Dayawati vs Shis Ram (Thru Lr) & Ors.
2019 Latest Caselaw 2065 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Reserved on : 07.03.2019
                                        Date of Order:16.04.2019
+                   C.R.P. No.53/2018 & C.M. No.10816/2018
DAYAWATI                                          ..... Petitioner
                      Through: Mr. Anand Yadav & Ms. Anita
                                Tomar, Advocates.
                           Versus

SHIS RAM (THRU LR) & ORS.               ....Respondents

Through: Mr. Atul Kumar, Adv. for R-1, 4, 5 & 6.

Mr. Rupesh Kumar Sinha, Adv. for R-3.

CORAM:

HON'BLE MR. JUSTICE VINOD GOEL

1. The impugned order dated 20.12.2017 passed by the court of learned Additional District Judge-04, South-West District, Dwarka, New Delhi ('ADJ') in Civil Suit No.80/2016 dismissing the application of the petitioner/plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 ('CPC') for passing a decree for recovery of Rs.45 lacs with interest against respondent No.3 on his admissions, is the subject-matter of challenge in this revision petition.

2. As per the factual matrix, the petitioner filed a Civil Suit being CS (OS) No.2502/2009 for recovery of Rs.45 lacs and for partition and permanent injunction against the respondents in this court on original jurisdiction in respect of three plots measuring 145 sq. yards, 178 sq. yards and 490 sq. yards comprising of khasra No.41 and a plot measuring 1008 sq. yards comprising in khasra No.65 situated in lal

dora/abadi of village Jhuljhuli, Delhi. The father of the petitioner and of the respondents no.4 to 6 and the grandfather of respondents no.3

(i) to 3 (iii), namely, Shis Ram, since deceased, sold the ancestral agricultural land measuring 31 bigha 9 biswas in the month of August, 2007 for a sale consideration of Rs.15,31,25,000/-. Out of the sale consideration, a sum of Rs.1,73,75,000/- was paid to the petitioner by Late Shis Ram, since deceased between 20.08.2007 to 17.10.2007. The respondent No.1 Shis Ram (since deceased) assured the petitioner that further amount of Rs.45 lacs, being the balance of her 1/7th share out of the amount received by him in respect of sale of the ancestral agricultural land, would be paid to her. It is further pleaded by the petitioner that her brother, Daya Ram (since deceased) had taken more amount from their father.

3. In his written statement, the defendant No.3, Daya Ram (since deceased), inter alia, pleaded that he was given Rs.3 crores from the sale proceeds of Rs.15 crores.

4. This court, on 17.08.2011, passed a preliminary decree of partition with regard to the immovable properties to the effect that the parties to the suit are entitled to 1/7th share of the properties in the old lal dora comprising of khasra No.41 and plot No.65 in the extended lal dora/abadi of village Jhuljhuli, Delhi and sale proceeds of the agricultural land. Relevant paras 19 and 20 (i) read as under :-

"19. I find that there is no dispute to the property which is to be partitioned, or its ownership. I have found no merit in the contest by the defendant No.3. The above narration shows that the suit property and

sale proceeds of agricultural land are to be divided equally amongst plaintiff and each of the defendants.

20. In view of the above, it is ordered as follows:-

(i) I hold and declare that each of the parties to the suit are entitled to one-seventh share in the properties in old lal dora comprising Khasra No.41 and Plot No.65 in the extended lal dora/abadi of village Jhuljhuli, Delhi and sale proceeds of agricultural land."

5. The judgment of the learned Single Judge was carried by defendant No.3, Daya Ram (since deceased) in appeal being FAO (OS) No.560/2011. The mother of the parties, Smt. Chameli, did not desire share in the properties and the Division Bench disposed of the appeal by judgment dated 15.03.2013 by directing that the preliminary decree shall stand modified on disclaimer of any share by respondent no.6; the other respondents and the legal heirs of late Daya Ram together would be entitled to 1/6th share each. The relevant para of the judgment reads that „The result of the aforesaid would be that there is an agreement that the preliminary decree be modified to the extent that respondent No.6 will not claim any share and the other respondents will be entitled to 1/6th share each. The legal heirs of the appellant would thus be together entitled to 1/6th share.‟

6. This court on 03.09.2015 passed a final decree in respect of the said four plots. By another order on the same day, this court framed the following issues:-

"(1) Whether the plaintiff is entitled to recover a

jointly/severally? (OPP)

(2) If issue No.(1) is decided in favour of the plaintiff, whether she is entitled to interest on the amount awarded? If so, at what rate and for what period? (OPP) (3) Relief."

7. On the next date of hearing, that is, 16.10.2015, the petitioner preferred an application under Order XII Rule 6 read with Section 151 CPC to pass a judgment/decree against respondent No.3 for recovery of Rs.45 lacs with interest on the grounds that (i) respondent no.3 has admitted that the agricultural land was sold for Rs.15,31,25,000/-; (ii) the share of the petitioner, the defendant No.1 and the defendants no.3 to 6 being 1/6th each in the sale proceeds, the entitlement of the parties comes to Rs.2,55,20,833/- each; (iii) the defendant no.3 had admitted that he had received Rs.3 crores from the sale proceeds of the agricultural land of Rs.15 crores and (iv) the respondent no.3, Daya Ram (since deceased) received Rs.3 crores against his entitlement of Rs.2,55,20,833/- and thus Daya Ram received excess amount of Rs.44,79,167/-. It was contended by the respondents before the learned 'ADJ' that issues have already been framed and evidence has commenced and the issue raised in the application goes to the root of the matter which can be decided only after adducing evidence by the parties.

8. The learned 'ADJ', by impugned order, dismissed the application simply agreeing with the arguments advanced by the learned counsel for the respondent. The learned 'ADJ' dismissed the application as the same is objected to on behalf of the respondent

though she admitted the implications of Order XII Rule 6 CPC. The learned 'ADJ' did not deal with the contentions of the parties and particularly the facts allegedly admitted by the respondent no.3 and dismissed application without application of mind. Para Nos.7 to 9 of the impugned order read as under:-

"7. I am also in agreement with the arguments advanced on behalf of the defendants. Issues have already been framed by the Hon‟ble High Court and evidence has also started. Even examination in chief of plaintiff has already been recorded. Rule 6 of Order XII stipulates that where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give judgment as it may think fit, having regards to such admissions. However, in reply to the application in hand, defendants have raised objections and denied the case of the plaintiff, the court has to proceed accordingly under the scope and applicability of Order XII Rule 6 by granting an opportunity to the defendant/objectors to explain the said admission, if any. The judgments relied upon by learned counsel for the plaintiff cannot be taken note of in the instant case in view of the facts and circumstances of this case.

8. In view of the above, it would be in the interest of justice in case the evidence of the parties is recorded and after hearing the final arguments, the present suit is decided on merits.

9. Hence, in the opinion of this court, the application in hand cannot be allowed at this stage when the same is objected on behalf of the defendants. The same

deserves to be dismissed. Same is accordingly dismissed with no order as to costs."

9. I have heard the learned counsel for the parties.

10. Before appreciating the rival contentions of the parties, it would be relevant to refer to Order XII Rule 6 CPC, which reads as under:-

"6. Judgement 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 any 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 (J) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

11. A perusal of the above said provision indicates that the court may pass the judgment where the admissions of fact have been made either in the pleading or otherwise, whether orally or in writing. The power can be exercised by the court either on the application of any party or of its own motion. This power can be exercised by the court without waiting for the determination of any other question between the parties. Whenever a judgment is pronounced, a decree shall be drawn up in accordance with the judgment which shall bear the date on which the judgment was pronounced. While dealing with the intent and objects of speedy judgment contained in Order XII Rule 6

CPC, this court in Abdul Hamid vs. Charanjit Lal Mehra; 1998 (74) DLT 476 held as under:-

"19. The intent and object of incorporating Rule 6 of Order 12 by the Parliament in the Code of Civil Procedure is to enable a party to obtain speedy judgment to the extent of the relief which according to the admission of other party, he is entitled to. If a relief emanates on the basis of case set up by the defendants, no prejudice is caused to the defendants because the relief springs from the case set up by the defendants. What is important to know that unlike prior to the Amending Act, 1977 the filing of formal application under Order 12, Rule 6 is not required now. Now amended provisions of Order 12, Rule 6 of the CPC, judgment on admissions, the Court may at any stage of the suit either on the application of any party or on its own motion, make such order or give such judgment as it may think fit having regard to such admissions. Therefore, I have no hesitation in holding that in view of the specific stand of defendants in para-1 of written statement read with lease deed filed by the defendants themselves, there is an unequivocal and unambiguous admission made by the defendants that lease would expire by efflux of time on 2.11.1996. That being so, no other issue with regard to possession has to be taken into consideration and aforesaid admission on the part of defendants will entitle the plaintiffs for a judgment/decree on admission."

12. Admittedly a preliminary decree of partition dated 17.08.2011 in respect of immovable properties and the sale proceeds of the agricultural land of Rs.15,31,25,000/- was passed entitling 1/7th share to each of the parties, that is, Dayawati (petitioner), Shis Ram, since deceased (respondent No.1), Chameli, since deceased (respondent

No.2), Daya Ram, since deceased (respondent No.3), Har Parsad (respondent No.4), Ram Rati (respondent No.5) and Leelawati (respondent No.6). Since during the pendency of the appeal being FAO (OS) No.560/2011 Smt. Chameli (since deceased) did not want any share, by an order dated 15.03.2013, the Division Bench in FAO (OS) 560/2011 held that the parties were entitled to 1/6th share in the said properties. This judgment dated 15.03.2013 has attained finality. Even final decree also came to be passed by this court on 03.09.2015.

13. The defendant No.3, Daya Ram (since deceased) has categorically admitted in his written statement by pleading „the answering defendant was given Rs.3 Crore from the total sale proceed of Rs.15 Crore............‟ The contesting defendant No.3 has also admitted paras 4 and 5 of the plaint to be true and correct wherein the petitioner pleaded the amount of the sale consideration as Rs.15,31,25,000/-. The averment of the petitioner in the plaint that he was paid only a sum of Rs.1,73,75,000/- out of the said sale consideration has also not been denied by the defendant no.3 in his written statement. Similarly, the defendant no.3 has also not denied the averment of the petitioner in the instant application under Order XII Rule 6 read with Section 151 CPC wherein in para 14, the petitioner has pleaded that „Further in present suit it is stated by defendant No.3 that he has received an amount of Rs.3 Crore from sale proceeds of agricultural land of Rs.15 Crore. Therefore, even as per admission of defendant No.3 he has received an amount of

Rs.44,79,167/- more than his share in sale proceeds of Rs.15,31,25,000/- of agricultural land.‟

14. Even during the course of arguments, learned counsel for respondent no.3 did not dispute the fact that the total sale consideration of the ancestral agricultural land was Rs.15,31,25,000/- out of which the respondent no.3 received Rs.3 crores and thus an excess amount of Rs.44,79,167/-.

15. There are unequivocal and unambiguous admissions of the respondent No.3 that (i) he had received Rs. 3 crore from his father out of sale consideration of Rs. 15,31,25,000/-; (ii) his share comes to Rs. 2,55,20,833/- and he thus received Rs. 44,79,167/- in excess and

(iii) the petitioner received only Rs.1,73,75,000/-though he was entitled to Rs.2,55,20,833/-. Therefore, a case for passing the judgment in favour of the petitioner for recovery of the amount of Rs.44,79,167/- against respondent No.3 is made out under Order XII Rule 6 read with Section 151 CPC. Accordingly, the impugned order dated 20.12.2017 passed by the learned 'ADJ' is set aside. The suit of the petitioner for recovery of Rs.44,79,167/- is decreed in her favour and against respondent No.3 (i) to 3 (iii). The petitioner would also be entitled to interest @ 6% P.A. from the date of filing the suit till realisation of the decretal amount. As the parties are close family members, there shall be no order as to costs. With the disposal of this petition, nothing remains to be adjudicated upon in the Civil Suit, being C.S. (OS) No.80/2016, which stands disposed of accordingly.

Pending application being C.M. No.10816/2018 also stands disposed of accordingly.

16. Let the decree-sheet be prepared by the Registrar (Appellate) accordingly.

(VINOD GOEL) JUDGE APRIL 16, 2019 'AA'