1. This petition under Article 227 of the Constitution of India impugns the order (dated 2nd June, 2017 in CS No.653/2017 of the Court of Additional District Judge (ADJ)-02, New Delhi District, Patiala House Court, New Delhi) dismissing the application of the petitioner/plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC).

2. Notice of the petition was issued, though a query was made from the counsel for the petitioner/plaintiff, as to the maintainability of petition under Article 227 of the Constitution of India since an order of dismissal of an application under Order XII Rule 6 of CPC is revisable.

3. The counsel all the respondents/defendants appears and seeks time to file reply.

4. There is no need for a reply to a petition under Article 227 of the Constitution of India which is concerned with the correctness of the orders of the Trial Court and is to be decided on the basis of the record of the Trial Court and not on the basis of pleadings in this Court.

5. The counsels have been heard.

6. The counsel for the petitioner/plaintiff at the outset concedes that the filing of this petition under Article 227 of the Constitution of India was a mistake as the order impugned in this petition is revisable under Section 115 of CPC. He however refers to the judgments of the Court treating or converting a petition under Section 115 of CPC into a petition under Article 227 of the Constitution of India and vice-versa.

7. It is felt that because the Courts are indulgent in overlooking such errors, the law continues to be ignored and a time has come to enforce the law, so that such mistakes which continue to occur cease.

8. The counsel for the petitioner/plaintiff assures this Court that he will in future be careful and not make such mistake.

9. Accepting the aforesaid assurance, the petition is entertained.

10. The petitioner/plaintiff instituted the suit from which this petition arises, under Order XXXVII of CPC for recovery of Rs.19,04,135/- from the respondent No.1 and its Directors impleaded as respondents No.2 to 4 jointly and severally. The respondents/defendants did not enter appearance within the prescribed time and the suit was decreed. The respondents/defendants filed an application under Order XXXVII Rule 4 of CPC which was also dismissed. However thereafter, on the respondents/defendants approaching this Court by way of C.R.P. No.72/2017, vide order dated 30th March, 2017, the decree was set aside and subject to the respondents/defendants depositing a sum of Rs.9 lakhs in the Trial Court, leave was granted to the respondents/defendants to defend the suit.

11. The respondents/defendants filed their written statement where, towards the end of para 5 of the preliminary objections, it was stated as under:

“.....Thus the Defendant has further paid Rs.10,41,605/- out of the settled amount i.e. Rs.16,98,283/- therefore the Plaintiff is entitled for only Rs.6,56,678 only.”

To the same effect are parts of paras 13, 17 & 22 of the reply on merits in the written statement.

12. On the basis thereof, the application aforesaid for decree on admissions, at least to the extent of Rs.6,56,678/-, was filed.

13. The learned ADJ has declined the said request merely observing that since the suit was not going to be finally disposed of by passing the order of payment of admitted amount by the defendants and since the defendants had already deposited a sum of Rs.9 lakhs in the form of Fixed Deposit Receipt (FDR) in the Court, no case for passing a decree to the extent of admitted amount was made out.

14. To say the least, the reasoning given by the ADJ is contrary to law. The law permits decree on admissions for less than total amount claimed and merely because the learned ADJ may not have earned a unit from so decreeing the suit in part was no ground for the learned ADJ to have not allowed to the petitioner/plaintiff what was due in law to the petitioner/plaintiff. Similarly, the other reason given, of the respondents/defendants