RAVEESH CHAND JAIN Vs RAJ RANI JAIN
Bench: M.Y. EQBAL,SHIVA KIRTI SINGH
Case number: C.A. No.-001822-001822 / 2015
Diary number: 35330 / 2014
Advocates: PRATIBHA JAIN Vs
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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.