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2023 DIGILAW 962 (KAR)

V. Narayanaswamy v. M. V. Sriramareddy

2023-08-04

H.P.SANDESH

body2023
JUDGMENT 1. Heard the learned counsel for the petitioner and learned counsel for the respondents. 2. This revision petition is filed under Sec. 115 of C.P.C. praying this Court to set aside the order dtd. 5/12/2022 rejecting I.A.No.9 filed under Order 12, Rule 6 of C.P.C. and consequently, dismiss the suit in O.S.No.138/2014 on the file of the Senior Civil Judge and JMFC, Chintamani. 3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff and first defendant are the brothers and sons of Kotalani Venkataraya Reddy and Smt. Seethamma. It is contended that, after the death of father of the plaintiff and the first defendant, they have succeeded the joint family and ancestral properties and jointly cultivating the said lands. The plaintiff was working as an Assistant Teacher in the Education Department and his earnings had contributed the joint family and developed and purchased properties in the name of kartha, who is the first defendant herein, by contributing joint family funds. It is also the contention of the plaintiff that the plaintiff, first defendant and their mother Smt. Seethamma have purchased the property in the name of the first defendant, who is the kartha of the family in respect of land bearing Sy.No.82, 3rd Block measuring 4 acres and land bearing Sy.No.82/4 measuring 4 acres, totally 8 acres situated at Kamatampalli Village, Ronur Hobli, Srinivaspura Taluk under the registered sale deed dtd. 10/5/1968. The plaintiff and first defendant are in joint possession and enjoyment of the said land and the plaintiff is having definite share in the said land. It is also the case of the plaintiff that both the plaintiff and defendants have jointly purchased the land bearing Sy.No.13 measuring 2 acres, 16 guntas situated at Kannampalli Village, Kasaba Hobli, Chinthamani Taluk, under the registered sale deed dtd. 5/8/1991. It is also his case that, with an intention to form residential layout in the land bearing Sy.No.13 measuring 2 acre, 16 guntas situated at Kannampalli Village, Kasaba Hobli, Chinthamani Taluk, obtained conversion of the land from agricultural to non-agricultural residential purpose from the Assistant Commissioner, Chikkaballapura sub-division dtd. 29/8/1992 and formed residential layout i.e., site Nos.1 to 62 in different dimensions and the said layout has been approved by the Secretary Chinnasandra Mandal Panchayath. 4. 29/8/1992 and formed residential layout i.e., site Nos.1 to 62 in different dimensions and the said layout has been approved by the Secretary Chinnasandra Mandal Panchayath. 4. It is also contended in the plaint that plaintiff has contributed substantial amount for the purchase of the said property, since plaintiff was an Assistant School Teacher and due to the reason that his name has could not be included in the sale deed, his brother V. Narayanaswamy, S/o. Late Venkataraya Reddy name has been included though he has not contributed any amount for the purchase of the said land and on good faith and cordial terms, his name has been included in the said sale deed. It is also contended that there was a registered partition deed dtd. 22/6/1998 and at the time of partition, the plaintiff was in death bed suffering from severe spinal card dislocation problem, due to the reason surgery was done and since the surgery was not successful and due to frequent recurring of spinal card problem, traction was fixed at the time of alleged partition deed dtd. 22/6/1998. For a period of one month, he was not able to get up from the bed and also he was not in a position to move from the bed, since he has suffered two surgeries. The copy of medical reports are produced and the defendant No.1, who is none other than the brother of the plaintiff has forced to get the partition of the family properties, taking advantage of the plaintiff illness and plaintiff has requested first defendant and panchayathdars for postponement of the partition for the reason that he has not been able to move and not able to read the papers and sign the documents for which the first defendant has become adamant and forced to get the partition deed and in the said partition, all the properties are not at all included deliberately, intentionally not included the item No.1 of the suit schedule property by the defendant, though the plaintiff is having half share in the said property. Hence, the plaintiff has filed the suit seeking the relief of partition and separate possession of the plaintiff half share in item No.1 and half share out of 1/5th share in the item No.2 of the schedule property and also for permanent injunction. 5. Hence, the plaintiff has filed the suit seeking the relief of partition and separate possession of the plaintiff half share in item No.1 and half share out of 1/5th share in the item No.2 of the schedule property and also for permanent injunction. 5. This suit is resisted by first defendant by filing the written statement contending that first of all, the suit is barred by limitation since, partition was effected on 22/6/1998 and it is also contended that the plaintiff has not contributed any earning either to the defendant or to the joint family and denied the contention that property was purchased in the name of the first defendant by using the contribution of the joint family funds. It is contended that suit is absolutely not maintainable since, already there was partition and there is no cause of action to file the suit and denied the contention that property was purchased by the first defendant and their mother i.e., Sy.No.82 and Sy.No.82/4, in total 8 acres of land and contend that property was purchased by the first defendant from his self-earned income and the allegations to the contrary are false. 6. It is also contended that the allegations made in the plaint cannot be entertained in view of Benami Prohibition Act and mother is neither a corparcener nor it is alleged that she has contributed joint family funds nor it is alleged that she is in possession of joint family funds and consequently, the very basis of claim made by the plaintiff is false and he has to prove the same. The averment with regard to acquiring of property in Sy.No.13 measuring 2 acres, 16 guntas is denied and also contend that there was registered partition deed dtd. 22/6/1998 and there is no prohibition for an Assistant School Teacher to purchase the property either individually or jointly. Hence, the very claim made by the plaintiff is false, frivolous and the suit filed by the plaintiff is not maintainable. 7. In view of the pleadings of the parties, issues were framed and P.W.1 has been examined and the first defendant filed the application invoking Order 12, Rule 6 of C.P.C and considering the admissions given by P.W.1 in the cross- examination, sought for judgment on admission. The said application was resisted by the plaintiff by filing objection statement. 7. In view of the pleadings of the parties, issues were framed and P.W.1 has been examined and the first defendant filed the application invoking Order 12, Rule 6 of C.P.C and considering the admissions given by P.W.1 in the cross- examination, sought for judgment on admission. The said application was resisted by the plaintiff by filing objection statement. The Trial Court, having considered the grounds urged in the application and also taking note of rejection of earlier application in I.A.No.3 filed under Order 7, Rule 11(a) and (d) of C.P.C., confirmed the same in the civil revision petition and also considering the fact that first defendant has again come up with the application under Order 12, Rule 6 of C.P.C, extracting the said provision in Para No.11 of the order, the Trial Court comes to the conclusion that averments made in the plaint has been denied by the first defendant in the written statement and also taken note of the fact that the evidence of the plaintiff is already concluded and case is posted for further cross- examination of D.W.1 and comes to the conclusion that there is no reason to consider the application filed under Order 12, Rule 6 of C.P.C. In view of serious factual disputes and the defence of the first defendant in the suit, it is not permissible for making roving inquiry for disposal of the application filed by the first defendant under Order 12, Rule 6 of C.P.C. and dismissed the application. Hence, the present revision petition is filed before this Court. 8. The main contention of the learned counsel for the petitioner is that there is an admission and admission is also extracted in the revision petition i.e., in Para Nos.6 to 12. The counsel would vehemently contend the Trial Court committed error in coming to the conclusion that there are serious factual disputes which require roving inquiry for disposal of the application, though no inquiry is required and the admission in evidence was enough for disposal of the matter. It is also contended that the Trial Court erred in not considering the argument and the contention of the plaintiff that he contributed some money for purchase of item No.2 of the suit schedule property and the same could not be the subject matter of partition by virtue of Binami Prohibition Act and therefore, the suit for partition would not lie. The Trial Court erred in holding at Para No.15 that unambiguous admissions are to be considered with the merits of the suit and the very finding of the Trial Court is erroneous. 9. The learned counsel for the petitioner, in support of his argument, relied upon the judgment of the Apex Court in UTTAM SINGH DUGAL & CO. LTD. VS. UNION BANK OF INDIA AND ORS. in S.L.P. (C) NO.12511 OF 1999 decided on 08.08.2000and brought to notice of this Court Para Nos.12 to 15 and contend that the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment for which the plaintiff is entitled to. 10. The counsel also relied upon the judgment of the Division Bench of this Court in K. VENKATAMMA AND ORS. VS. YANKAMMA AND ORS. passed in R.F.A.NO.100153/2014 decided on 19.12.2019and brought to notice of this Court Para No.15, wherein the Apex Court observed that the admissions in pleadings are to be treated at a higher pedestal and are to be accepted as admission about the state of things. 11. The counsel also relied upon the judgment of this Court in ASSISTANT COLLECTOR OF CENTRAL EXCISE (LEGAL AND APPEALS) FIBRE FOILS (PRIVATE) LIMITED AND ORS. passed in CRL.A.NO.553 OF 1996 decided on 16/8/2000 and brought to notice this Court Para No.7 of the judgment that every admission made by an accused person is not, in the view of the law, a confession, nor can it be held that admissions mean only statements made by parties to civil proceedings, and do not include statements made by parties in criminal proceedings. Every statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact made by an accused person is an admission under Ss. 17 and 18, and under Sec. 19 an admission may be proved as against the person who makes it unless, under some provision of the Evidence Act or other law, it is rendered inadmissible. For an admission to have the effect of substantive evidence it must be voluntary. 12. The counsel also relied upon the judgment of Delhi High Court in BALJEET KAUR KALRA VS. SURJEET SINGH AND ORS. For an admission to have the effect of substantive evidence it must be voluntary. 12. The counsel also relied upon the judgment of Delhi High Court in BALJEET KAUR KALRA VS. SURJEET SINGH AND ORS. in C.S. (OS) NO.2113 OF 2010 decided on 27.04.2016and brought to notice of this Court Para No.10 with regard to exercise of power under Order 12, Rule 6 of C.P.C. and once the defence is barred by law, there is no need to go into trial on this aspect because there cannot be a trial with respect to a plea/pleading which the law bars for being taken up. 13. The counsel also relied upon the judgment of the Apex Court in V. ANANTHA RAJU AND ORS. VS. T.M. NARASIMHAN AND ORS. passed in CIVIL APPEAL NO.6469 OF 2021 decided on 26/10/2021 and brought to notice of this Court Para No.23 that Ss. 91 and 92 of the Evidence Act would apply only when the document on the face of it contains or appears to contain all the terms of the contract and further held that, when parties deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory. 14. The counsel also relied upon the judgement of the Apex Court in V.K. SURENDRA VS. V.K.THIMMAIAH AND ORS . passed in CIVIL APPEAL NO.1449 OF 2004 decided on 10/4/2013 and brought to notice of this Court Para No.12, wherein the Apex Court discussed with regard to the document of consent certificate binding on the persons, who are parties to the said document. 15. Per contra, learned counsel for the respondent No.1, in his argument would vehemently contend that suit is filed for the relief of partition and the plaintiff has also challenged the earlier partition and two items of the properties were left out. In the plaint itself, it is stated as to under what circumstances, two properties were left out in the partition i.e., since the father was bedridden and the defendant No.1 got the signatures and the father had not verified the documents. Admittedly, those two properties were purchased when they were living together and partition was effected in the year 1998. In the plaint itself, it is stated as to under what circumstances, two properties were left out in the partition i.e., since the father was bedridden and the defendant No.1 got the signatures and the father had not verified the documents. Admittedly, those two properties were purchased when they were living together and partition was effected in the year 1998. The counsel also would vehemently contend that the admissions, if any given by P.Ws.1 and 2 as contended by the learned counsels for the petitioner has to be considered when disputed facts are stated in the plaint and based on the said stray admission, the same cannot be decided without considering the matter on merits. The counsel also would vehemently contend that, it was the transaction of the year 1991 and the partition is of the year 1998 and property was purchased in the name of the brother and after recovery, he demanded for partition since, he is entitled for share in the two items of the properties. The counsel also would submit that earlier, an application was filed under Order 7, Rule 11(a) and (d) of C.P.C. and the same was dismissed and confirmed in the civil revision petition. The admission is not an unequivocal admission and there is no admission in the pleading and stray admission in the cross-examination cannot be relied upon to invoke Order 12, Rule 6 of C.P.C. The counsel also would contend that when the case is set down for cross-examination of D.W.1, the present application is filed and the material available on record has to be considered on merits. 16. The counsel for the respondent No.1, in support of his argument relied upon the judgment of the Apex Court in S.M. ASIF VS. VIRENDER KUMAR BAJAJ passed in CIVIL APPEAL NOS.6106-6108 OF 2015 decided on 12/8/2015 and brought to notice of this Court Para No.9, wherein it is discussed that the words in Order 7, Rule 6 C.P.C. "may" and "make such order..." show that the power under Order 7, Rule 6 C.P.C. is discretionary and cannot be claimed as a matter of right. 17. The counsel also relied upon the judgment of this Court in MR. RAJ A. MENDA VS. 17. The counsel also relied upon the judgment of this Court in MR. RAJ A. MENDA VS. RANI RASAMANI REAL ESTATE reported in ILR 2007 KAR 2627 and brought to notice of this Court Para No.31, wherein also discussed with regard to scope of Order 12, Rule 6 of C.P.C. and brought to notice of this Court Para No.49, wherein an observation is made that the admission under Order 12, Rule 6 must be plain, unequivocal and clear and positive and it must be complete by itself by which the party making such admission will not succeed in the suit. 18. The counsel also relied upon the judgment of the Apex Court in HARI STEEL AND GENERAL INDUSTRIES LTD. AND ANR. VS. DALJIT SINGH AND ORS. reported in AIR 2019 SC 4796 and brought to notice this Court Para No.37, wherein the Apex Court discussed with regard to scope of Order 12, Rule 6 of C.P.C. and the stage in which the application has to be filed and an observation is made that the trial had already commenced and considering the serious factual disputes and defense of defendant in suit, it is not permissible for making roving inquiry for disposal of application and mere admission of entering into arrangement/agreement cannot be termed as categorical and unconditional admission for delivering judgment on admission. 19. Learned counsel for the petitioner, in reply to the arguments of the learned counsel for the respondents would vehemently contend that the evidence of P.Ws.1 and 2 is very clear with regard to categorical admission and there is no stray admission as contended by the learned counsel for the respondent No.1. The counsel also would contend that, Order 12, Rule 6 of C.P.C. is very clear as to the admission in the pleading or otherwise. Hence, the said contention of the learned counsel for respondent No.1 cannot be accepted. The counsel also would vehemently contend that the transaction is prohibited under Benami Prohibition Act and even if it is purchased in the name of the brother also, the principles laid down in the judgments referred (supra) are applicable to the facts of the case on hand. The Trial Court has committed an error in dismissing the application and the same requires interference of this Court. 20. The Trial Court has committed an error in dismissing the application and the same requires interference of this Court. 20. Having heard the learned counsel for the petitioner and learned counsel for the respondent No.1 and considering the principles laid down in the judgments referred (supra) the points that would arise for consideration of this Court are: (1) Whether the Trial Court committed an error in dismissing the application filed under Order 12, Rule 6 of C.P.C and whether it requires interference of this Court? (2) What order? Point No.(1) 21. Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that the plaintiff has filed the suit for the relief of partition claiming half share in respect of the suit schedule properties, wherein he contend that he was working as an Assistant School Teacher and he contributed for the purchase of the property and the defendant No.1 denies the same contending that there was no prohibition for the plaintiff to purchase the property in the name of the plaintiff and the defendant No.1 has also denied all the other averments of the plaintiff in the written statement. It is also not in dispute that, earlier I.A.No.3 is filed under Order 7, Rule 11(a) and (d) of C.P.C. seeking to reject the plaint and the same was dismissed since, the grounds urged in the earlier application were also that no cause of action to file the suit and the suit is barred by limitation and the said order was also challenged and this Court confirmed the same in the civil revision petition and there is no dispute to that effect. 22. Now, it is the contention of the learned counsel for the petitioner that the Trial Court has committed an error in observing that roving inquiry is required, when no further inquiry is required and the Trial Court only ought to have considered the admission in evidence and the same is enough for disposal of the suit. The counsel also would vehemently contend that, even if the property is purchased in the name of the brother, the same amounts to Benami Prohibition and the same attracts by virtue of Benami Prohibition Act and therefore, the suit for partition would not lie. The counsel also would vehemently contend that, even if the property is purchased in the name of the brother, the same amounts to Benami Prohibition and the same attracts by virtue of Benami Prohibition Act and therefore, the suit for partition would not lie. The counsel also would vehemently contend that the admission is an unequivocal admission and the same is clear and unambiguous with regard to the document of earlier partition and the same has not been properly appreciated by the Trial Court. 23. Having considered the principles laid down in the judgements referred (supra) by the learned counsel for the petitioner, no dispute with regard to the fact that the Court can invoke Order 12, Rule 6 of C.P.C. and the same enables the party to obtain speedy judgment as held in UTTAM SINGH DUGAL's case by the Apex Court. The Division Bench of this Court also, in K. VENKATAMMA's case held that admissions in pleadings are to be treated at a higher pedestal and are to be accepted as admission about the state of things. But, in the case on hand, there is no pleading in the admission but, only in the cross-examination, certain answers are elicited from the mouth of P.Ws.1 and 2. No doubt, in the case of benami transaction, suit would not lie, in the judgment of the Apex Court in ANANTHA RAJU's case referred by the learned counsel for the petitioner, it is very clear that, when the documentary evidence is available on record under Ss. 91 and 92 of the Evidence Act, the same would apply. The learned counsel for the petitioner would contend that there is a partition deed and the same is not disputed. But, the fact is that the Court has to look into the averments of the plaint and also the written statement and the pleadings in the plaint has been denied by the defendant No.1 by filing the written statement. When such being the case, the Court has to look into the pleadings of the parties. 24. But, the fact is that the Court has to look into the averments of the plaint and also the written statement and the pleadings in the plaint has been denied by the defendant No.1 by filing the written statement. When such being the case, the Court has to look into the pleadings of the parties. 24. No doubt, there are certain admissions in the Cross- examination of P.Ws.1 and 2, there are disputed facts with regard to whether contribution was made by the plaintiff as claimed by him and the same has been denied by the defendant No.1 in the written statement and these disputed facts have to be considered and finding has to be given by the Trial Court and the Court cannot consider the same by invoking Order 12, Rule 6 of C.P.C. No doubt, Order 12, Rule 6 of C.P.C. is clear with regard to the fact that Court can pass judgment on admission, the counsel for the respondent No.1 brought to notice of this Court that, even if the admission is not found in the pleadings, the word used is otherwise and the word otherwise has to be understood considering the other circumstances. But, the disputed facts cannot be considered in an application filed under Order 12, Rule 6 of C.P.C. and merely because certain admissions are given by the defendant No.1 with regard to the document of partition deed that no properties are left in terms of the said partition deed while partitioning the property, but the plaintiff categorically pleaded in the plaint as to under what circumstances, the signature of the father was taken and he was forced to sign the document taking advantage of his health condition and also the fact that he was subjected to surgery twice. 25. When such factual aspects are pleaded in the plaint, even though there is no dispute with regard to the earlier partition deed, but the learned counsel for the plaintiff would vehemently contend that the properties are purchased even prior to the said partition i.e., the partition which was taken place in the year 1998 and the pleading is also clear that the plaintiff contributed to the joint family while he was working as an Assistant Teacher. When such issues are involved between the parties, the Court cannot invoke Order 12, Rule 6 of C.P.C. 26. When such issues are involved between the parties, the Court cannot invoke Order 12, Rule 6 of C.P.C. 26. Further, this Court would like to rely upon the judgment of the Apex Court quoted by the learned counsel for respondent No.1 in S.M. ASIF's case, wherein the Apex Court in Para No.9 of the judgment held as hereunder: "9. The words in Order XII Rule 6 CPC "may" and "make such order..." show that the power under Order XII 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 XII 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. In the suit for eviction filed by the respondent-landlord, appellant- tenant has admitted the relationship of tenancy and the period of lease agreement; but resisted respondent-plaintiff's claim by setting up a defence plea of agreement to sale and that he paid an advance of Rs.82.50 lakhs, which of course is stoutly denied by the respondent-landlord. The appellant- defendant also filed the suit for specific performance, which of course is contested by the respondent- landlord. When such issues arising between the parties ought to be decided, mere admission of relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit under Order XII Rule 6 CPC." 27. On reading the principles laid down by the Apex Court in the judgment extracted (supra), it is clear that the Court has to look into the scope and ambit of Order 12, Rule 6 C.P.C. and in view of the judgment, it is very clear that power under Order 12, Rule 6 of C.P.C. is discretionary and cannot be claimed as a matter of right. The judgment on admission is a matter of right and rather is a discretion of the Court. The judgment on admission is a matter of right and rather is a discretion of the Court. The Apex Court also further observed that whether the defendants have raised objection which goes to the very root of the case, it would not be appropriate to exercise the discretion under Order 12, Rule 6 of C.P.C. It is also held that 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. I have already pointed out that, in the written statement filed by the first defendant, there is no admission. But, the first defendant dispute the very contention of the plaintiff and totally denied the case of the plaintiff and only relied upon the evidence of P.Ws.1 and 2 and answers elicited in the cross-examination. 28. This Court also would like to rely upon the recent judgment of the Apex Court which has been relied upon by the learned counsel for the respondent No.1 referred (supra) in HARI STEEL AND GENERAL INDUSTRIES LTD.'s case, wherein the Apex Court in Para No.37 of the judgment held as under: "37. In this case it is to be noted that the suit was filed on 1/11/2006 and written statement was filed on 25/1/2007 and the application under Order XII Rule 6 was filed on 9/2/2007. In year 2010 issues and additional issues were framed and trial is also commenced. In that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII Rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving enquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already commenced, it is desirable to record findings on various contentions issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. When the trial is already commenced, it is desirable to record findings on various contentions issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone." 29. In the judgment of the Apex Court extracted supra, the Court also taken note of the fact that suit was filed on 1/11/2006 and written statement was filed on 25/1/2007 and the application under Order XII Rule 6 was filed on 9/2/2007. In the year 2010 issues and additional issues were framed and trial is also commenced and observed that, in that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII Rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving enquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already commenced, it is desirable to record findings on various contentions issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage and held that, the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone. 30. In the case on hand, no doubt, the plaintiff filed the suit for the relief of partition in respect of two properties and also admitted earlier partition, it is important to note that under what circumstances, earlier partition deed came into existence. The plaintiff also contend that those two properties were left out and document came into existence at the instance of the first defendant. These are the serious factual disputes, since the first defendant also denied the same in the written statement which is already taken note by this Court while summing up the contentions raised in the written statement. The plaintiff also contend that those two properties were left out and document came into existence at the instance of the first defendant. These are the serious factual disputes, since the first defendant also denied the same in the written statement which is already taken note by this Court while summing up the contentions raised in the written statement. When such being the case, the question of dismissing the suit taking note of the admission which is elicited in the cross-examination of P.Ws.1 and 2 cannot be done and serious factual disputes have to be considered by the Trial Court while considering the matter on merits. 31. The Trial Court, while dismissing the application filed under Order 12, Rule 6 of C.P.C., taken note of the fact that the first defendant has denied the categorical allegations made in the plaint by filing the written statement which is observed in Para No.13 of the order of the Trial Court and also taken note of the pleadings of the plaintiff in respect of purchase of item No.2 of the suit schedule properties, wherein the plaintiff contend that he was working as an Assistant Teacher and these are the aspects which have to be considered by the Trial while considering the matter on merits. The Trial Court also taken note of the fact that evidence has already been commenced and cross-examination of P.Ws.1 and 2 was completed and case was set down for cross-examination of D.W.1. The material also discloses that, instead of cross-examining D.W.1, present application is filed under Order 12, Rule 6 C.P.C. and the same is observed in Para No.14 of the order and taken note of the serious factual disputes between the parties and rightly comes to the conclusion that it is not permissible for making roving inquiry though the counsel for the petitioner contend that there is no need of making any roving inquiry for disposal of the application. Hence, I do not find any error committed by the Trial Court in dismissing the application filed under Order 12, Rule 6 of C.P.C. since, the admission made by the witnesses has to be looked into, in keeping the contentions of both the parties while considering the matter on merits and there are no unequivocal admissions in respect of the issues involved between the parties. 32. 32. When there are several disputes with regard to contents of the plaint and also the first defendant disputed the same in the written statement and categorically denied the contention of the plaintiff, the matter requires to be considered on merits. Hence, I do not find any error committed by the Trial Court in dismissing the application and the application is filed when the case was set down for cross-examination of D.W.1. The Apex Court also in HARI STEEL AND GENERAL INDUSTRIES LTD's case observed that when the trial has already been commenced and when there are serious disputed factual aspects, it is not permissible for making roving inquiry for disposal of application under Order 12, Rule 6 of C.P.C. and mere admission on the document of partition deed cannot be termed as categorical and unequivocal admission for delivering judgment on admission. Hence, there is no merit in the revision petition to set aside of the order of the Trial Court and the matter requires to be considered on merits. Accordingly, I answer Point No.(1) as 'negative'. Point No.(2) 33. In view of the discussions made above, I pass the following: ORDER The revision petition is dismissed.