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GAUHATI HIGH COURT
J. N. SARMA, J.
All Assam Lawyers Association and others -Appellant
Versus
Ashok Kumar Borah and others -Respondent
Civil Revision No. 328 of 1994
Decided On : 16-02-1995
CIVIL PROCEDURE CODE - ORDER 12, RULE 6 - DECREE ON ADMISSION - ADMISSION MUST BE CLEAR AND UNAMBIGUOUS - COURT'S DISCRETION TO PASS DECREE - APPLICATION OF THE RULE WHERE SERIOUS QUESTIONS OF LAW ARE INVOLVED.
Fact of the Case:
A suit was filed challenging the election of the 6th Bi-Annual Conference of the All Assam Lawyers Association as illegal, void ab initio, void, and inoperative. A decree was passed on admission under Order 12, Rule 6 of the Civil Procedure Code (CPC) based on a written statement filed by two defendants, while the other defendants were not served with notice or filed a written statement. The petitioners, who were not parties to the suit but would be prejudicially affected by the decree, filed an application under Article 227 of the Constitution of India challenging the decree.
Finding of the Court:
The court held that the decree passed on admission was bad in law as the admissions made in the written statement were not clear and unambiguous, and the case involved serious questions of law that could not be conveniently disposed of on a motion under Order 12, Rule 6 of the CPC. The court also found that the trial court had no jurisdiction to pass the decree as the other defendants were not served with notice or filed a written statement, and the decree was an indivisible decree that could not be passed against some defendants and not against others.
Issues: 1. Whether the decree passed on admission was valid considering the nature of the admissions made in the written statement and the involvement of serious questions of law? 2. Whether the trial court had jurisdiction to pass the decree against all the defendants when some defendants were not served with notice or filed a written statement?
Ratio Decidendi: 1. Order 12, Rule 6 of the CPC allows the court to pass a decree on admission based on admissions made in the pleadings or otherwise. However, the admissions must be clear and unambiguous, and the court has the discretion to pass a decree or not. 2. In cases involving serious questions of law that cannot be conveniently disposed of on a motion under Order 12, Rule 6, the court should exercise its discretion and refuse to pass a decree on admission. 3. A decree passed on admission must be an indivisible decree, meaning it cannot be passed against some defendants and not against others.
Final Decision: The court quashed the decree passed on admission and directed the trial court to issue a fresh notice under Order 1, Rule 8 of the CPC, frame a preliminary issue on the question of non-joinder, and decide whether the suit could proceed in the absence of the members of the newly elected body.
This application under Article 227 of the Constitution of India has been filed challenging the decree dated 5-7-94 passed by the Munsiff No. 2, Gauhati in Title Suit No. 176/94. Some other order dated 12-7-94 was also passed by the Asstt. District Judge No. 1 in Misc. Case No. 29 / 94 and 30/94 are challenged but I am not deciding the legality and validity of those orders I shall keep myself confined in this petition only with regard to the legality and validity of the decree dated 5-7-94 decreeing the suit of the plaintiff on admission.
2. The brief facts of the case are as follows : The Opp. Party No. 1 brought a suit being T.S. No. 176/94 before the Sadar Munsiff No. 1, Guwahati. The suit was subsequently transferred to the court of the Munsiff No. 2. The following were the defendants in that suit :
i) All Assam Lawyers Association,
ii) Sri Lakheswar Hazarika, Advocate,
iii) Sri Satyandra Prasad Deka, Advocate, General Secretary, All Assam Lawyers Association, Guwahati,
iv) Shri Paramananda Choudhury, Advocate Vice-President, All Assam Lawyers Association, Guwahati.
3. The suit was for declaration of the proceedings and the Election of the 6th Bi-Annual Conference of the All Assam Lawyers Association held at Bongaigaon on the 9th and 10th April, 1994, as illegal, void ab initio void and inoperative. The suit was filed on 27-5-94. A notice under Order 1, Rule 8 was issued and the same was published in the Assam Tribune in June, 1994. Thereafter, it appears from the record that Shri Satyandra Prasad Deka, defendant No. 3 appeared in the suit by filing a Vokalatnama. The Vokalatnama which was filed on 7th June, 1994 does not show that this was filed for and on behalf of the defendants as Vokalatnama itself will show that it was filed only on behalf of Shri Satyandra Prasad Deka. Be that as it may, a written statement was filed on 27-6-94 and in this written statement it is stated that it was filed on behalf of the defendants and the verification as signed by Shri Satyandra Prasad Deka in his capacity as General Secretary of All Assam Lawyers Association. It appears that the verification was also signed by the defendant No. 4 Shri Paramananda Choudhury as admitted by the counsel of both the sides.
4. On 7-6-94 the following order was recorded by the learned Munsiff :
"Defendant No. 2 is absent. S. R. not returned."
5. Thereafter, there is nothing to show that notice was served on defendant No. 2. There is no order also to show that the notice was served on defendant No. 1. A bare reading of Order 1, Rule 8 and Order 5 will show that with regard to the defendants, the summons of the suit must be served on them. Issue of a notice under Order 1, Rule 8 shall not be deemed to be Service of the summons on the defendants arrayed in the suit but that was not considered in this particular case. Be that as it may, the learned Munsiff, Guwahati on the basis of the written statement filed by them passed the impugned decree by exercising the power under Order 12, Rule 6 and the prayer made in the plaint was allowed and the suit was decreed. It is this decree which is challenged by the present petitioners who were not parties/defendants in the suit on the ground that this decree shall affect their right and interest and they would be prejudicially affected by the judgment and that may be binding on them as res judicata under Explanation 6 to Section 11 of the C. P. C.
6. No doubt as held by the Apex Court in AIR 1971 SC 374 (Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Pvt. Ltd.), a person who is not a party of the suit may prefer an appeal with the leave of the appellate Court and as such leave should be granted if a person would be prejudicially affected by the judgment. The same is the law laid down by the Apex Court in State of Assam v. A. Sing, reported in AIR 1974 SC 994 at para 29 where the Apex Court pointed out that the ordinary rule is that only a party to a suit adversely affected by the decree or any of his representativ
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