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2025 DAILYLAW 3249 (CAL)

Harish Chandra Jaiswal v. Ram chandra shaw

2025-02-27

Sugato Majumdar

body2025
JUDGMENT : SUGATO MAJUMDAR, J. The Court: GA 2 of 2020 is filed by the plaintiff, praying for judgment on admission. Contention of the plaintiff in the application is that, one M/s. Prakash Brothers, a partnership firm being represented by two partners Laxmi Prasad Gupta and Om Prakash Gupta was defendant in the premises no. 192 Vivekananda Road, Kolkata, 06. Since the said partnership firm defaulted in payment of rent, the present plaintiff as well as the defendant nos. 3 and 5 filed one Ejectment Suit in the City Civil Court wherein, the Learned 4th Bench passed decree in favour of the plaintiff on 07.04.2008. In course of execution proceeding, possession was handed over to the present plaintiff on 26.10.2009. On 30 th June, 2019, the plaintiff found that the gate of the suit property had been broken and same was occupied by the defendant no. 1 and 2. The plaintiff instituted the suit against the defendant nos. 1 and 2, praying for recovery of possession. The defendant nos. 1 and 2 herein filed written statement wherein, according to the plaintiff, it is averred that defendant nos. 1 and 2 are partners of M/s. Prakash Brothers, the partnership firm, against whom the decree was passed by the City Civil Court. It is contended by the plaintiff that defendant nos. 1 and 2 were never partners with M/s. Prakash Brothers. At the same time, it is pleaded that since the present defendant nos. 1 and 2 claim to be in the possession of the suit property by virtue of being partners of M/s. Prakash Brothers, they cannot be allowed to remain in the suit property in view of the decree dated 07.04.2008, being an eviction decree that was passed against the partnership firm. It is pleaded that in view of this admission that the defendant nos. 1 and 2 are partners of M/s. Prakash Brothers, against whom an eviction decree has been passed, judgment for recovery of possession should be passed on the basis of this admission. Defendant Nos. 1 and 2 filed affidavit in opposition challenging the contentions of the instant application. It is pleaded that the Defendant Nos. 1 and 2 are in occupation in the suit property on the strength of a leave and license agreement, executed between the Defendant No. 4 and the Defendant Nos. 1 and 2 herein. Defendant Nos. 1 and 2 filed affidavit in opposition challenging the contentions of the instant application. It is pleaded that the Defendant Nos. 1 and 2 are in occupation in the suit property on the strength of a leave and license agreement, executed between the Defendant No. 4 and the Defendant Nos. 1 and 2 herein. Apart from these factual aspects, it is also pleaded that this is not a fit case where judgment on admission should be passed. According to the Defendant Nos. 1 and 2 the application should be dismissed. I have heard rival submissions and perused the notes of arguments filed by both the learned counsels. Order 12 Rule 6 of the Code of Civil Procedure provides for judgment of admission. The provision goes as follows: “ 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 judgment was pronounced.” Use of the word “may” clearly indicates that the power is discretionary for the Court to pass judgment on admission. In Karan Kapoor Vs. Madhuri Kumar (2022) 10 SCC 496 , it was observed by the Supreme Court of India 23. Order 12 Rule 6 confers discretionary power to a court who “may” at any stage of the suit or suits on the application of any party or in its own motion and without waiting for determination of any other question between the parties makes such order or gives such judgment as it may think fit having regard to such admission. 24. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. 24. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by the other, and the court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the court a decree be drawn accordingly and parties to the case is not required to go for trial.” Earlier Three Judges Bench of the Supreme Court of India in S.M. Asif Vs. Virender Kumar Bajaj (2015) 9 SCC 287 observed: “ 8. The words in Order 12 Rule 6 CPC “may” and “make such order …” show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.” It is well-settled that a pre-condition to pass judgment on admission is that the admission must be clear and unambiguous. In Jeevan Diesels & Electricals Limited Vs. Jasbir Singh Chadha (HUF) And Anr. [(2010) 6 SCC 601] the Supreme Court of India expressed and elucidated this further: “ 10. In Jeevan Diesels & Electricals Limited Vs. Jasbir Singh Chadha (HUF) And Anr. [(2010) 6 SCC 601] the Supreme Court of India expressed and elucidated this further: “ 10. The learned counsel for the respondent-plaintiffs relied on a judgment of this Court in Karam Kapahi v. Lal Chand Public Charitable Trust [ (2010) 4 SCC 753 : (2010) 3 Scale 569 ] and contended that in view of the principles laid down in that case this Court may affirm the judgment of the High Court in the instant case. This Court is unable to accept the aforesaid contention. In Karam Kapahi [ (2010) 4 SCC 753 : (2010) 3 Scale 569 ] a Bench of this Court analysed the principles of Order 12 Rule 6 of the Code and held that in the facts of that case there was clear admission on the part of the lessee about non-payment of lease rent. The said admission was made by the lessee in several proceedings apart from its pleading in the suit. In view of such clear admission, the Court applied the principles of Order 12 Rule 6 in Karam Kapahi [ (2010) 4 SCC 753 : (2010) 3 Scale 569 ] . The principles of law laid down in Karam Kapahi [ (2010) 4 SCC 753 : (2010) 3 Scale 569 ] can be followed in this case only if there is a clear and unequivocal admission of the case of the plaintiffs by the appellant. 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. This 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 [ (2010) 4 SCC 753 : (2010) 3 Scale 569 ] may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.” This was reiterated in Himani Alloys Ltd. v. Tata Steel Ltd [(2011) 15 SCC 273]: “ 11. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. “ Coming to the case in hand, a disputed question surrounds on the nature of possession of the Defendant Nos. 1 and 2. It is the argument of the learned Counsel for the Plaintiff that since the Defendant Nos. 1 and 2 admitted in the written statement that they were partners of M/s. Prakash Brothers that should be accepted as an admission for passing judgment on admission. If this argument be accepted then mere stating that the Defendant Nos. 1 and 2 are partners of M/s. Prakash Brothers invites presumption and implication far away from a clear admission. It is not presumption which the Court looks for before passing a judgment on the admission in its discretion. An admission cannot be implied or shrouded with ambiguity based on some question of facts which are to be decided; which are not clear and unequivocal. Such statements are not considered for passing judgment on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908. Admission cuts valuable rights of the defendant to contest the suit. Therefore, unless clear and unequivocal, no statement can be relied upon for the purpose of accepting the same as admission. In this case, there is no admission in clear and equivocal terms warranting exercise of power and passing judgment on admission in terms of Order XII Rule 6 of the Code of Civil Procedure, 1908. Therefore, this is not a fit case for passing judgment on admission. In this case, there is no admission in clear and equivocal terms warranting exercise of power and passing judgment on admission in terms of Order XII Rule 6 of the Code of Civil Procedure, 1908. Therefore, this is not a fit case for passing judgment on admission. Accordingly, the instant application stands dismissed. For the disclosures of documents, discoveries and inspections as well as admission and denial of document, if not done, in the meantime shall be complete on or before the returnable date. Fix 3 rd April, 2025 for framing of issues. GA No. 2 of 2020 stands disposed of accordingly.