Delhi High Court

M/S Srijee Estates & Investment ... vs Mukesh Kumar Rana & Ors on 2 February, 2012

Author: G. S. Sistani

$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 1791/2009

% Judgment dated 02.02.2012

M/S SRIJEE ESTATES & INVESTMENT PRIVATE LTD ..... Plaintiff
Through Mr.Atul Sharma and Mr. Ravi Sharma,
Advs.

versus

MUKESH KUMAR RANA & ORS ..... Defendant
Through Mr.G.S. Raghav and Mr. Pankaj Kumar,
Advs. for deft. No.1
Mr. Deepak Khosla, Adv. for deft. No.2

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

IA No. 8409/2011(by deft. No .1)

1. This is an application filed by defendant No. 1 under Order XII Rule 6 r/w
Section 151 of the Code of Civil Procedure for dismissing the present suit
on the basis of admissions made by the plaintiff during cross-examination.
2. The necessary facts to be noticed are that the plaintiff has filed the present
suit for declaration, cancellation of release deed dated 29th July, 2009 and
for permanent injunction restraining the defendants No. 1 to 4 from
alienating the suit property and creating any third party interest thereon in
any manner.
3. Learned counsel for the applicant has drawn the attention of the Court to
paragraph No. 2 of the plaint wherein it has been averred that the plaintiff

CS(OS) 1791/2009 Page 1 of 12
is in possession of the suit property being 1/3 rd share in land measuring 35
Bigha 19 Biswas bearing Mustatil No. 12, Killa No.19 (4-08), 20 (1-08),
21(3-15), 22 (4-16), 31(2-02), 32(0-19), 35(0-06), 36(0-02), Mustatil No.
18, Killa No. 1(4-16), 2(4-16), 10(6-12), Mustatil No. 19, Killa No. 5(1-
07) and 6(0-12) situated in the revenue estate of Village Kapashera, Tehsil
Vasant Vihar, New Delhi-110037. The possession pertaining to the
remaining undivided portion of the land is as under:-
Undivided 1/3 Sh. Devender Singh
Undivided 1/3 Sh. Mukesh Kumar Rana, the defendant No.1

4. Mr. Raghav, learned counsel for defendant No. 1/applicant, contends that
the stand with regard to the possession is reiterated by the plaintiff in the
replication which has been filed and also in the affidavit by way of
evidence. Counsel further contends that during the cross-examination, the
deponent, PW-1 Mr. Harish Kumar, has stated that "presently possession
of the suit property has been taken over by someone. We came to know
in August, 2009 that Mr. M.K. Rana, defendant No. 1 entered possession
of the vacant land." Counsel while relying upon the proviso to Section
34 of the Specific Relief Act contends that it is on the basis of this
statement which has been made the suit should be dismissed. Section 34
of the Specific Relief Act reads as under:-
34. Discretion of court as to declaration of status or right.- Any
person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further
relief:

CS(OS) 1791/2009 Page 2 of 12
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of
title, omits to do so."

5. Learned counsel for the applicant submits that a suit for declaration,
simplicitor without claiming any relief of possession, is barred under
Section 34 of Specific Relief Act and thus the present suit be dismissed.
In support of his plea, counsel for the applicant has relied upon
Meharchand Das Vs. Lal Babu Siddique and Ors., reported as (2007)
14 SCC 253, more particularly, paragraphs 7 & 12 which are reproduced
below:-
"7. Mr. S.B. Upadhayay, learned senior counsel appearing on
behalf of the appellants would submit that in view of the express
bar contained in the proviso appended to Section 34 of the Specific
Relief Act, 1963, the suit was not maintainable. It was submitted
that in any event the Collector having not been impleaded as a
party, the suit should have been dismissed.

12. The High Court, in our opinion, committed a manifest error in
not relying upon the decision of this Court in Vinay Krishna
(supra). The said decision categorically lays down the law that if
the plaintiff had been in possession, then a suit for mere declaration
would be maintainable; the logical corollary whereof would be that
if the plaintiff is not in possession, a suit for mere declaration
would not be maintainable."

6. Counsel for the applicant has also relied upon Thimmaiah Vs. Shabira
& Ors., reported as 2008 4 SCC 182, more particularly, paragraph 10,
drawing the analogy with respect to Section 38 of the Specific Relief Act.
7. In support of his plea that on account of a clear admission, the court must
not prolong the trial and in case where the claim is admitted, Order XII
Rule 6 CPC should be invoked to enable the parties to obtain speedy
judgment in the matter, counsel relies upon Charanjit Lal Mehra and

CS(OS) 1791/2009 Page 3 of 12
Ors. Vs. Kamal Saroj Mahajan (Smt.) and Anr., reported as 2005 11
SCC 279, more particularly paragraph 8, which is reproduced below:-
"8. Learned counsel made an alternative submission that the
revision petition was not maintainable and the lease deed is not
registered one and therefore, it is not maintainable. None of these
objections were raised by the defendants before the learned Single
Judge. Even before the trial court, the non-registration of lease deed
(which did not prescribe any term) was not put in issue. It is only
devised now to somehow defeat and delay the eviction and
possession of the premises to the landlady. In fact, Order XII Rule
6, C.P.C. is enacted for the purpose of and in order to expedite the
trials if there is any admission on behalf of the defendants or an
admission can be inferred from the facts and circumstances of the
case without any dispute; then, in such a case in order to expedite
and dispose of the matter such admission can be acted upon. In the
present case, looking at the terms of lease deed, there can be no two
opinions that the tenancy was joint/ composite and not individual
one. Therefore, on these admitted facts the view taken by learned
Single Judge of the High Court appears to be justified. In this
connection, a reference may be made to a decision of this Court in
the case of Uttam Singh Duggal & Co.Ltd. vs. United Bank of
India & Ors. reported in (2000) 7 SCC 120. Their Lordships have
held as follows:

"In the Objects and Reasons set out while
amending Rule 6 of Order 12 CPC it is stated that
„where a claim is admitted, the court has jurisdiction to
enter a judgment for the plaintiff and to pass a decree
on admitted claim. The object of the Rule is to enable
the party to obtain a speedy judgment at least to the
extent of the relief to which according to the admission
of the defendant, the plaintiff is entitled.‟

The Supreme Court should not unduly narrow
down the meaning of this Rule as the object is to
enable a party to obtain speedy judgment."

Therefore, in the present case, as appearing to us, there is a
clear admission on behalf of the defendants that there existed
a relationship of landlord and tenants, the rent is more than
Rs.3500/- and the tenancy is joint and composite one. As

CS(OS) 1791/2009 Page 4 of 12
such on these admitted facts, there is no two opinion in the
matter and the view taken by the learned Single Judge of the
High Court appears to be correct and there is no ground to
interfere in this Special Leave Petition and the same is
dismissed."

8. Present application is opposed by counsel for the plaintiff as also
defendants No.3 and 4 who are supporting the case of the plaintiff. While
counsel for defendants No.3 and 4 submits that the property, subject
matter of the present suit, was alienated by the defendant No. 2 on the
basis of registered Power of Attorney and Rs.4 ½ Crore have been taken
in cash by defendant no.2 the Attorney whereas there is an express bar in
the Special Power of Attorney by which the Power of Attorney holder
could not accept any cash. In response to this submission of counsel for
defendant Nos.3 and 4, counsel for defendant No. 1 submits that there are
admitted documents on record to show that this amount has been received
by defendants No.3 and 4.
9. Mr. Atul Sharma, learned counsel for the plaintiff, submits that present
application is not maintainable on account of the fact that the admissions,
sought to be relied upon by the applicant/defendant no.1, are completely
misplaced. Counsel for the plaintiff further submits that the witness is
still in the witness box and his evidence has not yet been concluded, this
witness has been cross-examined only on one occasion, the remaining
cross-examination is yet to be concluded and thereafter the plaintiff will
have a right not only to re-examine the plaintiff but to lead further
evidence in the matter. Counsel next submits that to invoke the provision
of Order 12 Rule 6 CPC the admissions must be clear, unambiguous and
unequivocal. The portions of the evidence, sought to be relied upon by
the applicant, have been read out of context.

CS(OS) 1791/2009 Page 5 of 12
10. It is next contended by counsel for the plaintiff that the suit property
pertains to open land which is undivided. It is the common case between
the parties that the land, in question, is yet to be partitioned and, thus, it
cannot be said as to who is in possession of which portion of the land. It
is further contended that three plaintiffs are the legal owners and the
documents of title are in their possession which fact has been explained
by the witness during the cross-examination. Counsel further submits that
during the cross-examination, the witness has expressly stated that since it
is a vacant land, they are in possession as title deed holders. It is only
thereafter the witnesses stated that the possession has been taken over by
someone else and it is yet pre-mature to derive at the conclusion that the
plaintiff is out of possession as the witness has not completely explained
his stand. Counsel next submits that in the later portion of the cross-
examination, the witness has volunteered that there are three portions in
the undivided land and the company has not given possession to anyone.
This witness further goes on to say that he has lodged a police complaint
against Mr.Mukesh Rana against his act of possession.
11. In support of his plea that in case of undivided land it cannot be said that
who is in possession of which part, counsel has relied upon Ashan Devi
And Anr. Vs. Phulwasi Devi, reported as 2003 12 SCC 219, more
particularly, paragraph 27 which is reproduced below:-
"27. There is fallacy in the above reasoning. As has been held by
this court in the case of Brahmdeo Chaudhary (supra), a third party
resisting or obstructing the execution of the decree can also seek
adjudication of his rights under Order XXI Rule 97 in the same way
as the Decree Holder. If that be so, it seems illogical that the third
party which complains of actual dispossession because of the
delivery of possession in execution to the Decree Holder should not
be allowed to claim adjudication of his rights through the executing
court. An interpretation of the provision which promotes or fulfils
the object of the amended provisions of the Code of curtailing

CS(OS) 1791/2009 Page 6 of 12
litigation, has to be preferred to the one which frustrates it. The
High Court also lost sight of the fact that the property involved was
a vacant land and it could have been possessed only by having
ownership and control over it. Mere physical absence of the third
party at the time of execution of the decree was not a relevant fact
to reject application under Order XXI Rule 99 of the Code. From
the trend and ratio of decisions of this Court surveyed above, if the
Objectors would have been present at or near the vacant land at the
time of execution of a decree and had offered obstruction or
resistance to the execution, they would have been entitled to seek
adjudication of their rights and claims through the executing court
under Order XXI Rule 97. On the same legal position and
reasoning even though the Objectors were not in actual and
physical possession of the vacant land, but as a result of delivery of
possession of the land through Nazir to the decree holder, lost their
right and control over the land to put it to their use, they will have
to be treated to have been "dispossessed" within the meaning of
Order XXI Rule 99 of the Code. Such interpretation would fulfil
aim and object of the amended provisions of the Code by allowing
adjudication of disputes of title between the decree holder and the
third party in the executing court itself without relegating them to
an independent litigation."

12. With respect to the same plea, counsel for the plaintiff has also placed
reliance in the case of Navalram Laxmidas Devmurari Vs. Vijayaben
Jayvantbhai Chavda, reported as AIR 1998 Gujarat 17.
13. I have heard counsel for the parties and considered their rival contentions.
The short point which comes up for consideration before this Court is as
to whether the admissions made by the witness of the plaintiff are clear
and unambiguous and whether this is a fit case for dismissing the suit
under Order 12 Rule 6 CPC.
14. In the case of Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh
Chadha (HUF) and Anr., reported as (2010) 6 SCC 601, the Apex Court
in para 12 to 19 has held as under:
"12.It may be noted here that in this case parties have confined their
case of admission to their pleading only. The learned counsel for

CS(OS) 1791/2009 Page 7 of 12
the respondents- plaintiffs fairly stated before this Court that he is

not invoking the case of admission "otherwise than on pleading". That being the position this Court finds that in the pleadings of the appellant there is no clear admission of the case of respondents- plaintiffs.

13.In this connection reference may be made to an old decision of the Court of Appeal between Gilbert vs. Smith reported in (1876) 2 Chancery Division 686 (CA). Dealing with the principles of Order 40 Rule 11, which was a similar provision in English Law, James, L.J. held: (Ch D p.687)

"if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to the Court at once to have that thing done, without any further delay or expense".

(emphasis supplied)

14.Lord Justice Mellish expressing the same opinion made the position further clear by saying:

"it must, however, be such an admission of facts as would show that the plaintiff is clearly entitled to the order asked for".

The learned Judge made it further clear by holding: (Gilbert case, Ch D p.689)

"the rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleading which clearly entitles the plaintiff to an order, then the intention was that he should not have to wait but might at once obtain any order...."

(emphasis supplied)

15.In another old decision of the Court of Appeal in the case of Hughes vs. London, Edinburgh, and Glasgow Assurance Company [(189i) 8 TLR 81 (CA), similar principles were laid down by Lopes, L.J. wherein His Lordship held:

"judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal".

Both Lord Justice Esher and Lord Justice Fry concurred with the opinion of Lord Justice Lopes.

16. In yet another decision of the Court of Appeal in Landergan vs. Feast [(1886) 55 LT 42 (CA)], in an appeal from Chancery Division, Lindley and Lord Justice Lopes, L.JJ, held that a party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.

17. The decision in Landergan (supra) was followed by the Division Bench of the Calcutta High Court in Koramall Ramballav vs. Mongilal Dalimchand [(1918-19) 23 Calcutta Weekly Notes 1017. Sanderson,C.J. speaking for the Bench, accepted the formulation of Lopes, L.J. and held that admission in Order 12, Rule 6 must be a "clear admission".

18. In J.C. Galstaun vs. E.D. Sassoon & Co., Ltd. [27 Calcutta Weekly Notes (1922-23) 783], a Bench of Calcutta High Court presided over by the Hon'ble Justice Sir Asutosh Mookerjee sitting with Justice Rankin while construing the provisions of Order 12, Rule 6 of the Code followed the aforesaid decision in Hughes (supra) and also the view of Lord Justice Lopes in Landergan (supra) and held that these provisions are attracted "where the other party has made a plain admission entitling the former to succeed. This rule applies where there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed".

In saying so His Lordship quoted the observation of Justice Sargent in Ellis vs. Allen [(1914) 1 Ch. D. 904 : (1911-12) All ER Rep 906.

19. Similar view has been expressed by Broadway, C.J., in Abdul Rahman and brothers vs. Parbati Devi [AIR 1933 Lahore 403]. The learned Chief Justice held that before a Court can act under order 12 Rule 6, the admission must be clear and unambiguous.

15. In the case of Uttam Singh Duggal & Co.Ltd. Vs. United Bank of

India, reported as (2000) 7 SCC 120 it was held that:-

"In the Objects and Reasons set out while amending Rule 6 of Order 12 CPC it is stated that „where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.‟

The Supreme Court should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment."

16. Although the Court has wide powers under Order XII Rule 6 CPC, however, the exercise of discretion is not a matter of right and rather it is a matter of discretion, which is to be exercised judiciously and in cases where complex and intricate questions are involved the Court should slow in exercising its jurisdiction under Order XII Rule 6 CPC. In the case of Premsuk Das Assaram v. Udairam Gungabux, reported at AIR 1918 Calcutta 467, the Single Judge has held as under:

".....a judgment on admission is not a matter of right, it is in the discretion of the Court so that if a case involves questions which cannot be conveniently disposed of on a motion under the rule, the Court may in the exercise of its discretion refuse the motion. The discretion is judicial and an erroneous exercise thereof may be open to correction by a Court of appeal which, however, on well established principles will be slow to interfere, unless either of the parties has been manifestly and unfairly prejudiced...."

17. There is no doubt that Order 12 Rule 6 CPC enables the court to grant a decree on the basis of admission, but the court is not bound to pass a decree on the basis of mere admissions made by a party. Order 12 Rule 6 CPC is an enabling provision, it does not provide that a decree must always be granted. The power vested in the Court is discretionary and

cannot be claimed as a matter of right and the court must satisfy itself that the admissions are categorical, unequivocal, clear, unambiguous. The Court must also keep in mind the nature of dispute and examine as to that the nature of admission is such which would make it impossible for a party making it to succeed.

18. I have carefully perused the plaint. The suit property pertains to the open land, which is undivided, and in the evidence the witness of the plaintiff further stated during cross-examination that they are in possession as title holders.

19. Applying the settled position of law to the facts of this case and taking into consideration the nature of dispute between the parties, I am of the view that this is not a fit case for grant of a decree on admission, more so the evidence of the plaintiff has just commenced, the plaintiff has just stepped into the witness box, besides the plaintiff has the option to re- examine PW-1 and also has the option to lead further evidence.

20. Reading of the evidence recorded in part of PW-1 cannot also lead to the conclusion that the evidence is clear, unequivocal and unambiguous. The nature of the dispute between the parties is also such that this Court is not satisfied that the application should be allowed.

21. Accordingly, having regard to the facts of this case, the nature of dispute between the parties and also taking into consideration the fact that the evidence of PW-1 is yet to be concluded, the plaintiff still has a right to recall this witness for further cross-examination and the admissions sought to be relied upon are neither clear nor unequivocal and unambiguous. In view of this, I find no merit in the present application and the same is accordingly dismissed.

CS(OS) 1791/2009

22. List before the Joint Registrar on 7th March, 2012.

G.S.SISTANI, J FEBRUARY 02, 2012 rs [pdf]