Rohit Rishi vs Rahul Rishi
2015 Latest Caselaw 6363 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Pronounced on:28.08.2015

+     IA No.3945/2013 in CS(OS) 2343/2012

      ROHIT RISHI                                   ..... Plaintiff
                          Through       Mr.Arjun Singh Bhati and
                                        Mr.Vivek Singh, Advocates.

                          versus

      RAHUL RISHI                                   ..... Defendant
                          Through       Defendant-in-person.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

IA No.3945/2013 (u/O 12 R 6 CPC)
1.

This application is filed under Order 12 Rule 6 CPC by the plaintiff seeking a decree of partition in respect of the property MIG Flat No.75, Site 3, Pocket 6, Nasirpur, DDA Flats, Dwarka, New Delhi. The accompanying suit is filed seeking a decree of partition in respect of the said suit property at Dwarka. Further, relief is also sought regarding four other properties, namely, (a) Shop No.18, D4/6 Vasant Kunj, DDA Market, New Delhi (b) LIG Flat at KD II/75B, Vikas Puri, New Delhi. (c) LIG Flat C5C/32 B, Janakpuri, New Delhi (d) Janta Flat, Dwarka. The plaintiff seeks rendition of accounts in favour of the plaintiff and against the defendant with directions to the defendant to render accounts in respect of the aforesaid four properties.

2. As far as the property in Nasirpur, Dwarka is concerned it is averred that at the time of her death the mother of the parties was the recorded owner of the said flat and it has devolved equally upon the plaintiff and defendant being the only Class-I Legal Heirs of late Mrs.Avinash Rishi, the mother of the parties.

Regarding the shop at Vasant Kunj, DDA Market, it was said to have been purchased from the funds acquired from late Shri Om Prakash Rishi, father of the parties. The suit property was said to have been purchased in the name of the defendant under trust and the same has been allegedly sold by the defendant and the defendant has not paid any amount towards the share of the plaintiff from the sale proceeds.

Regarding the flat at Vikas Puri, it is averred that the same was purchased by the mother of the parties from her own funds. It was sold and substantial sale proceeds were kept by the defendant under trust. It was agreed that the defendant shall make payment of the plaintiff's shares when the same was demanded.

Regarding the LIG flat at Janak Puri, the same was stated to be inherited by the mother of the parties. The sale proceeds are stated to have been appropriated by the defendant and the defendant has not paid the share of the plaintiff.

Regarding the Janta flat at Dwarka, it is averred that the plaintiff gave a No Objection to the defendant for selling the said flat as at that time the defendant was in dire need of money. Though the defendant had promised to pay the plaintiff's share the defendant has allegedly not paid the said amount.

3. It is urged that on 1.5.2012 the plaintiffs sent a notice to the

defendant to partition the Dwarka property and to also render the true and correct accounts in respect of the other properties mentioned in paragraph 4 of the plaint and elaborated above and make payment of the plaintiff's share alongwith interest. However, it is averred that the defendant has not complied with the same. Hence, the present suit has been filed.

4. The defendant in this case has been appearing in person. He has instead of filing a written statement filed a counter-affidavit listing his defence in detail. The plaintiff has filed a replication to the said counter- affidavit.

5. The counter-affidavit filed by the defendant and the replication filed by the plaintiff are replete with personal allegations by the respective parties against each other and their immediate family members. In the counter-affidavit, the defendant claims that the plaintiff was a poor student who was expelled from the school. It is also further stated that the plaintiff completed his degree through correspondence. Thereafter he persuaded the mother and the maternal grandfather to give their savings and jewellery amounting to 47.32 tolas of gold to the plaintiff. He utilised these funds and left for Australia where he is stated to have done some course in Hospitality Management from Melbourne where he consumed the value of the jewellery and around Rs.3 lacs from the savings of the mother and savings of the maternal grand father. All this took place around the year 2000. It is further stated that on 6.9.2001 the maternal grand father who supported the plaintiff died. However, the plaintiff did not turn up to pay his last repsects to the departed soul.

6. It is further averred that in 2002 the plaintiff offered to the mother to take her with him to Australia after her retirement. He is stated to have

on the pretext of settling the mother in Australia taken Rs.2 lacs from her account. He also made the mother withdraw Rs.50,000/- from her account in Syndicate Bank. Another sum of Rs.1,80,000/- was also withdrawn from the mother's account and deposited in the joint account of the plaintiff and the mother in Syndicate Bank on the pretext of taking her to Australia after her retirement. It is further averred that at the time of leaving for Australia, the plaintiff told the mother that while in Australia she would have to take care of all the work and also work in a store to survive in Australia. The mother hence refused to go stating that "whatever you have extorted you be happy but in future don't expect anything from me".

Regarding the Dwarka flat, it is stated that in 2003 the premises in Nasirpur, Dwarka was purchased for Rs.4,90,000/-. It is further averred that the said property was purchased by the endeavour of the defendant in the name of the mother as the mother was not maintaining good health.

7. It is further stated that the mother was diagnosed with cancer in April 2005 and after 5½ months she passed away on 9.9.2005. The plaintiff it is averred never came to visit the ailing mother or to pay his last respects.

8. Needless to add, the plaintiff in the replication has denied all these allegations. He admits that he could not come to Delhi at the time of the illness of his mother but gives some explanation and further states that his wife was in Delhi and she looked after the mother.

9. I have heard the defendant in person and also learned counsel for the plaintiff. Learned counsel for the plaintiff has submitted that there is clear admission of title of the mother by the defendant in the counter-

affidavit filed. Reliance is placed on paragraph 9 of the counter-affidavit where it is averred that the property in Dwarka is still in the name of the deceased mother and, therefore, there is no question of the defendant selling this property. Learned counsel further states that in case this Court accepts the present application and passes a decree for partition of the property at Nasirpur, Dwarka the plaintiff would not press relief regarding the other four properties.

10. The defendant was heard in person. His submissions lack legal coherence. However, the facts as pleaded appear to show that he has claimed that the property at Nasirpur Dwarka was purchased by him from his own funds though in the name of his mother. He also claims that the plaintiff has in the lifetime of the mother taken his share from the property of the joint family and has established himself in Australia from the said proceeds. It is claimed that in 2000-2005 plaintiff has taken nearly 9 to 10 lakhs to settle abroad.

11. Order 12 Rule 6 CPC reads as follows:-

"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 an 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 think 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."

12.. For the purpose of the application of Order 12 Rule 6 CPC, I may refer to the judgment of the Division Bench of this Court in the case of VijayMayne vs. Satya Bhushan Kumar, 142 (2007) DLT 483 where in paragraph 12 this Court held as under:-

"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc.These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."

35. Reference may also be had to the judgment of the Supreme Court in the case of Usha Rani Jain vs. Nirulas Corner House Pvt. Ltd., 73(1998)DLT 124 para 18 of which reads as follows:-

"18. The object of Order XII Rule 6 CPC is to enable a party to obtain a speedy judgment, at least, to the extent of the admissions of the defendant to which relief the plaintiff is entitled to. The rule permits the passing of the judgment at any stage without waiting for determination of other questions. It is equally settled that before a Court can act under Order 12 Rule 6, the admission must be clear, unambiguous, unconditional and unequivocal. Admissions in pleadings are either actual or constructive. Actual admissions consist of facts expressly admitted either in pleadings or in answer to interrogatories.

12. Keeping in view the above legal position the issue would be as to whether there is an unrebutted unexplained and clear admission by the defendant about the title, rights and claim of the plaintiff to the house in Nasirpur, Dwarka. Undoubtedly, as far as the other four properties are concerned, it is not the case of the plaintiff that there is any admission to that effect from the defendant in the pleadings on record.

13. The contention regarding the flat at Nasirpur, Dwarka is that in paragraph 9 the defendant admits that the property is in the name of the mother. The relevant portion of paragraph 9 reads as follows:-

"9. That the property at Dwarka is still in the name of deceased mother and therefore there is no question of defendant selling this property unless it is not transferred in the name of defendant."

14. However, the affidavit has to be read as a whole and stray sentences here and there would not be determinative of the so called admissions made by the defendant. It has to be remembered that the affidavit is filed by a defendant who is appearing in person and is not a trained lawyer. Paragraph 9 relied upon by the plaintiff has to be read

with other averments in the affidavit including the following paragraphs:-

"10. That the property in dispute was purchased by the Endeavour of defendant with full honesty in the name of mother as mother was not maintaining good health. ......

Para 6: That defendant and mother has rendered the true account of the properties mentioned under para 4. Apart from janta flat all other properties were sold when mother was alive. So far, the question of property in dispute is concerned, defendant has already stated that plaintiff has taken more than his share from the property of joint family and he has established himself in Australia by selling out the joint family property in India."

15. In my view the parties are levelling allegations and counter allegations regarding various properties left behind by the parents. It is the case of defendant that the property in Nasirpur, Dwarka is bought by his funds and that the plaintiff has no rights in the same having taken his share in the family properties.

16. The plaintiff claims his share of proceeds from the sale of four other properties which according to him were either bought in the name of the defendant from funds given by one of the parents or which were in the name of the parents sold by the parents but whose proceeds has been usurped by the defendant. There are no submissions made regarding the effect of the Benami Transactions (Prohibition) Act, 1988. In my opinion, the statement relied upon by the plaintiff in the affidavit of the defendant is not sufficient to entitle the plaintiff to get a decree as sought for. The so called admission cannot be stated to be unequivocal, unqualified and unambiguous. There is no express admission by the defendant of the title of the plaintiff. The defendant has to be given an

opportunity to prove his case. Application is accordingly dismissed. CS(OS) 2343/2012 List on 24.09.2015 before Joint Registrar for directions.

(JAYANT NATH) JUDGE AUGUST 28, 2015 n