Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 550 (GAU)

Robert Marbaniang v. Ramona R Marak

2012-05-03

INDIRA SHAH

body2012
JUDGMENT Hon'ble Dr. (Mrs.) Indira Shah 1. This application under Article 227 of the Constitution of India has been preferred against the order dated 17.10.2011 passed by the learned Presiding Officer, Subordinate District Council Court, Shillong, in Title Suit No.25 of 2005. By the impugned order, the learned Court refused to exercise its discretionary power under Order 12 Rule 6 CPC. The petitioner as plaintiff filed Title Suit No.25 of 2005 claiming his right, title, interest and possession over a piece of land measuring 87.750 Sq ft more or less situated at 13th Mile GS Road Jorabat under Byrnihat PS. He claimed the right, title and interest over the land on the basis of a registered Sale Deed executed in his favour on 21.9.1994. He alleged that on 5.12.1996 the respondent along with others trespassed into the suit land and thereafter continued interfering in the peaceful possession of the suit land by the plaintiff. Hence he filed the suit along with a petition for interim injunction which was registered as Misc Case No.15 of 1996, the ex-parte interim injunction granted in favour of the petitioner-plaintiff was however vacated after hearing the parties. The petitioner thereafter approached this Court against the order passed in Misc Case No.15 of 1996 and this Court passed an order in favour of the petitioner. 2. The defendant-respondent in her reply to show cause in Misc Case No.15 of 1996 as well as in the Title Suit admitted that the defendant has no claim whatsoever over the land of the plaintiff. According to the defendant, the plaintiff's land for which he has claimed right, title, interest and possession is situated at Jorabat whereas the defendant has her right, title and interest over the land situated at Byrnihat. The defendant alleged that the plaintiff with an intention to grab the land of the defendant has misused the legal process. The defendant also alleged that the cause of action i.e. the incident as referred in the plaint occurred on the land of the defendant. In fact the plaintiff encroached and trespassed into the land of the defendant and there was no cause of action over the plaintiff to file the suit against the defendant. 3. The defendant also alleged that the cause of action i.e. the incident as referred in the plaint occurred on the land of the defendant. In fact the plaintiff encroached and trespassed into the land of the defendant and there was no cause of action over the plaintiff to file the suit against the defendant. 3. The averments made by the defendant in the written statement and reply to the show cause was observed by the Court in MA(F)5(SH)97 while restoring the order of injunction in favour of the petitioner. Thereafter the petitioner filed the petition under Order 12 Rule 6 CPC before the learned trial court for disposing the Suit on the basis of admission made by the respondent. However, the prayer of the petitioner was rejected. 4. The simple question of law that arise for consideration in this Revision is with regard to the pre-requisite for passing a decree under Order 12 Rule 6 of the CPC. 5. Order 12 Rule 6 reads as under:- 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. 6. Thus wide power is vested in the Court in terms of provisions of Order 12 Rule 6 to pass a decree at any stage or proceeding upon application or on its own accord where an admission of a fact has been made either in the pleadings or otherwise, orally or in writing. But a decree passed in exercise of this provision cannot be beyond the specific admission made by a party necessarily it follows that the admission should be certain, unambiguous and clear. Before a party can be denied the right to lead its defense or contest the case on merits, the admission should be capable of being truly accepted as an unequivocal admission of a fact. Before a party can be denied the right to lead its defense or contest the case on merits, the admission should be capable of being truly accepted as an unequivocal admission of a fact. The powers under Order 12 Rule 6 of the Code has to be exercised judiciously on the facts and circumstance of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is very find distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission on the part of a party to the suit. The court has to consider the need for passing a decree on admission under these provision only in the cases of first category and normally should decline in the cases of the later category. 7. In the case of Mrs. Vijay Gupta and ors vs. Shri Ashok Kumar Gupta, reported in AIR 2007 Del 166 , it was held as under: It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words "May? and "make such orders? or "give such judgment? spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial cannone. The cases which involves questions to be decided upon regular trial and the alleged admissions are not clear and specific, it may not be appropriate to take recourse to these provisions. 8. Order 12 Rule 6 has to be read along with the provision of Rule 5 of Order 8 which says that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. 9. The factual contentions emerging from the pleadings in this case are that the plaintiff has claimed his right, title, interest and possession over the land situated at Jorabat under Byrnihat PS. 9. The factual contentions emerging from the pleadings in this case are that the plaintiff has claimed his right, title, interest and possession over the land situated at Jorabat under Byrnihat PS. The defendant has admitted that she has no claim over the land situated at Jorabat and that the land of the defendant is situated at Byrnihat itself. The defendant has however denied that she encroached or trespassed into the land situated at Jorabat. She alleged that the plaintiff in order to grab the land of the defendant has not only attempted to trespass into the land of the defendant but he has filed the vexatious suit. According to the defendant, there is not cause of action for the plaintiff to file the suit. 10. Learned counsel for the petitioner has submitted that since the defendant has admitted that she has no claim over the suit land described in the schedule of the plaint, one decree may be passed since in a suit there can be more than one decree that may be passed by the trial court. She has relied on the case of Bai Chanchal and ors vs Syed Jalaluddin and ors AIR 1971 SC 1081 . There is no dispute that in a suit there can be more than one decree passed at different stages and each decree being separate and independent and is enforceable in law is the principle laid down in the cited case. 11. Here in this case the preliminary objection taken in the written statement is that the suit is vexatious and there is no cause of action for the plaintiff to file the suit. If the defendant can prove that the suit is vexatious it would go to the very root of the case. The defendant has never admitted that she encroached into the land of the plaintiff as alleged. The Court is yet to examine whether there is any cause of action for the suit. As observed earlier, admission is not a matter of right rather it is a matter of discretion of a Court and where the defendant has raised objection which will go to the very root of the case, it would not be appropriate for the trial court to exercise its discretion under Order 12 Rule 6 CPC. The trial court rightly denied its power to exercise the jurisdiction under Order 12 Rule 6 CPC. The trial court rightly denied its power to exercise the jurisdiction under Order 12 Rule 6 CPC. Therefore the impugned order needs no interference. This Revision petition is accordingly disposed of.