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2004 Supreme(Cal) 638
High Court Of Calcutta
Dilip Kumar Seth, Rajendra Nath Sinha
ASHIS KUMAR DAS - Appellant
Versus
REKHA MUKHERJEE - Respondent
C. A. N. 9873 Of 2003
Decided On : 09/22/2004
An admission within the meaning of Order 12 Rule 6 CPC can be accepted even if the author of the document is someone else if it is exhibited as an exhibit and in the process it is adopted even in different proceedings but on the principle of law as discussed above to be applied in the facts and circumstances of each case. The admission must be clear and conclusive. Some liberty must be given to the person against whom such admission is being used. It is to be ascertained in which context, purpose and to what extent such admission was made. The adoption of the document is to be examined in the context in which it was adopted and for what purpose and to what extent. An adoption could not amount to an admission unless on facts it appears that it could be so construed in the context of the case.
Headnote:
ORDER 12 RULE 6 CPC - ADMISSION - TEST - EVIDENCE ACT, SECTIONS 17, 21 AND 58 - An admission within the meaning of Order 12 Rule 6 can be accepted even if the author of the document is someone else if it is exhibited as an exhibit and in the process it is adopted even in different proceedings but on the principle of law as discussed above to be applied in the facts and circumstances of each case. It is just not possible to lay down any strait-jacket formula. Each case is dependant on its own merit. The admission must be clear and conclusive. Some liberty must be given to the person against whom such admission is being used. It is to be ascertained in which context, purpose and to what extent such admission was made. The admission when used against a person to foreclose his right to contest a suit must be clearly established since it operates as an estoppel against him, if proved. The adoption of the document is to be examined in the context in which it was adopted and for what purpose and to what extent. An adoption could not amount to an admission unless on facts it appears that it could be so construed in the context of the case. Then there is a distinction between an admission of the contents of a document and the admission of the pleading of the other side.
Fact of the Case:
The appellant filed a suit for specific performance of an agreement to sell. The respondent-defendant filed an affidavit-in-opposition alleging cancellation of the agreement. The appellant exhibited the affidavit-in-opposition in an ejectment suit filed by the respondent-defendant against the appellant, for the purpose of proving his claim as Thika Tenant. The appellant did not adduce any evidence in the ejectment suit. The Trial Court passed a decree under Order 12 Rule 6 CPC, holding that the appellant had admitted the cancellation of the agreement by exhibiting the affidavit-in-opposition. The appellant appealed against the decree.
Finding of the Court:
The Court held that the alleged admission was not clear and conclusive so as to attract the provisions of Order 12 Rule 6 in the peculiar facts and circumstances of the case. The Court observed that the respondent-defendant had applied for clearance under section 230A of the Income-tax Act even after the alleged cancellation of the agreement, which was contrary to the allegation made in the affidavit-in-opposition. The Court also noted that the Trial Court had already held in an interlocutory proceeding between the parties that the question of cancellation of the agreement should not be determined without trial on evidence, and this order had received the seal of the High Court and the Supreme Court. The Court further observed that the appellant had exhibited the affidavit-in-opposition only for a limited purpose, and that the part of the statement relating to the cancellation of the agreement had not been admitted by the appellant.
Issues: 1. Whether the alleged admission was clear and conclusive so as to attract the provisions of Order 12 Rule 6 CPC? 2. Whether the appellant had admitted the cancellation of the agreement by exhibiting the affidavit-in-opposition?
Ratio Decidendi: 1. An admission within the meaning of Order 12 Rule 6 can be accepted even if the author of the document is someone else if it is exhibited as an exhibit and in the process it is adopted even in different proceedings but on the principle of law as discussed above to be applied in the facts and circumstances of each case. 2. The admission must be clear and conclusive. Some liberty must be given to the person against whom such admission is being used. It is to be ascertained in which context, purpose and to what extent such admission was made. 3. The adoption of the document is to be examined in the context in which it was adopted and for what purpose and to what extent. An adoption could not amount to an admission unless on facts it appears that it could be so construed in the context of the case. 4. There is a distinction between an admission of the contents of a document and the admission of the pleading of the other side.
Final Decision: The appeal was allowed and the decree passed under Order 12 Rule 6 CPC was set aside. The suit was remanded to the Trial Court for decision on merit from the stage at which the Court had proceeded to pass the decree on admission.
( 1 ) THE preliminary objection : Maintainability of the appeal : mr. Santanu Mukherjee, learned Counsel for the respondent, had taken a preliminary objection as to the maintainability of the appeal. According to him, the decree was passed on 20th December, 2001. Against the said decree, a review application was preferred on 3rd/4th January, 2002. This review was partly allowed by an order dated 15th July, 2002. Therefore, when the appeal was preferred on 11th September, 2002 against the judgment and decree dated 20th december, 2001, there was no judgment and decree, which stood modified by reason of the order dated 15th July, 2002, being the decree against which the appeal could have been preferred. The subsequent dismissal of the review application or rejection thereof on account of not being pressed by the applicant would not alter the situation and would still affect the maintainability of the appeal. In support of his contention. Mr. Mukherjee had relied upon a decision in Sushil Kumar Sen vs. State of Bihar, 1975 (3) SCR 942. Relying on this decision, he contended that the principle laid down therein fully applies in the facts and circumstances of this case. Therefore, this appeal cannot be maintained. " (1 ). Mr. Barun Roy Chowdhury, learned Counsel for the appellant, on the other hand, points out that this decision in Sushil Kumar Sen (supra) is distinguishable. According to him, the moment, the application for review was not pressed before this High Court in connection with the cross-objection against the part of which the review was refused, the whole review episode becomes redundant and only remains on the record and it evaporates in the eye of law, as such it is the decree dated 20th December, 2001, which remains to be appealed against. Therefore, the appeal is very much appealable. " (2 ). On the question of this preliminary objection, we find that the principles of law upon a review application being allowed or rejected are settled proposition of law. If a review application is allowed, no matter whether the decree is reaffirmed, modified or reversed on review it is the decree that is passed on review even though affirmed, would be the decree relevant for being appealed against. This is a settled proposition of law as was recognized in the said decision of Sushil Kumar Sen (supra) relying on the decisions in Nibaran Chandra Sikdar vs. Abdul Hakim, AIR 1928 Cal 418; Kanhaiya Lal vs. Baldev Prasad, ILR 28 all 240; Brijbaso Lal vs. Salig Ram, ILR 34 All 282 and Pyari Mohan Kundu vs. Kalu Khan, ILR 44 Cal 1011. " (3 ). We have also occasion in this High Court in Full Bench to decide this question in K. N. Mishra vs. Union of India, AIR 2003 Cal 307 : 2003 (10) AIC 913 (Cal HC) : 2003 (2) CLJ 637 : 2003 (3) CHN 535, following the decision in gour Krishna Sarkar vs. Nil Madhab Saha, 36 CLJ 484 : AIR 1923 Cal 113. But the question remains, if the review application is rejected at the very first stage and second stage is not reached and the third stage is not concluded in, in that event, whether the order of rejection of the review application would have the same effect of reviving the decree as a fresh decree on the date of rejection of the review application. Mr. Mukherjee had contended that by reason of rejection of the review application, the decree that has been passed is affirmed and as such it would be treated as a fresh decree passed on the date of the rejection of the review application. In fact, according to him, the decree that was sought to be reviewed stands affirmed and revived as soon review application is rejected. He also contends that it would depend on the facts and circumstances of each case, namely, whether at one point of time the decree was reversed and the subsequent rejection would amount to revival of the decree and would not be the same old decree, which would be appealable. " (4 ). The decision in Sushil Kumar Sen (supra) seems to be distinguishable on facts. In that case on re
