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1985 DIGILAW 694 (RAJ)

Durga Shanker v. Kanchan Bai

1985-10-17

S.N.BHARGAVA

body1985
S.N. BHARGAVA, J.—This is a revision petition directed against the order of the learned District Judge, Kota, dated 1.3.79 confirming the order of the Munsif (North), Kota, dated 15.9.78 dismissing the applications of the plaintiff-applicants, dated 22.1.77 and 20.5.78. The plaintiffs Raghunath Prasad, Durga Shanker and Rajendra Prasad were in need of some money and therefore they took a sum of Rs 5,000/- on loan from Smt. Kanchan Bai, defendant-non-applicant and for her satisfaction, executed a sale deed of a shop in her favour. In return, the defendant Smt. Kanchan Bai executed an agreement dated 22.2.74 in their favour that if they return a sum of Rs 5000/- within three years, she will execute a sale deed in their favour and if they failed to return a sum of Rs 5000/-, she will not be bound down by the agreement and the sale in her favour will become absolute. The possession of the property was also handed over to Smt. Kanchan Bai and she started collecting rent at the rate of Rs. 225/-. 2. The plaintiffs gave notice to the defendant on 12.1.77 stating that the rent collected by her should be adjusted and they were willing to pay the remaining amount and that she should execute a sale deed in their favour. A reply to the said notice was given on behalf of the defendant on 31.1.77 in which she admitted that she had agreed to execute the sale deed in their favour provided they returned the amount of Rs. 5,000/- within three years. She specifically mentioned in that reply as under- ^^;fn vkids eqofdy nqdku okfil Ø; djuk pkgrs gSa rks os 5000@& :i;s nsdj bdjkj ds eqrkfcd cspku dh frfFk ls 3 lky ds vUnj Ø; dj ldrs gS ftldk [kpkZ vkids i{kdkjksa dks nsuk o ogu djuk gksxkA 3 lky dh vof/k lekIr gksus ds ckn esjh i{kdkj nqdku dks 5000@& :i;s esa vkids i{kdkjksa ds gd esa cspus ds fy;s ck/; ugha dh tk ldsxhA** 3. Thereafter, the plaintiffs filed the present suit in the court of Munsif (North), Kota on 17.2.77. Thereafter, the plaintiffs filed the present suit in the court of Munsif (North), Kota on 17.2.77. Written statement was filed by the defendant in which paragraph 6 reads as under:- ^^;g fd pj.k Øe 6 okn i= Lohdkj gS fd oknhx.k dk uksfVl vk;k Fkk ijUrq os mfpr jde nsdj edku [kjhnusa dks dHkh rS;kj ugha FksA izfr- us mRrj esa mfpr jde ysdj edku csp dj nsus dh lwpuk vius mRrj esa fHktok nh FkhA** 4. During the pendency of the suit, the plaintiffs filed an application on 21.2.77 within 3 years of the agreement dated 22.2.74 that they were willing to pay Rs. 5,000/- and the defendant should be asked to execute the registry in their favour to which a replay was filed by the defendant on 15.5.77. The plaintiffs filed another application on 20 5.78 submitting that they were prepared to pay Rs.5000/- and an order should be passed asking the defendant to execute a sale deed and get it registered and other issues may be decided lateron. No reply was filed to this application by the defendant. The trial court dismissed the two applications by its order dated 15.9.78 mainly on the ground that it was not disclosed as to under what provisions these applications have been made and if the applications are allowed, it will virtually amount to disposal of the main suit. The plaintiffs preferred an appeal against this order and the learned District Judge, Kota by his order dated 1.3.79 dismissed the appeal and confirmed the order of the learned Munsif Magistrate. It is against this order that the present revision petition has been filed. 5. Show cause notice was issued by this court on 23.7.79 and the same was admitted on 23.1.80 by a speaking order and the revision petition was fixed for final disposal on 18.2.1980 but it came up for hearing only on 20th September, 1985. Arguments were concluded and since the learned counsel for the parties wanted to cite some more authorities, the case was posted for dictation of judgement on 23.9.85 but since I was sitting in Division Bench, the case was, not listed and it has come up before me today for dictation of judgement. 6. Arguments were concluded and since the learned counsel for the parties wanted to cite some more authorities, the case was posted for dictation of judgement on 23.9.85 but since I was sitting in Division Bench, the case was, not listed and it has come up before me today for dictation of judgement. 6. Learned counsel for the petitioners has admitted that under Order 12 Rule 6 CPC, the plaintiffs were entitled to the relief prayed for by them in their application dated 21.2.77 and 20.5.78 in view of specific admission of the defendant that she was ready to execute the sale deed if the plaintiffs pay Rs. 5,000/- within 3 years and the plaintiffs had made an application to the court within three years that they were prepared to pay Rs. 5,000/- and the defendant should be asked to execute the sale deed and get it registered. He has placed reliance on (Tahil Ram vs. Vassumal) (1) and (P.G. Gulati vs. L.R. Kapoor)(2) and a division bench judgment of this court (3) Seth Sobhagmal Lodha vs. Adward Mills Ltd., Beawar). 7. On the other hand, learned counsel for the defendant-non-petitioner has vehemently argued that no interference should be made in the revision petition in the discretion exercised by the learned Munsif and upheld by the District Judge. He has further submitted that in case the revision petition is allowed, it will virtually amount to decreeing the main suit of the plaintiffs and he has placed reliance on AIR 1977 HP 29 (M/s. Simla Wholesale Mart vs. M/s. Bais-hnodas Kishorilal Bhalla & others) (4) and AIR 1958 SC 886 (Razia Begum vs. Anwar Begum), (5) and has further submitted that the judgment upon admission under Order 12 Rule 6 CPC are matters of discretion and not of right. Where the case involves questions which cannot be conveniently disposed of, the court should not exercise discretion in favour of the applicant. Before a court can act under Order 12 Rule 6 CPC, admission must be clear and unambiguous. 8. I have gone through the record of the case as well as given my thoughtful consideration to the submissons made at the bar and I have also gone through the authorities cited before me. The agreement is dated 22.2.74 for whose specific performance the suit was filed on 17.2.77. 8. I have gone through the record of the case as well as given my thoughtful consideration to the submissons made at the bar and I have also gone through the authorities cited before me. The agreement is dated 22.2.74 for whose specific performance the suit was filed on 17.2.77. Before filing the suit, the plaintiffs had given a notice to the defendant on 12.1.77 which was replied by the defendant on 31.1.77. The defendant filed the written statement on 11.10.77 wherein she admitted that she had received notice of the plaintiffs and that she was prepared to execute the sale deed provided they paid reasonable amount which was stated in her reply as a sum of Rs. 5,000/-, the amount mentioned in the agreement. 9. During the pendency of the suit, when three years were going to expire, the plaintiffs filed an application on 21-2-77 that the amount of rent collected by the defendant should be adjusted or in the alternative they were prepared to pay a sum of Rs. 5, 000/- and the defendant should be asked to execute the sale deed and get it registered. Thus, I find that the main dispute between the parties is only with regard to the adjustment of the rent received by the defendant. The defendant having admitted execution of the agreement and also she being ready to execute the the sale deed, provided the plaintiffs paid Rs. 5,000/-, in my opinion, there cannot be a better case in which Order 12 Rule 6 CPC should have been applied as the admission is clear unambiguous and unequivocal. The object of Order 12 Rule 6 CPC is to enable a party to obtain speedy Judgement at least to the extant of the relief which according to the admission of the defendant, the plaintiffs are entitled and the Rule has been made wide enough to afford relief not only in cases of admissions made in the pleadings but even upon verbal admissions and also on admission de hors the pleadings. A party can under this Rule move for a judgment upon the admission made by the opposite party and thus, get rid of the portion of the action in which there is no dispute. The party applying under this Rule need not relinquish rest of his claim in the suit. 10. A party can under this Rule move for a judgment upon the admission made by the opposite party and thus, get rid of the portion of the action in which there is no dispute. The party applying under this Rule need not relinquish rest of his claim in the suit. 10. The defendant has been enjoying the possession as well as collecting the rent and therefore, I am inclined to allow this revision petition and set aside the judgement of the learned District Judge, Kota dated 1.3.79 as also of the Munsif (North). Kota, dated 15. 9. 78 and allow the applications of the plaintiff-petitioners dated 21. 2. 77 and 20th May, 1978. The petitioners should within one month pay or deposit in court a sum of Rs. 5, 000/- for payment to the defendant and the defendant shall execute the sale deed in favour of the plaintiffs and get it registered. The trial court will proceed with the case and try the issues which it has framed on 25. 9. 79 in accordance with law. The parties are left to bear their own costs. 11. The revision petition is allowed as indicated above.