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2002 Supreme(Del) 1811
High Court Of Delhi
ANUP JINDAL - Appellant
Versus
JAGDISH CHANDER GUPTA - Respondent
L.P.A. 12514 of 2000
Decided On : 12/05/2002
LALIT BHARDWAJ, R.P.Bansal, SANJIV SINDHVANI
Headnote:Civil Procedure Code, 1908 - Order 12 Rule 6 — Judgment on admissions — Partition suit — Application under Order 12, Rule 6 of Civil Procedure Code — Defendant explaining admissions otherwise than in the pleadings — Execution of no objection certification (NOC) by defendant disputed by defendant as the signature therein not genuine — Prima facie, Explanationn of defendant not unacceptable till evidence establishes so — Facts of the case point to possible success of defendant — Application for preliminary decree under Order 12, Rule 6 dismissed.
Held :
The admissions which were otherwise than in the pleadings, have been explained by the defendant, which Explanationn cannot be rejected till the evidence establishes so. In other words, prima facie the Explanationns are not in the category of manifestly not acceptable Explanationn.
Furthermore the admissions which arc 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 defendants 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 clear-cut 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 defendants succeeding in the case, or atleast success of defendant cannot be ruled out as an impossibility.
Resultantly, the application under Order 12 Rule 6, is dismissed.
( 1 ) THIS application (LA. 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 purpose 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 grandfather, Shri Ram Dhari executed a registered "will" dated llth May, 1984bequeathing the said grandfather s half- share in the property, in favour 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 llth 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 Dugal and Co. Ltd. v. United Bank of India, VI (2000) SLT 87=111 (2000) CLT 299 (SC)=2000 Vol. 7 SCC 20, where it has been held that the admissions contemplated by Order 21 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 pleadings, 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 favour 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 llth 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. 1 find from the written statement that the defendant has categorically denied that any affidavit by way of no objection , was at all signed or subm
