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‘REPORTABLE’  IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1822  OF 2015 (arising out of SLP(C)No.29805 of 2014)

Raveesh Chand Jain …..Appellant

versus

Raj Rani Jain …..Respondent

JUDGMENT

M. Y. EQBAL, J.

Leave granted.

2.  This appeal by special leave is directed against the judgment  

and order dated 28.8.2014 of the High Court of Delhi allowing the  

revision  petition  preferred  by  the  respondent/plaintiff  against  

the order of the trial court which has dismissed her application  

in a suit for recovery of possession and damages with respect to a

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portion of the property being in unauthorized occupation of the  

appellant/defendant.

3.  The  factual  matrix  of  the  case  is  that  the  plaintiff-

respondent filed a suit against the defendant/appellant who is her  

son, for recovery of possession and damages alleging that she had  

purchased the suit property out of her own fund and she is the  

absolute owner, but part of the property was under the illegal  

occupation  of  the  appellant-defendant,  who  opposed  the  suit  

contending that the suit property was a Hindu Undivided Family  

property having been purchased in the name of the respondent using  

the funds of his grandfather, father and himself and not purchased  

by  the  respondent  as  she  was  a  housewife  having  no  income.  

Appellant-defendant  further  pleaded  that  though  there  was  a  

dispute  regarding  his  ownership  and  possession,  the  same  was  

settled between all the family members vide compromise deed dated  

22.10.1997.  

4. The respondent filed an application under Order XII Rule 6 of  

the Code of Civil Procedure for passing a decree in her favour on  

the ground that a suit for partition, which had earlier been filed  

by the appellant on the same ground i.e. that the suit property

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was a HUF property, had been dismissed by the District Court vide  

judgment  dated  8.9.2003  and  affirmed  by  the  High  Court  vide  

judgment  dated  12.9.2011  and  the  respondent  contended  that  the  

same amounted to an unequivocal admission by the appellant that  

the respondent was entitled to possession.  

5. The trial court held that though the judgment dated 8.9.2003  

of the District Court and judgment dated 12.9.2011 of the High  

Court  had  rejected  the  plea  of  the  appellant  that  the  suit  

property was a HUF property, these findings were made in a suit  

for partition whereas the present suit was filed for recovery of  

possession and damages.  The trial court further held that for  

passing a decree under Order XII Rule 6 CPC, the defendant had to  

make  an  unequivocal  and  unqualified  admission.   The  appellant  

herein has not made such an admission regarding his liability to  

pay  the  damages  claimed  by  the  respondent.  The  trial  court  

dismissed the application vide judgment dated 7.6.2013.

6. Aggrieved by the judgment of the trial court, the respondent  

filed a revision petition before the High Court. The High Court  

while allowing the appeal and decreeing the suit with costs held  

that  the  pleas  taken  by  the  appellant-defendant  regarding  the

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contribution made by his grandfather, father and himself in the  

purchase of the suit property had been rejected by the High Court  

vide judgment dated 12.9.2011 and the same will operate as res  

judicata.  The High Court further held that while there was no  

evidence for holding the suit property to be a HUF property, the  

title deeds of the suit property and the land records stood in  

favour of the respondent-plaintiff.   The High Court noted that  

the only new plea taken by the defendant in his written statement  

was that he was a co-owner vide compromise deed dated 22.10.1997  

and held that this plea was barred on the grounds of constructive  

res judicata having not been raised earlier in the partition suit  

filed by the defendant. The High Court accordingly set aside the  

order passed by the trial court and decreed the suit.

7. Hence, the present appeal by special leave by the defendant-

son.

8. We have heard learned counsel for the parties.  Mr. Sushil  

Kumar Jain, learned senior counsel appearing for the appellant,  

assailed the order passed by the High Court manly on the ground  

that the High Court exceeded its jurisdiction under Section 115 of  

the Code of Civil Procedure.  According to the learned senior

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counsel  there  is  categorical  denial  that  the  appellant’s  

possession in the suit property is not that of a trespasser but on  

the basis of his own right. Learned senior counsel submitted that  

for passing a judgment under Order XII Rule 6 CPC there must be  

unequivocal admission by the defendant in the pleading.  According  

to the learned counsel judgment should not have been passed by  

applying the principles of res judicata inasmuch as the issue of  

res judicata does not arise in a case of judgment passed under  

Order XII Rule 6, CPC.

9. In order to appreciate the submission made by the learned  

senior counsel we would like to quote Order XII Rule 6 CPC, which  

reads as under:-

“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 an 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.”  

10. The bare perusal of the aforesaid provision makes it clear that it  

confers wide discretion on the court to pass a judgment at any stage of  

the suit on the basis of admission of facts made in the pleading or

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otherwise without waiting for the determination of any other question  

arose between the parties.  Since the Rule permits the passing of  

judgment  at  any  stage  without  waiting  for  determination  of  other  

question, it follows that there can be more than one decree that may be  

passed at different stages of the same suit.  The principle behind  

Order XII Rule 6 is to give the plaintiff a right to speedy judgment so  

that either party may get rid of the rival claims which are not in  

controversy.

11. The provision of Order XII Rule 6 has been discussed by this Court  

in  the  case  of  Karam  Kapahi  and  Others   vs.   Lal  Chand  Public  

Charitbale Trust and Another, (2010) 4 SCC 753, wherein this Court  

observed:-

“39.  In  the  54th  Law  Commission  Report,  an  amendment was suggested to enable the court to  give a judgment not only on the application of a  party but on its own motion. It is thus clear  that the amendment was brought about to further  the ends of justice and give these provisions a  wider sweep by empowering the Judges to use it  “ex debito justitiae”, a Latin term, meaning a  debt of justice. In our opinion the thrust of  the amendment is that in an appropriate case, a  party, on the admission of the other party, can  press for judgment, as a matter of legal right.  However, the court always retains its discretion  in the matter of pronouncing judgment.

40. If the provision of Order 12 Rule 1 is  compared with Order 12 Rule 6, it becomes clear  that the provision of Order 12 Rule 6 is wider  inasmuch as the provision of Order 12 Rule 1 is  limited to admission by “pleading or  otherwise  in  writing”  but  in  Order  12  Rule  6  the  expression “or otherwise” is much wider in view  of the words used therein, namely: “admission of  fact  …  either  in  the  pleading  or  otherwise,  whether orally or in writing”.

41. Keeping the width of this provision (i.e.

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Order 12 Rule 6) in mind this Court held that  under this Rule admissions can be inferred from  the  facts  and  circumstances  of  the  case  (see  Charanjit Lal Mehra v. Kamal Saroj Mahajan, SCC  at  p.  285,  para  8).  Admissions  in  answer  to  interrogatories are also covered under this Rule  (see Mullas’s Commentary on the Code, 16th Edn.,  Vol. II, p. 2177).

42. In Uttam Singh Duggal & Co. Ltd. v. United  Bank of India this Court, while construing this  provision, held that the Court should not unduly  narrow down its application as the object is to  enable a party to obtain speedy judgment.”

12. Coming back to the instant case there is no dispute that the  

plaintiff/respondent  filed  the  suit  for  possession  of  the  suit  

property and also for recovery of Rs.5,55,000/- and future damages  

at the rate of Rs. 15,000/- per month.  The plaintiff/respondent  

claimed title in the suit property and averred that the appellant  

is in unauthorized occupation of the suit property without any  

authority or justification.  In the plaint it was specifically  

pleaded that the ownership right in the suit property has already  

been decided in favour of the respondent and against the appellant  

by judgment and decree dated 8.9.2003 and the appeal filed by the  

appellant  was  also  dismissed  vide  judgment  dated  12.9.2011.  

Hence,  the  appellant  is  in  illegal  possession  of  the  suit  

property.

13. On  an  application  filed  by  the  plaintiff/respondent  under  

Order XII Rule 6 CPC seeking a judgment in the suit, the trial

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court  dismissed  the  application  stating  that  there  is  no  

unequivocal admission for passing a judgment in the suit.  The  

High Court, however, reversed the order passed by the trial court  

and  held  that  considering  the  earlier  judgment  deciding  the  

ownership of the suit property in favour of the appellant, the  

suit for possession ought to have been decreed by the trial court.  

Consequently, the High Court decreed the suit.  Paras 6 and 7 of  

the  impugned  judgment  passed  by  the  High  Court  are  quoted  

hereinbelow:-

“6.  The  only  new  aspect  urged  in  the  present  written  statement  is  that  the  respondent/defendant  claimed  that  he  received  ownership share in the suit property by virtue of  a  written  compromise  entered  into  before  the  police  station  Anand  Vihar  on  22.10.1997,  however, it is noted that the earlier suit, which  was  a  suit  for  partition  filed  by  the  respondent/defendant,  the  issue  as  regards  the  claim  of  the  respondent/defendant  to  the  ownership rights in the suit property was very  much in issue, and hence the respondent/defendant  had to urge in the earlier proceedings all the  basis of his claims of ownership rights in the  suit  property  and  if  that  was  not  done  the  respondent/defendant  is  now  barred  by  the  principle  of  constructive  res  judicata  from  raising any claims which ought to have been urged  in the earlier proceedings.  The principle with  respect to doctrine of res judicata is that there  must  be  finality  achieved  to  litigation  and  parties must not be harassed over and over again  merely by changing certain facts with respect to  the main relief claimed viz., of ownership rights  in the suit property.

7. In  view  of  the  above,  the  impugned  order

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dated  7.6.2013  is  completely  illegal  and  the  issues in the present case stand covered against  the respondent / defendant by the principle of  res judicata enshrined in Section 11 CPC.  So far  as the relief of possession is concerned, suit of  the plaintiff/petitioner/mother will hence stand  decreed against the respondent/defendant for the  portion  so  in  possession  of  the  respondent/defendant as per the site plant filed.  Since  the  respondent  /  defendant  /  son  is  harassing the mother from 1998 and today we are  in the year 2014, this appeal is allowed with  actual cost.  Petitioner / plaintiff will file an  affidavit in this Court supported by certificate  of  fees  of  her  counsels  in  this  appeal  with  respect to the fees paid to the counsels, and  such fees paid will be the cost which will be  payable  by  the  respondent  /  defendant  to  the  petitioner / plaintiff.  The aforesaid affidavit  accompanied by the certificate of the fees of the  counsels  be  filed  by  the  petitioner  within  a  period of four weeks and costs be paid thereafter  within a period of four weeks.”

14. From  the  reading  of  para  7  of  the  order,  as  quoted  

hereinabove, it reveals that the High Court not only decreed the  

suit for possession but also directed the plaintiff / respondent  

to file an affidavit giving details of the cost of litigation  

since the appeal was allowed with cost.

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15. As discussed hereinabove, there is no dispute with regard to  

the law settled by this Court that Order XII Rule 6 confers wide  

discretion on the Court to pass judgment either at the stage of  

the  suit  on  the  basis  of  admission  of  the  facts  made  in  the  

pleadings or otherwise, but the Court shall later on decide the  

other questions which arise for consideration in the Suit.

16. It is equally well settled that the provision of Order XII  

Rule  6  of  the  Code  is  not  a  mandatory  provision  rather  

discretionary.   While  exercising  power  of  passing  judgment  on  

admission made in the pleading or otherwise, the Court must keep  

the matter pending for adjudication so far as other issues are  

concerned.

17. Indisputably,  the  plaintiff/respondent  filed  the  suit  for  

following relief:-

i) A decree for possession of the suit property;

ii) A decree for recovery of Rs.5,55,000/- and future damages

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@ Rs.15,000/- per month against the defendant.

18. So far as the first relief for a decree for possession is  

concerned, we are in full agreement with the view taken by the  

High  Court  having  regard  to  the  question  of  ownership  already  

decided in the earlier suit filed by the defendant/ appellant.  

The said issue need not have to be decided afresh and hence on the  

basis  of  the  finding  of  ownership  decided  in  favour  of  the  

plaintiff/respondent, the suit has to be decreed so far as the  

recovery of possession is concerned.

19. So far as the second question with regard to the entitlement  

of the plaintiff/respondent to claim a decree for recovery of a  

sum of Rs. 5,55,000/- and future damages @ Rs.15,000/- per month  

is concerned, admittedly this question has not been decided either  

in the earlier suit or in this suit.  In that view of the matter,  

decreeing  the  entire  suit  on  the  basis  of  ownership  of  the  

plaintiff/respondent  already  decided  in  the  earlier  suit,  the  

decree for recovery of damages ought not to have been passed by  

the High Court.

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20. However, in the instant case, at the time of admission of this  

Special  Leave  Petition,  the  following  order  was  passed  on  

12.11.2014:-

“In the event the petitioner deposit a sum of  Rs.5,00,000/- (Rupees Five Lakhs) in the account  of his mother-Respondent, notice shall be issued  only confining to the question as to whether the  decree passed under the provisions of Order XII  Rule  6  CPC  is  justified.   The  amount  to  be  deposited within four weeks from today.

Put up the case on 11.12.2014. Till then, status quo, as on today, shall be  

maintained.”

21. In  compliance  of  the  aforesaid  order,  the  appellant  had  

already  deposited  the  aforesaid  amount.   Hence,  taking  into  

consideration the relationship of the appellant and the respondent  

being mother and son, we do not think it proper to again remand  

the matter to the trial court for deciding the issue as to the  

quantum of damages the respondent is entitled to get from the  

appellant for his unauthorized possession of the suit property.  

We, therefore, hold that the amount of Rs.5,00,000/- would be just  

and proper so far as the claim for damages is concerned.

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22. We, therefore, think it fit not to interfere with the order  

passed by the High Court.  This appeal is, therefore, dismissed.  

However, we allow the appellant to remain in possession of the  

suit property till 31.12.2015 on payment of Rs.10,000/- per month  

by way of damages for use and occupation of the suit property.  It  

is  made  clear  that  in  the  event  the  appellant    fails    to  

vacate and   hand over   the   vacant possession of the suit  

property and also fails in payment of monthly damages as fixed  

hereinabove on or before 31.12.2015, respondent will be entitled  

to execute the decree for recovery of possession and also for  

damages.

……………………………….J. (M.Y. Eqbal)

…………………………….J. (Shiva Kirti Singh)

New Delhi February 12, 2015.