JUDGMENT N.K. Mehrotra, J.
1. This is a revision under Section 115 of the Code of Civil Procedure filed on behalf of the plaintiffs against the order dated 30.1.2002 passed by the Additional District Judge (Ayodhya Prakaran), Lucknow, rejecting the application C-541 under Order XII Rule 6 read with Order XV, Rule 1, Code of Civil Procedure in Regular Suit No. 47 of 1989, Smt. Chausiya Khan and Ors. v. Smt. Aliya Begum and Ors..
2. I have heard the learned counsel for the parties.
3. Plaintiffs-revisionists have filed a suit for accounting, declaration and injunction. It is prayed in the suit that the defendant Nos. 1 to 10 and 16 be restrained to transfer the properties mentioned in Schedule A, B and C attached with the plaint and be directed to pay the amount of the share of the plaintiffs from the income derived from the properties mentioned in Schedule A, B and C and for possession of the property exclusively owned by Late Mohd. Shafiq Khan to plaintiffs and also direction to vacate the portion which is in their possession of house No. 813, situated in Mohalla Atal Vihari Nagar to plaintiffs. It is further prayed that the defendant Nos. 11 and 12 be directed to make payment regarding the Bus No. U.R.U.-5392 and the amount to the extent of plaintiffs 1/3rd and 14/20 share regarding the buses mentioned in schedule 'F' and 'C' which are attached with them by a decree for permanent injunction in favour of the plaintiffs. Plaintiffs further sought a relief for declaration against the defendant Nos. 1 to 10 and 16 declaring that the plaintiffs are the exclusive owners of the properties mentioned in Schedule C, D and E and are the joint owners of the properties mentioned in Schedule A and B attached with the plaint and are entitled to Income derived from such properties. Plaintiffs also prayed for the accounting of the income derived from the properties mentioned in Schedule A, B and C of the plaint.
4. During the pendency of the suit, the plaintiffs moved an application under Order XII, Rule 6 read with Order XV, Rule 1 of the Code of Civil Procedure alleging that the counsel for the plaintiffs had noticed that the defendant No. 1 in Paragraphs 6 and 24 of the written statement admitted that vehicles mentioned in Schedule C of the plaint belong to Late Mohd. Shafiq Khan. The said fact is also clear from affidavit C-38, C-84 and C-151 filed on behalf of the defendants that after the death of Mohd. Shafiq Khan, the vehicles belong to Late Mohd. Shafiq Khan and were in possession of the defendants who had been plying the same. It was also stated in the application that at the time of application and objections on Paper Nos. C-52, C-54, C-84, C-149, C-216, C-281, C-282, the District Judge, Unnao on 24.12.1993 held that the vehicles of Schedule C belong to Late Mohd. Shafiq Khan and after his death, the same were in possession of the defendant No. 1. The plaintiffs also pointed out the statements of Laiq Khan under Order X, Rule 2, C.P.C, and prayed that before proceeding to decide any other issue, it is necessary and expedient that a judgment be passed in favour of the plaintiff having regard to such admissions.
5. It appears that the Applicant No, 1 Smt. Ghauslya Khan is the widow of Mohd. Shafiq Khan while Applicant Nos. 2, 3 and 4 are the children of Mohd. Shafiq Khan. The opposite parry No. 1 Smt. Aliya Begum is the mother of Mohd. Shafiq Khan, while the Opposite Party Nos. 2 to 10 are brothers and sisters of Mohd. Shafiq Khan. Mohd. Shafiq Khan was carrying on transport business as the partner of Hindustan Transport Company opposite party No. 16, M/s. Hindustan Transport Company had fleet of vehicles as detailed in the schedule of the plaint. Besides the said vehicles, Mohd. Shafiq Khan was exclusive owner of seven vehicles detailed in Schedule C to the plaint. Mohd. Shafiq Khan died on 7.8.1988 while on pilgrimage. After the death of Mohd. Shafiq Khan, his widow Smt. Ghausiya Khan was not given any property of Mohd. Shaflq Khan.
6. During the pendency of the suit, an application for ad-interim injunction was moved. The Civil Judge had passed a detailed and reasoned order restraining the defendants from misappropriating the benefits and income arising out of the said seven vehicles as well as restraining the defendants to deliver the possession of the vehicles to any other person. Copy of the order is Annexure-C-7 to the counter-affidavit filed in this revision. On 8.3.1999, this Court in F.A.F.O. No. 35 of 1989 quashed the interim order dated 18.2.1999 but permitted the plaintiff to move to the trial court and if the trial court is satisfied, may direct the defendants to make the payment of some money in cash regularly to the plaintiff.
7. The plaintiffs moved the same application in the trial court on 20.11.1999. Smt. Aliya Begum filed an affidavit and in the said affidavit, Smt. Aliya Begum has admitted about the ownership of Mohd. Shafiq Khan in respect of the vehicles detailed in Schedule C of the plaint. In the said affidavit, Smt. Aliya Begum has admitted that she was in possession of the said seven vehicles and she is running the vehicles detailed in Schedule C of the plaint belonged to Mohd. Shaflq Khan. Mohd. Laiq Khan defendant opposite party No. 3 has given his statement under Order X, Rule 2, C.P.C. on 24.2.2000 and has admitted about the ownership of Mohd. Shafiq Khan in respect of the vehicles detailed in Schedule C of the plaint and has also admitted that he had been in possession of the said vehicles. On 24.11.1993, the District Judge, Unnao, allowed the plaintiffs application for grant of compensation for the use of the said seven vehicles detailed in Annexure-C to the plaint, belonging to Mohd. Shaflq Khan against the defendant No. 1 Smt. Aliya Begum who is the opposite party No. 1 in this revision and directed the defendant No. 1 to pay a sum of Rs. 7,500 per month to the plaintiff by way of interim mandamus. The District Judge has held that the said seven vehicles detailed in schedule C of the plaint exclusively belong to Mohd. Shafiq Khan and those vehicles were being run by the opposite party No. 1 Smt. Aliya Begum and she was enjoying the benefit thereof. The District Judge has also directed the defendant No. 1 to deliver the possession of those vehicles to the plaintiffs and till such time, the possession of the vehicles is not delivered. Smt. Aliya Begum has been directed to pay a maintenance allowance of Rs. 7,500 per month. A copy of the order of the District Judge has been filed in this revision along with the affidavit. The revisionists had also filed a copy of the written statement of the defendant No. 1 filed in the trial court and Paragraphs 6 and 24 of the said affidavit are materials to see the admission of Smt. Aliya Begum opposite party No. 1 Smt. Aliya Begum filed a Writ Petition No. 183 of 1994 against the order of the District Judge dated 24.11.1993. This writ petition has been dismissed by the High Court and the review petition against the said judgment has also been dismissed on 2.5.2000. Smt. Aliya Begum opposite party No. 1 preferred special leave petition against the judgment and order passed in Writ Petition No. 183/1994 and review Petition No. 104 of 2001. The said S.L.P. has been dismissed by the Hon'ble Supreme Court.
8. In support of his contention, learned counsel for the revisionist has placed reliance on the decision in Uttam Singh Duggal and Co. Ltd. v. United Bank of India and Ors., 2000 (7) SCC 120, in which it was held that decree can be passed under Order XII, Rule 6 of C.P.C. on the basis of the admission and it was not necessary to examine what kind of admissions were covered by the expression otherwise in Order XII. Rule 6, C.P.C.
9. Learned counsel for the revisionist has further referred Bat Chanchal and Ors. v. Syed Jalaladdtn and Ors.. 1970 (3) SCC 124, in which it was held that in a single suit, more than one decree can be passed. Learned counsel for the revisionists has further referred Shikharchand v. Mst. Bari Bai, AIR 1974 MP 75, in which it has been held that the words "otherwise" in Order XII, Rule 6 clearly Indicates that it is open to the Court to pass the judgment on the statements made by a party's counsel in the pleadings but also de hors the pleadings. Such admissions may be made either expressly or constructively.
10. On the other hand, the learned counsel for the opposite parties has referred Devendra Kumar Somani v. Rajendra Kumar Somani, 2002 (93) RD 916, in which it was held that in view of the fact that all the defendants did not admit the claim of the applicant, therefore, the provisions of Order XII, Rule 6 were not found attracted. The learned counsel for the opposite parties has also referred Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381, in which it was observed by the Hon'ble Supreme Court that the Court has not to act blindly upon the admission of fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendants traversing the facts set out by the plaintiff in the plaint filed in the Court. In the same case, the Hon'ble Supreme Court has referred the provisions of Order VIII, Rule 5, the proviso of which provides that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admissions.
11. After taking into consideration the aforesaid facts, I am of the opinion that the trial court could not defer the disposal of the application under Order XV, Rule 1 read with Order XII, Rule 6 in such a cursory manner as has been done in the impugned order. The learned trial court has neither considered the provision of Order XV, Rule 1 read with Order XII, Rule 6, C.P.C. nor the different admissions of defendant No. 1 and the orders passed by the Court of the District Judge and the averments in the affidavit of Smt. Aliya Begum and the statement of one of the defendants recorded under Order X, Rule 2, C.P.C. and without considering the entire material and the legal position, the learned trial court has rejected the application C-541 only on the ground that there is already an issue framed in the suit regarding the fact whether the plaintiffs are the exclusive owners of the properties detailed in Schedule C, D and E of the plaint and after referring the issue, the trial court has held that in view of the issue already framed, he is not required to decide the title of Mohd. Shafiq Khan piecemeal.
12. In my opinion, the learned trial court has not considered the provision of Order XV, Rule 1 and Order XII, Rule 6 in a correct perspective. Order XV, Rule 1 is as follows :
"Parties not at issue.--Where at the first hearing of the suit, it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment."
Order XII. Rule 6 of C.P.C. provides as follows :
"Judgment on additions.--(1) 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.
13. A perusal of the aforesaid provision goes to show that the trial court has to look into not only the pleadings of the parties, but also the admissions otherwise and those admissions have not been taken into consideration by the trial court at the time of disposal of the application C-541. Therefore, it appears that the learned trial court has failed to exercise a jurisdiction so vested in it and therefore, impugned order is liable to be set aside with the direction to the trial court to decide the application C-541 afresh after taking into consideration the pleadings, the statement under Order X, the admissions in affidavits and documents and the judgment referred by the plaintiffs, in light of the provision of Order XV, Rule 1 and Order XII, Rule 6 and the legal proposition referred by the parties before proceeding further.
14. In result, the revision is allowed. The impugned order is set aside and trial court is directed to decide the application C-541 afresh as directed above.