Jitender Kumar Ghahlyan vs Virender Singh @ Fauji

Gurdev Singh, J.—Heard.

Petitioner, Jatender Kumar Ghahlyan, has preferred this civil revision under Article 227 of the Constitution of India, against the order dated 19.5.2010, passed by Additional Civil Judge (Senior Division), Panipat, vide which he dismissed the application filed by him under Order 12 Rule 6 of the CPC for passing of judgment and decree on the basis of the admissions made by the defendant in the written statement.

The petitioner-plaintiff filed civil suit for the recovery of Rs. 5,35,000/- along with interest, against the respondent-defendant, on the ground that defendant by claiming himself to be the owner in possession of the plot in dispute, measuring 400 square yards, agreed to sell the same in his favour, vide agreement dated 27.1.2006, at the rate of Rs. 3351/- per square yard and received Rs. 2,90,000/- as earnest money and the balance amount was to be paid at the time of the registration of the sale deed, for which the date was fixed as 10.5.2006. However, the defendant failed to execute the sale deed in his favour and never turned up on the date fixed for the registration thereof at the relevant place. In fact, the defendant was not the owner of the plot in dispute, and he practiced a fraud upon him and dishonestly induced him to pay the above said amount as earnest money. By this act of the defendant, he suffered a loss of Rs. 5,35,000/-.

The suit was contested by the defendant, who admitted in his written statement that the agreement was so executed in favour of the plaintiff. He pleaded therein that that the plaintiff agreed to purchase this plot after becoming fully aware of the facts regarding his title. As the plaintiff was not interested in getting the sale deed executed so the amount received by him, as earnest money, stood forfeited.

According to order 12 Rule 6, where admissions of facts have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any of the 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 thinks fit, having regard to said admissions.

It is well settled that before the judgment and decree can be passed on the basis of any such admissions, the same must be clear and unequivocal. Reference in that regard can be made the latest judgment of the Hon''ble Supreme Court in Jeevan Diesels & Electricals Limited v. Jasbir Singh Chadha (Huf) 2010 (3) RCR (Civil) 217 (SC). It is also well settled that even if there is such admissions, the Court can still call upon the party to prove its case otherwise.

In the impugned order passed was passed by the trial court, it was observed that the defendant had not admitted the case of the plaintiff in material particulars and the admission is only regarding the agreement to sell. That finding has been correctly recorded on the basis of the pleadings of the parties. A perusal of the written statement makes is very much clear that there is admission only regarding the agreement to sell and there is no admission by the defendant that he is liable to return the amount received by him as earnest money. He has specifically pleaded in his written statement that on account of the failure of the plaintiff to perform his part of the contract, the earnest money, so received by him, stands forfeited. Therefore, what to say of clear and unequivocal admission on the defendants, there is no such admission entitling the plaintiff to a judgment and decree. There is no illegality in the order passed by the trial court.

There is no merit in this revision petition and the same is hereby dismissed.