Andhra Pradesh High Court - Amravati

M/S Shree Technologies ... vs Karri Lalitha Kumari on 29 November, 2022

Bench: Dr V Sagar

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

           CIVIL REVISION PETITION No.2465 of 2019

ORDER:

The sole defendant before the trial Court is the revision

petitioner. The two plaintiffs in the suit are the respondents

herein. This civil revision petition filed under Section 115

C.P.C. questions the correctness of order dated 25.02.2019 of

learned II Additional Senior Civil Judge, Visakhapatnam in

I.A.No.813 of 2018 in O.S.No.514 of 2015. By the impugned

order, which was made under Order XII Rule 6 C.P.C., the trial

Court held its opinion that there were adequate admissions to

pass a preliminary decree directing the tenant to vacate the suit

schedule property. It is in challenge to that, the

tenant/defendant has come up with this revision.

2. O.S.No.514 of 2015 is a suit filed with the following

prayers:

"a) Directing the defendant to vacate the plaint schedule property, his men and belongings and put the plaintiffs in vacant plaint schedule property;

b) Directing the defendants to pay the mense profits or damages as prayed by the plaintiffs to be ascertained by the Advocate Commissioner as appointed by the Honourable Court upon separate application filed by the plaintiff in the event of decree;

Dr. VRKS, J C.R.P.No.2465 of 2019

c) Costs of the suit;

d) for such other relief or reliefs as the Honourable Court deems fit and proper in the circumstances of the case."

3. Defendant filed a written statement traversing all the

plaint mentioned allegations and sought for dismissal of the suit

with exemplary costs stating that the litigation commenced is

vexatious. While the suit was pending and three years after the

institution of the suit, the plaintiffs moved an application under

Order XIX Rule 6 read with Section 151 C.P.C. with the

following prayer:

"For the reasons stated in the accompanying affidavit, the petitioner/plaintiffs most respectfully pray that the honourable court be pleased in the ends of justice and fair play to take cognizance of the admissions of the jural relationship and service of quit notice under section 106 of the Transfer of Property Act, 1882 and also the fact that in law the tenancy is only month-to-month and grant decree and judgment in favour of the plaintiffs and against the respondent/defendant directing the defendant to vacate the suit schedule property forthwith or within such time as be specified by the honourable Court, as otherwise the petitioner/plaintiffs are bound to suffer irreparable loss and injury."

That application is I.A.No.813 of 2018.

Dr. VRKS, J C.R.P.No.2465 of 2019

4. The defendant in the suit filed a verified counter

contending that the application is not maintainable and there

are no merits in it and it had to be dismissed with costs.

5. After hearing learned counsel on both sides and after

considering the plaint and the written statement and the

contents of the petition and the counter, a very elaborate order

consisting of 33 pages was passed by learned II Additional

Senior Civil Judge, Visakhapatnam and finally it allowed the

petition and passed the following order:

"41. In the result, petition is allowed by preliminarily decreeing the suit directing the defendant to vacate the plaint schedule property and to put the plaintiffs in vacant possession of plaint schedule property within three months of this order and that plaintiffs are at liberty to file a separate application for ascertaining the mesne profits/damages, as prayed by them by way of appointing an advocate commissioner for that purpose."

Then it also passed a preliminary decree. A copy of which is

available on record and the preliminary decree that is passed is

extracted here:

"1. that the petition be and the same is hereby preliminarily decreed;

2. that the respondent/defendant be and hereby directed to vacate the plaint schedule property and to put the

Dr. VRKS, J C.R.P.No.2465 of 2019

plaintiffs in vacant possession of plaint schedule property within three months of this order;

3. that the plaintiffs are at liberty to file a separate application for ascertaining the mense profits/damages, as prayed by them by way of appointing an advocate commissioner for that purpose;

4. that there be no order as to costs.

(copy of the plaint schedule is attached hereto)"

6. It is as against that, the present civil revision petition is

filed. Various grounds are urged stating that under Order XII

Rule 6 C.P.C. a judgment could be made only when admissions

were clear and categorical and in the case at hand, they were

missing and the trial Court erroneously decided the case and it

failed to notice that a judgment on admissions is not inferential

and not mandatory and is discretionary and the trial Court

failed to exercise its discretion in accordance with law and

therefore, interference is needed especially since the written

statement discloses agreement for sale, pendency of another

suit and right to enjoy common amenities.

7. As against that order, learned counsel for

respondents/plaintiffs in the suit submit that plaintiffs as

landlords sued the tenant seeking for eviction and from the

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written statement the jural relationship of landlord and tenant

was admitted and the pleadings of the plaintiffs about issuance

of quit notice under Section 106 of the Transfer of Property Act

was not denied by the defendant in the suit and the factum of

notice and the validity of the notice were never questioned in the

written statement and it was in those circumstances, the trial

Court rightly concluded the admissions available in the written

statement and partly decreed the suit by passing a preliminary

decree leaving open other issues to be decided by way of

subsequent applications. There was no error of jurisdiction and

this revision is not maintainable.

8. In what circumstances the trial Court could pass the

judgment on admissions has been subject matter of decision in

many cases. Learned counsel for revision petitioner cited

Himani Alloys Limited v. Tata Steel Limited1, Hari Steel &

General Industries Ltd. v. Daljit Singh2 and Karan Kapoor

v. Madhuri Kumar3.

(2011) 15 SCC 273

(2019) 20 SCC 425

2022 Lawsuit (SC) 776

Dr. VRKS, J C.R.P.No.2465 of 2019

9. As against that, learned counsel for respondents cited

Payal Vision Ltd. v. Radhika Choudhary4. Principles of law

laid down therein are the guiding principles for every Court

while adjudicating the questions concerning judgment on

admissions. It is to be noted that on these principles of law

there is absolutely no controversy. The purport of these

judgments is that a judgment on admissions is a matter of

discretion and it is not mandatory for a trial Court to decide a

suit only based on admissions and these principles further

indicate that a Court should see whether the admission is clear,

whether the admission is unambiguous and whether the

admission is unconditional. It is only in those circumstances,

the Courts are empowered to act upon such admissions and

decide the lis.

10. There are few more facts that are required to be noticed in

this revision. During the pendency of this revision, at the

request of the revision petitioner, on an application this Court

had earlier granted stay of further proceedings. Thereafter, the

respondents in this revision moved I.A.No.1 of 2022 praying to

vacate the said interim orders. The material papers presented

(2012) 11 SCC 405

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indicate something that is relevant for consideration here. The

present revision petitioner filed A.S.No.174 of 2019 before the

learned II Additional District Judge, Visakhapatnam. At para

No.3 for the grounds of appeal what is mentioned is extracted

here:

"III. (.....) Hence, the appellant prefers this appeal as aggrieved by the said preliminary decree and order passed in I.A.813/2018 in O.S.514/2015, consequently allowing the suit O.S.514/2015 by passing a preliminary decree and judgment on 25-02-2019 by the Honourable II-Addl.Senior Civil Judge Court, Visakhapatnam."

The prayer in the appeal is also extracted here:

"V. For these and other reasons to be submitted at the time of hearing of the appeal, the appellant prays that the Honourable Court may be pleased to allow the appeal.

(a) By setting aside the preliminary decree and order dt.25.02.2019 passed in O.S.514/2015 by the Honourable II Additional Senior Civil Judge, Visakhapatnam and to dismiss the suit O.S.514/2015;

(b) For costs

(c) For such other relief or reliefs as this Honourable Court deems fit and proper in the circumstances of the appeal."

11. That appeal was presented before the learned II Additional

District Judge, Visakhapatnam on 17.6.2019. The same

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appellant is the revision petitioner herein and the present

revision petition was filed much thereafter on 16.08.2019.

These facts are not disputed by the revision petitioner. Thus,

the defendant in the suit, who is admittedly a tenant under the

respondents/plaintiffs having suffered an adverse order at the

hands of the trial Court, preferred an appeal before the first

appellate Court and then preferred this civil revision petition

before this Court. This civil revision petition is completely silent

about presentation of first appeal by this revision petitioner.

Thus, there is conspicuous choice exercised in not mentioning

about the appeal. It is on this aspect of the matter, the

respondents/ plaintiffs seriously argued that the conduct of the

revision petitioner is nothing short of playing fraud on the

Court; and fairness in pleadings is the prerequisite when any

litigation is presented to any Court of law more so before this

Court. How such conduct should be denounced and should be

dealt with harshly is argued citing Prestige Lights Ltd. v.

State Bank of India5, K.D.Sharma v. Sail6 and K.Jayaram

v. Bangalore Development Authority7.

(2007) 8 SCC 449

(2008) 12 SCC 481

2021 SCC Online SC 1194

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12. Thus, as the things stand now the decision that was

taken by the trial Court is the subject matter of debate and

decision pending before the first appellate Court as well as this

revisional Court.

13. This fact situation has given rise to two important

contentions before this Court. The first contention is that a

revision against the impugned order is not maintainable. The

second contention is even if the revision is maintainable, the

submissions of the revision petitioner should not be considered

on the sole ground that it is guilty of suppression of material

facts.

14. On the question of maintainability of revision, the learned

counsel for the revision petitioner submits that since the order

is passed by the trial Court on an interlocutory application, the

revision petition is maintainable.

15. As against it, learned counsel for respondents submits

that a judgment on admissions is a statutory provision

contained in Order XII Rule 1 read with Section 6 C.P.C. and

therefore, the trial Court taking a decision based on the

pleadings cannot be called as an erroneous exercise of

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jurisdiction which is not vested with it and therefore, the

revision is not maintainable.

16. For appropriate consideration of these aspects, one is

required to notice the following provisions:

Order XII Rule:

"1. Notice of admission of case:................

2. Notice to admit documents...........

2.A. Document to be deemed to be admitted if not denied after service of notice to admit documents...........

3. Form of notice:.........

4. Notice to admit facts:

Any party, may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts, mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs:

Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice.

5. Form of admissions:...........

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6. Judgment on admissions:-

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may thing fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub- rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

17. Thus, the above provision would show that the powers

under Order XII C.P.C. could be exercised: one with reference to

a finding on a fact based on admissions. Where this finding is

made on admissions an order is to be passed in that regard and

that by itself does not dispose of the entire suit or a part of the

suit. Therefore, the provision allows to make such order as is

required. The other aspect of the matter is where the

admissions are on such facts which allow the Court to decide a

particular issue or the entire suit itself. In such cases, the

decision has to be in the form of a judgment. The provisions

makes it clear that the power of the Court in deciding anything

under Order XII C.P.C. is available with it and it could be

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exercised by itself on its own or it could also be exercised at the

instance of parties who bring it to the notice of the Court by

moving an application. That moving an application either for an

order or for a judgment on an issue is one relevant factor that is

to be kept in notice by the Courts. In the case at hand, the

prayer was for eviction of a tenant on the allegation that despite

due termination of tenancy, the tenant did not vacate the

premises. It is that aspect of the matter that was decided by the

trial Court on admissions and the trial Court decided it in

favour of the landlord and passed the judgment. That there are

admissions is a fact that was brought to the notice of the Court

only by way of the interlocutory application moved by the

plaintiffs. That application was not for inviting a finding merely

on one of the facts which could be utilized while trying the suit.

That application is for decision on one of the important prayers.

The distinction between an application inviting a decision on an

admitted fact and an application requesting grant of one of the

prayers in the suit are two different things. Since in the case at

hand, a main prayer in the suit itself was decided on

admissions the Court below passed a preliminary decree. Since

there is a decree the tenant preferred first appeal. When it had

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preferred first appeal, what is the need for the tenant to also

move this revision petition.

18. One may also notice the definition of decree.

"The term 'decree is defined by Sub-section (2) of Section 2 C.P.C. as under:

"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include --

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

19. It is clear from the definition of the term 'decree' that

it may be either preliminary or final and a decree is

preliminary when further proceedings have to be taken

before the suit can be completely disposed of. It further

transpires from the definition of 'decree' that any order

passed at any stage of its proceeding in a suit by which the

rights of the parties with regard to all or any of the matters

in controversy in the suit are conclusively determined shall

Dr. VRKS, J C.R.P.No.2465 of 2019

tantamount to a 'decree' in the eye of law. In the instant

case, indisputably, the impugned 'order' conclusively

determines the rights of parties in regard to the matter in

controversy and accordingly the 'decree' has been drawn

up by the Court below.

20. The reading of Order 12, Rule 6 of C.P.C. and the

plain language of this provision read with Section 2(2)

C.P.C. makes it crystal dear that any order passed by the

Trial Court allowing the plaintiff's claim either partly or

fully on the basis of defendant's admission at any stage of

the suit is a "judgment" to be followed by a 'decree', either

preliminary or final, and that it is not merely an interim

order passed in the proceeding deciding the rights and

obligations of the parties.

21. Therefore, there cannot be any dispute as to the legal

position that any order passed under Order 12, Rule 6

C.P.C. by the Trial Court is a "decree" within the meaning

of Section 2(2) C.P.C.

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One should also notice "Section 115 Revision -- (1)....

(2) The High Court shall not under this Section, vary, or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation: In this Section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."

22. The plain language of Sub-section (2) makes the legal

position clear that no revision lies to the High Court from any

decree or order passed by a subordinate Court in the course of

the suit or other proceeding if an appeal lies against the same

either to the High Court or to any Court subordinate thereto. In

that view of the mandate of law contained in Section 115(2)

C.P.C. it was rightly submitted by Learned Counsel for

respondents that since the impugned decree of the Court-below

is an appealable one by virtue of Section 96 C.P.C. this revision

therefrom is incompetent. The revisionist could raise all

objections available to it against the impugned decree of the

Court-below in the appeal against it, including the ground that