Delhi High Court
Anup Jindal vs Jagdish Chander Gupta on 5 December, 2002
Equivalent citations: 103(2003)DLT234
JUDGMENT S. Mukerjee, J.
IA No. 12514/2000
1. This application (I.A. No. 12514/2000) has been preferred under Order 12, Rule 6 read with Section 151 CPC by the plaintiff praying for passing of preliminary decree for partition of the suit property on the basis of alleged admissions made by the defendants in the pleadings, as well as "otherwise". The brief facts of the case to the extent required for the purposes of consideration and disposal of the present application, are that one Shri Ram Dhari, Grandfather of the plaintiff, was the co-owner of the property No. A-25 Wazirpur Industrial Scheme, Ashok Vihar, Phase I, Delhi-52. This is admitted in the written statement by the defendant.
2. Further case of the plaintiff is that his grand father, Shri Ram Dhari executed a registered "Will" dated 11th May, 1984 bequeathing the said grandfather's half-share in the property, in favor of the plaintiff. It is also the agreed position that Shri Ram Dhari died on 30.1.1988.
3. Whereas the plaintiff contends that upon the death of Shri Ram Dhari, the registered last "Will" and testament dated 11th May, 1984, operated to convey the said grandfather's half portion, to the plaintiff, the defendant in the W.S. disputes the existence and validity of the "Will" itself.
4. Since just on the pleadings of the present suit, it is not possible for the plaintiff to pray for a decree under Order 12, Rule 6, therefore, the plaintiff has relied upon the judgment of the Apex Court in the case of Uttam Singh Duggal and Co. Ltd. v. United Bank of India (2000 Vol. 7 SEC page 20), where it has been held that the admissions contemplated by Order 12, Rule 6 CPC, can be "otherwise" than in the pleadings.
5. While the Apex Court in the above said case, has not exhaustively indicated what are the various types of admissions which would be covered by the term, "otherwise" as contained in Order 12, Rule 6, yet it has been clearly held that a statement made outside the pleadings, can be brought before the Court as containing an admission and thereupon if an application be filed under Order 12, Rule 6, the defendant/opposite party, would get sufficient opportunity to explain in relation to the admission claimed in the application under Order 12, Rule
6. If that explanation is acceptable or accepted, then no decree under Order 12, Rule 6 will be liable to be passed. In case the explanation is not accepted by the Court, then the Court would not be helpless in passing the decree, since the purpose of Order 12, Rule 6, is to enable the parties to obtain speedy judgment.
6. Wherever one party has made a plain admission entitling the other to succeed, then this provision will get attracted, subject to the condition that admission of facts, as contained in any document even outside the pleading,s must be a clear admission, and furthermore must be of such a nature that if it (admission) stands, then it would be impossible for the party making the admission, to succeed in the case.
7. Applying these principles to the facts of the present case, I find myself unable to allow the application and grant a decree, without trial, in favor of the plaintiff for the following reasons:-
(a) As at present, only the share of late Shri Ram Dhari to the extent of 50%, is admitted by way of clear admission by the defendants;
(b) The plaintiff has relied upon a registered Will dated 11th May, 1984, execution and validity of which has been disputed in categorical terms by the defendant;
(c) Relying upon the judgment of the Apex Court in Uttam Singh Duggal case (supra), the plaintiff has contended that the affidavit of no objection filed by the defendant at the time of the mutation of the name of the plaintiff in the records of DDA, is an admission which is falling in the category of "otherwise" as contemplated by Order 12, Rule 6. I find from the written statement that the defendant has categorically denied that any affidavit by way of no objection, was at all signed or submitted by the said defendant. Rather, the defendant has relied upon, and referred to, a complaint made by the defendant to the authorities, pointing out to them that he has never executed any affidavit in acceptance of the so called "Will" dated 11th May 1984, or for the grant of mutation in favor of the plaintiff. As regards the factum of the plaintiff's name being mutated in the records, and for that purpose giving an ordinary letter (not affidavit) is concerned, the defendant has furnished an explanation. The plaintiff was in possession of the ground floor. The defendant wanted to construct the first and second floors. To that end, when the defendant wanted the signatures of the plaintiffs, at that stage, the said Shri R.S. Jindal and the plaintiff insisted upon the defendant to execute a no-objection' certificate on plain paper in favor of the plaintiff, as a pre-condition for signing the proposed building plans for the construction of the first and second floor as required by the defendant. This explanation is not so unbelievable or so far-fetched, as to render the same to be an unacceptable explanation.
8. At first flush, I did feel that the plaintiff had a case for availing the benefit of the "otherwise" category of admission, as contemplated by Order 12, Rule 6, and as interpreted by the Hon'ble Apex Court in Uttam Singh Duggal (Supra). Apart from the execution of N.O.C. even if same be on simple paper, and also the act of the defendant in acknowledging the status of the plaintiff as a mutated and thereby recorded owner, I felt also a little disturbed about the conduct of the defendant who, while disputing his signatures on the affidavit of no objection, has conveniently executed the Power of Attorney in favor of his son Amit Gupta, to represent him in these proceedings which does leave an impression in my mind that the defendant does not now wish to bring his admitted signatures on the record of the present proceedings.
9. However, regardless of these aspects which may be pointers in favor of the plaintiff, at the final stage, when after trial, the respective merits of their contentions are examined, yet at the stage of application under Order 12, Rule 6, the ordering of judgment without trial, is liable to be declined for the reasons detailed above. In particular, the admissions which were otherwise than in the pleadings, have been explained by the defendant, which explanation cannot be rejected till the evidence establishes so. In other words, prima facie the explanations are not in the category of manifestly not acceptable explanation.
10. Furthermore the admissions which are 'otherwise' than in the pleadings, are not such that if they are allowed to stand, it would be impossible for the defendant to succeed. The affidavit of no objection, as referred to in the application, has been disputed as not executed, and not under defendant's genuine signatures. The fact that in the legal notice claiming partition in 1998, the plaintiff is not even referring to the registered Will, or to the affidavit of N.O.C., is another factor to be considered, as also is the circumstance that clearcut averments regarding registered Will, have been brought out only for the first time, by way of the plaint filed in this Court, are all factors/possible grounds which could contribute to the defendant's succeeding in the case, or atleast success of defendant cannot be ruled out as an impossibility.
11. Resultantly, the application under Order 12, Rule 6, being I.A. No. 12514/2000 is dismissed, but with no order as to costs.
Suit be listed on 6-2-03.