Ashok Kumar Vats vs Deepak Vats
2011 Latest Caselaw 6336 Del

           THE HIGH COURT OF DELHI AT NEW DELHI


%                                             Judgment delivered on: 23.12.2011


                  I.A. No.3357/2010 in C.S. (OS) No.1424/2009


Ashok Kumar Vats                                                  ......Plaintiff
                            Through           Mr. Vijay K. Gupta, Adv. along with
                                              plaintiff in person.

                            Versus


Deepak Vats                                                        ......Defendant
                            Through           Mr. Aly Mirza, Adv. along with
                                              defendant in person.

CORAM:
HON'BLE MR JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for recovery of Rs.60,43,218/- together with interest @ 9% per annum against the defendant.

2. During the pendency of the suit, the plaintiff has filed the present application bearing I.A. No.3357/2010 under Order XII, Rule 6 read with Section 151 CPC, stating therein that there are clear, unambiguous and unequivocal admissions on the part of the defendant. Thus, the suit of the plaintiff is liable to be decreed in view of the admission made by the defendant in the written statement.

3. Both the parties admittedly are related to each other. The defendant was directed to be present in person in the Court along with the original documents for recording his statement under Order X, Rule 2 CPC. Later on, as per the orders, both the parties were again directed to remain present in the Court and the matter was adjourned for the said purpose as well as for hearing of the present application. When the matter was taken up on 23.11.2011, the original documents were also examined by the Court.

4. The main contention of the plaintiff is that there are clear admissions on the part of the defendant, the details of which were given in the pleadings which are reproduced as under:-

(i) It is an admitted case of the defendant that FIR No.568/2007 dated 05.08.2007 under Sections 308/341/34 IPC with P.S. Mehrauli, has been registered against the defendant and his sons on the basis of complaint made by the son of the plaintiff.

(ii) After the said FIR, the parties being real brothers and with the intervention of mediators/family members, the dispute between them were settled by arriving at net amount of Rs.70,44,258/- payable within two years, with effect from 04.01.2006 by defendant to the plaintiff by way of hand-written note duly signed by the parties and the mediators.

(iii) This compromise was followed by settlement of dispute regarding the immovable property by way of written family

memorandum dated 25.08.2007 duly signed by the parties and mediators.

(iv) It is further an admission on the part of the defendant that on the basis of the said compromise as referred above, the defendant and his sons got anticipatory bail vide order dated 14.09.2007 passed by the Court of Additional Sessions Judge, Patiala House Courts, New Delhi.

(v) It is also admitted by the defendant that out of the agreed sum of Rs.70,44,258/-, a sum of Rs.15,00,000/- was paid leaving behind a sum of Rs.55,44,258/-.

(vi) Vide order dated 10.01.2008, the defendant and his sons confirmed the said settlement before the Court of ASJ and sought time to seek instructions to pay the balance amount, vide order dated 10.01.2008.

(vii) So much so, on the basis of the said compromise, the defendant initiated a Criminal Writ Petition under Articles 226 & 227 of the Constitution of India read with Section 482 Cr.P.C. for quashing of the said FIR No.568/2007 being Crl. Writ No.1163/2007. In the said writ petition also, the above said compromise has been admitted by the defendant in clean, clear and unambiguous terms.

(viii) The said averments in the writ petition are confirmed by the defendant by way of his own affidavit along with it. In this manner, the said compromise has been duly acknowledged

by the defendant in the judicial proceedings including the petition filed by him before this Court confirming the same.

(ix) The aforesaid admissions, in particular, the affidavit of the defendant are clear, clean, unambiguous and unequivocal on the part of the defendant. The same squarely falls within the ambit of Order XII, Rule 6 CPC, as the said admissions are conclusive being in the judicial proceedings.

5. In support of his submissions, the learned counsel for the plaintiff has referred the following judgments:-

(a) Surjit Sachdev vs. Kazakhastan Investment Services Pvt. Ltd., reported in 1997 II AD Delhi 518.

(b) Karam Kapahi vs. Lal Chand Charitable Public Trust, reported in (2010) 4 SCC 753.

(c) Charanjit Lal Mehra vs. Kamal Saroj Mohan, reported in (2005) 11 SCC 279.

6. The application is strongly opposed by the defendant through his counsel, Mr. Aly Mirza, Advocate who has referred various paras of the written statement as well as the reply filed by the defendant. In the written statement, the defendant has denied each and every fact stated in the plaint. The details of the same are given as under:-

(A) It is stated by the defendant that the plaintiff has made a false story in paragraph-1 of the plaint wherein it was stated that the plaintiff and the defendant had been carrying on a joint business in the name of the firm M/s Sapan Traders and the Uranus at Hauz Qazi, Delhi-110006 since the year 1978.

According to the defendant, the parties have never done any joint business under the said name. In fact, the said business was a partnership business by the plaintiff with one Mr. Pawan Kumar Jain which continued for two years and later on, it was run by the plaintiff as a proprietorship concern. The defendant had no concern with the business.

(B) It is also stated by the defendant that he started his own proprietorship business, i.e. "The Uranus" in 1987-88. The documents in this regard have been filed by the defendant along with the written statement.

(C) The case of the defendant is that the dispute between the parties is pertaining to the ancestral properties, the details of which are given in paragraph-7.2 of the written statement. The mediation by close relations was made regarding the use of the ancestral properties on 25.07.2008 and the entire settlement was about the ancestral property.

(D) In the written statement, it is specifically stated that the plaintiff has made an interpolation of the word "vyapar" (business) in place of "hissa" (share) at page-2 of the settlement document. The defendant has denied the said document during the admission/denial of the documents because of such interpolation. According to the defendant, no such settlement took place, as alleged by the plaintiff. The defendant has also mentioned that page No.1 of the alleged document is in ball-pen ink and not even signed by the parties, although some unknown signatures are there,

whereas page No.2 is in pilot pen ink and is not even signed by the parties concerned.

(E) It is stated by the defendant that it is a dishonest conduct of the plaintiff which can further be seen by the registered will of Smt. Kamla Devi, in her own handwriting. Smt. Kamla Devi is the mother of the parties. In the last para of the will, she has mentioned that the plaintiff, his wife and his children abused her and, therefore, she declared that the plaintiff should not even touch her dead body and the last rites be carried out by the defendant or his sons.

7. The above-mentioned defence was taken by the defendant who stated that the plaintiff is taking the advantage of the interpolation of the forged documents placed by the plaintiff along with the plaint. In nut-shell, the defendant has denied the settlement dated 01.08.2006 as according to him, it is a false and fabricated document.

8. In the case of Karam Kapahi and Ors v. Lal Chand Public Charitable Trust and Another; (2010) 4 SCC 753, it was observed as under:

"37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy" (see the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth (1876) 3 Ch D 637 in Chancery Division at p. 640).

38. In this connection, it may be noted that Order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:

"6. Judgment on admissions.--Any party may at any stage of a suit, where admissions of fact have been made, either on 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.

39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it "ex debito justitiate", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment."

9. In the judgment of Mahendra Verma v. Suresh T. Kailachand; FAO (OS) No. 228/2010, dated 16.04.2010 passed by the Division Bench, it was observed as under:

"6. After going through the written statement filed by the respondent and the documents placed on record, we are of the view that the learned Single Judge rightly dismissed the application under Order XII Rule 6 CPC. To obtain a decree on admission, the

plaintiff is under an obligation to show that there were unambiguous and unqualified admissions made by the defendant which would entitle the plaintiff to obtain a decree straight away without going for trial. In other words, it is for the plaintiff to prove that no trial in the suit is needed. We may also, quote for our benefit, the following observations of a Division Bench of this Court in Delhi Jal Board v. Surendra P. Malik ,104 (2003) DLT151 :

"9. The test, therefore, is (i) whether admission of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment."

10. After having considered the rival submissions of the parties as well as the pleadings, since the defendant has challenged the basic document, i.e. the settlement dated 01.08.2006, on the basis of which the plaintiff is seeking the relief of recovery of the amount. Therefore, this Court feels that the trial under these circumstances is required to decide the real controversy between the parties. The prayer made by the plaintiff to decree the suit on the basis of the admission cannot be granted unless the plaintiff establishes his case at the time of the trial.

11. Without going through anything on merits pertaining to the rival pleadings of the parties, this Court is not inclined to exercise the discretion to grant the prayer of Order XII, Rule 6 CPC. Therefore, the present application is dismissed.

MANMOHAN SINGH, J.

DECEMBER 23, 2011 jk