decreed the suit only on the basis of some admission

2012 M L D 188

Non-recording of evidence---Trial Court without framing proper issues and recording of any evidence, decreed the suit only on the basis of some admission made in written statement filed by defendant.

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

Mst. GHAZALA REHMAN through Attorney---Appellant

Versus

NAJMA SULTANA through Legal Heirs   and 2 others---Respondents

High Court Appeals Nos.176 and 177 of 2004, decided on 28th September, 2011.

(a) Civil Procedure Code (V of 1908)---

----O. XII, R.6---Specific Relief Act (I of 1877), Ss. 42 & 54---Law Reforms Ordinance (XII of 1972), S. 3---Intra court appeal---Judgment on admission---Scope of application of O.XII, R.6, C.P.C.---Non-recording of evidence---Trial Court without framing proper issues and recording of any evidence, decreed the suit only on the basis of some admission made in written statement filed by defendant---Validity---Pure question of law could be decided without adducing evidence but for the purposes of decree on admission, the party who wanted decision on admission of other party had to file application under O. XII, R. 6 C.P.C. which was mandatory for securing decree on admission---In order to attract provision of O. XII, R. 6, C.P.C. admission should necessarily be unequivocal, clear, unconditional and unambiguous---Court while dealing such application for grant of decree must exercise its discretion in a judicial manner, 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---While passing judgment and decree, real question in controversy remained undetermined which could not be decided without adducing evidence by parties and mostly issues framed by Trial Court which were the issues of mixed question of law and fact and required evidence---High Court set aside the judgment and decree passed by Trial Court and remanded the case to Trial Court for decision afresh on merits after recording of evidence---Intra court appeal was allowed accordingly.

       Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Mst. Farida Sajid v. Syed Muhammad Baqir Ali Shah and others 2000 MLD 1729; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Azim Khan v. Malik Mobeen Khan 2001 SCMR 34 and Muhammad Bakhsh v. Ellahi Bukhsh 2003 SCMR 286 ref.

       Amir Bibi through Legal heirs v. Muhammad Khursheed and others 2003 SCMR 1261 and Macdonald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696 rel.

       Fateh Muhammad v. Fida Hussain 2007 CLC 1885; Muhammad Rafiq v. Muhammad Ali 2004 SCMR 704; Munawar Hussain v. Amanat Ali PLD 2007 Lah. 83; Raza Munir v. Mst. Sardar Bibi 2005 SCMR 1315 and  Ashiq Hussain v. Ali Ahmed 1999 YLR 2209 distinguished.

(b) Civil Procedure Code (V of 1908)---

----O. XIV, R.1---Issues, framing of---Principles---"Material proposition"---Connotation---Stage of framing of issues 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 plaintiff must allege in order to show a right to sue or defendant and must allege in order to constitute his defence---Each material proposition affirmed by one party and denied by the other forms the subject of a distinct issue---Court after reading plaint and written statement, if any and after examination of parties as may appear necessary proceed to frame and record issues on which right decision of case appears to depend. 

(c) Maxim---

----Actus curiae neminem gravabit---Applicability---Scope---Rule that act of court should prejudice no man, comes into play with a view to obviate hardships which may otherwise be the result of errors of court itself---Where non-compliance with mandatory provisions of law occurs by complying with the direction of the court which is not in conformity with law, the party complying therewith is not to be penalized. 

       Ghulam Hassan v. Jamshed Ali 2001 SCMR 1001 and Saadat Hayat Khan v. Muslim Commercial Bank Ltd. 2005 CLC 187 rel.

       Sardar Jamal Sukhera for Appellant.

       Rizwan A. Siddiqi for Respondent No.1.

       Dr. Farogh Nasim for Respondent No.2.

            Dates of hearing: 25th January and 24th September, 2011.