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2011 DIGILAW 1428 (CAL)

Prabhu Dayal Lohia v. Shankar Lal Fateh Chandak

2011-11-21

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the order dated August 30, 2010 passed by the learned Judge, City Civil Court, 3rd Bench, Kolkata in Title Suit No.1211 of 2005 thereby refusing to pass a decree on admission and directing the defendant no.8 to file a written statement. The plaintiff instituted a declaratory suit being Title Suit No.1211 of 2005 against the defendants / opposite parties herein before the learned Judge, City Civil Court, 3rd Bench, Kolkata. He prayed for declaration that the four powers of attorney executed by four predecessors-in-interest of the plaintiff in favour of the defendant no.1 is void and for declaration that the sale-deed executed by the defendant no.1 by the powers of attorney in favour of the defendant no.s 2 to 6 is void. He has prayed for appointment of a Receiver, injunction and costs. In that suit, the defendant no.s 2 to 9 appeared and filed a joint application dated May 30, 2008 stating that they had no objection if the suit is decreed as prayed for by the plaintiff. They also stated that they did not intend to contest the said suit. The said application was supported by separate affidavits from the said defendants. The defendant no.1 received summons but he did not appear and as such, the suit was likely to proceed against the defendant no.1 ex parte. The plaintiff filed an application for passing a decree on admission. On August 30, 2010, another lawyer filed vakalatnama on behalf of the defendant no.8 and filed an application stating that the defendant no.8 wanted to contest the suit and so he prayed for time. By the impugned order, the learned Trial Judge has recorded that the prayer of the plaintiff for passing a decree on admission is refused at that stage and the same shall be considered after the contested trial when the defendant no.8 has appeared afresh to contest the suit. Being aggrieved by such orders, this revisional application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the facts as recorded above are not in dispute. Being aggrieved by such orders, this revisional application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the facts as recorded above are not in dispute. The plaintiff / petitioner herein filed an application dated August 4, 2010 praying for passing part decree against the defendant no.s 2 to 9 as per admission and that prayer was refused at that stage by the impugned order holding that the same should be considered after contested trial. Thus, I find that by the impugned order, the learned Trial Judge has not rejected the prayer of the plaintiff altogether but kept it pending for consideration at the time of contested trial. So, by passing the impugned order, the learned Trial Judge has committed errors of law in not taking into consideration of the provisions of Order 12 Rule 6 of the C.P.C. For convenience, I am quoting the said provisions of Order 12 Rule 6 of the C.P.C.:- 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. Thus, Rule 6 of Order 12 of the C.P.C. clearly indicates that a recourse has been provided in the C.P.C. for expeditious disposal of the matter when the defendants admit the claim of the plaintiff either fully or in part and the decree on admission can well be passed at any stage of the suit. There is no bar to pass part decree as observed above. The only consideration is to see whether the admissions as made are clear, unambiguous, unconditional and unequivocal. If the admissions possess such qualities, there is no bar to pass a decree fully or in part on the basis of such admissions. There is no bar to pass part decree as observed above. The only consideration is to see whether the admissions as made are clear, unambiguous, unconditional and unequivocal. If the admissions possess such qualities, there is no bar to pass a decree fully or in part on the basis of such admissions. The matter need not be kept pending for consideration at the time of trial of the suit. It may be pointed out that the defendant no.8 has not withdrawn his admission as yet and nor did he pray for withdrawal of the admission made in the application for passing of the decree and his statement is supported by an affidavit. A lawyer appeared on behalf of the defendant no.8 and he prayed for time to contest suit without praying for withdrawal of the admission. Therefore, such conduct of the defendant no.8 does not amount to withdraw the admission. The learned Trial Judge also did not record that he allowed the defendant no.8 to withdraw the admission. Under the circumstances, there is no bar to pass a decree on admission. If for argument sake, it is observed that by the impugned order, the learned Trial Judge has meant that he has allowed the defendant no.8 to contest the suit, he should have passed a decree on admission against the defendant no.s 2 to 7 & barring the defendant no.8. He did not resort to such a course. Accordingly, I am of the view that the impugned order cannot be supported. The learned Trial Judge has committed errors of law in keeping the matter pending while the object of Order 12 Rule 6 of the C.P.C. is to pass a speedy judgment at least to the extent of the admissions of the defendants. The impugned order, therefore, cannot be supported. The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The learned Trial Judge shall re-consider the application dated August 8, 2010 filed by the plaintiff / petitioner herein afresh upon hearing both the sides. Such exercise must be done within 30 days from the date of communication of this order to him. Considering the circumstances, there will be no order as to costs.