IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA CIVIL REVISION PETITION NO.140 OF 2017 (IO) BETWEEN:
Naraindas Bodaram S/o Late Bodaram, Aged about 78 years, No.32, 33 and 34, SNS Chambers, No.239, Sankey Road, Sadashivanagar, Bengaluru-560 080.
(By Sri. Sridhar G., Advocate) AND:
…PETITIONER 1. Sri Shanmugavel S/o Late Kali Muthu, Aged about 40 years, No.190, 10th Cross, New Bagalur Layout, Lingarajpuram, Bengaluru-560 084.
2. Sri. Kanda Swamy S/o Late Muniswamy, Aged about 41 years, No.190, 10th Cross, New Bagalur Layout, Lingarajpuram, Bengaluru-560 084.
3. Sri. Karunanidhi S/o M. Muniswamy @ Amavasya, Aged about 48 years, No.190, 10th Cross, New Bagalur Layout, Lingarajpuram, Bengaluru-560 084.
4. Smt. Kamalamma D/o Late Muniyan, Aged about 75 years, No.190, 10th Cross, New Bagalur Layout, Lingarajpuram, Bengaluru-560 084.
5. Smt. Amruthamma D/o Late Muniyan, Aged about 73 years, No.190, 10th Cross, New Bagalur Layout, Lingarajpuram, Bengaluru-560 084.
6. Sri. Kodandaraman S/o Late Muniswamy, Aged about 42 years, No.190, 10th Cross, New Bagalur Layout, Lingarajpuram, Bengaluru-560 084.
Smt. Govindammal, Since dead her LR’s are already on record.
7. Sri. T.R. Gopala Krishnan S/o Late Sri Ramu Chettyer, Aged about 74 years, R/at No.18, 5th Street, Bengaluru-560 042.
8. Sri. T.R. Shanmugam S/o Late T.S. Ramu Chettyer, Aged about 74 years, R/at No.9/1, Balaji Koil Street, Bengaluru-560 042.
Sri. Janaki Ammal, Since dead by her LR:
9. Shivamaniammal D/o Late Janakiamal, W/o M. Tangavelu, Major, R/at No.46/1, Shaikk Dawood Street, Rayapet, Chennai.
10. S. Nagalakshmi D/o Late RamuChettyer, Aged about 83 years, R/at No.18, Balaji Koil Street, Bengaluru.
11. Smt. R. Rukmani D/o Late Sri. T.S. Ramu Chettyer, Aged about 76 years, R/at No.178, 1st Main Road, Raglav Nagar Madipakam, Chennai.
12. Smt. T.S. Tulsi D/o Late Sri. T.S. Ramu Chettyer, Aged about 60 years, R/at 358, 6th Main, 6th Block, Koramangala, Bengaluru-560 095.
13. Smt. Kanthammal Since dead by her LR’s a) Neelaveeni D/o Late Kanthammal W/o Late T.R. Radhakrishnan, Major.
b) Lalitha D/o Late Kanthammal, Major, Both are R/at No.7, C.T.N. Lane, Kari Kudi, Ramanad District, Tamilnadu.
14. Smt. T.R. Savitri D/o Late T.S. Muregesan Chettyer, Aged about 87 years, R/at No.21, Nadu Periya Chetty Street, Trichy-8.
15. Smt. R. Seethalakshmi W/o Late T.S. Rajagopalan, Aged about 86 years, R/at No.7, C.T.N. Lane KariKudi, Ramnad District, Tamilnadu.
16. Sri. R. Rathna Sabhapathi Since dead by his LR’s a) R. Vijayan S/o Late Rathnasabhapathi, Major, R/at No.2/1, Narayan Chetty Lane, R.A. Puram, Chennai-28.
b) Smt. K. Krishnaveeni D/o Late Rathnasabhapathi, Major, R/at No.7, C.T.N. Lane, KariKudi, Ramnad District, Tamilnadu.
17. Smt. Srikrishna Veni D/o Late T.S. Rajagopalan, Aged about 77 years, R/at No.7, C.T.N. Lane, Kari Kudi, Ramnad District, Tamilnadu.
18. Smt. G. Vasanthi W/o Late T.R. Govindarajan, Aged about 47 years, R/at No.20, Wheeler Road, Frazer Town, Bengaluru-560 005.
19. Sri. Radha Krishnan S/o Late T.S. Rajagopalan, Major, R/at No.123, 5th Cross, Church Street, T.T. Nagar, Karaikudi.
20. Sri. T.R. Annamalai S/o Late T.S. Ramu Chettyer, Aged about 75 years, R/at 9/1, BalajiKoil Street, Bengaluru-560 042.
21. M/s Oman Builders (P) LTD., Represented by its Managing Director, Hirendranath, R/at E.106, Sun Rice Chambers, Ulsoor Road, Bengaluru-560 042.
22. Mr. Abdul Rafeekh S/o Mr. Abdul Raheem Saheb, Aged about 65 years, R/at No.19/1, office S-1 Second Floor, 3rd Cross, Karnataka Central Complex, CSI Compound, Mission Road, Bengaluru-27.
... RESPONDENTS This CRP is filed under Section 115 of CPC, 1908, against the order dated 18.02.2017 on IA No.16 passed in OS. No.222/2011 on the file of the XX Addl. City Civil & Sessions Judge, Bengaluru, dismissing the I.A.No.16 filed under Order XII Rule 6 Read with Section 151 of CPC.
This CRP coming on for Admission, this day, the court made the following:
O R D E R This Revision Petition is filed by defendant No.18 against the order dated 18.02.2017 passed by the XX Additional City Civil and Sessions Judge, Bengaluru, dismissing the application filed under Order XII Rule 6 R/w Section 151 of the Code of Civil Procedure.
2. Respondent Nos.1 to 6, who are the plaintiffs before the trial Court had filed O.S.No.222/2011 against defendant Nos.1 to 16 for permanent injunction in respect of the suit schedule property contending that they are the absolute owners in possession and enjoyment of the property bearing Old Municipal No.9 and 30/B, New No.31/A, situated at Stephens Road, Frazer Town, Bengaluru-560 005. The same was acquired by them under the registered Settlement Deed dated 12.02.1975 and they are in possession and the revenue records are also in their names. It is further contended that the defendants without having right, title and interest, tried to interfere with their possession on 04.01.2011. Therefore, they have filed the suit.
3. The defendant Nos.2 to 16 have been placed exparte. The defendant No.17 has not filed any written statement. The defendant No.18 has filed written statement denying the entire plaint averments and contended that he had purchased the suit schedule property through registered sale deeds on 24.12.2002, 27.12.2002 and 27.12.2002, respectively from defendant No.21 and others and he is the absolute owner in possession of the suit schedule property. Hence, he prayed for dismissal of the suit.
4. When the matter was posted for plaintiffs evidence, an application under Order XII Rule 6 R/w Section 151 Code of Civil Procedure came to be filed by defendant No.18/present petitioner, seeking to dismiss the suit contending that in the suit filed by the plaintiffs for permanent injunction, the plaintiffs have to establish their peaceful possession and also to prove that defendants have interfered with their peaceful possession and enjoyment of the suit schedule property. But, the plaintiffs have not produced any documents to show that they are in possession of the suit property and plaintiff No.6, who got himself examined as PW-1, in his cross examination on 08.12.2006, has admitted that plaintiffs were residing in the suit schedule property till 1994 and from 1994, they are not in possession of the suit property and also admitted that the other plaintiffs, who are his sisters are married and are residing in their husband’s house. Therefore, PW-1 admits that none of the plaintiffs are in possession of the suit schedule property. Therefore, he sought to dismiss the suit.
5. The said application was resisted by the plaintiffs by filing objections and contended that the application was not maintainable. They have further contended that the opposite party cannot take advantage of the weakness of other party as a trump card. Admittedly they have filed a suit seeking relief of permanent injunction based on the right, title and possession on the suit schedule property. It is their case that they are in lawful possession of the suit schedule property and the defendants are trying to interfere with their peaceful possession and hence they have filed the suit. At that juncture the defendant No.18 cannot say that plaintiffs have not produced any document to show that they are in possession of the suit schedule property as he is not competent to say anything in this regard. Of course, even if PW-1 has admitted in his cross examination that plaintiffs were residing in the suit schedule property till 1994-1995 and since then, they are not in possession of the suit schedule property. At present, his sisters are married and are residing in their husband’s houses. Possession does not mean that, a person sitting over the same ‘day and night’ but defendant No.18 has given a different colour based on the stray admissions of PW-1 in the cross examination. Stray admissions in deposition cannot be looked into. Even though, in the present case, PW-1 has made stray admission, still it is jurisdiction of the Court to decide the suit on merits. It is further contended that the application filed by the plaintiffs cannot be considered and the word used under Order XII Rule 6 CPC is a discretionary power. Therefore, there are no meritable admissions in the plaintiffs case as averred by the defendant No.18 in the application. Therefore, sought for dismissal of the application.
6. The trial Court, considering the application and objections, by the impugned order dated 18.02.2017 has dismissed the application filed by defendant No.18. Hence, the present revision petition is filed.
7. I have heard learned counsel appearing for the petitioner.
8. Sri. Sridhar G., Learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the application filed under Order XII Rule 6 R/w 151 of Code of Civil Procedure is contrary to the material on record. He further submitted that the plaint does not disclose any cause of action against defendant No.18/present petitioner. Therefore, the suit is liable to be dismissed. It is further contended that PW-1 in his cross examination has categorically admitted that some anti social elements had evicted them from the suit schedule property in the year 1994. Therefore, they have filed a suit and they were residing in the suit property since 1973 till 1994. He further contended that defendants are in possession of the property in question. Therefore, the suit has to be dismissed. He further contended that though the application for impleading defendant No.18 / present petitioner was filed and was allowed by the trial Court on 12.08.2016, the same was not challenged.
9. In support of his contentions, learned counsel for petitioner relied upon the decision reported in (2208) 4 SCC 594 – ANATHULA SUDHAKAR Vs. P. BUCHI REDDY (DEAD) BY LRS. AND OTHERS, of the Hon’ble Supreme Court and another judgment reported in 2014(6) CTC 517 – R. SHANKARANARAYANANA Vs.
ELUMALAI of Madras High Court, which reads as follows:
“48. With regard to the Judgment on admission, the learned Senior Counsel appearing for the Revision Petitioner/Defendant has also placed reliance upon the decision in Payal Vision Ltd. V. Radhika Choudhary, 2012(5) CTC 887 (SC) : 2012 (11) SCC 405.
49. In this case, the Division Bench of the Apex Court has observed in Paragraph 8 as under:
8. The above sufficiently empowers the Court trying the Suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a Suit for possession against a Tenant is, therefore, the only question that falls for determination in this case and in every other case where the Plaintiff seeks to invoke the powers of the Court under Order 12, Rule 6 of the C.P.C. and prays for passing of the Decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. (supra), relied upon by the High Court where this Court has observed.
“Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra), may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.”
Therefore, he sought to allow the revision petition.
10. In view of the aforesaid arguments advanced by the learned counsel for the petitioner, the only point that arises for consideration in the revision petition is:
“Whether the suit can be dismissed only based on the alleged stray admission of PW-1 exercising the powers under Order XII Rule 6 of the Code of Civil Procedure?”
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the available material on record carefully.
12. It is not in dispute that the plaintiffs have filed a suit for permanent injunction based on their title, possession and enjoyment of the suit schedule property. Accordingly, the plaintiffs have led evidence and have produced documents to show that they are in possession of the suit schedule property. It is the specific case of defendant No.18 that other defendants have not filed written statement except defendant No.18/present petitioner, who is the purchaser of the suit schedule property from defendant No.21 and others on 27.12.2002, and he is in possession and enjoyment of the same. Whether the plaintiffs are in possession based on the title deeds or whether the defendant No.18 is in possession based on the Sale Deed has to be decided by the trial Court after adjudication of trial between the parties.
13. The provisions of Order XII Rule 6 of CPC reads as under:
“6. Judgment on admissions. – Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.”
14. On a plain reading of the said provision makes it clear that where the admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court ‘may’ at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. It is clear that according to said provision, the Court can pass judgment at any stage without determination of other question. There can be more than one decree passed on different stage and each decree is separate and independent based on the admission. The admission should be without any other determination. The suit of the plaintiffs cannot be dismissed merely because of a stray sentence in the course of cross examination made by PW-1 by ignoring the documents produced to prove that they are in possession of the suit schedule property as on the date of the suit.
15. The contention of learned counsel for petitioner that there was no cause of action against the petitioner-defendant No.18 is not a ground to dismiss the suit exercising power under Order XII Rule 6 of Code of Civil Procedure, which requires adjudication by the Court based on the pleadings and documents produced by both the parties. It is also not in dispute that the impleading application filed by the plaintiffs to implead defendant No.18 /present petitioner came to be allowed on 12.08.2016. The said order has reached finality.
16. It is settled law that if there is an admission, an admission must be examined as a whole and not in parts and it is settled law that an admission of any parts has to be read in its entirety and no statement out of context can constitute admission on any fact. The Court may reject the admission if it is satisfied from the circumstances that it is an untrue admission. It is also settled that the stray sentence elicited in the cross examination could hardly be construed as an admission, merely because PW-1 has stated in his cross examination that some anti-social elements have evicted them from suit schedule property in the year 1994 and therefore, they have filed a suit. Nowhere in the entire cross examination except making a stray sentence that social elements evicted them, PW-1 has neither admitted that they are not in possession of the suit schedule property nor admitted that defendant No.18 is in possession. A mere stray sentence cannot be a ground to exercise the powers by the Court under the provisions of Order XII Rule 6 of Code of Civil Procedure to dismiss the suit without adjudication of the rights of the parties based on the oral and documentary evidence produced by both the parties.
17. The Trial Court, considering the entire materials on record has recorded a finding that keeping in mind the provisions of law and also the facts of the case on hand, wherein Order XII Rule 6 speaks about the determination of any other question between the parties. Moreover, the admission referred to in Rule 6 must be an absolute admission capable of being worked out on the strength of the admission. If the admitted fact cannot independently stand or convey any meaning and the ultimate relief to be granted in the suit is linked with those facts, then it will not be proper for the Court to exercise discretion and pass a decree on admission. Further, the trial Court has recorded a finding that if there is an admission, an admission must be examined as a whole and not in parts and it is settled law that an admission of any parts has to be read in its entirety and no statement out of context can constitute admission of any fact. Accordingly, the trial Court has dismissed the application holding that the application filed by defendant No.18/present petitioner is devoid of merits. The same is in accordance with law. The petitioner has not made out grounds to interfere with the impugned order passed by the trial Court.
18. The Hon’ble Supreme Court in case of KARAM KAPAHI AND OTHERS Vs. LAL CHAND PUBLIC CHARITABLE TRUST AND ANOTHER reported in (2010) 4 SCC 753, considering the provisions of Order XII Rule 6 of the Code of Civil Procedure, - has held in para Nos.37 to 44 and 48 as under:
37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about “which there is no controversy” (see the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth in Chancery Division at p.640).
38. In this connection, it may be noted that Order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:
“6. Judgment on admissions.—Any party may at any stage of a suit where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.”
39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it “ex debito justitiae”, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment.
40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by “pleading or otherwise in writing” but in Order 12 Rule 6 the expression “or otherwise” is much wider in view of the words used therein, namely: “admission of fact ... either in the pleading or otherwise, whether orally or in writing”.
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan, SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mulla’s Commentary on the Code 16th Edn., Vol.II, p. 2177).
42. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment.
43. In Uttam Singh Duggal case it was contended on behalf of the appellant, Uttam Singh Duggal, that:
(a) Admissions under Order 12 Rule 6 should only be those which are made in the pleadings.
(b) The admissions would in any case have to be read along with the first proviso to Order 8 Rule 5(1) of the Code and the court may call upon the party relying on such admission to prove its case independently.
(c) The expression “either in pleadings or otherwise” should be interpreted ejusdem generis. (see para 11. p. 126-27 of the Report.) Almost similar contentions have been raised on behalf of the Club. In Uttam Singh those contentions were rejected and this Court opined no effort should be made to narrow down the ambit of Order 12 Rule 6.
44. In Uttam Singh this Court made a distinction between a suit just between the parties and a suit relating to the Specific Relief Act, 1963 where a declaration of status is given which not only binds the parties but also binds generations. The Court held that such a declaration may be given merely on admission (SCC para 16 at p. 128 of the Report). But in a situation like the present one where the controversy is between the parties on an admission of non-payment of rent, judgment can be rendered on admission by the court.
48. However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word “may” has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment.
19. In so far as the contention of learned counsel for petitioner with regard to judgment relied upon in the case of Anathula Sudhakar (supra), at para No.21, it was a case where the suit was decided on merits and the Hon’ble Supreme Court while granting decree in a suit for prohibitory injunction has laid down certain guidelines. The decision relied upon by the learned counsel for the petitioner has no application to the facts of the present case, since this Court is deciding the revision petition arising out of the order passed under Order XII Rule 6 of the Code of Civil Procedure.
20. In so far as the other judgment in the case of R. Shankaranarayanan (supra), relied upon by learned counsel for petitioner, it was a case on specific performance of contract, where the plaintiff during the cross examination has admitted that he has not entered into any sale agreement with the owner/defendant No.1 and defendant No.1 has filed an application under Order XII Rule 6 of the Code of Civil Procedure seeking dismissal of the suit on the basis of admission made by the plaintiff. The High Court of Madras, while considering Order XII Rule 6 Code of Civil Procedure and relying upon the judgment of Hon’ble Supreme Court reported in 2012(5) CTC 887 (SC):2012 (11) SCC 405 - Payal Vision Ltd. Vs. Radhika Choudhari, has held as under:
“The above sufficiently empowers the Court trying the suit to deliver Judgment based on admissions whenever such admissions are sufficient for grant of the relief prayed for.”
Admittedly, in the present case, a mere stray sentence of PW-1 is not sufficient to dismiss the suit against plaintiffs exercising power under Order XII Rule 6 of Code of Civil Procedure Code of Civil Procedure.
The facts of the present case are entirely different from the case referred to above. Hence, it cannot be applied to the facts of the case on hand.
21. In view of the aforesaid reasons the point raised in the Revision Petition has to be answered in the negative holding that the suit cannot be dismissed only on the basis of the stray admission of PW-1, which never constitutes an absolute admission, exercising the powers under Order XII Rule 6 of the Code of Civil Procedure. Therefore, the impugned order passed by the trial Court dated 18.02.2017, dismissing the application filed under Order XII Rule 6 of the Code of Civil Procedure is just and proper. No interference is called for in exercise of revisional powers under the provisions of Section 115 of Code of Civil Procedure.
22. Accordingly, the civil revision petition is dismissed with cost of Rs.10,000/- (Rupees Ten Thousand Only) payable by the petitioner/defendant No.18 to the plaintiffs before the trial Court on the next date of hearing.
SD/- JUDGE BMC