Delhi District Court
Sh. Mohd. Iqbal vs Smt. Sita Gupta & Others on 16 February, 2008
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
In the matter of: -
Suit No. 87/2007.
Sh. Mohd. Iqbal. ... Plaintiff.
Vs.
Smt. Sita Gupta & Others. ... Defendants.
- : ORDER : -
1.By this order, I propose to dispose of an application
u/o 12 r 6 CPC of the plaintiff wherein he has sought
decree of the suit on the ground of admissions of the
defendant.
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2.The brief facts of the matter in dispute as alleged in the
pleadings of the parties are as under: -
The plaintiff has stated that he was lawful possession
holder of the property bearing no. C-6/303, Yamuna
Vihar, Delhi-53 (hereinafter referred as the suit
property) for the last 10-12 years and the disputed
portion is shown in the red colour in the site plan
attached to the plaint. The defendant no. 1 has filed an
eviction petition before the Court of Ld. ARC under the
DRC Act in which Sh. Abdul Sattar and Ms. Anisha
were proceeded ex-parte and Haji Mohd. Altaf was
impleaded as the defendant no. 3 u/o 1 r 10 CPC vide
order dated 7.5.2004. The plaintiff had gone away for
Haz to Saudi Arabia on 29.11.2006 and returned to
India on 13.1.2007. On arrival the plaintiff reached at
his residence and came to know that the ground floor
and second floor of the suit property was delocked and
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relocked by the defendant no. 2 after removing the
articles of the plaintiff. The defendant no. 2 has alleged
to have purchased the suit property from the defendant
no. 1. On 14.1.2007, the defendant no. 2 informed the
plaintiff that he has purchased the suit property from
the defendant no. 1 who has given him possession.
That the defendant no. 2 further assured the plaintiff
that on 20.2.2007 the defendant no. 1 will come and
the matter would be settled amicably. On 20.2.2007,
the defendants misbehaved and had beaten the
plaintiff, accordingly, DD No. 19A dated 20.2.2007 was
lodged in police station Bhajan Pura. The plaintiff
moved an application before the concerned Ld. MM
wherein ASI Sh. Dinesh Bhargava furnished his report
on 24.4.2007 with regard to DD No. 19A which is
annexure K and L to the plaint. Hence, the present
suit instituted for recovery of possession of the suit
property from the defendant no. 1.
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3.In the written statement, the defendant no. 1 took the
preliminary objection that the suit was not
maintainable and the plaintiff has not approached the
Court with clean hands. It is stated that the plaintiff is
the counsel for his real brother namely Haji Mohd. Altaf
who has been claiming ownership right of entire suit
property including the suit property in the eviction
petition pending before the Ld. ARC. It is stated that
he has claimed the ownership on the basis of
agreement to sell allegedly executed by the defendant
no. 1 in December 1995. A copy of the application u/o
1 r 10 CPC and the orders dated 10.12.2002 are
enclosed as annexure D1 to D3 to the written
statement of the defendant no. 1.
4.On merits, it is denied that the plaintiff was bonafide
and lawful owner of the suit property. It is further
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stated that the defendant no. 1 has filed the eviction
petition no. E-261/01 and E-262/02 against the
respondents in which Sh. Abdul Sattar and Ms. Anisha
were proceeded ex-parte and Sh. Haji Mohd. Altaf was impleaded as defendant no. 3 on allowing application u/o 1 r 10 CPC on the basis of false and forged documents. The defendant no. 1 has filed an application u/s 340 CrPC against Sh. Haji Mohd. Altaf before the Court of Ld. ARC. The plaintiff is, therefore, not having any interest in the ground floor and the second floor of the suit property. The story so concocted by them is false and fabricated. The true facts are that the defendant no. 1 has purchased the suit property from Smt. Saroj Kumari W/o Sh. Dalbir Singh Chaudhary R/o C-2/21, Yamuna Vihar, Delhi- 53 on 16.8.1993. The defendant no. 1 has already sold the suit property to Sh. J.P. Nahar S/o Sh. S.R. Nahar for consideration on 17.11.2006 and possession of
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ground floor and second floor was handed over to him. With regard to the complaint vide DD No. 19A dated 20.2.2007, it is stated that the said DD has been manipulated by the plaintiff in connivance with the police officials so as to create a false evidence of possession. It is further stated that the plaintiff has not valued the suit correctly for the purposes of court fees and jurisdiction.
5.The defendant no. 2 in his separate written statement has controverted and denied all the facts alleged in the plaint stating that he has no concern with suit property.
6.In the present application u/o 12 r 6 CPC, it is stated by the plaintiff that the defendant no. 1 has admitted certain facts in her cross examination held on 13.9.2005 before the Court of Ld. ARC which is
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annexure P to the present application, which are as under: -
"... ... ... On 30.9.1998 I made a complaint with the police where I had stated that Mohd. Iqbal is a tenant in the suit property. Vol. He is the brother of Sh. Mohd. Hazi Altaf. ... ... ... It is correct that I had given letters to the police which are mark F and G wherein I had admitted that Iqbal was my tenant. ... ... ... I had met Mr. Iqbal at the site. ... ... ... Presently one more floor has been added by Iqbal in my absence to which I have objected. ... ... ..."
7.It is further stated that the defendants have dispossessed the plaintiff unlawfully and without due process of law when he has gone for Haz. Since the defendant no. 1 has admitted that the plaintiff was in possession of the suit property prior to his dispossession and, as such, the suit of the plaintiff is liable to be decreed u/o 12 r 6 CPC.
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8.In reply to the application in hand, the defendant no. 1 has stated that the present application is not maintainable as there is no admission as alleged in the entire written statement. The defendant has categorically denied in para no. 2 of the written statement with regard to the plaintiff being in possession of the suit property and it is clearly stated in para no. 7 of the written statement that the plaintiff was neither in possession of the suit property nor he has been having any interest in that regard.
9.I have heard the learned counsel for parties and gone through the case file carefully. I have also gone through the cross examination of defendant no. 1 which is annexure P to the application in hand. To ascertain whether the plaintiff is entitled to the relief claimed in the present application, I would like to refer the law laid down by our Hon'ble High Court in the
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following cases: -
1.The latest pronouncement of our own Hon'ble High Court in case cited as 2006 V AD (DELHI) 667 titled as Charanjit Singh Vs. Kehar Singh is quite relevant wherein Hon'ble D.B. Headed by Hon'ble Mr. Justice Swatanter Kumar was pleased to hold in para no. 8 as under: -
"8. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words 'May' and 'make such orders' or 'give such judgment' spells out that power under these rules are discretionary and use of discretion would have to be controlled in
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accordance with the known judicial cannons."
2.The Hon'ble High Court of Delhi in IA No. 5912/2004 in CS (OS) 1578 of 2002 titled as Express Towers Vs. Mohan Singh decided on 22.8.2006 (MANU/DE/8926/2006), it was held as under: -
"19. I have heard the learned counsels for the parties in detail and perused the pleadings and application and reply and the judgment relied by them. It is no more res integra that before a court can act under order 12 rule 6, admission must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise serious preliminary pleas which are likely to non-suit a party, a court in its discretion can refuse to pass a decree."
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3.The Hon'ble High Court of Delhi in RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/ 2006), it was pleased to hold as under: -
"6. The powers under order 12 rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. "The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional." There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle stated by MANU/SC/0505/1970 Chanchal V. Jalaluddin. Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of
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facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally decline in the cases of the later category."
10.Thus, in order to seek the relief u/o 12 r 6 CPC, the plaintiff is required to prove that the admissions of the defendant are clear and unconditional. On perusal of the alleged admissions, as contained in annexure P to the application in hand, it is found that the admissions are not clear and unequivocal and the pleadings of the parties has raised serious pleas which if proved may non-suit the plaintiff. Moreover, the relief u/o 12 r 6 CPC is a discretionary relief. In the given circumstances, seeking the relief in the main suit the plaintiff has to establish his bonafide. For that reason also, the plaintiff is not entitled to discretionary relief
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as claimed for. The application u/o 12 r 6 CPC of the plaintiff is, accordingly, dismissed. Announced in the open Court on 16.2.2008.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI