Bombay High Court
Vivek Mahadeo Mahale And Ors vs Reliance Enterprise And Ors on 31 January, 2023
Author: N.J.Jamadar
Bench: N.J.Jamadar
11 ial 11048 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.11048 OF 2021
IN
SUIT NO.135 OF 2013
M/s. K.D.Estate Developers ... Applicant/Plaintiff
versus
Vivek Mahadeo Mahale and Ors. ... Defendants
WITH
INTERIM APPLICATION NO.1362 OF 2021
IN
SUIT NO.135 OF 2013
Vivek Mahadeo Mahale and Ors. ... Applicants
and
M/s. K.D.Estate Developers ... Plaintiff
versus
Vivek Mahadeo Mahale and Ors. ... Defendants
Mr. Gautam Ankhad with Mr. Naresh Ratnani i/by Ashwin Ankhad and Associates,
for Applicant/Plaintiff.
Mr. Makrand V. Raut, for Defendants.
CORAM : N.J.JAMADAR, J.
DATE : 31 JANUARY 2023
P.C.
1. These applications present an interesting situation. The
Applicant/Plaintiff in IAL 11048 of 2021 and the Defendants/Applicants in IA 1362 of
2021 seek diametrically opposite reliefs.
2. In IAL 11048 of 2021, the Plaintiff seeks a decree on admission under the
provisions of Order XII Rule 6 of the Code of Civil Procedure, 1908 ('the Code'). In
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IA 1362 of 2021, the Defendants, on the other hand, seek rejection of the Plaint under
Order VII Rule 11 of the Code, as the Plaint does not disclose a cause of action and in
any event, the Plaintiff No.4, the successor in interest of the original Plaintiff Nos.1 to
3 has no cause of action against the Defendants. However, both parties are firm that
the suit need not go to trial.
3. The original Plaintiff Nos.1 to 3 approached the Court with a case that
they are the owners of land bearing Survey Nos.119 and 120, Hissa No.1 and 2A,
situated at Kandivali, Tal. Borivali (the suit property). The Defendant Nos.1 to 3
claimed to have acquired adjacent property bearing Survey No.120 Hissa No.2B,
which is distinct from Hissa Nos.1 and 2A forming part of the suit property.
Defendant Nos.1 to 3, thus, have no right, title and interest in the suit property. Yet on
12 November 2012, the Defendants lodged a false report with Borivali Police Station,
resulting in the arrest of Plaintiff No.2. Hence, the Plaintiff apprehended that the
Defendants through unlawful means may interfere with and try to obtain possession of
the suit property. Thus, a Suit seeking declaration that the Defendants have no right,
title or interest in the suit property and a decree of permanent injunction restraining
the Defendants and their agents and assigns from interfering with the Plaintiffs
exclusive possession and/or holding out themselves to be the owners of the suit
property and the consequential reliefs. The Plaintiffs also prayed for a decree of
damages in the sum of Rs.1,50,00,000/-.
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4. In the Suit, the Plaintiffs took out Notice of Motion (L) No.3260 of 2012
seeking interim reliefs. On 23 November 2012, a statement was made on behalf of the
Defendants that the Defendants were concerned only with the property bearing Hissa
No.2B and not with the suit property and the Defendants shall not interfere in any
manner with the possession of the Plaintiffs over the suit property.
5. By a subsequent order dated 4 April, 2014 the said Notice of Motion
No.328 of 2013 (Notice of Motion (L) No.3260 of 2021) came to be disposed of by
clarifying that the Defendant No.1 was concerned only with Survey No.120, Hissa
No.2B and not with the suit property. The Defendant No.1 was directed not to enter
into the suit property.
6. In the intervening period, Plaintiff No.4 acquired all rights, title and
interest of original Plaintiff Nos.1 to 3 in the suit property vide Registered Deed of
Conveyance dated 21 July 2013. Plaintiff No.4 came to be impleaded and Plaintiff
Nos.1 to 3 stood deleted from the array of the parties. Post demise of Defendant
Nos.2 and 3, their legal representatives have been impleaded as Defendant Nos.2(a) to
2(v) and 3(a) to 3(j).
7. Plaintiff No.4 has preferred IAL 11048 of 2021 for a decree on admission
banking upon the aforesaid statements made on behalf of the Defendants recorded in
the order dated 23 November 2012 and 4 April 2014. The Plaintiff No.4 also banked
upon the contentions in paragraph No.9 of the Written Statement filed on behalf of
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the Defendants wherein the Defendants contend that the Defendants had never
claimed any right in Survey No.120, Hissa No.2A, of which the Plaintiff claimed to be
the owner. According to Plaintiff No.4, the aforesaid statements made on behalf of the
Defendants, on the strength of which interim orders were passed by this Court on 23
November 2012 and 4 April 2014, and the contentions in the Written Statement,
clearly constitute admissions of the title of the Plaintiff over the suit property.
Therefore, on the basis of such clear and unambiguous admissions, the Plaintiff is
entitled to a decree.
8. An Affidavit in Reply is filed on behalf of the Defendants. The
Defendants contend that there are no such clear and categorical admissions as claimed
by the Plaintiff, which can form the basis of a decree on admission. On the contrary,
according to the Defendants, the Defendants have categorically and consistently
asserted that the Defendants were not at all concerned with the suit property and
never threatened the original Plaintiff Nos.1 to 3's possession over the suit property.
In contrast, an endeavour on the part of the original Plaintiffs to encroach upon the
property of the Defendants had constrained them to initiate action. Therefore, the
Application, being wholly misconceived, deserves to be rejected.
9. In IA No.1362 of 2021 the Defendants contend that the plaint does not
disclose any cause of action. It is based on unjustified apprehension. In addition, on
account of the subsequent events of Plaintiff No.4 acquiring the suit property from the
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original Plaintiff Nos.1 to 3 and the Defendants having conveyed their interest in
property bearing Survey No.120, Hissa No.1B to Chaitanya Reality, Plaintiff No.4 has
no subsisting cause of action against the Defendants. The Suit, therefore, deserves to
be dismissed.
10. I have heard Mr. Gautam Ankhad, learned Counsel for the
Applicant/Plaintiff and Mr. Raut, learned Counsel for the Defendants at some length.
With the assistance of the learned Counsel for the parties, I have perused the
pleadings/averments in the Applications and the Replies thereto.
11. Mr. Ankhad would urge that clear and unequivocal admission of the fact
that the Defendants had no right, title and interest over Survey No.120/2A and their
interest was confined to Hissa No.2B can form a legitimate foundation of a decree on
admission. In view of such clear and unequivocal admissions not only in the pleadings
but also in the statements recorded by this Court, it would be superfluous to have a
trial. Invoking the provisions contained in Order XII Rule 6 of the Code, Mr. Ankhad
submitted, this is a fit case where the Court can exercise jurisdiction to pass a decree
on admission.
12. To lend support to aforesaid submission, Mr. Ankhad placed reliance on
the judgment of the Supreme Court in the case of Karam Kapahi and Ors. V/s. Lal
Chand Public charitable Trust and Anr.1
1 (2010) 4 SCC 753
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13. In contrast, Mr. Raut, learned Counsel for the Defendants submitted
that there is no admission which can be pressed into service by the Plaintiffs to claim a
decree thereon. In fact, the plaint does not disclose a cause of action at all. At best, it
is based on an unjustified apprehension. Resultantly, the plaint itself is liable to be
rejected. Moreover, subsequent developments, according to Mr. Raut, where both the
original Plaintiffs and Defendants have been divested of their interest in the suit
property, render the continuation of the suit an exercise in futility.
14. Mr. Ankhad joined the issue by canvassing a submission that in the
application for rejection of the Plaint, the Defendants have not raised the ground that
the plaint does not disclose a cause of action. Subsequent developments, occasioned
by devolution of interest on account of assignment, by themselves do not furnish a
sustainable ground for rejection of the plaint. It is only the averments in the plaint
which the Court must look into, to decide whether the Plaint discloses a cause of
action and not the defence of the Defendants. To buttress this submission, Mr.
Ankhad placed reliance on a recent judgment of the Supreme Court in the case of
Shrihari Hanumandas Totala V/s. Hemant Vithal Kamat and Ors.2
15. I have considered the rival submissions carefully. Since the Plaintiff
claims a decree on admission, it may be apposite, in the first instance, to note the
statements and contentions which, according to the Plaintiff, constitute admissions
2 (2021) 9 SCC 99
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entitling him to a decree thereon.
16. The order dated 23 November 2012 in Notice of Motion (L) No.2360 of
2012 reads thus :
"1. The learned Advocate for Defendants states that the Defendants are
concerned only with the property bearing No.2B and not with the Suit
Property described in Exhibit 'A' to the Plaint i.e. property bearing No.2A.
The learned Advocate for Defendants on instructions, states that the
Defendants shall not interfere in any manner with the property of the
Plaintiffs described in Exhibit 'A' to the Plaint. Statement is accepted.
2. The Notice of Motion to be heard in normal course. "
17. The subsequent order dated 4 April 2012 whereby ad-interim order was
made absolute, reads thus :
"1. Defendant No.1 relies upon and makes a statement in terms of the ad-
interim order of this court dated 23 November 2012. Counsel on his behalf
states that the statement be continued pending the suit. Counsel on behalf
of the Plaintiff states that would suffice. Hence, it is clarified that the
Defendant No.1 is concerned only with property bearing Survey No.120,
Hissa No.2B and not the suit property bearing Survey Nos.119 and 120,
Hissa Nos.1 and 2A. Defendant No.1 shall not enter in any manner in the
suit property bearing Survey Nos.119 and 120, Hissa Nos.1 and 2A."
18. Relevant part of the Written Statement, which the Plaintiff presses into
service, reads as under :
"9. This Defendant states that reading of the plaint itself discloses that the
Plaintiffs are claiming to be owners of S.No.120/2-A and not S.No.120/2-B.
However, the Plaintiffs have for reasons best known to them sought to take
forcible possession of S.No.120/2-B from this Defendants illegally which
constrained this Defendant to defend his property and his possession by
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putting criminal law in motion. The documents annexed to the Plaint itself
show that this Defendant has never claimed any rights in S.No.120/2-A of
which the Plaintiffs claim to be the owners. On the other hand, it is the
Plaintiffs who are illegally staking a claim on this Defendant's property
despite it being an admitted position that they have no right, title or interest
in S.No.120/2-B and only claim to be owners of S.No.120/2-A. This
Defendant therefore, submits that the Plaint discloses no cause of action
whatsoever against this Defendant and on this ground also the present suit
deserves to be dismissed with costs awarded to this Defendant."
19. Mr. Ankhad made a painstaking effort to urge that the aforesaid
statements and contentions spelled out sturdy admissions for a decree of declaration
and perpetual injunction.
20. On a careful reading of the aforesaid statements recorded in the orders
dated 23 November 2012 and 4 April 2014, it becomes abundantly clear that the
Defendants took a stand that they were only concerned with Hissa No.2B of Survey
No.120 and not Hissa No.2A. These statements cannot be construed to draw an
inference that the Defendants have admitted that they were, at an anterior point of
time, denying the title of the Plaintiffs over the suit land and subsequently conceded
the title of the Plaintiffs over the suit land.
21. The Defendant's assertion that they were concerned with Hissa No.2B
of Survey No.120, over which they claimed ownership, according to Mr. Ankhad,
necessarily leads to an inference that the Plaintiffs ownership over Hissa No.2A of
Survey No.120 is not put in contest and, therefore, a declaration must follow. I am
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afraid to accede to this submission. The reason is not far to seek. It is incumbent
upon the Plaintiff to not only show that the Defendants do not contest his claim of title
but also that the Defendants by their act or omission had denied the legal character of
the Plaintiff. A declaratory decree cannot operate in vaccum.
22. In this context, the judgment of the Supreme Court in the case of
Karam Kapahi (supra), on which a strong reliance was placed by Mr. Ankhad, may
not advance the cause of the Plaintiff. In the said case, the Supreme Court after
referring to the previous pronouncements, expounded the wide ambit of the
provisions contained in Order XII Rule 6 of the Code as under the said Rule, the
admissions can be inferred from the facts and circumstances of the case and need not
be restricted to admissions in pleadings. The observations in paragraphs 40 and 41
are material and hence extracted below :
"40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6,
it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as
the provision of Order 12 Rule 1 is limited to admission by "pleading or
otherwise in writing". But in order 12 Rule 6 the expression "or
otherwise" is much wider in view of the words used therein, namely,
"admission of fact...... either in the pleading or otherwise, whether orally
or in writing."
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this
Court held that under this Rule admissions can be inferred from the facts
and circumstances of the case (see Charanjit Lal Mehra V Kamal Saroj
Mahajan3 SCC at p. 285, para 8). Admissions in answer to interrogatories
are also covered under this Rule (see Mullas's Commentary on the Code,
3 (2005) 11 SCC 279
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16th Edition, Vol II P. 2177)."
(Emphasis supplied)
23. It is imperative to note that the Supreme Court emphasised the
discretionary nature of the power conferred under Order 12 Rule 6 also in the
following words :
"48. However, the provision under Order 12 Rule 6 of the Code is
enabling, discretionary and permissive and is neither mandatory nor it is
peremptory since the word "may" has been used. But in a given situation,
as in the instant case, the said provision can be applied in rendering the
judgment." (emphasis supplied)
24. In the case of Himani Alloys Limited V/s. Tata Steel Limited4 the
Supreme Court underscored the discretionary nature of jurisdiction under Order 12
Rule 6. The observations of the Supreme Court in paragraph 11 are material and,
hence, extracted below :
"11 It is true that a judgment can be given on an "admission" contained in
the minutes of a meeting. But the admission should be categorical. It should be a
conscious and deliberate act of the party making it, showing an intention to be
bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory
nor peremptory but discretionary. The court, on examination of the facts and
circumstances, has to exercise its judicial discretion, keeping in mind that a
judgment on admission is a judgment without trial which permanently denies any
remedy to the defendant, by way of an appeal on merits. Therefore unless the
admission is clear, unambiguous and unconditional, the discretion of the Court
should not be exercised to deny the valuable right of a defendant to contest the claim.
In short the discretion should be used only when there is a clear "admission" which
can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of
4 (2011) 15 SCC 273
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India [2000 (7) SCC 120], Karam Kapahi vs. Lal Chand Public Charitable Trust
[2010 (4) SCC 753] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh
Chadha [2010 (6) SCC 601]. There is no such admission in this case."
( emphasis supplied)
25. In view of the aforesaid enunciation of law, unless an admission is clear
and unequivocal and it is in respect of facts, which entitle a party to a decree, resort to
the provisions contained in Order 12 Rule 6 may not be warranted. I am, therefore,
persuaded to hold that, in the instant case, on the basis of the statements made and
contentions taken in the Written Statement, an inference of initial denial of title and
later admission cannot be drawn. In my considered view, the present is a case where
the parties are not at issue. The Plaintiff asserts title to property 2A. The Defendants
assert title to adjacent property 2B. Mere non-denial of Plaintiff's title to property 2A
whilst asserting title to property 2B, without allegations of the Defendants having
denied the legal character of the Plaintiff, would not furnish a foundation for a
declaratory decree.
26. As regards the application for rejection of plaint, it is trite only the
averments in the plaint are required to be considered. It is also well recognized that it
is a meaningful reading of the averments in the plaint and not a formal reading that
should be resorted to, to ascertain the existence of a cause of action.
27. I have perused the plaint in the instant suit carefully. The original
Plaintiff Nos.1 to 3 asserted that the cause of action arose on 12 November 2012 when
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the Defendants falsely claimed to be the owners of the suit property. In paragraphs 10
and 11 of the Plaint, it is averred that the Defendants filed malafide and bogus police
complaint in order to harass and extort money from the Plaintiffs. The Plaintiffs,
thus, seriously apprehended that the Defendants through unlawful means may
interfere with and try to obtain the possession of the suit property by illegal and
forceful means. The Defendants might approach the statutory authorities including
the MCGM and misled them about the Plaintiffs right on the suit property. It is
necessary to note that in paragraph No.13, alleging wrongful arrest of Plaintiff No.2 at
the instance of Defendant Nos.1 to 3, damages to the tune of Rs.1.50 Crores were
sought.
28. So far as the claim for damages, it would be suffice to note that Plaintiff
Nos.1 to 3, post assignment of the rights in the suit, have been deleted and, thus,
personal claim for damages for wrongful arrest of Plaintiff No.2 stood abandoned.
29. Mr. Ankhad was at pains to persuade the Court to hold that the aforesaid
averments in the plaint make out a sufficient cause of action.
30. I am afraid to accede to the submission of Mr. Ankhad The averments in
the Plaint singularly lack the allegation of Defendants having violated or threatened to
violate the Plaintiff's right. The Plaint proceeds on an apprehension. The basis of
the apprehension was the complaint dated 12 November 2012. In this context, the
allegations in the complaint dated 12 November 2012 lodged by the Defendants which
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led to arrest of the Plaintiff No.2, became imperative. It is the said complaint which is
stated to have furnished cause of action to the Defendants. It is well recognized that
while considering the application for rejection of the plaint, not only the averments in
the plaint, but the documents annexed to the plaint are germane. Copy of the said
complaint had not been annexed to the plaint. The Plaintiff No.4, despite an
opportunity, expressed his inability to place the same on record.
31. It is imperative to note that there is a qualitative difference between
breach of obligation qua the suit property and pursuing remedies in respect of the
adjacent property whilst not denying the claim of original Plaintiffs over the suit
property. Moreover, the Plaintiff No.4 does not claim that the Defendant Nos.1 to 3,
post assignment of interest by original Plaintiff Nos.1 to 3, threatened to cause
obstruction to the Plaintiff No.4. With the divestment of interest of Defendant Nos.1
to 3 in the adjacent property, Hissa N.2B, absence of dispute, as such, between the
parties to the suit becomes even more stark. In the aforesaid view of the matter, I am
inclined to hold that the plaint is devoid of cause of action as it does not indicate that
the Defendants committed breach of obligation on their part or threatened to commit
breach of obligation.
32. The conspectus of aforesaid discussion is that the Application for
rejection of the plaint deserves to be allowed.
33. Hence, the following order :
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ORDER
(i) Interim Application (L) No.11048 of 2021 seeking a decree on admission stands rejected.
(ii) Interim Application No.1362 of 2021 stands allowed.
(iii) The Plaint stands rejected with costs.
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