Ajay Bansal vs V.K.Anand
2011 Latest Caselaw 2349 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of judgment: 02.5.2011



+            R.S.A.No.41/2011 & CM No.3932/2011


AJAY BANSAL                               ...........Appellant
                          Through:   Mr.Brijesh Kumar Gupta,
                                     Advocate.

                     Versus

V.K.ANAND                                 ..........Respondent
                          Through:   Mr.K.K.Singh, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

25.11.2010 which had reversed the finding of the trial judge dated

17.3.2009. Vide judgment and decree dated 17.3.2009 the suit

filed by the plaintiff had been dismissed; in fact the plaint had

been rejected under Order 7 Rule 11 of the Code of Civil

Procedure (hereinafter referred to as 'the Code'). The impugned

judgment had reversed this finding. The impugned judgment was

of the view that the defendant had made certain clear and

categorical admissions in his defence. Plaintiff was entitled to a

decree on admissions under Order 12 Rule 6 of the Code; suit of

the plaintiff had accordingly been partly decreed; decree for

mandatory injunction has been passed directing the defendant to

produce the original documents referred to by him in his written

statement and hand over the self attested copies thereof to the

plaintiff.

2. The impugned judgment had decreed the suit of the plaintiff

on admissions. There was admittedly no application under Order

12 Rule 6 of the Code. Certain purported admissions of the

defendant as appearing in his written statement had been relied

upon to afford the aforenoted relief to the plaintiff. Written

statement has been perused. In the written statement the defence

of the defendant was that he had purchased the property from the

plaintiff vide an agreement to sell, payment receipt, deed of sale,

possession letter and affidavit. He had denied the so-called loan

agreement which had been alleged by the plaintiff. The

averments made in the written statement do not in any manner

amount to an admission by virtue of which the suit of the plaintiff

could have been decreed. Even otherwise before the first

appellate court the judgment impugned was the judgment dated

17.3.2009 whereby on the reading of the averments made in the

plaint the plaint had been rejected. The trial judge had only

examined the plaint. Trial judge had noted that the averments are

vague and no cause of action has arisen. Perversity in the finding

in the impugned judgment is noted. The finding in the impugned

judgment has raised a substantial question of law.

3. This is a second appeal. It is admitted. The following

substantial question of law has arisen:

Whether the finding in the impugned judgment dated

25.11.2011 is perverse? If so, its effect?

4. This is a fit case for remand. It requires trial. There are no

clear and unequivocal admissions. Learned counsel for the

appellant has urged that by setting aside the impugned judgment

dated 25.11.2010 this court must also appreciate that the order of

the trial judge dated 17.3.2009 whereby the plaint had been

rejected for want of cause of action must be permitted to be

reconsidered by the trial judge. This is a necessary corollary and

would flow in view of the fact that the judgment dated 25.11.2010

is being set aside.

5. The matter is accordingly remanded back to the learned

District & Sessions Judge (North/East District, Karkardoom) who

will assign the case to the concerned Civil Judge who shall decide

the case on its merits and the plea of the appellant that the plaint

does not disclose cause of action shall be considered afresh.

6. At this stage learned counsel for the plaintiff/respondent

states that he will be moving an appropriate application seeking

amendment of the plaint.

7. Parties are directed to appear before learned District &

Sessions Judge (North/East District, Karkardooma) on 09.5.2011

at 10.30 AM.

8. Appeal as also pending application is disposed of in the

above terms.

INDERMEET KAUR, J.

MAY 02, 2011 nandan