Delhi District Court
Harish Malik vs Ankush Wohra on 13 September, 2013
IN THE COURT OF Ms TANVI KHURANA, CIVIL JUDGE5 (South) SAKET COURTS NEW DELHI IN THE MATTER OF:
Suit no.84/13 Harish Malik .....Plaintiff Versus Ankush Wohra ..... Defendant Present : None Order :
This order shall dispose of the application filed by the plaintiff U/o XII Rule 6 read with Section 151 CPC, 1908 for passing decree on admissions on the part of the defendant.
2. Plaintiff has filed the suit for declaration for permanent and mandatory injunction which is pending. It is further submitted that the defendant in WS had filed certain documents which include the notice dated 20.11.2012. This document is a admitted notice issued by the returning officer for conducting of the elections. The document has been relied by both the parties. It provides at clause no. 3 that only one vote from family or floor would be allowed. It also provides for proxy votes i.e. member's spouse can vote in lieu of the member provided a written request is given twentyfour hours in advance before the election. Further, that as per admitted rules and regulations, the same procedure has to be complied with. Relevant rule at para 22 of the documents has been filed by the plaintiff.
3. It is further submitted that the defendants have filed some documents which included the list of proxies who were to allow to vote for election. As per the document, there were 32 proxies out of them, 29 1 were not eligible to vote. Due to this admitted position, the conduct of election and the results become illegal. As per the version of defendant himself that the margin of votes between candidates of 33 so the deletion of proxy vote will make a sizeable difference. As it has been admitted position therefore, plaintiff is entitled to decree/ order for declaration that the elections conducted on 15.01.2012 and result announced thereof, as null & void. It has been prayed that the application U/o XII Rule 6 be allowed.
4. In reply filed by the defendant to the application, it has been raised as objections that the application is a misuse of process of law and present application is not maintainable. Apart from the denying the other things the locus standi of the plaintiff has also been challenged. The objections have been raised to the very root of case and therefore, application U/o XII Rule 6 is not maintainable. In the detailed reply, the contentions raised in the application are vehemently denied.
5. Ld. Counsel for the plaintiff argued reiterating the contents of the application and maintained that the grounds raised in the application U/o XII Rule 6. He also pointed out towards relevant documents i.e. notice dated 29.12.2011, providing for the date of elections also proxy letters submitted by the defendant. He pointed out towards the rules and stated that the same is clearly admitted by the defendants by the production of the documents. Hence the decree U/o XII Rule 6 be passed.
6. On the other hand, ld. Counsel for the defendant has raised objections that nothing is admitted and further that the defendant is objecting to the very maintainability of the case, which hits the root of the suit. In such a scenario decree/ orders can not be passed U/o XII Rule 6. He further placed reliance upon Ankit Udhyog Vs. Laxman 2 Prasad, 2002 AIHC 1101 (RAJ) and State Bank of India Vs. Mid Land Industries, AIR 1988 DEL 153.
7. I have heard the rival contentions raised by both the counsel and have also perused the case record meticulously with their kind assistance.
8. The plaintiff has placed reliance upon the bylaws and rule and regulations of the resident welfare association providing clause no. 3 regarding membership which also provides that "the member of his/her spouse can attend and vote in general body meeting, provided he/she is authorised by the member and provides authority letter at least 24 hours in advance before the Election Incharge". Further, he also pointed towards to the notice which provides for date of election, the last date for filing nomination etc. Again, notice dated 29.12.2011 has also been pointed out. He also time and again referred to the letters requesting for proxy votes. Vide this application, the plaintiff states that it has been admitted by the defendant that by laws provides that the proxies can only be the spouse of the member and no one else. Whereas, in the election under challenge the brother, sister, sons, grand sons and other such relatives have also been allowed to vote for the elections. This is clearly ultra vires the provisions of by laws of the RWA.
9. On the other hand, on perusal of the same documents it can be seen that these are not admissions on the part of the defendant. It can also be noted that vide order dated 08.04.2013, the issues were framed. Issue no. 1 and issue no.2 hit the very maintainability of the suit. Comprehensive issues have been framed which clearly show that the question under which the present application has been filed is clearly controverted by the defendant. Further, mere production of documents do not go on to be admissions on the part of the defendant. It can not be 3 inferred from the facts, that clear, unambiguous and unconditional admissions have been made by the defendant.
10. Further ld. Counsel for the plaintiff has relied upon Rajiv Saluja VS. M/s Bhartiya Industries Ld. & Anr, AIR 2003 DLT 142 under which it has been held that the denials made in the WS were unspecific and evasive and therefore they are no denials in eyes of law. It shall be taken to be admitted. However, this authority is not applicable as there are specific denials as to the contentions raised in the plaint.
11. Then again the plaintiff submitted Delhi Jal Board Vs. Surendra P Malik, 2003 III AD (Delhi) 419, wherein it has been discussed that admissions on fact must be clear and unequivocal, unconditional and unambiguous and may relate to the whole claim or the part of it. These need not be made specifically or expressly and can be constructive admission also. This authority though is pertinent, however, it can be noted down there there are no unequivocal, unconditional and unambiguous admission on the part of the defendant.
12. In Ramrameshwari Devi Vs. Nirmla Devi, (2011) 8 SCC 249 this authority discusses the powers and duties of the trial court and also provides the guidelines for making the process of trial expeditious. However, this authority does not provide anything which is applicable to the application at hand.
13. On the other hand, the defendant counsel has placed reliance upon Ankit Udhyog and Ors Vs. Laxman Prasad, 2002 AIHC 1101 wherein, it has been held that where the admission is not unequivocal and further the WS raises serious preliminary issues which are likely to nonsuit the plaintiff, court can in its discretion refuse to pass a decree U/o 12 Rule 6 CPC. In this authority, the locus standi of the plaintiff was challenged. The authority has discussed that where questions as to 4 maintainability has been raised, the application U/o 12 Rule 6 can be denied. This authority is applicable to the present case as the defendant has raised objections as to the maintainability of the case. It has been also formulated as issue no. 1 and 2 of the issues.
14. Further the defendant has also placed reliance upon Crown Commercial House & Ors Vs. ICICI Bank & Ors IA No. 12125/2007 in CS (OS) 373/2007 wherein it has been held that it is trite that the provisions of Rule 6 Order XII CPC can be availed of by the plaintiff only where there are clearcut and unambiguous admissions made in WS by the defendant. The law is well settled if a case involves questions which can not be conveniently disposed of on motion U/o 12 Rule 6, court is free to refuse to exercise discretion in favour of the party invoking it. This judgment is squarely applicable to the present case wherein the questions as to maintainability as well as entitlement of the plaintiff for the relief claimed has been raised. As these issues require comprehensive suit and evidence as per Indian Evidence Act to is essential throw light upon the issue raised.
15. Further, the defendant has relied upon Puran Chand Packaging Industrial Pvt Ltd. Vs. Sona Devi and Anrs., 154(2008) DLT III (DB) in this authority it has been again discussed that the admission should be unequivocal and unambiguous. This authority also discusses the law laid down in State Bank of India VS. Mid Land Industries. This authority is again applicable as there are no clear, unambiguous, unconditional admissions.
16. Reliance has also been placed upon State Bank of India Vs Mid Land Industries & Ors which reiterates the law that the admission must be clear, unambiguous and unequivocal .
17. In light of the authorities as discussed above as well as of fact and 5 circumstances of the case, it can be concluded that there are no unambiguous, unconditional and unequivocal or clear admissions on the part of the defendant. Moreover, the defendant has raised objections hitting the very maintainability of the case. All these issues require that evidence should enlighten the path for the just decision of the case.
18. Consequent to the above discussion the present application is hereby dismissed.
Matter is now fixed on 25.09.2013 for PE.
List of witness be filed if not filed yet. Advance copy of the same be given to the opposite party also the plaintiff is directed to give the advance copy of the affidavit of his witness to the other party.
(TANVI KHURANA) Civil Judge5 (South) Saket Courts/New Delhi 13.09.2013 Note: All 06 pages of this order have been checked and signed by me.
(TANVI KHURANA) Civil Judge5 (South) Saket Courts/New Delhi 13.09.2013 6 Announced in the open court on 13th September 2013. (TANVI KHURANA) The order contains pages, Civil Judge5 (South) all checked & signed by me. Saket Courts/New Delhi 13.09.2013.
7