Prem Lata Soni & Ors. vs Rajender Soni
2015 Latest Caselaw 4838 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 258/2004
PREM LATA SONI & ORS.                                     ..... Plaintiffs
                  Through               Mr. Krishan Kumar, Adv. for P-1
                                        Mr. P.S. Rana, Adv. for P-2 & 3
                                        Mr. Pankaj Vivek, Advocate with
                                        Ms. Anupriya Singh, Advocate for
                                        P-4

                           versus

RAJENDER SONI                                             ..... Defendant
                           Through      Mr. Rajiv K. Garg, Advocate with
                                        Mr. A.D.N. Rao, Ms. Neelam Jain
                                        and Mr. Ashish Garg, Advocates

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

                           ORDER

%                          09.07.2015

I.A. No.2921/2014

1. This is an application filed under Order 1 Rule 10 CPC by the

plaintiff No.1 in the suit for her transposition as the defendant No.2. At

present there are a total four plaintiffs in the suit and one defendant.

Plaintiff No.1 is the mother of plaintiff Nos.2 to 4 and the defendant. The

defendnat is the son of plaintiff.

CS(OS) 258/2004 Page1 of 10

2. The suit is a suit for partition, declaration, injunction etc. The suit

properties with respect to which partition etc. is prayed are stated in para

21 of the plaint and these properties are as under:-

"(a) A double storeyed house bearing No.A-8/22, DLF City, Phase-I, Gurgaon

(b) A house bearing No.9/126, Malviya Nagar, New Delhi;

(c) A flat bearing No.120/186, in the Silver Oak Apartments, DLF City, Phase-I, Gurgaon.

(d) A Garage with No.112/4, Silver Oak Apartments, DLF City Phase I, Gurgaon;

(e) LB/14, DLF Qutab Plaza City, Phase I, Gurgaon.

(f) Office flat No.K-4, DLG Qutab Plaza City, Phase I, Gurgaon; (Presently used as Office by the Defendant)

(g) Shop No.E-5, DLF Qutab Plaza, DLF City Phase I, Gurgaon

(h) Shops No.20, Savitri Cinema Building, Greater Kailash-II, New Delhi.

(i) 60-60 Sq yds 2 plots in DLF City Phase-I (H-12/10)

(j) One shop in DLF Qutab Plaza in the name of Mrs. P.L.

Soni and Mrs. Madhu Maini.

(k) B-128, Suprement-I, DLF Phase-IV, Gurgaon-122002 in the name of Mrs. P.L. Soni (Plaintiff No.1) and Dr. Meenu Soni (Plaintiff No.4)."

CS(OS) 258/2004 Page2 of 10

3. As per the suit plaint the suit properties are the joint properties of

the parties and all the parties have equal 1/5th share.

4. In the present suit, as per the admissions of the plaint, the issues

were framed. Issues were framed way back on 27.04.2009 and these

issues read as under:-

"1. Whether Shri O.P. Soni common predecessor of the parties was the owner of the properties mentioned in para 21 of the plaint or only of such of the properties as are mentioned in brief facts on page 33 of the written statement of the defendant?

OPPr

2. Whether the defendant has sold any of the common/joint properties and if so, to what effect? OPP

3. Whether the plaintiffs have any right to accounts of business from the defendant and if so, relating to which of the businesses and for what period? OPP

4. Whether the defendant has acquired the properties which the plaintiffs claim to be forming the estate of Shri O.P. Soni, out of his self earned monies and whether the said properties are individual property of the defendant? OPD

5. What are the shares if any of the parties in the properties found to be joint/common properties of the parties? OPPr

6. Whether any of the parties are entitled to any accounts with respect to any property from each other and if so which party and against which of the defendants? OPPr

7. Relief."

5. Pursuant to the issues framed, evidence of the plaintiffs is being

recorded. Plaintiff No.1/applicant has filed her evidence by way of

affidavit on 06.02.2010 supporting the averments of the plaint of the suit

properties being joint properties. Plaintiff No.1 has been thereafter partly

CS(OS) 258/2004 Page3 of 10 cross-examined by the counsel for the defendant on two dates viz.

09.02.2012 and 27.08.2012.

6. At this stage, in the middle of cross-examination of the plaintiff

No.1 the present application is filed, and which application in effect seeks

to resile from each and every admission made in the suit plaint, and the

proceedings in the suit thereafter. Effectively the plaintiff No.1 wants to

state that she withdraws from every averment and admission made by her

in the suit and she also recants from every prayer made in the suit. By the

subject application it is prayed that plaintiff No.1 should be made, instead

of plaintiff No.1, the defendant No.2 in the suit. Plaintiff No.1 in this

application states that the suit properties are not joint properties, although

the same are stated/admitted in the plaint to be the joint properties. In the

application, the case of the plaintiff No.1/applicant is that she was misled

by plaintiff Nos.2 to 4 in admitting that the properties are joint properties

as they were owned by her late husband Sh. O.P. Soni and after his death

intestate the properties devolved jointly on the parties. The suit, be it

noted, is predicated on the averments that all the suit properties were

owned by late husband Sh. O.P. Soni of plaintiff No.1 and after the death

of Sh. O.P. Soni, all the five parties to the suit, who are the widow and

CS(OS) 258/2004 Page4 of 10 children of Sh. O.P. Soni have 1/5th share in the suit properties. The case

of the plaintiff No.1 now is that she is already 50% owner of seven

properties and full owner of two of the properties. Hence, by this

application the plaintiff No.1 states that nine of the properties are not the

joint properties of the parties to the extent of 1/5th share each, inasmuch

as, the title deeds of these nine properties show that seven of them are

owned 50% by plaintiff No.1 and two of them to the extent of 100% by

plaintiff No.1. Therefore it is now argued that once the plaintiff No.1 is

already the owner of either 50% or 100% of the properties, such portions

already belonged to the plaintiff and therefore plaintiff does not seek

partition of such shares which she already owns. Out of the properties

mentioned in para 21 of the plaint, as regard the properties (a), (b), (c),

(d), (f), (h) and (k) plaintiff states that she already the owner of 50% as

per the title deeds and so far as the properties (e) and (i) of para 21 of the

plaint, she is the full owner.

7. The application is very seriously contested by plaintiff Nos. 2 and

3 as well by the defendant by arguing that the plaintiff No.1 cannot be

allowed to resile from the categorical admissions made in the existing

plaint that the suit properties are joint properties. It is argued that

CS(OS) 258/2004 Page5 of 10 admissions made in judicial proceedings, more so in a solemn document

such as the plaint, cannot be allowed to be withdrawn by means of an

application. It is argued that as per settled law even by an amendment

application judicial admissions in pleadings are not allowed to be

withdrawn. Reliance is placed by the plaintiffs No.2 and 3 and the

defendant on para 26 of the judgment of a Division Bench of three Judges

of the Supreme Court in Nagindas Ramdas v Dalpatram Locharam

alias Brijram & Ors., AIR 1974 SC 471, and in which para the Supreme

Court has laid down the ratio that there are two types of admissions viz.

judicial admissions and evidentiary admissions, and that whereas

evidentiary admissions can be withdrawn and explained, judicial

admissions made in the judicial proceedings stand at a higher pedestal

and in fact constitute a waiver of proof and the judicial admissions by

themselves can be made the foundation of the rights of the parties. Para

26 of the said judgment reads as under:-

"26. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid.

CS(OS) 258/2004 Page6 of 10 Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admission is true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong."

8. In my opinion arguments urged on behalf of the plaintiff Nos.2 and

3 and the defendant are justified and the application of the plaintiff No.1

is liable to be dismissed. Plaintiff No.1 no doubt has contended that she

is not an educated lady and that she has been allegedly misled by plaintiff

Nos. 2 to 4, however, in my opinion this is only a convenient self serving

averment (to withdraw from judicial admissions), because it is seen that

even as per the plaint, plaintiff along with her late husband was a director

in several companies. Further, the plaint is not only signed by the plaintiff

No.1 and supported by her affidavit, the Plaintiff No.1 has in addition as a

Power of Attorney holder of plaintiff No.2 signed the plaint also as a

Power of Attorney holder of plaintiff No.2. The plaint specifically admits

CS(OS) 258/2004 Page7 of 10 and mentions that properties are joint properties i.e. plaintiff did not set

up a case that she was 50% owner of seven properties and 100% owner of

the two properties, as stated above.

9. Clearly as per the admissions made in the existing plaint, to the

understanding of the plaintiff No.1, as per the understanding between the

family members, though the title deeds of the seven properties were

showing the plaintiff No.1 to be the 50% owner of eight properties and

100% owner of the two properties, the properties are jointly owned after

the death of her husband Sh. O.P. Soni. Therefore, once a family

understanding is there of a particular party to a litigation and which

understanding results in repeated admissions in a solemn document, such

as the plaint filed in judicial proceedings, this Court in view of the ratio

of the Supreme Court in Nagindas's case (supra) would be loath to allow

the plaintiff No.1 to simply walk away at this stage from the plethora of

admissions made in the plaint. This would be improper more so at this

late stage in a suit filed in the year 2004 in which issues were framed in

2009, and on the basis of the admissions in the plaint that the properties

in fact belonged to late Sh. O.P. Soni (and not of 50% / 100% of the

plaintiff No.1), the plaintiff No.1 has thereafter in fact led evidence in

CS(OS) 258/2004 Page8 of 10 support of the existing plaint and hence also making judicial admissions

in the affidavit by way of evidence with respect to the properties being

owned by late Sh. O.P. Soni and therefore each of the party to the suit

having a 1/5th right. Plaintiff No.1 has also been cross-examined twice

wherein she has continued with the same stand of the plaint and her

affidavit by way of evidence. Clearly therefore this application for

withdrawing all judicial admissions would thus be wholly illegal and an

abuse of the process of law.

10. The plaintiff No.1 obviously for some reason seems now to be

under the influence of plaintiff No.4 as contended by the plaintiff Nos. 2

and 3 and defendant, or probably for some unexplained reason wants to

back out of the judicial admissions and which course of action is not

permissible in law.

11. At the cost of repetition, once judicial admissions are made in a

solemn document, no less than a plaint, and on the basis of which specific

issues are already framed taking into account these judicial admissions,

and thereafter plaintiff No.1 leads evidence by way of affidavit

confirming the averments in the plaint, then today at this stage the

plaintiff No.1 cannot suddenly turn around to contend otherwise that the

CS(OS) 258/2004 Page9 of 10 properties are not to be treated as joint properties of the family with each

of the family members having 1/5th share in the properties.

12. In view of the above stated facts, the subject application is clearly

an abuse of process of law and is dismissed with costs of Rs.50,000/- to

be equally paid and divided between plaintiffs No.2, 3 and the defendant.

Costs be paid within a period of four weeks from today.

13. Application stands disposed of in above terms.

CS(OS) 258/2004

14. List before the Joint Registrar on 28th July, 2015 for fixing a date

for further cross-examination of plaintiff No.1 and it is directed that no

unnecessary adjournments be granted to either of the parties and

unnecessary adjournments should be burdened with heavy costs.

                                              VALMIKI J. MEHTA, J

JULY 09, 2015
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CS(OS) 258/2004                                                 Page10 of 10