Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 706 (RAJ)

Ankit Udyog v. Laxman Prasad

2001-04-24

SHIV KUMAR SHARMA

body2001
Honble SHARMA, J.–Instant miscellaneous appeal impugns the judgment and decree dated October 31, 1998 of the learned Additional District Judge Bayana (Distt. Bharatpur) whereby plaintiff respondents application under Order 12 Rule 6 CPC was allowed and a decree for Rs. 3,75,603 was drawn in his favour. (2). The parties shall be referred hereinafter in the same manner as they were arrayed in the plaint. (3). Contextual facts depict that the plaintiff Laxman Prasad in the capacity of owner of the firm M/s. Babu lal Shiv Charan Lal instituted a suit for recovered of Rs. 12,03,074.47 against the defendants in the court below. The defendants submitted written statement. In paras 16 and 17 of the written statement it was pleaded that the plaintiff Laxman Prasad is not the owner of firm M/s. Babu Lal Shiv Charan lal and has no locus standi to file the suit. The said firm is a partnership firm and as the suit has not been filed by the Firm or by its partners it is not maintainable. However, in para 23 it was averred that after adjustment of all the payments made to the Firm M/s. Babulal Shiv Charan Lal only Rs. 3,75,603.26 were due against the defendant. The plaintiff moved an application under Order 12 Rule 6 read with Sec. 151 CPC praying therein that on the basis of the admission made by the defendants in para 23 of the written statement a decree be passed forthwith. The defendants objected to it by filing reply. Learned court below thereafter passed a decree as indicated herein above. (4). Dr. Prakash Chand Jain, learned counsel appearing for the plaintiff raised preliminary objection in respect of maintainability of appeal. Learned counsel alternatively canvassed that if appeal is found maintainable, then it should be dismissed on the ground of non-payment of proper court fee. It was also urged that the power of court under Order 12 Rule 6 being discretionary the appellate court should not interfere with that discretion unless it can be shown that the court has gone wrong in principle or it can be otherwise established that injustice would be done if the order is allowed to stand. It was also contended that there can be more than one decree passed at different stage in one suit. Reliance was placed on Bal Chanchal vs. S. Jalaluddin (1). (5). Mr. It was also contended that there can be more than one decree passed at different stage in one suit. Reliance was placed on Bal Chanchal vs. S. Jalaluddin (1). (5). Mr. Satyendra Kumar Gupta, learned counsel appearing for the defendants urged that appeal is maintainable under Order 43 Rule 1 A CPC. It was further contended that from the averments of the written statement it is evident that there was no admission in favour of plaintiff Laxman Prasad but the court below did not exercise its discretion judicially while deciding the application under Order 12 Rule 6 CPC. Reliance was placed on Smt. Mangal Pati vs. Hari Singh (2), State Bank of India vs. M/s. Midland Industries (3) and M/s. Dena Bank vs. M/s. Bindal Construction (Pvt.) Ltd. (4). (6). The diverse submissions give rise the following questions- (i) Whether an appeal against a decree drawn under order 12 Rule 6 CPC is maintainable? (ii) what is the scope of Order 12 Rule 6 CPC? (7). In so far as first question in regard to maintainability of appeal against a decree drawn under Order 12 Rule 6 CPC is concerned it is to be noticed that object of this rule is to enable a party to obtain speedy judgment, at least to the extent of the relief, which according to the admissions of the opposite party, he is entitled to. Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The decree so passed may be termed as consent decree in respect of admitted claim. No regular first appeal can be filed against the consent decree in view of sub-sec. (3) of Sec. 96 of CPC. But order 43 Rule 1A CPC provides that correctness of non-appealable orders depending on which a judgment is pronounced and decree is drawn up, can be challenged in the appeal against the decree itself. Under sub-rule (2) of rule 1A of Order 43 CPC the appellant has the right to contest the decree on the ground that compromise should not have been recorded. Having scanned the provisions of Order 12 Rule 6, Sec. 96(3) and Order 43 Rule 1A CPC, I am of the opinion that Civil Misc. Under sub-rule (2) of rule 1A of Order 43 CPC the appellant has the right to contest the decree on the ground that compromise should not have been recorded. Having scanned the provisions of Order 12 Rule 6, Sec. 96(3) and Order 43 Rule 1A CPC, I am of the opinion that Civil Misc. Appeal is maintainable under Order 43 Rule 1A CPC against the decree drawn up in respect of admitted claim under Order 12 Rule 6 CPC on a court fee that is required to be paid on Civil Miscellaneous Appeal. (8). Now comes the second question in regard to scope of Order 12 Rule 6 CPC. A party can, under Rule 6 of Order 12 CPC, move for judgment upon the admission made by the opposite party and thus get rid of the portion of the action in which there is no disputes. But the admission on which a judgment can be claimed must be clear and unequivocal one. A partial decree under Order 12 Rule 6 CPC based on admission made in the written statement can be passed only if the admission in complete and sufficient. Delhi High Court in State Bank of India vs. M/s. Midland Industries (supra) indicated that where the admission is not unequivocal and further the written statement raises serious preliminary places which are likely to non-suit the plaintiff, the court can in its discretion refuse to pass a decree under Order 12 Rule 6 CPC. (9). In the case on hand, as already stated the defendants in paras 16 and 17 of the written statement averred that the plaintiff Laxman Prasad is not the owner of the Firm M/s. Babulal Shiv Charan and has no locus standi to file the suit. The said firm is a partnership firm and as the suit has not been filed by he firm or its partners, it is not maintainable. In para 23 of the written statement, the defendants did not admit that amount in the sun of Rs. 3,75,603.26 was due against the plaintiff Laxman Prasad but it was only pleaded that after adjustment of all the payment made to the Firm M/s. Babulal Shiv Charan Lal Rs. 3,75,603.26 were due against the defendants. In my considered opinion it is not an admission in favour of plaintiff Laxman Prasad. 3,75,603.26 was due against the plaintiff Laxman Prasad but it was only pleaded that after adjustment of all the payment made to the Firm M/s. Babulal Shiv Charan Lal Rs. 3,75,603.26 were due against the defendants. In my considered opinion it is not an admission in favour of plaintiff Laxman Prasad. The written statement filed by the defendants raised serious preliminary pleas in respect of maintainability of the suit. I am satisfied that while passing the impugned judgment and decree the court below has not properly exercised its judicial discretion. The preliminary objections raised on behalf of the plaintiff are devoid of merit. (10). Resultantly the appeal is allowed and the impugned judgment and decree dated October 31, 1998 shall stand set aside. The record of the case be sent back forthwith. The parties are directed to appear before the court below on May 17, 2001. Costs easy.