Orissa High Court
Bhavana Patadia vs Mukesh Patadia on 3 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRP No.10 Of 2021
(Through video conferencing mode)
Bhavana Patadia ... Petitioner
Mr. B. Baug, Advocate
-versus-
Mukesh Patadia ... Opposite Party
Mr. S.S.Rao, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
03.02.2022
Order No.
01. 1. Mr. Baug, learned advocate appears on behalf of petitioner and
submits, his client has petitioned under section 115 in Code of Civil
Procedure, for revision of impugned order dated 4th October, 2021
made rejecting his client's application under order XII rule 6 for
judgment upon admission. He demonstrates from pleadings in
paragraph 4 of the plaint, that his client had stated taking forcible
possession with effect from 2nd January, 2000. This was admitted by
defendant in his written statement. Even then the Court below rejected
his client's application by acting illegally and with material
irregularity. He submits further, the order needs to be reversed because
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if the Court below had made it in favour of his client, it would have
finally disposed of the suit.
2. Perused impugned order. It will be sufficient to extract and
reproduce below the following from it:-
" In the present case, even though the plaintiff claims
that his possession was adverse and hostile but filed the
original ROR of the suit schedule property bearing
Khata no.736/563 under mouza Cuttack Sahar, Unit
No.29, Chauliaganj which stood recorded in the name of
the defendant Mukesh Patadia. No doubt the defendant
admitted the claim of the plaintiff but no documents have
been filed by the plaintiff regarding his actual, visible,
exclusive and continued possession over the suit land.
The plaintiff has not shown the clear unequivocal
evidence in this regard. At this stage, except pleading
there is no evidence submitted by the plaintiff with
regard to the date when he came to the possession over
the suit schedule property and also not filed any
evidence or document with regard to his nature of
possession as well as the continued, open and
undisturbed possession over the same. Hence,
considering the facts and circumstances of this case as
well as in absence of sufficient evidence, the petition
stands rejected being devoid of merit. Put up on
21.10.21 for hearing on the point of settlement of
issues."
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3. It will be seen that the learned Court below did not obtain
satisfaction on pleadings only. Petitioner/plaintiff claimed adverse
possession on and from 2nd January, 2000 and defendant admitted the
same. Court below said in effect, in spite thereof some documentary
evidence was necessary for satisfaction of proof of fact by admission.
Rule 6 in order XII empowers the Court as 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,
to make such order or give such judgment as it may think fit, having
regard to such admissions. The power is discretionary. Trial Court did
not exercise discretion, obviously because plaintiff and defendant
appear to be saying the same thing in the suit filed implying complicity
in the proceeding. Therefore, the Court required documentary evidence
and refused to pass order or judgment having regard to the admissions
made by pleadings.
4. In circumstances stated above, this Court does not find reason
to interfere with impugned order.
5. The revision petition is dismissed.
(Arindam Sinha)
Judge
Prasant
