Sri V Narayanaswamy vs Sri M V Sriramareddy
2023 Latest Caselaw 5277 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4   TH
                                  DAY OF AUGUST, 2023
                                                                R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

        CIVIL REVISION PETITION NO.18/2023 (IO)

BETWEEN:

1.     SRI V. NARAYANASWAMY
       S/O. LATE VENKATARAYAREDDY,
       AGED ABOUT 74 YEARS,
       R/AT MUDALAHALLI VILLAGE,
       NANDIGANAHALLI POST,
       CHINTAMANI TALUK,
       CHIKKABALLAPURA DISTRICT-563 125.         ... PETITIONER

           (BY SRI DWARAKANATH H.S., ADVOCATE)
AND:

1.     SRI M.V. SRIRAMAREDDY
       S/O. LATE K. VENKATARAYA REDDY,
       AGED ABOUT 71 YEARS,
       R/AT NO.66, I CROSS,
       MANJUNATHA LAYOUT,
       R.T. NAGAR,
       BANGALORE-560 032.

2.     SMT. SOMINIREDDY
       W/O. N. GOVINDA REDDY,
       AGED ABOUT 64 YEARS,
       R/AT NO.19, 60 FEET ROAD,
       5TH CROSS, 5TH BLOCK,
       KORAMANGALA,
       BANGALORE-560 095.
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3.    SRI RAMANARAYANA GUPTA K.N.
      S/O. SRI NARASIMHAIAH SHETTY,
      AGED ABOUT 76 YEARS,
      C/O. K.L. VENKATANARAYANA GUPTA,
      JAYALAKSHMI STEEL CENTRE,
      AJAB CHOWK, CHINTAMANI,
      CHIKKABALLAPUR DISTRICT-563 125.

4.    SMT. P. JAYAMMA
      W/O. LATE N. VEMANARAYANA,
      AGED ABOUT 66 YEARS,

5.    SMT. N. MANJULA
      D/O. LATE N. VEMANARAYANA,
      AGED ABOUT 41 YEARS,

6.    SMT. N. ANITHA
      D/O. LATE N. VEMANARAYANA,
      AGED ABOUT 39 YEARS,

7.    DR. N. CHETHAN
      S/O. LATE N. VEMANARAYANA,
      AGED ABOUT 37 YEARS,

      RESPONDENTS 4 TO 7 ARE
      RESIDING AT WARD NO.5
      TANK BUND ROAD
      CHINTAMANI CITY
      CHIKKABALLAPURA DISTRICT-563 125.
                                          ... RESPONDENTS

      (BY SRI NARAYANA SWAMY P.M., ADVOCATE FOR R1;
               VIDE ORDER DATED 13.01.2023,
     NOTICE TO OTHER RESPONDENTS IS DISPENSED WITH)

     THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 05.12.2022 PASSED ON I.A.NO.9
IN O.S.NO.138/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
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AND JMFC, CHINTAMANI, DISMISSING THE IA.NO.9 FILED
UNDER ORDER 12, RULE 6 R/W. SECTION 151 OF CPC.

     THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 18.07.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
                      ORDER

Heard the learned counsel for the petitioner and learned

counsel for the respondents.

2. This revision petition is filed under Section 115 of

C.P.C. praying this Court to set aside the order dated

05.12.2022 rejecting I.A.No.9 filed under Order 12, Rule 6 of

C.P.C. and consequently, dismiss the suit in O.S.No.138/2014 on

the file of the Senior Civil Judge and JMFC, Chintamani.

3. The factual matrix of the case of the plaintiff before

the Trial Court is that the plaintiff and first defendant are the

brothers and sons of Kotalani Venkataraya Reddy and

Smt. Seethamma. It is contended that, after the death of father

of the plaintiff and the first defendant, they have succeeded the

joint family and ancestral properties and jointly cultivating the

said lands. The plaintiff was working as an Assistant Teacher in

the Education Department and his earnings had contributed the

joint family and developed and purchased properties in the name

of kartha, who is the first defendant herein, by contributing joint

family funds. It is also the contention of the plaintiff that the

plaintiff, first defendant and their mother Smt. Seethamma have

purchased the property in the name of the first defendant, who

is the kartha of the family in respect of land bearing Sy.No.82,

3rd Block measuring 4 acres and land bearing Sy.No.82/4

measuring 4 acres, totally 8 acres situated at Kamatampalli

Village, Ronur Hobli, Srinivaspura Taluk under the registered sale

deed dated 10.05.1968. The plaintiff and first defendant are in

joint possession and enjoyment of the said land and the plaintiff

is having definite share in the said land. It is also the case of

the plaintiff that both the plaintiff and defendants have jointly

purchased the land bearing Sy.No.13 measuring 2 acres, 16

guntas situated at Kannampalli Village, Kasaba Hobli,

Chinthamani Taluk, under the registered sale deed dated

05.08.1991. It is also his case that, with an intention to form

residential layout in the land bearing Sy.No.13 measuring 2 acre,

16 guntas situated at Kannampalli Village, Kasaba Hobli,

Chinthamani Taluk, obtained conversion of the land from

agricultural to non-agricultural residential purpose from the

Assistant Commissioner, Chikkaballapura sub-division dated

29.08.1992 and formed residential layout i.e., site Nos.1 to 62 in

different dimensions and the said layout has been approved by

the Secretary Chinnasandra Mandal Panchayath.

4. It is also contended in the plaint that plaintiff has

contributed substantial amount for the purchase of the said

property, since plaintiff was an Assistant School Teacher and due

to the reason that his name has could not be included in the sale

deed, his brother V. Narayanaswamy, S/o. Late Venkataraya

Reddy name has been included though he has not contributed

any amount for the purchase of the said land and on good faith

and cordial terms, his name has been included in the said sale

deed. It is also contended that there was a registered partition

deed dated 22.06.1998 and at the time of partition, the plaintiff

was in death bed suffering from severe spinal card dislocation

problem, due to the reason surgery was done and since the

surgery was not successful and due to frequent recurring of

spinal card problem, traction was fixed at the time of alleged

partition deed dated 22.06.1998. For a period of one month, he

was not able to get up from the bed and also he was not in a

position to move from the bed, since he has suffered two

surgeries. The copy of medical reports are produced and the

defendant No.1, who is none other than the brother of the

plaintiff has forced to get the partition of the family properties,

taking advantage of the plaintiff illness and plaintiff has

requested first defendant and panchayathdars for postponement

of the partition for the reason that he has not been able to move

and not able to read the papers and sign the documents for

which the first defendant has become adamant and forced to get

the partition deed and in the said partition, all the properties are

not at all included deliberately, intentionally not included the

item No.1 of the suit schedule property by the defendant, though

the plaintiff is having half share in the said property. Hence, the

plaintiff has filed the suit seeking the relief of partition and

separate possession of the plaintiff half share in item No.1 and

half share out of 1/5th share in the item No.2 of the schedule

property and also for permanent injunction.

5. This suit is resisted by first defendant by filing the

written statement contending that first of all, the suit is barred

by limitation since, partition was effected on 22.06.1998 and it is

also contended that the plaintiff has not contributed any earning

either to the defendant or to the joint family and denied the

contention that property was purchased in the name of the first

defendant by using the contribution of the joint family funds. It

is contended that suit is absolutely not maintainable since,

already there was partition and there is no cause of action to file

the suit and denied the contention that property was purchased

by the first defendant and their mother i.e., Sy.No.82 and

Sy.No.82/4, in total 8 acres of land and contend that property

was purchased by the first defendant from his self-earned

income and the allegations to the contrary are false.

6. It is also contended that the allegations made in the

plaint cannot be entertained in view of Benami Prohibition Act

and mother is neither a corparcener nor it is alleged that she has

contributed joint family funds nor it is alleged that she is in

possession of joint family funds and consequently, the very basis

of claim made by the plaintiff is false and he has to prove the

same. The averment with regard to acquiring of property in

Sy.No.13 measuring 2 acres, 16 guntas is denied and also

contend that there was registered partition deed dated

22.06.1998 and there is no prohibition for an Assistant School

Teacher to purchase the property either individually or jointly.

Hence, the very claim made by the plaintiff is false, frivolous and

the suit filed by the plaintiff is not maintainable.

7. In view of the pleadings of the parties, issues were

framed and P.W.1 has been examined and the first defendant

filed the application invoking Order 12, Rule 6 of C.P.C and

considering the admissions given by P.W.1 in the cross-

examination, sought for judgment on admission. The said

application was resisted by the plaintiff by filing objection

statement. The Trial Court, having considered the grounds

urged in the application and also taking note of rejection of

earlier application in I.A.No.3 filed under Order 7, Rule 11(a) and

(d) of C.P.C., confirmed the same in the civil revision petition

and also considering the fact that first defendant has again come

up with the application under Order 12, Rule 6 of C.P.C,

extracting the said provision in Para No.11 of the order, the Trial

Court comes to the conclusion that averments made in the plaint

has been denied by the first defendant in the written statement

and also taken note of the fact that the evidence of the plaintiff

is already concluded and case is posted for further cross-

examination of D.W.1 and comes to the conclusion that there is

no reason to consider the application filed under Order 12, Rule

6 of C.P.C. In view of serious factual disputes and the defence of

the first defendant in the suit, it is not permissible for making

roving inquiry for disposal of the application filed by the first

defendant under Order 12, Rule 6 of C.P.C. and dismissed the

application. Hence, the present revision petition is filed before

this Court.

8. The main contention of the learned counsel for the

petitioner is that there is an admission and admission is also

extracted in the revision petition i.e., in Para Nos.6 to 12. The

counsel would vehemently contend the Trial Court committed

error in coming to the conclusion that there are serious factual

disputes which require roving inquiry for disposal of the

application, though no inquiry is required and the admission in

evidence was enough for disposal of the matter. It is also

contended that the Trial Court erred in not considering the

argument and the contention of the plaintiff that he contributed

some money for purchase of item No.2 of the suit schedule

property and the same could not be the subject matter of

partition by virtue of Binami Prohibition Act and therefore, the

suit for partition would not lie. The Trial Court erred in holding

at Para No.15 that unambiguous admissions are to be considered

with the merits of the suit and the very finding of the Trial Court

is erroneous.

9. The learned counsel for the petitioner, in support of

his argument, relied upon the judgment of the Apex Court in

UTTAM SINGH DUGAL & CO. LTD. VS. UNION BANK OF

INDIA AND ORS. in S.L.P. (C) NO.12511 OF 1999 decided

on 08.08.2000and brought to notice of this Court Para Nos.12

to 15 and contend that 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 for which the plaintiff is entitled to.

10. The counsel also relied upon the judgment of the

Division Bench of this Court in K. VENKATAMMA AND ORS.

VS. YANKAMMA AND ORS. passed in

R.F.A.NO.100153/2014 decided on 19.12.2019and brought

to notice of this Court Para No.15, wherein the Apex Court

observed that the admissions in pleadings are to be treated at a

higher pedestal and are to be accepted as admission about the

state of things.

11. The counsel also relied upon the judgment of this

Court in ASSISTANT COLLECTOR OF CENTRAL EXCISE

(LEGAL AND APPEALS) FIBRE FOILS (PRIVATE) LIMITED

AND ORS. passed in CRL.A.NO.553 OF 1996 decided on

16.08.2000 and brought to notice this Court Para No.7 of the

judgment that every admission made by an accused person is

not, in the view of the law, a confession, nor can it be held that

admissions mean only statements made by parties to civil

proceedings, and do not include statements made by parties in

criminal proceedings. Every statement, oral or documentary,

which suggests any inference as to any fact in issue or relevant

fact made by an accused person is an admission under Sections

17 and 18, and under Section 19 an admission may be proved as

against the person who makes it unless, under some provision of

the Evidence Act or other law, it is rendered inadmissible. For

an admission to have the effect of substantive evidence it must

be voluntary.

12. The counsel also relied upon the judgment of Delhi

High Court in BALJEET KAUR KALRA VS. SURJEET SINGH

AND ORS. in C.S. (OS) NO.2113 OF 2010 decided on

27.04.2016and brought to notice of this Court Para No.10 with

regard to exercise of power under Order 12, Rule 6 of C.P.C. and

once the defence is barred by law, there is no need to go into

trial on this aspect because there cannot be a trial with respect

to a plea/pleading which the law bars for being taken up.

13. The counsel also relied upon the judgment of the

Apex Court in V. ANANTHA RAJU AND ORS. VS. T.M.

NARASIMHAN AND ORS. passed in CIVIL APPEAL NO.6469

OF 2021 decided on 26.10.2021 and brought to notice of this

Court Para No.23 that Sections 91 and 92 of the Evidence Act

would apply only when the document on the face of it contains

or appears to contain all the terms of the contract and further

held that, when parties deliberately put their agreement into

writing, it is conclusively presumed, between themselves and

their privies, that they intended the writing to form a full and

final statement of their intentions, and one which should be

placed beyond the reach of future controversy, bad faith and

treacherous memory.

14. The counsel also relied upon the judgement of the

Apex Court in V.K. SURENDRA VS. V.K.THIMMAIAH AND

ORS. passed in CIVIL APPEAL NO.1449 OF 2004 decided on

10.04.2013 and brought to notice of this Court Para No.12,

wherein the Apex Court discussed with regard to the document

of consent certificate binding on the persons, who are parties to

the said document.

15. Per contra, learned counsel for the respondent No.1,

in his argument would vehemently contend that suit is filed for

the relief of partition and the plaintiff has also challenged the

earlier partition and two items of the properties were left out. In

the plaint itself, it is stated as to under what circumstances, two

properties were left out in the partition i.e., since the father was

bedridden and the defendant No.1 got the signatures and the

father had not verified the documents. Admittedly, those two

properties were purchased when they were living together and

partition was effected in the year 1998. The counsel also would

vehemently contend that the admissions, if any given by P.Ws.1

and 2 as contended by the learned counsels for the petitioner

has to be considered when disputed facts are stated in the plaint

and based on the said stray admission, the same cannot be

decided without considering the matter on merits. The counsel

also would vehemently contend that, it was the transaction of

the year 1991 and the partition is of the year 1998 and property

was purchased in the name of the brother and after recovery, he

demanded for partition since, he is entitled for share in the two

items of the properties. The counsel also would submit that

earlier, an application was filed under Order 7, Rule 11(a) and

(d) of C.P.C. and the same was dismissed and confirmed in the

civil revision petition. The admission is not an unequivocal

admission and there is no admission in the pleading and stray

admission in the cross-examination cannot be relied upon to

invoke Order 12, Rule 6 of C.P.C. The counsel also would

contend that when the case is set down for cross-examination of

D.W.1, the present application is filed and the material available

on record has to be considered on merits.

16. The counsel for the respondent No.1, in support of

his argument relied upon the judgment of the Apex Court in

S.M. ASIF VS. VIRENDER KUMAR BAJAJ passed in CIVIL

APPEAL NOS.6106-6108 OF 2015 decided on 12.08.2015

and brought to notice of this Court Para No.9, wherein it is

discussed that the words in Order 7, Rule 6 C.P.C. "may" and

"make such order..." show that the power under Order 7, Rule 6

C.P.C. is discretionary and cannot be claimed as a matter of

right.

17. The counsel also relied upon the judgment of this

Court in MR. RAJ A. MENDA VS. RANI RASAMANI REAL

ESTATE reported in ILR 2007 KAR 2627 and brought to notice

of this Court Para No.31, wherein also discussed with regard to

scope of Order 12, Rule 6 of C.P.C. and brought to notice of this

Court Para No.49, wherein an observation is made that the

admission under Order 12, Rule 6 must be plain, unequivocal

and clear and positive and it must be complete by itself by which

the party making such admission will not succeed in the suit.

18. The counsel also relied upon the judgment of the

Apex Court in HARI STEEL AND GENERAL INDUSTRIES LTD.

AND ANR. VS. DALJIT SINGH AND ORS. reported in AIR

2019 SC 4796 and brought to notice this Court Para No.37,

wherein the Apex Court discussed with regard to scope of Order

12, Rule 6 of C.P.C. and the stage in which the application has to

be filed and an observation is made that the trial had already

commenced and considering the serious factual disputes and

defense of defendant in suit, it is not permissible for making

roving inquiry for disposal of application and mere admission of

entering into arrangement/agreement cannot be termed as

categorical and unconditional admission for delivering judgment

on admission.

19. Learned counsel for the petitioner, in reply to the

arguments of the learned counsel for the respondents would

vehemently contend that the evidence of P.Ws.1 and 2 is very

clear with regard to categorical admission and there is no stray

admission as contended by the learned counsel for the

respondent No.1. The counsel also would contend that, Order

12, Rule 6 of C.P.C. is very clear as to the admission in the

pleading or otherwise. Hence, the said contention of the learned

counsel for respondent No.1 cannot be accepted. The counsel

also would vehemently contend that the transaction is prohibited

under Benami Prohibition Act and even if it is purchased in the

name of the brother also, the principles laid down in the

judgments referred (supra) are applicable to the facts of the

case on hand. The Trial Court has committed an error in

dismissing the application and the same requires interference of

this Court.

20. Having heard the learned counsel for the petitioner

and learned counsel for the respondent No.1 and considering the

principles laid down in the judgments referred (supra) the points

that would arise for consideration of this Court are:

(1) Whether the Trial Court committed an error in dismissing the application filed under Order 12, Rule 6 of C.P.C and whether it requires interference of this Court?

(2) What order?

Point No.(1)

21. Having heard the respective counsel and also on

perusal of the material available on record, it is not in dispute

that the plaintiff has filed the suit for the relief of partition

claiming half share in respect of the suit schedule properties,

wherein he contend that he was working as an Assistant School

Teacher and he contributed for the purchase of the property and

the defendant No.1 denies the same contending that there was

no prohibition for the plaintiff to purchase the property in the

name of the plaintiff and the defendant No.1 has also denied all

the other averments of the plaintiff in the written statement. It

is also not in dispute that, earlier I.A.No.3 is filed under Order 7,

Rule 11(a) and (d) of C.P.C. seeking to reject the plaint and the

same was dismissed since, the grounds urged in the earlier

application were also that no cause of action to file the suit and

the suit is barred by limitation and the said order was also

challenged and this Court confirmed the same in the civil

revision petition and there is no dispute to that effect.

22. Now, it is the contention of the learned counsel for

the petitioner that the Trial Court has committed an error in

observing that roving inquiry is required, when no further inquiry

is required and the Trial Court only ought to have considered the

admission in evidence and the same is enough for disposal of the

suit. The counsel also would vehemently contend that, even if

the property is purchased in the name of the brother, the same

amounts to Benami Prohibition and the same attracts by virtue

of Benami Prohibition Act and therefore, the suit for partition

would not lie. The counsel also would vehemently contend that

the admission is an unequivocal admission and the same is clear

and unambiguous with regard to the document of earlier

partition and the same has not been properly appreciated by the

Trial Court.

23. Having considered the principles laid down in the

judgements referred (supra) by the learned counsel for the

petitioner, no dispute with regard to the fact that the Court can

invoke Order 12, Rule 6 of C.P.C. and the same enables the

party to obtain speedy judgment as held in UTTAM SINGH

DUGAL's case by the Apex Court. The Division Bench of this

Court also, in K. VENKATAMMA's case held that admissions in

pleadings are to be treated at a higher pedestal and are to be

accepted as admission about the state of things. But, in the

case on hand, there is no pleading in the admission but, only in

the cross-examination, certain answers are elicited from the

mouth of P.Ws.1 and 2. No doubt, in the case of benami

transaction, suit would not lie, in the judgment of the Apex Court

in ANANTHA RAJU's case referred by the learned counsel for

the petitioner, it is very clear that, when the documentary

evidence is available on record under Sections 91 and 92 of the

Evidence Act, the same would apply. The learned counsel for

the petitioner would contend that there is a partition deed and

the same is not disputed. But, the fact is that the Court has to

look into the averments of the plaint and also the written

statement and the pleadings in the plaint has been denied by the

defendant No.1 by filing the written statement. When such

being the case, the Court has to look into the pleadings of the

parties.

24. No doubt, there are certain admissions in the Cross-

examination of P.Ws.1 and 2, there are disputed facts with

regard to whether contribution was made by the plaintiff as

claimed by him and the same has been denied by the defendant

No.1 in the written statement and these disputed facts have to

be considered and finding has to be given by the Trial Court and

the Court cannot consider the same by invoking Order 12, Rule 6

of C.P.C. No doubt, Order 12, Rule 6 of C.P.C. is clear with

regard to the fact that Court can pass judgment on admission,

the counsel for the respondent No.1 brought to notice of this

Court that, even if the admission is not found in the pleadings,

the word used is otherwise and the word otherwise has to be

understood considering the other circumstances. But, the

disputed facts cannot be considered in an application filed under

Order 12, Rule 6 of C.P.C. and merely because certain

admissions are given by the defendant No.1 with regard to the

document of partition deed that no properties are left in terms of

the said partition deed while partitioning the property, but the

plaintiff categorically pleaded in the plaint as to under what

circumstances, the signature of the father was taken and he was

forced to sign the document taking advantage of his health

condition and also the fact that he was subjected to surgery

twice.

25. When such factual aspects are pleaded in the plaint,

even though there is no dispute with regard to the earlier

partition deed, but the learned counsel for the plaintiff would

vehemently contend that the properties are purchased even

prior to the said partition i.e., the partition which was taken

place in the year 1998 and the pleading is also clear that the

plaintiff contributed to the joint family while he was working as

an Assistant Teacher. When such issues are involved between

the parties, the Court cannot invoke Order 12, Rule 6 of C.P.C.

26. Further, this Court would like to rely upon the

judgment of the Apex Court quoted by the learned counsel for

respondent No.1 in S.M. ASIF's case, wherein the Apex Court in

Para No.9 of the judgment held as hereunder:

"9. The words in Order XII Rule 6 CPC "may" and "make such order..." show that the power under Order XII Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order XII Rule 6 CPC. The said rule is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim. In the suit for eviction filed by the respondent-landlord, appellant- tenant has admitted the relationship of tenancy and the period of lease agreement; but resisted respondent-plaintiff's claim by setting up a defence plea of agreement to sale and that he paid an advance of Rs.82.50 lakhs, which of course is stoutly denied by the respondent-landlord. The appellant- defendant also filed the suit for specific performance, which of course is contested by the respondent- landlord. When such issues arising between the

parties ought to be decided, mere admission of relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit under Order XII Rule 6 CPC."

27. On reading the principles laid down by the Apex

Court in the judgment extracted (supra), it is clear that the

Court has to look into the scope and ambit of Order 12, Rule 6

C.P.C. and in view of the judgment, it is very clear that power

under Order 12, Rule 6 of C.P.C. is discretionary and cannot be

claimed as a matter of right. The judgment on admission is a

matter of right and rather is a discretion of the Court. The Apex

Court also further observed that whether the defendants have

raised objection which goes to the very root of the case, it would

not be appropriate to exercise the discretion under Order 12,

Rule 6 of C.P.C. It is also held that the said rule is an enabling

provision which confers discretion on the Court in delivering a

quick judgment on admission and to the extent of the claim

admitted by one of the parties of his opponent's claim. I have

already pointed out that, in the written statement filed by the

first defendant, there is no admission. But, the first defendant

dispute the very contention of the plaintiff and totally denied the

case of the plaintiff and only relied upon the evidence of P.Ws.1

and 2 and answers elicited in the cross-examination.

28. This Court also would like to rely upon the recent

judgment of the Apex Court which has been relied upon by the

learned counsel for the respondent No.1 referred (supra) in

HARI STEEL AND GENERAL INDUSTRIES LTD.'s case,

wherein the Apex Court in Para No.37 of the judgment held as

under:

"37. In this case it is to be noted that the suit was filed on 1.11.2006 and written statement was filed on 25.01.2007 and the application under Order XII Rule 6 was filed on 9.2.2007. In year 2010 issues and additional issues were framed and trial is also commenced. In that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII Rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving enquiry for disposal of the application filed under Order XII Rule 6 of CPC.

When the trial is already commenced, it is desirable to record findings on various contentions issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone."

29. In the judgment of the Apex Court extracted supra,

the Court also taken note of the fact that suit was filed on

1.11.2006 and written statement was filed on 25.01.2007 and

the application under Order XII Rule 6 was filed on 9.2.2007. In

the year 2010 issues and additional issues were framed and trial

is also commenced and observed that, in that view of the

matter, there is no reason to pass the impugned order now for

decreeing the suit on claimed admissions, in exercise of power

under Order XII Rule 6 of CPC at this stage. In view of the

serious factual disputes and the defence of the appellants in the

suit, it is not permissible for making roving enquiry for disposal

of the application filed under Order XII Rule 6 of CPC. When the

trial is already commenced, it is desirable to record findings on

various contentions issues and disputes in the suit on merits by

appreciating evidence but at the same time there is no reason or

justification to decree the suit at this stage and held that, the

impugned judgment of the High Court cannot be sustained and is

liable to be set aside on this ground alone.

30. In the case on hand, no doubt, the plaintiff filed the

suit for the relief of partition in respect of two properties and

also admitted earlier partition, it is important to note that under

what circumstances, earlier partition deed came into existence.

The plaintiff also contend that those two properties were left out

and document came into existence at the instance of the first

defendant. These are the serious factual disputes, since the first

defendant also denied the same in the written statement which

is already taken note by this Court while summing up the

contentions raised in the written statement. When such being

the case, the question of dismissing the suit taking note of the

admission which is elicited in the cross-examination of P.Ws.1

and 2 cannot be done and serious factual disputes have to be

considered by the Trial Court while considering the matter on

merits.

31. The Trial Court, while dismissing the application filed

under Order 12, Rule 6 of C.P.C., taken note of the fact that the

first defendant has denied the categorical allegations made in

the plaint by filing the written statement which is observed in

Para No.13 of the order of the Trial Court and also taken note of

the pleadings of the plaintiff in respect of purchase of item No.2

of the suit schedule properties, wherein the plaintiff contend that

he was working as an Assistant Teacher and these are the

aspects which have to be considered by the Trial while

considering the matter on merits. The Trial Court also taken

note of the fact that evidence has already been commenced and

cross-examination of P.Ws.1 and 2 was completed and case was

set down for cross-examination of D.W.1. The material also

discloses that, instead of cross-examining D.W.1, present

application is filed under Order 12, Rule 6 C.P.C. and the same is

observed in Para No.14 of the order and taken note of the

serious factual disputes between the parties and rightly comes to

the conclusion that it is not permissible for making roving inquiry

though the counsel for the petitioner contend that there is no

need of making any roving inquiry for disposal of the application.

Hence, I do not find any error committed by the Trial Court in

dismissing the application filed under Order 12, Rule 6 of C.P.C.

since, the admission made by the witnesses has to be looked

into, in keeping the contentions of both the parties while

considering the matter on merits and there are no unequivocal

admissions in respect of the issues involved between the parties.

32. When there are several disputes with regard to

contents of the plaint and also the first defendant disputed the

same in the written statement and categorically denied the

contention of the plaintiff, the matter requires to be considered

on merits. Hence, I do not find any error committed by the Trial

Court in dismissing the application and the application is filed

when the case was set down for cross-examination of D.W.1.

The Apex Court also in HARI STEEL AND GENERAL

INDUSTRIES LTD's case observed that when the trial has

already been commenced and when there are serious disputed

factual aspects, it is not permissible for making roving inquiry for

disposal of application under Order 12, Rule 6 of C.P.C. and

mere admission on the document of partition deed cannot be

termed as categorical and unequivocal admission for delivering

judgment on admission. Hence, there is no merit in the revision

petition to set aside of the order of the Trial Court and the

matter requires to be considered on merits. Accordingly, I

answer Point No.(1) as 'negative'.

Point No.(2)

33. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

ST