which could not be decided or cancelled without evidence.

 

32. Mostly the case law relied upon by the learned counsel for the appellant are relevant to the gift, its validity and basic ingredients which we can not dilate upon at this stage when the bone of contention between the parties is that the suit could not be decided without recording evidence. However, the case law reported in 2003 SCMR 1261 (Amir Bibi through legal heirs v. Muhammad Khursheed and others) is quite applicable in relation to the guiding principle of disposing off the suit on admissions in which the honourable Supreme Court has held in view of the provisions as contained in Order 12, rule 6 that a Court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power is not unfettered and the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categorical and definite. It is bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission.

 

33. The case law referred to by the learned counsel for the respondent No.2 are also distinguishable to the facts and circumstances of the case in hand. In the first case reported in 2007 C L C 1885, it was held that written statement would lose all its force as an authentic piece of evidence and cannot be acted upon or treated as substantive evidence when defendant does not make himself available for cross-examination. In fact this case supported the case of appellant who is herself insisting that case could not be decided without evidence. In the next case reported in 2004      SCMR 704, the honourable supreme court held defendant could not be allowed to set up a plea, which had never been pleaded through written statement. In this case, the revocation of earlier gift and execution of subsequent gift was clearly mentioned in the written statement. In the third case reported in PLD 2007 Lahore 83, it was held that when a document is admitted or its execution is proved, then contents of the same are always considered to be proved or admitted. No oral evidence to disprove contents of such document is admissible in terms of Art.70 of Qanun-e-Shahadat 1984. Again this is case of evidence by which the document can be admitted or proved. In the next case reported in 2005 SCMR 1315, it was held that document once admitted in evidence and brought on record. Contents of such document could be read and given effect to by Court even in absence of a plea by a party to such effect. Neither the earlier gift nor revocation of gift nor subsequent gift made in favour of the appellant was brought on record by way of evidence therefore, this case does not apply. In the last case reported in 1999 YLR 2209, it was held that if delivery of possession had taken place in gift transaction, revocation of such gift was permissible only by means of a decree of a Court. Suit for revocation of gift after delivery of possession must be governed by Art. 91, Limitation Act, 1908, providing three years for filing a suit for setting aside or cancellation of any instrument. Gift was made in 1962 whereas suit for revocation was filed by the donor in 1978 after about sixteen years of execution of gift deed. Suit filed by donor was liable to be dismissed being barred by time.

 

34.The honorable supreme court held in its judgment reported in 2003 SCMR 1261, (Amir Bibi versus Muhammad Khurshid) that court, in view of O.XII, R.6, C.P.C. was competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power was not unfettered and the admission on the basis whereof a decree was sought must be specific, clear, unambiguous, categoric and definite. Court was bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the Court to accept or reject such application. Entire suit, in the present case, could not have been decreed as the claim of plaintiffs had been controverted on various legal and factual grounds which could only be decided on the basis of evidence and not on mere admission. In another judgment reported in 1996 SCMR 696 (Macdonald Layton & Company Pakistan Ltd v. Uzin Export-Import Foreign Trade Co and others), the honorable supreme court has held that essential provision of O.XII, Rule 6, CPC provides summary and speedy remedy in cases where admission was made by defendant in pleadings or outside the same. In order to attract provision of O.XII, Rule 6, C.P.C. admission should necessarily be unequivocal, clear, unconditional and unambiguous. Court while deciding such application for grant of decree must exercise its discretion in judicial manner and subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter. Court should not grant decree on admission without resorting to objections raised.

 

35. After careful consideration, we have reached to an irresistible conclusion that the controversy involved and or bone of contention between the parties in the suit could not be decided without evidence. In the written statement many contentious issues were raised and at the time when preliminary issues were framed, the learned counsel for the plaintiff himself argued that factual controversy could be resolved on preliminary issues which means that he was fully cognizant that the issues suggested to be preliminary issues could only be decided after leading evidence by the parties. The court vide order dated 12.6.2000 had fixed the matter on 17.8.2000 for final issues but no issues were settled and matter was simply fixed for arguments. Though order 10 Rule 1 and Order 12 Rule 6 CPC were quoted in the order for disposal of the suit on mere admission, but the court neither invoked the provisions in its right perspective nor fulfilled the prerequisites in accordance with the law. Even no application was filed by the plaintiff for securing the judgment and decree on admission which was a mandatory requirement of Order 12 Rule 6 CP.C.

 

36. At this juncture, we would like to quote  famous legal Maxim 'Actus curiae neminem gravabit' (an act of Court shall prejudice no man).  In the judgment reported in 2001 SCMR 1001, (Ghulam Hassan versus Jamshed Ali), the honorable supreme court held that courts are to administer justice in accordance with the provisions of law. Application of provisions of  law is the duty of the Court. Maxim 'Actus curiae neminem gravabit' (an act of Court shall prejudice no man), comes into play, with a view to obviate hardships which may otherwise be the result of the errors of the Court itself. Where non-compliance with the mandatory provisions of law occurs by' complying with the direction of the Court which is not in conformity with the law, the party complying therewith is not to be penalized. In another judgment reported in 2005 CLD 187, (Saadat Hayat Khan versus Muslim Commercial Bank Ltd), the learned divional bench of this court held that no party shall be made to suffer due to the act or omission of the Court in the performance of its duties.

 

37. The upshot of this discussion is that while passing the judgment and decree, the real question in controversy remained undetermined which could not be decided without adducing evidence by the parties and mostly the issues framed by the court on 15.3.2000 and in the impugned judgment are the issues of mix question of law and fact and require evidence.

 

38. For the foregoing reasons, the judgment and decree are set aside, the matter is remanded to the learned single judge (original side) with the direction to decide the suit on merits after recording evidence. Since it is an old matter, we expect that the learned single judge will expedite the proceedings and decide the matter preferably within a period of six months.

 

 

Karachi:-                                                                       Judge

Dated

                                                                   Judge