Bombay High Court
Simarpal Singh Sawhney vs Madhu Bhatti And 4 Ors on 30 November, 2022
Author: N.J.Jamadar
Bench: N.J.Jamadar
SWAROOP Digitally
by SWAROOP
signed
SHARAD SHARAD PHADKE
Date: 2022.12.13
PHADKE 16:30:09 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.2452 OF 2021
OM
SUIT NO.947 OF 2014
Simarpal Singh Sawhney ... Applicant/Plaintiff
versus
Madhu Bhatti and Ors. ... Defendant
Mr. Giriraj Subramaniam with Mr. Nirman Sharma, i/by Sachin
Choudhari for Plaintiff.
Mr. J.A.Udaipuri with Ms. Parragnya Trivedi Manubarwala i/by Bharat
and Co., for Defendant Nos.1 to 3.
CORAM: N.J.JAMADAR, J.
DATE: 30th NOVEMBER, 2022
P.C.:
1. The Applicant-Plaintiff has preferred this Application for a
decree on admission purportedly under Order XII Rule 6 read with
Sections 11 and 151 of the Code of Civil Procedure, 1908.
2. Though the litigation dates back to the year 1972
commencing with Suit No.332 of 1972 instituted with a Court at
Delhi and traverses a chequered history, yet the background facts
necessary for determination of this Application can be stated in brief
as under :
2.1 Late Bajinder Singh instituted a Suit bearing No.332 of
1972, in a Court at Delhi against late Joginder Singh Sawhney, his
brother in law, for a money decree. In the said Suit, Bajinder
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succeeded in obtaining a money decree dated 26 February, 1975 for
a sum of Rs.10,000/-.
2.2 Eventually, the decree came to be transferred to the City
Civil Court at Mumbai for execution as Joginder, the judgment
debtor had no property in Delhi to satisfy the decree. Bajinder, the
decree holder, assigned the decree in favour of Bhupinder Singh
Trilok Singh - Defendant No.5.
2.3 Mr. K.L.Malick, the father of Defendant Nos.1 to 3
allegedly purchased the flat bearing No.A/5, Ravi Darshan Co-op.
Hsg. Soc. Ltd., Carter Road, Bandra (W), Mumbai - 400 050
(Defendant No.4 Society) from Abdul Gafoor Khan, the owner of the
said flat ('the suit flat') under an agreement for purchase dated 4
March 1971 executed by and between K.L.Malick and Abdul Gafoor
Khan, the original owner thereof. Joinder, the judgment Debtor in
Suit No.337 of 1972 was allegedly witness to the said agreement.
Later on, Joginder agreed to sell the flat in favour of Rajinder
Malick, wife of K.L.Malick, and the predecessor in title of Defendant
Nos.1 to 3. Rajinder Malick was, thus, put in possession of the Suit
flat.
2.5 Post transfer of decree in Suit No.332 of 1972, a warrant
of attachment of the suit flat was issued on 24 April 1989. It was
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served on Rajinder Malick, and pasted at the suit flat, on 13 June,
1989.
2.6 Thereupon, Rajinder Malick took out a Chamber
Summons bearing No.857 of 1989 in Suit No.332 of 1972 before the
City Civil Court at Mumbai, for lifting the attachment over the suit
flat. Rajinder Malick contended that the suit flat was sold and
transferred to her by Joginder under an agreement dated 3 August
1971. However, Joginder failed and neglected to execute necessary
documents and ensure compliances to complete the transfer.
Nonetheless, Rajinder Malick became the absolute owner of the suit
flat. In the alternative, Rajinder Malick contended that she had been
in continuous, open and hostile possession of the suit flat since 12
November 1970 and, on that count also, levy of attachment over
the suit flat was required to be removed.
2.8 The Plaintiff - decree holder in Suit No.332 of 1972
resisted the prayer in the Chamber Summons.
2.9 By an order dated 20 February 1991 the learned Judge,
City Civil Court was persuaded to dismiss the Chamber Summons
holding, inter alia, that late Rajinder Malick failed to prove that she
was the absolute owner of the suit flat and that it was not liable to
be attached and sold in execution of the decree passed in Suit
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No.332 of 1972. It seems the order passed in Chamber Summons
No.857 of 1989 was not carried in Appeal.
2.11 In the meanwhile, Defendant Nos.1 to 3 and K.L.Malick,
the successor in interest of Rajinder Malick filed an Application in
Execution Application No.8 of 2000 in Suit No.332 of 1972 seeking
leave to deposit the decreetal amount, costs and expenses and
lifting of the attachment over the suit flat. By a judgment and order
dated 20 February 2007, the said Application came to be dismissed.
2.13 In Writ Petition No.3451 of 2007, Hon'ble Justice
B.R.Gavai (as His Lordship then was), was persuaded to allow the
Petition and the Defendant Nos.1 to 3 were permitted to deposit the
decreetal amount with liberty to Respondent No.3 - Bajinder Singh
to withdraw the decreetal amount. Consequently, the suit flat came
to be released from attachment. It was however made clear that
the Court had not delved into the rival claims of Defendant Nos.1 to
3 and Joginder as regards the title to the suit flat.
2.15 In the meanwhile, Joginder, grandfather of the Plaintiff,
instituted the instant Suit No.974 of 2014 claiming title over the suit
flat. It was averred that in or about March 1971, Abdul Gafoor Khan,
the original owner of the suit flat, had sold and transferred the suit
flat in favour of Joginder by transferring membership in the
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Defendant No.4 Society. Rajinder Malick who was in unlawful
occupation of the suit flat, based her claim on a forged letter dated
3 August 1971, whereunder late Joginder allegedly transferred the
suit flat to Rajinder Malick. Joginder, thus, prayed for a declaration
that the transfer of the suit flat by Defendant No.4 Society in favour
of Rajinder Malick was null and void and did not affect the title of
the Plaintiff over the suit flat. The Plaintiff also prayed for
consequential reliefs of issue of duplicate share certificate by the
Defendant No.4 society in favour of the Plaintiff and delivery of clear
and vacant possession of the suit flat by Defendant Nos.1 to 3 and
the persons claiming through them.
2.19 Defendant Nos.1 to 3 contested the Suit by filing a
written statement.
2.20 Trial has commenced. The Plaintiff has closed his
evidence.
3. The Plaintiff has taken out this Application with the
assertions that in view of the admissions in the written statement
filed by Defendant Nos.1 to 3 and the Affidavit of Evidence,
Affidavit of Documents and Compilation of documents, a decree on
admissions is required to be passed. The Plaintiff avers the
Defendant Nos.1 to 3 have admitted the fact that by an order dated
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20 February 1991, Chamber Summons No.857 of 1989 taken out by
Rajinder Malick was dismissed by the City Civil Court. While
dismissing the Chamber Summons, the learned Judge, City Civil
Court had framed the very same issues which have been framed in
the instant suit. The learned Judge, City Civil Court, came to be
conclusion that Rajinder Malick was not the absolute owner of the
suit flat and, thus, the pivotal issue reflecting upon the title of
Rajinder Malick was answered against the predecessor in title of
Defendant Nos.1 to 3. Since no appeal was preferred against the
order dated 20 February 1991, which amounts to a decree within
the meaning of Order XXI Rule 58 of the Civil Procedure Code, the
said order attained finality.
4. The Plaintiff further avers that the said order, which
amounts to a decree, operates as a res-judicata within the meaning
of Section 11 of the Code of Civil Procedure as it was the final
adjudication between predecessor in interest of the Plaintiff and the
predecessor in interest of Defendant Nos.1 to 3; the subject matter
in both the proceedings was same; the issue of title of the
predecessor in interest of Defendant Nos.1 to 3 was directly and
substantially in issue before the City Civil Court and it has been
finally determined on merits. Therefore, according to the Plaintiff, a
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decree on admission can be legitimately passed in accordance with
the prayers in the instant suit.
5. Pursuant to the directions of the Court dated 22
September, 2021, the Plaintiff has filed an additional Affidavit.
6. An Affidavit in Reply is filed on behalf of Defendant Nos.1
to 3. At the outset, Defendant Nos.1 to 3 contended that the
Application is most devious and dishonest and preferred with an
oblique motive to dispossess Defendant Nos.1 to 3 by resorting to
trickery. Defendant Nos.1 to 3 contended that the very institution
of Suit No.332 of 1972 in a Court at Delhi, by Bajinder against
Joginder, who was his brother in law, was actuated by a dubious
design to usurp the suit flat in execution of a decree for paltry sum
of Rs.10,000/-. The fact that Joginder, predecessor in title of the
Plaintiff, made no efforts to save the suit flat from attachment in
execution of the said decree, and, in fact, in Writ Petition No.3451 of
2007 took a stand that he did not want the decreetal debt to be
discharged by Defendant Nos.1 to 3 as he did not desire to be under
obligation a party who was willing to deposit the decreetal amount
on his behalf. Joginder claimed that the suit flat be auctioned and
after satisfying the decreetal debt the balance amount be paid to
him. This, according to Defendant Nos.1 to 3 betrayed the intent to
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dispossess Defendant Nos.1 to 3 from the suit flat by hook or crook
and the present application manifests a link in the chain of dubious
means adopted to achieve the desired end.
7. Defendant Nos.1 to 3 contend that the decision in
Chamber Summons No.857 of 1989 can never operate as res-
judicata as the said proceedings was not between Defendant Nos.1
to 3 and the predecessor in title of the Plaintiff. Rajinder Malick had
sought lifting of the attachment levied at the instance of late
Bajinder Singh, the decree holder. In the said proceedings, Joginder
never participated. Thus by no stretch of imagination the said
decision can operate as a res-judicata as there was no contest
between Joginder and Rajinder Malick. In any event, according to
Defendant Nos.1 to 3, the learned Judge, City Civil Court was
persuaded to reject the objection to attachment on the ground that
the instrument on which Rajinder Malick based her claim, was
unstamped and unregistered. Thus, the issue of title over the suit
flat claimed by Joginder and Rajinder Malick neither arose for
determination nor decided.
8. Heavily drawing upon the observations of this Court in
the order dated 6 July, 2011 in Writ Petition No.3451 of 2007,
Defendant Nos.1 to 3 contended that the application deserves to be
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dismissed with exemplary costs.
9. In the wake of the aforesaid pleadings, I have heard Mr.
Nirman Sharma, learned Counsel for the Plaintiff, and Mr. Udaipuri,
learned Counsel for Defendant Nos.1 to 3, at some length. The
learned Counsel took pains to take the Court through the pleadings
and the orders passed in previous proceedings which bear upon the
determination of the instant application.
10. It was urged on behalf of the Plaintiff that on facts there
is no controversy over the determination of Chamber Summons
No.857 of 1989 by the City Civil Court by an order dated 20
February 1991. Indisputably, the said order was not carried in
appeal, though it amounts to a decree under Order XXI Rule 58 of
the Code. The Suit instituted by Rajinder Malick being Suit No.60 of
1994 for a declaration of title over the suit flat came to be dismissed
in default by an order dated 12 September 1997. Therefore, the fact
that the order in Chamber Summons No.857 of 1989 attained
finality cannot be gainsaid, urged Mr. Sharma.
11. Inviting the attention of the Court to the issues framed by
the learned Judge, City Civil Court in Chamber Summons No.857 of
1989, Mr. Sharma strenuously submitted that the principal issue as
to whether Rajinder Malick succeeded in proving that she was the
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absolute owner of the suit flat was duly framed and categorically
answered against the predecessor in title of Defendant Nos.1 to 3.
Comparing and contrasting the said issues with the issues framed in
the instant suit, especially issue Nos.3 and 4, Mr. Sharma would
urge that the decision in Chamber Summons No.857 of 1989 fully
operates as a res-judicata. It was submitted that res-judicata not
only amounts to a statutory bar under the Code, but also represents
a substantial right which accrues in favour of the parties to
judgment. To lend support to this submission, Mr. Sharma placed a
strong reliance on a judgment of the Supreme Court in the case of
Union of India and Ors. V. Major P. Sharma and Ors.1
12. Mr. Sharma would further urge that the issue of limitation
(issue No.1 in the instant suit) need not detain the Court as the
Plaintiff instituted the suit based on title for which the period of
limitation begins to run only after the possession of the Defendants
becomes adverse to that of the true owner. Defendant Nos.1 to 3
have never set up a valid claim of adverse possession since
Defendant Nos.1 to 3 do not acknowledge the ownership of
predecessor in title of the Plaintiff over the suit flat. To buttress this
submission, a strong reliance was placed on the judgment of the
1 (2014) 6 SCC 351
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Supreme Court in the case of Uttam Chand (dead) through
Legal representatives V. Nathu Ram (Dead) through legal
representatives and Ors.2
13. Mr. Udaipuri, learned Counsel for Defendant Nos.1 to 3
submitted that the Application is wholly misconceived. There is no
admission of fact, much less a clear and unequivocal admission,
which can legitimately form the foundation of a decree under Order
XII Rule 6 of the Code. Amplifying the submission, Mr. Udaipuri
would urge that reliance on the order passed by the learned Judge,
City Civil Court in Chamber Summons No.857 of 1989 to bolster up a
case of an admission is not at all sustainable. The order in Chamber
Summons No.857 of 1989 was essentially on an objection to
attachment or, at the most, an obstruction proceedings. Since the
contest in the said Chamber Summons was not between the
predecessor in title of the Plaintiff and the predecessor in title of
Defendant Nos.1 to 3, the entire edifice of the case now sought to
be built on the basis of the said order operating as a res-judicata
crumbles traceless. To lend support to the aforesaid submission, Mr.
Udaipuri banked upon the judgment of the Supreme Court in the
case of Himani Alloys Limited Vs. Tata Steel Limited 3 and the
2 (2020) 11 SCC 263.
3 (2011) 15 SCC 273
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judgment of this Court in the case of K.Raheja Corp. Pvt. Ltd. Vs.
Maharashtra Tourism Development Corporation Ltd.4
14. Mr. Udaipuri advanced a strong criticism against the
motive with which the instant application has allegedly been
preferred. Taking the Court through the observations of this Court in
Writ Petition No.3451 of 2007, Mr. Udaipuri would urge that the
successor in interest of the deceased Plaintiff Joginder is prosecuting
the proceeding in the same vein to dispossess Defendant Nos.1 to 3
by resorting to unjust devices.
15. I have given my anxious consideration to the submissions
advanced across the bar. To start with, since the Plaintiff seeks a
judgment on admission, of necessity the admission which the
Plaintiff professes to press into service, deserve to be noted. It is
averred that there are admissions in paragraphs 6,8, 9, 13 and 16 of
the Written Statement. I have perused the contentions in the
aforesaid paragraphs wherein Defendant Nos.1 to 3 have referred to
the previous proceedings between Bajinder and Joginder and
Bajinder and Rajinder Malick, the predecessor in title of Defendant
Nos.1 to 3, including the Suit No.332 of 1972 and Chamber
Summons No.857 of 1989 and the outcome thereof.
4 2019(5) Mh.L.J.266
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16. It is pertinent to note that the Plaintiff does not profess to
claim that there is an admission of title of the Plaintiff either by the
Defendant Nos.1 to 3 or their predecessor in interest. The thrust of
the submission on behalf of the Plaintiff was that the order dated 20
February 1991 passed in Chamber Summons No.857 of 1989
precludes Defendant Nos.1 to 3 from agitating the issue of title of
their predecessor in interest and contesting the title of the
predecessor in interest of the Plaintiff. During the course of the
submissions, a concerted effort was made on behalf of the Plaintiff
to persuade the Court to hold that the order dated 20 February 1991
passed in Chamber Summons No.857 of 1989 operates as a res-
judicata and since Defendant Nos.1 to 3 have referred to the said
order and have not assailed its legality and correctness, it must be
assumed that the Defendant Nos.1 to 3 have admitted the finding in
the said order.
17. On first principles, I am afraid, the import of Order XII
Rule 6 can be construed in the manner the Plaintiff desires the Court
to do.
18. Order XXII, Rule 6 of the Code reads as under :-
"Order XII Rule 6 : Judgment on admissions :
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(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 upon in accordance with the
judgment and the decree shall bear the date on which the
judgment was pronounced."
19. From the phraseology of the aforesaid sub-rule (1) of Rule
6, it becomes evident that the legislature has designedly conferred
jurisdiction on the Court to pass judgment on admission. The
legislature has taken care to ensure that the source of admission is
not of decisive significance. Firstly, the admissions can be found
either in the pleadings or otherwise. Secondly, the insistence for
admission being in writing is done away with. The admission may be
oral or in writing. Thirdly, the stage of the suit does not matter. The
Code expressly empowers the Court to pass judgment on admission
at any stage of the suit. The said aspect is further reinforced by the
words "without waiting for the determination of any other question
between the parties". Fourthly, the party, in whose favour the
admission is made, need not apply. The Court, on its own motion,
can pass a judgment on admission if it comes to the conclusion that
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the claim or part of the claim of one party is admitted by the other.
Lastly, the exercise of the said power is undoubtedly discretionary.
But, in view of the wide ambit and unhinged nature of the powers
conferred on the Court to pass a judgment on admission, the Court
may not be justified in refusing the relief where a case falls within
the four corners of the said provision. For the ultimate object of the
provision is to give an expeditious relief to a party when its claim is
admitted by the adversary.
20. A profitable reference in this context can be made to the
judgment of the Supreme Court in the case of Uttam Singh
Duggal & Co. Ltd. Vs. United Bank of India & Ors. 5, wherein
the object of the aforesaid rule was expounded and the approach
expected of the Court was delineated, in the following words :
"12 As to the object of the 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 other party
has made a plain admission entitling the former to
5 (2000) 7 SCC 120
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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."
(emphasis supplied)
21. The aforesaid pronouncement was followed by the
Supreme Court in the case of Karam Kapahi & Others Vs. Lal
Chand Public Charitable Trust 6. The Supreme Court traced the
historical backdrop of the said provision, including the amendment
introduced therein by the Amendment Act, 1976, pursuant to the
recommendations of the Law Commission, and, instructively,
enunciated the true nature and import of the said provision. The
observations of the Court are as under :
"37 The principles behind Order 12 Rule 6 are to give
the plaintiff a right to speedy judgment. Under this Rule
either party may get rid of so much of the rival claims about
`which there is no controversy' [See the dictum of Lord
Jessel, the Master of Rolls, in Thorp versus Holdsworth in
(1876) 3 Chancery Division 637 at 640].
38 In this connection, it may be noted that order 12
Rule 6 was amended by the Amendment Act of 1976. Prior
to amendment the Rule read thus:-
"6. Judgment on admissions. - Any party may, at any
stage of a suit, where admissions of facts have been
made, either on pleadings or otherwise, apply to the
Court for such judgment or order as upon such
admission he may be entitled to, without waiting for
the determination of any other question between
the parties and the Court may upon such application
make such order or give such judgment, as the
Court may think just."
39 In the 54th Law Commission Report, an amendment
6 (2010) 4 SCC 753
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was suggested to enable the Court to give a judgment not
only on the application of a party but on its own motion. It is
thus clear that the amendment was brought about to further
the ends of justice and give these provisions a wider sweep
by empowering judges to use it `ex debito justitial, a Latin
term, meaning a debt of justice. In our opinion the thrust of
the amendment is that in an appropriate case, a party, on
the admission of the other party, can press for judgment, as
a matter of legal right. However, the Court always retains its
discretion in the matter of pronouncing judgment.
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 in as much 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 in mind this Court
held that under this rule admissions can be inferred from
facts and circumstances of the case [See Charanjit Lal Mehra
and others v. Kamal Saroj Mahajan (Smt.) and another,
(2005) 11 SCC 279 at page 285 (para 8)]. Admissions in
answer to interrogatories are also covered under this Rule
[See Mullas's commentary on the Code, 16th Edition, Volume
II, page 2177].
42. In the case of Uttam Singh Duggal & Co. Ltd., v.
United Bank of India and others, (2000) 7 SCC 120, this
Court, while construing this provision, held that the Court
should not unduly narrow down its application as the object
is to enable a party to obtain speedy judgment.
43. In that case it was contended on behalf of the
appellant, Uttam Singh Duggal, that:
(a) Admissions under Order 12 Rule 6 should
only be those which are made in the pleadings.
(b) The admissions would in any case have to be
read along with the first proviso to Order 8 Rule
5 (1) of the Code and the Court may call upon
the party relying on such admission to prove its
case independently.
(c) The expression `either in pleadings or
otherwise' should be interpreted ejusdem
generis. [See para 11, pages 126-127 of the
report]
Almost similar contentions have been raised
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on behalf of the Club. In Uttam Singh (supra)
those contentions were rejected and this Court
opined no effort should be made to narrow down
the ambit of Order 12 Rule 6.
44. In Uttam Singh (supra) this Court made a distinction
between a suit just between the parties and a suit relating to
Specific Relief Act where a declaration of status is given
which not only binds the parties but also binds generations.
The Court held such a declaration may be given merely on
admission (para 16, page 128 of the report). But in a
situation like the present one where the controversy is
between the parties on an admission of non-payment of
rent, judgment can be rendered on admission by Court.
45. Order 12 Rule 6 of the Code has been very lucidly
discussed and succinctly interpreted in a Division Bench
judgment of Madhya Pradesh High Court in Shikharchand v.
Bari Bai reported in AIR 1974 Madhya Pradesh 75. Justice
G.P. Singh (as His Lordship then was) in a concurring
judgment explained the aforesaid rule, if we may say so,
very authoritatively at page 79 of the report. His Lordship
held : (AIR para 19)
"... I will only add a few words of my own. Rule 6
of Order 12 of the Code of civil Procedure
corresponds to Rule 5 of Order 32 of the Supreme
Court Rules (English), now rule 3 of Order 27, and
is almost identically worded (see Annual Practice
1965 edition Part I. p. 569). The Supreme Court
Rule came up for consideration in Ellis v. Allen
(1914) Ch 904. In that case a suit was filed for
ejectment, mesne profits and damages on the
ground of breach of covenant against sub-letting.
Lessee's solicitors wrote to the plaintiff's
solicitors in which fact of breach of covenant was
admitted and a case was sought to be made out
for relief against forfeiture. This letter was used
as an admission under rule 5 and as there was no
substance in the plea of relief against forfeiture,
the suit was decreed for ejectment under that
rule. Sargant, J. rejected the argument that the
rule is confined to admissions made in pleadings
or under rules 1 to 4 in the same order (same as
ours) and said:
"The rule applies wherever there is a clear
admission of facts in the face of which it is
impossible for the party making it to succeed."
Rule 6 of Order 12, in my opinion, must bear the
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same construction as was put upon the
corresponding English rule by Sargent, J. The
words "either on the pleadings or otherwise" in
rule 6 enable us not only to see the admissions
made in pleadings or under Rules 1 to 4 of the
same order but also admissions made elsewhere
during the trial."
46 This Court expresses its approval of the aforesaid
interpretation of Order 12 Rule 6 by Justice G.P. Singh (as His
Lordship then was). Mulla in his commentary on the Code
has also relied on ratio in Shikharchand (supra) for
explaining these provisions.
47 ........
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 the given situation, as in the instant case,
the said provision can be applied in rendering the
judgment."
(emphasis supplied)
22. In the case of Himani Alloys Limited (Supra), on which
reliance was placed by the learned counsel for the Defendant Nos.1
to 3, the Supreme Court emphasized the discretionary nature of the
jurisdiction under Order XII, Rule 6. The observations of the
Supreme Court in paragraph 11 are material and, thus, 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
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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 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)
23. In the light of the aforesaid position in law, in my view,
Mr. Udaipuri was justified in canvassing a submission that the
Application is not based on an admission of fact made either in the
pleading or otherwise. As indicated above, to wriggle out of the
situation a strenuous effort was made on behalf of the Plaintiff to
sustain the application on the ground that the order in Chamber
Summons No.857 of 1989 operates as a res-judicata.
24. This endeavour on the part of the Plaintiff is also not free
from obstacles.
25. First and foremost, it is pertinent to note that in the
instant suit, no issue of the order in Chamber Summons No.857 of
1989 operating as a res-judicata has been framed.
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26. It is trite the Court has to examine the plaint, the written
statement, the issues and the judgment in the former suit to find
out whether the matter was directly and substantially in issue. A
test which is considered safe is to consider whether the issue (which
allegedly operates as res judicata in a subsequent suit) was
"necessary" to be decided for adjudication of the principal issue
(which arose in former suit) and was decided. If that was the case,
such an issue would have to be treated as "directly and
substantially" in issue and if it becomes evident that the judgment
in the former suit was in fact based on that decision, it would
operate as a res judicata in a subsequent suit. I am afraid in the
absence of an issue of res-judicata having been framed in the
instant suit, it would be permissible to embark upon such an
elaborate inquiry in this application.
27. Secondly, there is substance in the submission of Mr.
Udaipuri that Chamber Summons No.857 of 1989 was a combat
between Bajinder, the decree holder, and the predecessor in
interest of the Defendant Nos.1 to 3. Conversely, the predecessor
in interest of the Plaintiff did not participate in the said Chamber
Summons.
28. In this view of the matter, I deem it superfluous to delve
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into the aspects as to whether all the pre-requisites for invoking the
provisions contained in Section 11 of the Code or the principles
analogous to res-judicata have been made out. Reliance on behalf
of the Plaintiff on a number of judgments to bolster up a case of res-
judicata does not seem to be well-placed.
29. At best, the position of Joginder, judgment debtor in Suit
No.337 of 1972 and Rajinder Malick, an obstructionist, can be of co-
defendant. That would pose a question as to whether the order
dated 20 February 1991 passed in Chamber Summons No.857 of
1989 operates as a res-judicata between the co-defendants.
30. A useful reference in this context can be made to the
judgment of the Supreme Court in the case of Govindammal
(dead) by Legal Representatives and Ors. Vs. Vaidiyanathan
and Ors.7 wherein the position as to when the judgment and order
in a previous proceeding operates as a res-judicata qua co-
defendants was expounded. The observations in paragraphs 14, 18
and 19 are instructive and, hence, extracted below :
"14. However, there exist certain situations in which the
principles of res judicata may apply as between co-
defendants. This has been recognized by the English courts
as well as our courts for more than a century. The requisite
conditions to apply the principles for res judicata as between
7 (2019) 17 SCC 433
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co-defendants are that (a) there must be conflict of interest
between the defendants concerned, (b) it must be necessary
to decide this conflict in order to give the Plaintiff the relief
he claims, and (c) the question between the defendants
must have been finally decided. All the three requisite
conditions are absent in the matter on hand. Firstly, there
was no conflict of interest between the Defendants in the
suits filed by the temple and the school. Secondly, since
there was no conflict, it was not necessary to decide any
conflict between the defendants in those suits in order to
give relief to the temple or the school, which were the
Plaintiffs. On the other hand, the father of the plaintiffs and
the father of the defendant were colluding in those suits filed
by temple and school. Both of them unitedly opposed those
suits. In view of the same, the principles of res judicata
would not apply.
18. It is true that under Section 11 CPC, when the
matter has been directly or substantially in issue in a former
suit between the same parties or between parties under
whom they or any of them claim, litigating under the same
title, the decree in the former suit would operate as res
judicata between the Plaintiff and the defendant or as
between the co-plaintiffs or co-defendants. For instance, if
in a suit by P against D-1 and D-2, the matter is directly and
substantially in issue between D-1 and D-2 and adjudication
upon that matter was necessary to determine the suit to
grant relief to P, the adjudication would operate as res
judicata in subsequent suits between D-1 and D-2 in which
either of them is the Plaintiff or the defendant. In other
words, if a plaintiff cannot get his claimed relief without
trying and deciding a case between the co-defendants, the
Court will try and decide the case in its entirety including the
conflict of interest between the co-defendants and the co-
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defendants will be bound by the decree. But if the relief
given to the plaintiff does not require or involve a decision of
any case between co-defendants, the co-defendants will not
be bound as between each other.
19. This Court in Mahboob Sahab V. Syed Ismail8
considering the applicability of the doctrine of res judicata
between the co-defendants held that the following four
conditions must be satisfied,namely (SCC p. 698 para 8)
(1) there must be a conflict of interest between the
defendants concerned;
(2) it must be necessary to decide the conflict in order
to give the reliefs which the plaintiff claims;
(3) the question between the defendants must have
been finally decided; and
(4) the co-defendants were necessary or proper parties
in the former suit.
To reach the conclusion mentioned above, this Court relied
upon the judgments in Syed Mohd. Saadat Ali Khan V/s.
Mirza Wiquar Ali Beg9, Shashibhushan Prasad Misra V/
s. Babuaji Rai10 and Iftikhar Ahmed V/s. Syed
Meharban Ali11." ( emphasis supplied)
31. In the case at hand, the aforesaid conditions cannot be
said to have been fulfilled as the predecessor in title of the Plaintiff
did not participate in the Chamber Summons and, prima facie, it
cannot be said that the conflict of interest between the
predecessors in title of the Plaintiff and the Defendant Nos.1 to 3
8 (1995) 3 SCC 693
9 1943 SCC Online PC 15
10 AIR 1970 SC 809
11 (1974) 2 SCC 151
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was decided as a lis between them. It is a different matter that the
executing Court was called upon to evaluate the merits of the claim
of the predecessor in interest of Defendant Nos.1 to 3 to decide the
objection to attachment levied at the instance of the decree holder
in the said case.
32. The matter can be looked at from another perspective.
The exercise of the power to pass judgment on admission is
unbdoubtedly discretionary. Even if it is assumed that the order in
Chamber Summons No.857 of 1989 binds Defendant Nos.1 to 3 to
such an extent as to amount to an admission within the meaning of
Order XII Rule 6 of the Code, the Court would be required to pose
unto itself the question as to whether, in the facts of the case, the
Plaintiff deserves exercise of the discretion.
33. It would be suffice to extract observations of the Court in
Writ Petition No.3451 of 2007 wherein the prayer of the Defendant
Nos.1 to 3 to satisfy the decree by paying the decreetal amount was
opposed tooth and nail by the decree holder as well as the
judgment debtor. The observations in paragraphs 29 to 32 are
material and hence, extracted below :
"29. Admittedly, in the present case the parents
of the Petitioners and the Petitioners along with mother
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were in possession of the said flat. Admittedly, after the
demise of their parents, petitioners are in possession of the
said flat. Admittedly, there are certain documents placed
on record by the petitioners, supported to be an agreement
of sale, in respect of the said flat between the petitioner's
mother and the respondent No.2. There are certain
documents allegedly addressed by Respondent No.2 in the
nature of indemnity bond and request to the Society for
transferring the shares in the name of the petitioner's
mother. I do not wish to commend anything about the
genuineness or otherwise of the said documents, inasmuch
as any observation in that regard may prejudice the rights
of the petitioners or the respondent No.2, but certainly it
cannot be said that the petitioners are not at all interested
in the said flat. I do not find it appropriate to go into the
question as to what would be extent of their interest in the
flat concerned.
30. The matter can be viewed from another angle. It is
the allegation of petitioners that the suit in question was
filed against the respondent no. 2, by his own brother-in-law.
It is contended that suit is a collusive suit and was filed with
an intention to circumvent the agreement entered into
between petitioner's mother and respondent no. 2. I do not
wish to go into the said controversy, again for the same
reason, that any observation in that regard may prejudice
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rights of either of the parties. However, let us consider and
examine a hypothical situation. An unscrupulous litigant
after entering into an agreement of sale of a property, after
receiving consideration thereof and after delivering
possession does not want to honour the agreement. He may
very well instigate someone close to him, to file a suit for
money decree for a paltry sum. The suit may be decreed.
He may very well put up a claim that he does not have any
other property and the only property that he has is the one
in respect of which the agreement of sale is entered and
possession delivered. In the proceedings for execution of
said money decree, the said property would be attached
and put to an auction. Can a person who has paid a
consideration for the said property in pursuance to an
agreement and is in possession of the said property, be said
to be a person not entitled to make payment and satisfy the
decree, so as to avoid auction of the said property? If the
answer to this question is 'No', then it would result in
giving a tool in hands of unscrupulous cantankerous litigants
to circumvent the rights they have transferred in favour of
third parties after receiving a consideration, to realise huge
amount by auction of said property.
31. In the present case, the matter is remanded by their
Lordships of the Apex Court, basically on the ground that
notice of present writ petition filed by the present
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petitioners was not issued to the appellant, before the Apex
Court (i.e. the respondent no. 2 herein). However, it is
pertinent to note that the respondent no. 2 had addressed a
communication to this Court on 10 th May, 2007, i.e. much
earlier to the order passed by the Apex Court. The
relevant portion of the said letter reads thus:-
"This is to bring under your kind
information that I have come to know that your
Hon'ble Court have passed the order on May 04,
2007 on the above mentioned Ritz Petition. I have
no Advocate and nor I have been informed for the
same, therefore, I was not present in your Hon'ble
Court.
That the Petitioners should deposit the
decree amount of Rs.36,474.00 in the Sheriff of
Bombay Office within one week time etc.
I, Joginder Singh Sawhney R/o. C-12,
Malviya Nagar, New Delhi-110017, is Defendant /
Judgement Debtor in this case.
Whereas I have not been informed by
the concerned Department regarding the said case
hearing in High Court Bombay.
I have written so many letters by Speed
Post, A/D to Sheriff Office that I have "No
Objection" for the sale of my Flat No. A-5, Ravi
Darshan Co-operative Housing Society Ltd., Carter
Road, Bandra (West), Bombay-400 050, which is
already attached by City Civil Court, Bombay by
Warrant of
Attachment dated 24th April, 1989.
I request your honour that I do not want
any obligation of any Party/Parties to deposit my
Decree amount in the Sheriff Office as per your
Order dated 04.07.2007.
I humbly request you that you please
pass necessary orders that my above mentioned
flat of which I am the owner should be put on
Auction (Sale) and out of which Decree amount
should be paid to Decree holder and the balance
amount should be paid to me for which I have no
objection.
Once again I request your honour that
please pass necessary orders for Auction that flat
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in question and after detecting the Decree amount,
the Balance amount should be paid to me. I do not
want any obligation of any Party or Parties to
deposit Decree amount on my behalf."
32. It can thus be seen that the respondent no. 2, is
insisting that the said flat should be put on auction and out
of which the decree amount should be paid to the decree
holder and the balance amount should be paid to him. He
states that he does not want any obligation of any party to
deposit the decree amount on his behalf. From the perusal
of the order passed by this Court dated 4th May, 2007 and
26th July, 2007, it would reveal that the amount
payable under the decree is Rs. 36,474/- which is already
deposited by the petitioners in this Court, which is in
addition to the amount which was already deposited by the
petitioner's mother in the suit filed by her. From the order
passed by the learned City Civil Judge dated 9th December,
1994, it would reveal that the reserve price for auction, has
been set as Rs. 49,50,000/-. A period of about 16 years has
lapsed therefrom. Undisputedly, with passage of time, the
price of the said flat would be atleast more than a crore. The
question, therefore, would be whether the decree passed
against the respondent no. 2, against which the amount
payable is about 36,474/- could be permitted to be used by
him to receive an amount in crores by auctioning the said
flat. It is a known fact that the price received after
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auctioning the property under the orders of the Court would
be less than the prevailing market rate. It is difficult to
understand as to why the respondent no. 2, who claims to
be the owner of the property, does not want to pay the
paltry sum of Rs. 36,474/- and save his valuable property
from being auctioned. Certainly, there appears to be much
more in the present matter than what meets the eye........
Taking into consideration this aspect, the contention of the
petitioner that the decree is a collusive decree with intent to
get the flat auctioned cannot be outrightly disbelieved.
However, I make it clear, that I do not intend to make any
observation regarding the rights of the petitioners or the
respondent no. 2 in the said flat. Inasmuch as, limited
question that arises for consideration is, as to whether the
petitioners can be permitted to make the payment and
satisfy the decree. In case the respondent has any rights in
the said flat, he is always at liberty to take such steps, as
are permissible in law to establish his right. If the
respondent no. 2 is the owner of the flat, he can also take
such steps for evicting the petitioners, from suit premises as
permissible in law. The only question is whether he can be
permitted to use the machinery of law to get the flat in
question auctioned, which is admittedly in possession of the
petitioners and atleast prima-facie they have semblance of
right in the said flat. I am of the considered view that if this
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is permitted, it will amount to nothing else than abuse of
process of the Court."
34. The aforesaid observations, in the least, indicate that the
Defendant Nos.1 to 3 deserve an opportunity to contest Joginder's
claim of the title over the suit flat. It is safe to assume, in the
context of aforesaid observations, Joginder instituted this suit based
on title. Serious issues of the suit being barred by limitation,
acquisition of title to the suit flat by Joginder and Rajinder Malick,
and perfection of title by prescription by Rajinder Malick arise for
determination in the instant suit. Such determination on merit
cannot be interdicted by seeking a decree on perceived admission.
35. For the foregoing reasons, especially the controversy
over the very existence of admission, I am inclined to hold that no
case for judgment on admission is made out.
36. By way of abundant caution it is, however, clarified that
the observations in this order are confined to the determination of
the prayer for judgment on admission and it may not be construed
as an expression of opinion on the merits of the claim including the
question as to whether the order in Chamber Summons No.857 of
1989 operates as a res-judicata.
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37. Hence, the following order :
ORDER
The Application stands rejected.
( N.J.JAMADAR, J. ) SSP 32/32