AMIR BIBI through Legal Heirs vs MUHAMMAD KHURSHID and others

ORDER

' JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment, dated 2-11-2000 passed by learned Division Bench of Lahore High Court (Multan Bench) whereby the Regular First Appeal preferred on behalf of respondents was allowed with cost of Rs,2,00,000.

2. Precisely stated the facts of the case are that "Ghulam Muhammad owner of land in dispute died on 12-1-1948 and his estate was inherited by his son Ghulam Shabbir allegedly under Customary Laws. On the death of said Ghulam Shabbir, respondents Nos.2 to 6 in the present petition, inherited the land as his legal heirs. Ghulam Shabbir during the life and after his death, his legal heirs sold the major portion of the suit property through various registered sale-deeds, and mutations, and till 1996 all the land in dispute was alienated in favour of more than 250 persons and they were also delivered possession. Mst. Ameer Bibi, respondent No,1 filed a civil suit for declaration and permanent injunction claiming that she is entitled to 1/3rd share in the estate of Ghulam Muhammad under Islamic Law being his daughter and all the transactions in favour of the respondents/vendees are ineffective and against her rights; the respondents be restrained to interfere in her right of ownership over the property in dispute. The suit was resisted by all the defendants raising different preliminary objection inter alia the suit was barred by limitation; the applicability of the Customary Laws to the inheritance of Ghulam Muhammad; the suit being collusive between the respondent No,1 and respondents Nos.2 to 6. Before framing the issues, an application was moved by respondent No,1 under Order 12, rule 6 and Order 8, rules 4 and 5 read with section 151, C.P.C. Claiming the suit be decreed on the admissions made by the respondents in their written statements. The application was resisted by present appellants/defendants, but the learned Trial Court accepted the application and decreed the suit vide impugned judgment and decree, dated 4-4-1998", which was assailed by way of regular first appeal which has been accepted vide judgment impugned with cost or rupees two lacs, hence this petition.

3. Heard Mian Saeedur Rehman Farrukh, learned Advocate Supreme Court on behalf of petitioners and Mr. Ihsanul Haq Chaudhy, learned Advocate Supreme Court for caveators.

4. It is an admitted feature of the case that matter was not decided on merits but on the basis of application moved under Order 12, rule 6 read with Order 8, rules 4 and 5, C.P.C. The pivotal question which needs determination would be as to whether on the basis of admission irrespective of the fact whether it is categoric, specific or otherwise a suit could be decreed? The said question has been examined in the light of provisions as contemplated in Order 8, rule 4 and Order 12, rule 6, C.P.C. Which are free from any ambiguity and hardly need any scholarly interpretation being couched in a simple and plain language. 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, categoric 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 SCM R 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.

' In sequel to the above mentioned discussion this petition is converted into appeal and accepted partly only up to the extent of imposition of cost of rupees two lacs which is set aside. The impugned judgment being well based and in accordance with law is kept intact except as mentioned hereinabove.

' The appeal is disposed of in above terms.