Telangana High Court

Smt. B. Lalitha Devi vs Lakshman on 17 October, 2024

    THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

                    C.R.P.NO. 1087 of 2024

ORDER:

This Civil Revision Petition has been filed against the

order dated 20.02.2024 passed in I.A.No.21 of 2023 in

O.S.No.138 of 2016 on the file of IV Additional District Judge,

Sangareddy, in respect of the petition filed under Order XII Rule

6 of C.P.C. by the petitioners/plaintiffs.

2. Brief facts leading to the filing of the present Civil

Revision Petition are that the petitioners herein are the plaintiffs

who filed suit i.e., O.S.No.138 of 2016 for perpetual injunction.

The suit schedule property is a house bearing No.1-9-165/9,

situated as Karas Guthy Road, consisting of seven mulgies, one

store room, one pump house, one stair case and two toilets,

constructed on land admeasuring 242 square yards on Plot

Nos.26/1 and 26/2 in Survey No.23/2, Narayankhed Village,

Medak District. According to the plaintiffs, originally, one

P.Venkatesh Rao was the absolute owner and possessor of

various extents of lands admeasuring about Ac.5-00gts.,

situated in Survey No.23/2. In order to carry on agricultural

activity in the said land, Mr.P.Venkatesh Rao approached one

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Mr.B.Krishna Murthi (husband of Plaintiff No.1 and father of

Plaintiffs No.2 to 5) and requested him to solve the drainage

issue in the said lands and Mr.B.Krishna Murthi devoted

substantial part of his time and came to a conclusion that it

was not possible to carry on agricultural activity in the said land

and has accordingly advised Mr.P.Venkatesh Rao to go in for

development of the same and not to proceed further with

agricultural activity. According to the plaintiffs, Mr.B.Krishna

Murthi did all the said work for P.Venkatesh Rao free of cost

without charging any amount. Thereafter, Mr.P.Venkatesh Rao

has developed the said property and in order to show the

gratitude to Mr.B.Krishna Murthi, had executed a Gift Deed in

favour of the Mr.B.Krishna Murthi and had transferred Plot

Nos.26/1 and 26/2, total admeasure 242 square yards in his

favour. Consequent thereto, Mr.B.Krishna Murthi had made an

application to the Gram Panchayat, Narayankhed, seeking

permission to construct building with RCC roof vide application

dated 11.10.1988 and the Village Executive Officer, Gram

Panchayat, Narayankhed vide File No.263/GPN/1988-89, dated

23.10.1988 had accorded permission for construction of

building in the said property. Thereafter, Mr.B.Krishna Murthi

paid the requisite fees to the Gram Panchayat and the plan was

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sanctioned for construction of the building and Mr.B.Krishna

Murthi has made construction of a structure comprising of

mulgies and has been in possession and enjoyment of the same

without there being any interference of whatsoever from any

person/persons. It is submitted that pursuant to the

construction, the Gram Panchayat authorities assigned door

number to building as 1-9-165/9 and Mr.B.Krishna Murthi has

been paying property tax regularly to the concerned Gram

Panchayat and electricity department had also allotted service

connection bearing No.4424602108 and Mr.B.Krishna Murthi

has been paying the electricity bills regularly and an ownership

certificate dated 10.05.2016 was also issued in favour of the

Mr.B.Krishna Murthi and he has been paying property tax for

the said property thereafter.

3. It is submitted that the mulgies were let out on rent

and the rents were being collected by Mr.B.Krishna Murthi.

While that being so, it is submitted that on 07.05.2016, the

defendant No.1 along with his sons and henchmen, forcibly

tried to enter into one of the mulgies and take possession of the

same but these efforts were successfully thwarted by

Mr.B.Krishna Murthi with the help of well wishers and a police

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complaint was also lodged against the defendant No.1 in Crime

No.143/2016. However, Mr.B.Krishna Murthi died on

18.05.2016 leaving behind the plaintiffs as his legal heirs and

they have succeeded to the properties and were enjoying of the

same. It is submitted that after the death of Mr.B.Krishna

Murthi, the defendant No.1 and his henchmen came to the

property again on 10.09.2016 and had threatened the tenants

to vacate the suit schedule property and to hand over the

property to him and some of the plaintiffs who were in vicinity,

at the relevant point of time, thwarted the attempts of the

defendant No.1. It is stated that in order to continue his

attempts to take over the property, defendant No.1 came to the

property again on 12.09.2016 along with other defendants and

his henchmen and the plaintiffs called the police and thus,

prevented the high-handed acts of the defendants. Thereafter,

the plaintiffs filed a suit for permanent injunction against the

defendants in O.S.No.138 of 2016 and ad-interim injunction

was granted in their favour and is in existence as on date.

4. The defendant No.2 filed a written statement

claiming to be the absolute owner and possessor of the Plots

No.26/1 and 26/2, total admeasuring 242 square yards in

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Survey No.23/2 of Narayankhed, purchased from the original

owner in the year 1990 and 2016 vide document No.924/1990,

dated 17.11.1900 from one P.Venkateshwar Rao and vide

document No.3544/2016, dated 03.09.2016 from one Laxman,

S/o.Suvila Nayak @ Somla Naik i.e., defendant No.1

respectively. It is submitted that the said defendant No.1 has

purchased the Plot No.26, admeasuring 120 square yards, vide

document No.925/1990, dated 17.11.1990 from one

P.Venkatesh Rao and thereafter, the defendant No.1 has sold

the Plot No.26/1, admeasuring 120 square yards in Survey

No.23/2 to the defendant No.2 under document No.3544/2016,

dated 03.09.2016 and therefore, the defendant No.2 is the

absolute owner and possessor of the Plot No.26/1, admeasuring

120 square yards. It is stated that during the life time of

P.Venkateshwar Rao, he himself executed the document i.e.,

sale deed in favour of the defendant No.1 on the same day in

respect of the suit schedule plots by receiving valid sale

consideration and delivered the possession and therefore the

question of execution of the Gift Settlement Deed in favour of

the Mr.B.Krishna Murthi in the year 1982 by P.Venkateshwar

Rao does not arise. It is stated that the contentions of the

plaintiffs that Mr.B.Krishna Murthi has approached the Gram

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Panchayat and got permission for construction and raised the

construction is all behind the back of the defendants and

therefore, the same is not binding on him. It is further stated

that the alleged construction raised by Mr.B.Krishna Murthi

over the said plots is illegal construction and without having

valid possession over the same and that his successors also

have no right to claim the plots, which exclusively belong to the

defendants and that the illegal construction is liable to be

dismantled from the plots.

5. The defendant No.2 also filed a counter claim for

declaration of title and recovery of possession. In the said claim,

it was stated that he is claiming the property by way of a

counter claim, as he is the absolute owner and valid possessor

of the said plots and that the alleged Gift Deed was brought into

existence by late Mr.B.Krishna Murthi, father of the plaintiffs

No.2 to 5 in the suit and that it is an illegal, fabricated and

forged one and that under the guise of an ex-parte injunction

order, the petitioners are creating nuisance by not allowing him

over the suit schedule property. It is also stated that raising of

the construction is illegal and same is liable to be dismantled as

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the respondents i.e., defendants in the suit are having valid title

over the said plots.

6. In the light of the counter claim of the defendants in

the suit, the plaintiffs filed I.A.No.21/2023 under Order XII Rule

6 r/w 151 of C.P.C. and prayed that the Hon'ble Court be

pleased to pass judgment and decree in their favour basing

upon the admissions made by the respondents/defendants so

far as the possession of the petitioners/plaintiffs is concerned

over the suit schedule property. The same was contested by the

respondents/ defendants by filing a counter affidavit. The trial

Court held that even though in the counter claim, there are

admissions by the respondents that the plaintiffs are in

possession of the property, it cannot be treated as unconditional

admission and that the writ statement and counter claim show

that the defendants/respondents have not admitted the title

and possession of the petitioners and have called it illegal

possession and they have also denied the title of the

petitioners/plaintiffs apart from the possession and therefore,

the defendants have not admitted the possession and the title of

the petitioners unconditionally and hence the judgment cannot

be passed under Order XII Rule 6 of C.P.C., as the admission

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intended to act upon under Rule 6 or 12 is not unambiguous

and unconditional admission as made in the present case. It

was held that the petitioners are under obligations to prove

their possession over the suit schedule property and they

cannot seek judgment and decree in their favour on the basis of

conditional admissions made by the respondents/defendants in

their counter claim. Aggrieved by the said order, the present

Civil Revision Petition is filed.

7. Learned Senior Counsel, appearing for the

petitioners, has taken this Court through the averments in the

written statement as well as the counter claim to demonstrate

that the defendants have admitted the possession of the

plaintiffs over the suit schedule property and therefore, there is

clear admission, which calls for an order XII Rule 6 of C.P.C.

8. Learned Senior Counsel submitted that the suit

filed by the plaintiffs is for permanent injunction only and since

the possession of the petitioners has been admitted in the

written statement as well as the counter claim, the suit has to

be decreed in favour of the petitioners and not doing so would

only be abuse of process of law and travesty of justice. It is

submitted that when the defendants have admitted the

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possession of the petitioners over the suit schedule property,

any further continuation of the suit would only be a formality

and would be causing severe inconvenience to the plaintiffs for

no reason and it would be abuse of process of law.

9. In support of his contentions, the learned counsel

for the petitioners has placed reliance upon the following

judgments:

1. Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jadoo 1;

2. Inder Sain Bedi (Dead) By Lrs., Vs. Chopra Electricals 2;

3. Charanjit Lal Mehra and Others Vs. Kamal Saroj Mahajan (Smt) and Another 3;

4. Smt.B.Lalitha Devi and Others Vs. Lakshman and Others 4;

5. Balkrishna Dattatraya Galande Vs. Balkrishna Rambharose Gupta and Another 5.

10. Learned counsel for the petitioners has also relied

upon the orders of this Court in CRP.No.1110 of 2022, dated

1 (2009) 5 SCC 713 2 (2004) 7 SCC 277 3 (2005) 11 SCC 279

5 (2020) 19 SCC 119

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28.07.2022 (cited 4 surpa), wherein the plaintiffs have been

granted interim injunction pending adjudication of

I.A.No.1226/2021 filed for restoration of the suit and therefore,

the plaintiffs are in possession of the suit schedule property.

11. Learned counsel for the petitioners further tried to

distinguish the judgment relied upon by the trial Court in the

case of Balkrishna Dattatraya Galande Vs. Balkrishna

Rambharose Gupta and Another (cited supra) to submit that

finding in this case is not against the petitioner. He submitted

that in the said case, the Hon'ble Supreme Court has observed

that a permanent injunction can be granted only to a person

who is in actual possession of the property and the burden of

proof lies upon the plaintiff to prove that he was in actual and

physical possession of the property on the date of suit. It is

further submitted in this case, that the petitioners/plaintiffs

have filed all the relevant documents to prove that they are in

possession of the property and the respondents/defendants, in

their written statement as well as in the counter claim, have

clearly admitted the possession of the plaintiffs over the suit

schedule property. He therefore prayed for setting aside of the

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order of trial Court passed in I.A.No.21/2023, dated 20.02.2024

and to allow the petition in I.A.No.21/2023.

12. Learned counsel for the respondents/defendants,

on the other hand, has filed a counter affidavit denying the

allegations made by the petitioners herein and submitted that

they are the title holders and possessors of the suit schedule

property. It is stated that the plaintiffs have filed the suit

O.S.No.138/2016 seeking relief of permanent injunction

claiming to be in possession of the suit schedule property and

that the defendants have filed their written statement along

with the counter claim on 20.12.2016 and against the said

counter claim, the plaintiffs have filed I.A.No.382/2017 for

rejection of the counter claim made by the respondents. It is

submitted that the I.A.No.382/2017 was dismissed on

22.07.2019 on the sole ground that the respondents have not

disclosed the cause of action in the counter claim and against

the said order, the respondents have filed A.S.No.603/2019

before this Court. It is also stated that O.S.No.138/2016 was

dismissed on 01.12.2021, but the same was not disclosed by

the petitioners herein and therefore, the respondents have not

insisted on any orders in the counter claim of appeal in

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A.S.No.603/2019 and the same was withdrawn on 05.01.2023.

It is submitted that the plaintiffs have filed an application of

restoration of suit in O.S.No.138/2016 and after it was restored,

the petitioners filed an Order 12 Rule 6 petition for passing a

judgment as prayed for in the main suit based on the

admissions made by the respondents so far as the possession of

the suit schedule property is concerned. It is submitted that the

petitioners have themselves filed complaints against the

respondents stating that suit schedule property was encroached

by the respondents on 20.04.2022 and requested to take action

against the respondents and the same was registered as FIR

No.79/2022 and also that another complaint was filed by them

on 28.04.2022 alleging that they encroached the suit schedule

property by damaging the property and the same was also taken

into consideration by the police and a Crime No.84/2022 was

registered, which make it clear that the petitioners/plaintiffs are

not in possession of the suit schedule property and that they

are not entitled for any relief as prayed in the O.S.No.138/2016.

It is submitted that after dismissal of the counter claim, the

respondents filed O.S.No.92/2022 for declaration of title over

the Plots No.26/1 and 26/2 in Survey No.23/2, total

admeasuring 240 square yards and further sought declaration

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that the unregistered Gift Deed dated 23.05.1982 relied upon by

the petitioners herein is null and void and not binding on the

defendants. The respondents, thus, supported the order of the

trial Court in I.A.No.21/2023 in O.S.No.138/2016.

13. Learned counsel for the respondents, in support of

his contentions, relied upon the following judgments:

1. Karam Kapahi and Others Vs. Lal Chand Public Charitable Trust and Another 6;

2. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Another 7;

3. Uttam Singh Duggal and Co. Ltd., Vs. United Bank of India and Others 8;

4. Charanjit Lal Mehra and Others Vs. Kamal Saroj Mahajan (Smt) and Another 9;

5. Satish Chander Ahuja Vs. Sneha Ahuja 10;

6. Hari Steel and General Industries Ltd., and Another Vs. Daljit Singh and Others 11;

7. Karan Kapoor Vs. Madhuri Kumar 12;

6 (2010) 4 SCC 753 7 (2010) 6 SCC 601 8 (2000) 7 SCC 120 9 (2005) 11 SCC 279 10 (2021) 1 SCC 414 11 2020 (1) ALD 260 (SC)

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8. Musunuru Appa Rao Vs. Ushodaya Enterprises Pvt.

Ltd. Co., and Another 13;

14. Having regard to the rival contentions and the

material on record, this Court finds that this Civil Revision

Petition is against the order in I.A.No.21/2023 filed under Order

XII Rule 6 of CPC. For the sake of ready reference the relevant

provision is reproduced hereunder:

Order XII Rule 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 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 (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.

15. A literal reading of the above provision would make

it clear that where the admissions have been made

unequivocally or without any qualification, only then the said

provision apply. The Hon'ble Supreme Court in a number of

cases has interpreted the said provision to hold that the rule is

12 2022 (4) ALD 280 (SC) 13 2023 (5) ALD 486 (AP)

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applicable wherever there is a clear admission of facts in the

face of which it is impossible for the party making it to succeed.

In the case of Karam Kapahi and Others (cited supra), it was

held that the provision under Order 12 Rule 6 of C.P.C., is

enabling, discretionary and permissive and is neither

mandatory nor is it preemptory since the word "may" has been

used. In the case of Jeevan Diesels and Electricals Limited

(cited supra), the above principle has been reiterated.

16. In the case of Uttam Singh Duggal and Co. Ltd.,

(cited supra), in para-12, the meaning and purport of Order 12

Rule 6 has been explained and thus, Para-12 is reproduced

hereunder:

Para-12. As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that "where a claim is admitted, 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 at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled". We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed.

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17. The above principle has been followed by the

Hon'ble Supreme Court in the case of Charanjit Lal Mehra and

Others (cited supra), and it was held as under:

Para-8. In fact, Order 12 Rule 6 CPC is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. In the present case, looking at the terms of the lease deed, there can be no two opinions that the tenancy was joint/composite and not an individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000) 7 SCC 120] . Their Lordships have held as follows: (SCC p. 121) "In the objects and reasons set out while amending Rule 6 of Order 12 CPC it is stated that 'where a claim is admitted, 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 at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'.

The Supreme Court should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment."

18. In the case of Satish Chander Ahuja (cited supra),

the Hon'ble Supreme Court has also held that the provision of

Order 12 Rule 6 of C.P.C. is discretionary and not mandatory

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and for coming to this conclusion, it has referred to the law laid

down by the Hon'ble Supreme Court in the case of S.M.Asif Vs.

Virender Kumar Bajaj and has held as under:

Para-105. We have noticed the law laid down by this Court in S.M. Asif v. Virender Kumar Bajaj [S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287 : (2015) 4 SCC (Civ) 589] where this Court in para 8 has laid down the following : (SCC p. 291) "8. The words in Order 12 Rule 6 CPC "may" and "make such order ..." show that the power under Order 12 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 12 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."

Para-106. The power under Order 12 Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the trial court ought not to have given judgment under Order 12 Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the DV Act. Thus, there is more than one reason for not approving the course of action adopted by the trial court in passing the judgment under Order 12 Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the trial court given under Order 12 Rule 6 is unsustainable.

19. In the latest judgment of Karam Kapahi and

Others (cited supra), the Hon'ble Supreme Court has considered

the precedents on issue and has held that the power of the

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Court to pass an order under Order 12 Rule 6 is discretionary

and cannot be claimed as a matter of right unless specific, clear

and categorical admissions of facts and documents are on

record.

20. The judgments relied upon by the learned counsel

for the petitioners/plaintiffs are on the aspect as to when and

how the averments in the pleadings of the parties are to be

considered as admissions and can be treated against the said

party.

21. In the case of Vimal Chand Ghevarchand Jain and

Others (cited supra), the Hon'ble Supreme Court was dealing

with the case where in the written statement, the defendant had

initially taken a stand and thereafter by an amendment, he

wanted to setup a totally inconsistent stand from the one taken

before the trial Court. It was in these circumstances that the

Hon'ble Supreme Court has held as under:

Para-25. Pleadings of the parties, it is trite, are required to be read as a whole. The defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in considering as to whether the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by

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a party in his pleadings is admissible against him proprio vigore. (See Ranganayakamma v. K.S.Prakash [(2008) 15 SCC 673 : (2008) 9 Scale 144] .) It is for the aforementioned purpose, the deed of sale was required to be construed in proper perspective.

22. In the case of Inder Sain Bedi (cited supra), in

Para-13 it was observed thus:

Para-13: In para 2 of the plaint the appellant had made a specific averment that the respondent had taken from the appellant a portion comprising of a hall, 3 offices-cum-storerooms and toilets on the ground floor and two mezzanine halls on the mezzanine floor. In para 2 of the written statement filed by the respondent it was pleaded that the premises described in para 2 of the plaint as having been let out to the respondent was substantially correct. This reply amounts to admission of the allegations made in the corresponding paragraph in the plaint.

23. In Charanjit Lal Mehra and Others (cited supra),

in Para-8, the Hon'ble Supreme Court has considered its earlier

judgment in the case of Uttam Singh Duggal and Co. Ltd.,

(cited supra), to hold as under:

Para-8: Learned counsel made an alternative submission that the revision petition was not maintainable and the lease deed is not a registered one and therefore, it is not maintainable. None of these objections were raised by the defendants before the learned Single Judge. Even before the trial court, the non- registration of lease deed (which did not prescribe any term) was not put in issue. It is only devised now to somehow defeat and delay the eviction and possession of the premises to the landlady. In fact, Order 12 Rule 6

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CPC is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute;

then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. In the present case, looking at the terms of the lease deed, there can be no two opinions that the tenancy was joint/composite and not an individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co.

Ltd. v. United Bank of India [(2000) 7 SCC 120] . Their Lordships have held as follows: (SCC p. 121) "In the objects and reasons set out while amending Rule 6 of Order 12 CPC it is stated that 'where a claim is admitted, 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 at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'.

The Supreme Court should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment."

24. In view of the law laid down by the Hon'ble

Supreme Court in the above decisions relied upon both the

parties, it is clear that unless and until the admissions are

unambiguous and without any qualification, the same cannot

be considered by the Courts as an admission to pass an order

under Order 12 Rule 6 of C.P.C. In the present case, though the

respondents, in their written statement as well as the counter

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claim, have admitted that there are constructions in the suit

schedule property, they claim that the said constructions are

illegal. However, they do not unconditionally admit the