Kerala High Court
Sheba Sujan George vs Abraham Varghese on 30 November, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934
OP(C).No. 105 of 2013 (O)
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AGAINST THE JUDGMENT IN OS.706/2011 of II ADDL.DISTRICT
COURT,ERNAKULAM
PETITIONER(S):
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1. SHEBA SUJAN GEORGE
W/O.SUJAN GEORGE ABRAHAM, HOUSE WIFE, CHENNATTU HOUSE
POUND ROAD, THYCAUD.P.O, THIRUVANANTHAPURAM.
2. SHEEBA ROBIN, AGED 43 YEARS
HOUSE WIFE, W/O.ROBIN KOSHY MATHEW, MAPPILAVEETTIL
AINI ROAD, NEAR SANKARS HOSPITAL JN., KOLLAM.
3. SHINA MATHEW, AGED 40 YEARS
HOUSE WIFE, W/O.MATHEW ANDREWS, 12A
SFS SILICON DRIVE, CEP.P.O, KAKKANAD
KOCHI-682 037.
BY ADVS.SRI.K.V.SOHAN
SMT.SREEJA SOHAN.K.
SRI.GEORGE JOSEPH PULIMOOTTIL
SRI.N.N.ARUN BECHU
RESPONDENT(S):
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1. ABRAHAM VARGHESE, AGED 36 YEARS
CONTRACTOR, S/O.LATE P.I.VARGHESE, PALAL HOUSE
VATTIYOORKAVU.P.O, TRIVANRDUM-13, KERALA.
2. MOLLY VARGHESE,, AGED 68 YEARS
HOUSE WIFE, W/O.LATE P.I.VARGHESE, PALAL HOUSE
VATTIYOORKAVU.P.O, TRIVANRDUM-13, KERALA.
3. M/S.FAVOURITE CONSTRUCTIONS (P) LTD.
HAVING ITS REGISTERED OFFICE AT "MARTIN DALE"
T.C.27/2270(1), STATUE ROAD, RISHIMANGALAM ROAD
VANCHIYOOR VILLAGE, TRIVANDRUM
PIN-695 001. REPRESENTED BY ITS MANAGING DIRECTOR
Advs. M/s. S.Vinod Bhat & Legith T. Kottakkal for R1
By Advs M/s. S.P. Chaly and Sanjith R. for R2
By Adv. Sri. Bechu Kurian Thoas for R3
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P. (Civil) No. 105 of 2013
APPENDIX
PETITIONER(S) EXHIBITS
P1- TRUE COPY OF THE PLAINT IN O.S.706/2011 BEFORE THE
SUBORDINATE JUDGE'S COURT, ERNAKULAM, DT. 16.8.2011.
P2- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE IST
DEFENDANTS IN O.S.706/2011, DT. 12.11.2011.
P3- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND
DEFENDANTS IN O.S.706/2011, DT. 17.11.2011.
P4- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD
DEFENDANTS IN O.S.706/2011, DT. 04.11.2011.
P5- TRUE COPY OF THE I.A.NO.6700/12 APPLICATION FOR
ADJOURNMENT FILED BY THE 3RD DEFENDANT IN O.S.NO.706/11,
DATED 30.11.2012.
P6- TRUE COPY OF THE APPLICATION I.A.NO.6797/12 IN
O.S.NO.706/11 FOR AMENDMENT OF THE PLAINT FILED BY THE
PETITIONERS DATED 2.12.2012.
P7- TRUE COPY OF THE APPLICATION I.A.NO.6799/12 IN
O.S.NO.706/11, FOR GRANT LEAVE TO SERVE NOTICE TO ADMIT
FACTS FILED BY THE PETITIONERS DATED 2.12.2012.
P8- TRUE COPY OF I.A.NO.6798/12 IN O.S.NO.706/11, NOTICE TO
ADMIT FACTS DT. 02.12.2012.
P9- TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY IST
RESPONDENT TO I.A.NO.6797/12 DT. 09.12.2012.
P10- TRUE COPY OF THE OBJECTION TO I.A.NO.6797/12 FILED BY
3RD RESPONDENT DT. 07.12.12.
P11- TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY IST
RESPONDENT TO I.A.NO.6799/12 DT. 09.12.2012.
P12- TRUE COPY OF THE OBJECTION TO I.A.NO.6798/12 FILED BY
3RD RESPONDENT DT. 07.12.12.
P13-
I.A.NO.6798/12COPY 6799/12 IN O.S.NO.706/11 DT. 12.12.12 BY
TRUE OF THE COMMON ORDER PASSED IN
AND
THE SUBORDINATE JUDGES COURT, ERNAKULAM.
CR
N.K.BALAKRISHNAN, J.
.................................................................
O.P. (C) 105 of 2013
....................................................................
Dated: 12-3-2013
JUDGMENT
Ext. P13 order passed by the learned Additional Sub Judge, Ernakulam is under challenge in this petition filed by the plaintiffs under Article 227 of the Constitution of India. Three petitions were filed by the plaintiffs on 3.12.2012, the date on which the suit stood posted for trial in the special list. One of those petitions was to amend the plaint. That petition was allowed by the learned Sub Judge. The other two petitions are - one seeking leave of the court to serve notice to admit the facts and the other petition was to serve notice to the defendants to admit facts. Those two petitions filed under Order XII Rule 4 were dismissed by the learned Sub Judge as per Ext. P13 order holding that those petitions were belated, having been filed on the day posted for trial in the Special List.
O.P. (Civil) 105/2013 -:2:-
2. It was observed by the learned Sub Judge that such a petition should be filed immediately after the issues were settled and framed and that is why in the later part of Order XII Rule 4 it is stated that in case of refusal or neglect by the other party to admit facts, the party making the application can give evidence to prove the facts.
3. Rule 1 of Order XII says that any party to the suit may give notice by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. Rule 2 deals with the notice to the other side to admit documents. Order XII Rule 4 which is relevant for our consideration reads:
"Notice to admit facts:- Any party, may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts, mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs:
Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice".O.P. (Civil) 105/2013 -:3:-
4. It is true that in Order XII R. 4 of C.P.C. the words used are not "at the first hearing". Sri. Legith T. Kottakkal, the learned counsel for the respondent, would submit that Orders and Rules are arranged and codified in Civil Procedure Code starting from Order I to Order XX in the sequence in which it is to be done. It is in that Order the filing of the plaint, written statement, framing of issues etc are dealt with in the Code and ultimately it leads to Order XX which deals with the judgment. It is thereafter Order XXI, which relates to the execution proceedings comes. The learned counsel further submits that since Order XVIII deals with the trial and Order XIX deals with the affidavits to be filed, it is indubitably clear that the petition under Order XII Rule 4 should be filed immediately after the filing of the written statement or at any rate immediately after the settlement of issues. Unlike Order X which enjoins on the court, to ascertain from the parties whether the allegations and pleadings are admitted or denied, where the words "at the first hearing of the suit" O.P. (Civil) 105/2013 -:4:-
are employed, that is not the expression used in Rule 4 of Order XII. But a reading of Rule 4 of Order XII would make it clear that in case of refusal or neglect to admit the questions put to the opposite party within six days after the service of that notice or within a further time as may be allowed by the court, the cost of proving such fact or facts shall be payable by the party so neglecting or refusing, because in case of refusal or neglect, the party has to apply to the Court for the issuance of summons for attendance of witness or for causing production of documents etc. Therefore, it is to obviate that difficulty, the unnecessary burden of summoning witnesses or causing of document in case such fact put to the opposite party is admitted, the provision is so couched. Therefore, there is force in the submission made by the learned counsel Sri. Legith that the application under Rule 4 should be filed immediately after the framing of the issues. Usually after the framing of the issues, the case would be posted for taking Pre-Trial steps and it is at that stage the parties used to file such O.P. (Civil) 105/2013 -:5:- applications.
5. According to the learned counsel, if on serving of notice, certain facts are admitted by the opposite party, then issues on such facts need not be framed; that is why the provision relating to notice to admit documents and notice to admit facts are dealt with in the earlier provision, namely, Order XII C.P.C. It is also pointed out that in Order XV also the words "at the first hearing of a suit" are employed and so the words used in Order XII Rule 4 cannot be construed to hold that the party can file application under Rule 2 or Rule 4 mentioned therein at any stage of the suit.
6. The requirement of production of documents and also summoning of witnesses as provided under Order XVI C.P.C. would be necessary only if the parties are at issue. If the parties, to the notice filed under Order XII Rule 4 admit the facts stated therein then there would be no necessity to summon the witnesses and therefore, it has to be held that the stage at which the application O.P. (Civil) 105/2013 -:6:- under Order XII Rule 4 is to be filed should at any rate be prior to the stage of Order XVI C.P.C.
7. Sri.K.V. Sohan, the learned counsel appearing for the plaintiffs/petitioners would submit that even if the arguments advanced by the learned counsel for the respondents is accepted still , so far as the case on hand is concerned, the petition under Order XII Rule 4 should have been entertained by the trial Court, since it is a case where the trial Court has allowed the application for amendment of the plaint and having done so, the trial Court was not justified in rejecting the application under Order XII Rule 4 C.P.C. The provisions contained in Order XII of C.P.C. are intended and aimed at shortening the long procedure of hearing even those matters which are not in controversy. It is contended that if the other side does not dispute any portion of the claim and if after serving the notice the parties admit certain facts mentioned therein, then the controversy in the suit will lie in a very narrow compass since other questions can be taken as settled by the O.P. (Civil) 105/2013 -:7:- answers given to the questions furnished by the opposite party. Therefore, according to the learned counsel, the very object of Order XII Rule 4 will be frustrated if the petition is rejected on technical grounds. In fact, according to the learned counsel for the petitioners/ plaintiffs, no prejudice would be caused to the respondents since even in the pleadings filed earlier it was admitted by the defendants that the Will, executed by deceased P.I. Varghese was accepted by the defendants and, therefore, the trial Court should not have dismissed the petition.
8. According to the learned counsel, if notice to admit facts is allowed it will only save the time of the Court and the parties in adducing evidence to prove all the facts. If the parties are directed to answer the questions, the court can decide which are the disputed facts and which are the undisputed facts. That will help the parties to concentrate on adducing of evidence pertaining to disputed questions only and not to produce evidence on undisputed facts as well and, therefore, it is submitted by O.P. (Civil) 105/2013 -:8:- the learned counsel for the petitioners that once it is settled as to what actually is the disputed fact it would make the decision making process easy. The very purpose of Order XII C.P.C. is to reduce the burden of adduction of oral evidence with respect to undisputed facts and other materials. It is also argued that in the written statement earlier filed the Will in question was not disputed and that was the reason why the plaintiff submitted before the trial Court that the plaintiffs are not adducing oral evidence. But in the light of the amendment which was allowed by the trial Court the answers to the questions served by the plaintiffs are necessary so as to avoid adduction of evidence on certain aspects. Therefore, the main thrust of the argument advanced by the learned counsel for the petitioners is that the serving of notice to admit facts under Order XII Rule 4 was necessitated only after the amendment of the plaint was allowed and, therefore, according to the learned counsel the court below was not justified in dismissing the application on the premise that O.P. (Civil) 105/2013 -:9:- this petition was filed after the suit was taken up for trial. The learned counsel submits that had the amendment been not allowed, then certainly that would have been a reason for dismissing the petition but having allowed the application for amendment, certain facts are to be admitted or denied so as to enable the parties to produce evidence on the disputed facts. It is in that line, the learned counsel for the petitioners submits that the two applications became absolutely necessary.
9. It was held in Balwant Singh Gill & Others v. Gurdev Singh Brar and Others - AIR 1980 P&H 139 the words "the day fixed for hearing" occurring O.XII R. 4 would mean the date fixed for hearing the party who made the application. It was observed that in case of refusal or neglect by other party to admit the facts, the party making the application can lead evidence to prove those facts and that in case the application can be filed by a party at any stage of the proceedings, the whole purpose of the rule would be frustrated. The aforesaid decision was followed O.P. (Civil) 105/2013 -:10:- by the Punjab & Haryana High Court in Ranjit Singh v. Life Insurance Corporation of India through Chairman - CDJ 1999 PHC 868.
10. Learned counsel for the respondents would submit that in Renjit singh's case cited supra the issues were framed on 26-5-1995. But the plaintiff failed to produce evidence for about three years and thereafter he moved the application on 20-3-1998 for admission or denial by the defendant of the facts mentioned therein. That was actually the date fixed for the plaintiff's evidence and therefore, holding that application cannot be entertained at that stage the petition was dismissed. The learned counsel for the respondents would submit that here also the issues were framed long back but the plaintiffs did not take steps till 3-12-2012 to which date the suit was listed for trial. The application was filed only on that date. As has been held in Rajit Sing's case (supra) this petition also should be dismissed and so the order passed by the learned Sub Judge requires no interference, the learned counsel further O.P. (Civil) 105/2013 -:11:- argues. But the learned counsel for the petitioner takes exception to that argument pointing out that the facts are different here because the application had to be filed only because the plaint was allowed to be amended. It is true that the plaint was amended as sought for by the plaintiff but the trial Court was convinced of the fact that the amendment was required for a proper adjudication of the dispute involved in this case and that was why the petition for amendment was allowed.
11. No doubt, if application under Order Rule 4 of Order XII is allowed to be filed by a party at any stage of the proceedings, the whole purpose of the Rule would be defeated. the object of the aforesaid Rule is to lessen the burden on the party to adduce evidence in respect of certain points , if the party admits on getting notice as provided under Rule 4 of Order XII . That is a stage when the case is posted for pre-trial steps. In case the other party refuses to admit then the party giving notice has to take steps under Order XVI C.P.C. to summon the O.P. (Civil) 105/2013 -:12:- witnesses to prove those aspects or if it is a case where documents are to be obtained from other offices or through other witnesses, the party who wants to adduce that evidence may have to take steps. It is to narrow down the dispute and to avoid taking unnecessary steps to summon the witnesses or to cause production of documents. such a provision has been made. Therefore, there can be no iota of doubt that the application under Rule 4 of Order XII should be filed at the pre-trial stage, immediately after the framing of issues and not after the suit is actually listed for trial. Later part of Rule 4 states that in case of refusal or neglect to admit the same within six days after service of notice or within such further time as may be allowed by the Court, the cost of proving such fact or facts shall be paid by the party so neglecting or refusing, will make the position clear that it is to avoid the party serving the notice to take steps for summoning the witnesses or for causing production of the documents etc. the Rule has been introduced to direct the other opposite O.P. (Civil) 105/2013 -:13:- party to admit or deny certain facts, which are required for the purposes of that particular suit.
12. Rule 5 of Order XII states that the notice to admit facts shall be in Form No. 10 in Appendix C and admission of fact shall be in form No. 11 in Appendix C. It is submitted by the learned counsel for the respondents that Form No. XII and the illustrations shown therein would make it amply clear that the questions should be clear, simple and unambiguous.
13. Considering the arguments advanced by both sides, I have no hesitation to hold that a petition under Order XII Rule 4 cannot be filed after the suit has been listed for trial. It has to be filed immediately after framing of the issues, when the suit is posted for taking pre-trial steps. But the position is different in this case since the petition for amendment of the plaint was allowed and the questions put to the defendants pertain to certain facts emerging from the amendment allowed by the Court. It is submitted that once the amendment is allowed it must O.P. (Civil) 105/2013 -:14:- relate back to the date of the filing of the suit, unless the court directs otherwise. Be that as it may, since the amendment was allowed the petition filed under Order XII Rule 4 is to be allowed so as to find what are the actual points in dispute in respect of which evidence is to be adduced so that it will reduce the area of dispute. Therefore, in the peculiar circumstances of this case the petition is to be allowed.
14. But another objection has been raised by Sri. Bechu Kurian the learned counsel for the respondents. The questions posed in respect of which admissions or denial are to be made are slightly complicated and ambiguous. The questions under Rule 4 must be plain, simple and clear that the party who has to furnish the answers should be able to comprehend easily. It is submitted by the learned counsel for the petitioners that in the light of the factors mentioned in the plaint and in the written statement filed by the respective parties, there would be no difficulty to understand what actually was O.P. (Civil) 105/2013 -:15:- meant by the separate questions suppled by the plaintiffs. But it is pertinent to note that the questions are to be supplied to the parties to admit or deny certain facts. Hence, those questions must be plain, simple and clear. If the intention of the maker of the questions is only to be gathered after a laborious intellectual exercise, it would be difficult for the opposite party to admit or deny the facts sought to be admitted or denied. What actually is meant by the maker of the question should not be left to the realm of interpretation . Since some of the questions furnished by the petitioners to the respective defendants are seen to be slightly vague and imprecise, the petitioners have to furnish simplified questions so as to enable the defendants to understand the questions. It is also argued by the learned counsel for the defendants that it is not possible for the defendants to admit or deny the execution or attestation of the Will and matters relating to the execution of the earlier Wills. The learned counsel for the petitioners submits that if the questions are vague, O.P. (Civil) 105/2013 -:16:- certainly the respondents can furnish answers to that effect. But that will not serve the purpose. The intendment of R. 4 of Order XII is likely to be frustrated by getting it delayed. It is also argued by the learned counsel for the respondents that the fact whether there were earlier Wills executed by the deceased P.I. Varghese would assume no relevance since what is relied upon by the parties is the last Will and testament of deceased P.I. Varghese and as such the answers to be furnished are totally irrelevant to resolve the dispute. But on the other hand the learned counsel for the petitioners would submit that the admission of the execution of the Wills, Codicils etc. executed prior to Will No. 142/2007 assumes importance since that is required to interpret the Will and to decipher the intention of the testator. It is not necessary to enter into that controversy at this stage. No prejudice will be caused to the defendants if they are directed to admit or deny the facts which are sought to be admitted or denied. But the petitioners have to put the questions in a O.P. (Civil) 105/2013 -:17:- simple, clear and understandable manner. Petitioners are granted time till 15-3-2013 to supply the questions to the defendants in the manner indicated above.
This Original Petition is disposed of accordingly. Dated this the 12th day of March, 2013.
Sd/-
N.K.BALAKRISHNAN, JUDGE ani/ /truecopy/ P.S. toJudge