Prabhu Dayal Lohia vs Shankar Lal Fateh Chandak and Others

Harish Tandon, J.—This revisional application is directed against Order No. 77 dated July 27, 2012 passed by learned Judge, 3rd Bench, City Civil Court at Calcutta in Title Suit No. 1211 of 2005 by which an application under Order 12 Rule 6 of the CPC is rejected. The plaintiff/petitioner filed the said suit for declaration that the power of attorneys executed by Hanuman Prasad Lohia, Niranjan Prasad Lohia, Viswanath Lohia on 06.10.1997, 07.10.1997 and 17.03.1992 respectively and the power of attorneys allegedly executed by Rakesh Lohia and Mohini Devi Lohia on 10.03.1998 and registered before the Registrar of Insurances, Calcutta be declared, void and non-est. A further declaration is sought declaring the sale deeds executed by the opposite party No. 1 in favour of the opposite party Nos. 2 to 6 in respect of the property situate in the State of Rajasthan is also void, illegal and non-est.

The factual matrix of the said case is that one Srinibas Lohia was the original owner of all that the various properties including a building and vacant land lying and situate at Tahasil, Lechmargarh, District. Sikar, Rajasthan. After the death of the said original owner, his four sons namely Hanuman Prasad Lohia, Niranjan Lohia, Hariprasad Lohia and Viswanath Lohia inherited the same and became the joint owners of the said property. It is further alleged that the aforesaid sons stayed outside the State of Rajasthan and occasionally visits the native place. On one of such visit, in the month of May, 1998, it was found that the said property was forcibly occupied by several trespassers and on inquiry, it came out that the opposite party No. 1 has sold, transferred and conveyed the said property to the opposite party Nos. 2 to 6 on the strength of the purported registered power of attorneys executed by the said four sons of Srinibas Lohia since deceased in his favour. It is further averred that a power of attorney was executed by said Ram Niranjan Lohia, Viswanath Lohia and Pawan Kumar Lohia being the legal heir of late Hari Prasad Lohia in favour of the plaintiff/petitioner which was duly registered in the office of Sub-Registrar, Laxmangarh, District- Sikar, Rajasthan, to look after the said property and to take necessary steps including the filing of the cases against the alleged trespassers and the opposite party No. 1. A criminal proceeding is initiated before the Chief Metropolitan Magistrate, Kolkata relating to the fraudulent power of attorneys alleged to have been executed by the aforesaid four sons in favour of the opposite party No. 1 which is still pending. In the aforesaid backdrop, the said suit has been filed seeking the declaration as indicated herein-before.

Interestingly the defendant Nos. 2 to 9 appeared and jointly filed an application that they have no objection if a decree, as prayed for, is granted. The said application further signifies the intention of the aforesaid defendants not to contest the suit, although, the summon is received by them. The said application contains the separate affidavit of each of those defendants affirmed before the Notary Public of the Government of West Bengal. Apropos the said application, the plaintiff/petitioner took out an application under Order 12 Rule 6 of the CPC for a judgment on admission. In course of the hearing of the said application, the defendant/opposite party No. 8 appeared and prayed for a direction to file written statement. It is to be recorded that although the summons is served on the defendant/opposite party No. 1 but he did not appear and the suit remain ex parte against him. The Trial Court rejected the said application filed by the plaintiff/petitioner for judgment on admission solely on the ground that when the said defendant/opposite party No. 1 has appeared and intended to contest the suit, the question of judgment on admission would be considered after trial.

The plaintiff/petitioner filed a revisional application being C.O. No. 3315 of 2010 before this Court which came to be disposed of on November 21, 2011 with the direction to consider the said application afresh. This Court observed that Order 12 Rule 6 of the Code does not put any fetter on the Court to pass part decree.

After the matter went for reconsideration, the Trial Court once again rejected the said application filed under Order 12 Rule 6 of the Code though on the different ground. According to the Trial court, there raises a suspicion relating to the affirmation made before the Notary Public at Kolkata when, admittedly, all those defendants are residing in the State of Rajasthan. The Trial Court further observed that the admission must be clear and unequivocal. It would further appear from the recording made in the impugned order that two separate applications have been filed by the defendant Nos. 2 to 9 raising a conspiracy and criminal breach of trust relating to the said application which is a basic of an application filed by the plaintiff/petitioner under Order 12 Rule 6 of the Code.

When the instant revisional application appeared, this Court permitted the opposite parties to file affidavit-in-opposition and two sets of affidavit-in-opposition, one by the opposite party Nos. 2 to 6 and the opposite party Nos. 7 and 8 is filed. Both the affidavit-in-opposition have proceeded on a similar footing that there was no instruction given to the Advocate for consensus in favour of passing the decree as prayed for in the said suit. It is strongly averred that the learned Advocate who was appointed on behalf of those opposite parties have acted in breach of trust and the change has been obtained for engagement of the another Advocate.

From the aforesaid facts, which bone out from the respective affidavits, it is clear that the opposite parties never intended to admit the claim of the plaintiff/petitioner. A serious allegation is made against the learned Advocate who was entrusted with an intention that he would protect the interest of those opposite parties. It is a further case of those opposite parties that some blank papers which were signed in good faith had been utilized against the interest of those opposite parties.

Order 12 Rule 6 of the CPC permits the Court either on the application of any party or suo moto to make such order or to give such judgment as it may think fit, having regard to the admissions either made in the pleading or otherwise at any stage of the proceeding. Before proceeding further, it would be relevant to quote the said provision which reads thus:

R. 6. Judgment on admissions.--(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.

(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the said judgment was pronounced.

The object and purpose underlining the aforesaid provision is to enable the party to obtain the speedy judgment relating to the extent of the relief for which an admission is made. The said provision cannot be restricted to an admission made in the pleadings as defined under Order 6 Rule 1 of the Code to mean plaint and the written statement but imbibe within itself, the admission apart from the pleading which could be culled out with certainty either from any other documents, applications or even verbally. The recourse to such provision can be had at any stage of the suit but a discretion is left to the Court which is obviously to be exercised judicially in the facts and circumstances of each case. The Court should be more cautious and circumspect in passing a judgment on admission as it is so passed without holding the trial. The Court should be satisfied that such admission is clear, unequivocal, unambiguous and unconditional. The admission must relate to the fact and not on the question of law. A judgment on admission is not a matter of right but a matter of discretion of the Court and it would not be proper to exercise such discretion when an objection is raised which goes to the root of the case.

The Trial Court has indicated the suspicion as to the genuinity of those affidavits affirmed before the Notary Public at Kolkata of the persons who are admittedly residing outside the State of West Bengal. During the pendency of an application under Order 12 Rule 6 of the Code, the opposite parties have appeared and seriously disputed the concession made in the purported application filed on May 30, 2008 by an Advocate acting in breach of trust. When a dispute of such serious nature is raised, it would not be proper that the Court should proceed to pass a judgment on admission. The Court, in such circumstances, should exercise a discretion in not passing a judgment on admission but to relegate the parties to trial and to decide the matter on merit.

This Court, therefore, finds that the Trial Court has not committed any illegality and/or infirmity in rejecting the said application.

The revisional application is devoid of merit.

The same is hereby dismissed.

However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.