Allowed

Khagendra Sethi v. Annapurna Sethi

Orissa HC17 May 2023MATA/20/2017

Case brief

AI extract

What is this about?

A Division Bench of the Orissa High Court allowed an appeal against a Family Court order that dismissed a paternity denial suit. The Court held that the lower court erred in relying solely on photocopies of prior documents to establish estoppel without providing the appellant an opportunity to verify or explain the alleged admissions. The appeal was allowed and the matter remanded.

What did the court decide?

The impugned order dated 26.12.2016 was set aside and the matter was remanded to the Family Court at Balasore to proceed expeditiously.

Khagendra Sethi Vs Annapurna Sethi — Matrimonial and Divorce | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 20 of 2017

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An appeal under Section 19 of the Family Courts Act, 1984.

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--------------
Khagendra Sethi ..…. Appellant
( Petitioner in Family Court )
-versus-
1. Smt. Arnapurna Sethi
2. Name withheld …… Respondents
(Respondents in the Family Court )
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For Appellant : Mr. B. Bhuyan, Advocate
For Respondents : Mr. H.B. Dash, Advocate
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CORAM:
HONOURABLE MR. JUSTICE S. TALAPATRA
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
17.05.2023

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Savitri Ratho, J The Appellant has challenged the order dated 26.12.2016

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passed in Civil Proceeding No. 24 of 2015 (I) by the learned Judge, Family Court, Balasore. By the said order, the learned Judge has dismissed the suit filed by the Appellant as not maintainable holding that it was filed with frivolous motive and was barred by the law of estoppel.

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In order to decide this appeal, we have to examine whether

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the learned trial Court was justified in dismissing the suit basing on the alleged admission of the Appellant in an earlier proceeding i.e. C.P. No.1056 of 2010 filed by him, by relying on Photostat copies

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of documents filed by the Respondents .

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BACKGROUND FACTS

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2. C.P. No. 24 of 2015 had been filed by the Appellant as

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Petitioner, for declaration and permanent injunction against the Respondents praying for the following reliefs :

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“ a.) Let, the Hon'ble Court pass a decree declaring that the petitioner is not the father of the respondent No.2, born to the respondent No.1and the respondent no.2 is not the legal heir of the petitioner.

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b.) Let the decree be passed against respondent No.1 including her agents, servants, legal representatives, associates and be permanently injuncted not to disturb with the petitioner’s right and status and not to cause any damage to the status , house and property situated at his native village Nuaparhi of the petitioner in any manner.

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c) The costs of the suit or such other relief/reliefs which the petitioner is entitled to get under law, equity and justice be decreed/awarded to the petitioner. ”

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3. In his plaint / petition the Appellant had made various

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allegations against the Respondent No.2. Paragraph 11 and 13 of

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the plaint / petition are relevant and extracted below:

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“ 11. That the respondent No.1 did not allow the petitioner for co-habitation at any point of time and assaulted him. As a matter of fact, the spouses had / have never cohabited and the respondent No.1 had sexual intercourse with a person other than the petitioner and the respondent No.2 was born on 13.6.2004 at the time when the child could have not been conceived in the womb of her mother, the respondent No.1 through the petitioner.. The petitioner was /is not the father of the respondent No. 2 born to respondent No.1. The petitioner is seriously disputing the paternity of the respondent No.2. During that period, the petitioner was living at his service place at Govt. College. Phulbani District and Respondent No.1 was living at village at different districts .The petitioner had no existing opportunity to have any sexual relationship with respondent No.1 at the time when respondent No. 2 could have been begotten.”

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12xxx

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“13. That the respondent No.1 instituted C.T. No. 591/2014 and D.V. Misc Case No.: 93/2014 and maintenance before the S.D.J.M., Balasore and Cr.P. No. 76/2012 before Judge, Family Court, Balasore. Being

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noticed from the Court of the S.D.J.M., Balasore on dt. 26.3.12 and 23.4.2014 and every dates thereafter the petitioner came to know about the false claim made by the respondents which has disturbed the petitioner’s status as father of the respondent No.2 and a cloud having been cast upon it for the first time for which petitioner constrained to file the suit for necessary declaration & permanent injunction against the respondents.”

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Copy of the plaint in C.P. No. 24 of 2015 is annexed as

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Annexure 1 to the MATA.

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4. Having received the summons from the Court, the Respondents appeared in the case though their counsel on 27.02.2015. On 09.11.2105, the Respondents filed a detailed written statement alongwith a counter claim praying for a decree for award of Rupees Ten lakhs towards mental torture and agony and also a sum of Rupees Two lakhs towards litigation expenses to restrain the Appellant from vilifying the character of Respondent No.1 and paternity of the respondent No.2. Along with her written statement, she had also filed an application under Order -7 Rule 11 of the C.P.C. In the application under Order 7 Rule 11, it had been stated that in Guardian Misc. Case No. 136 of 2013, the Petitioner

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admitted the Respondent No.2 is his daughter and that she is born on 13.06.2004 out of the wed lock of the Petitioner and Respondent No.1 for which the reliefs claimed by the Petitioner in the case was not maintainable. It was stated at paragraph 2 of the counter claim as follows:

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“2. That, the Petitioner has admitted the Respondent No.2 as his daughter who has taken birth on 13/06/2004, out of the wed lock between the Respondent No. 1 and the Petitioner, which is apparent from the C.P. No. 136/2013 pending in the Court of Family Judge, Baleshwar, filed by the present Petitioner. In that case the Petitioner has sought for the relief of custody of the girl child/ Respondent No.2 admitting to be his own offspring. But, while the Respondents filed the D.V. Misc. Case & Maintenance case the Petitioner apprehending the payment of the maintenance to the Respondents filed this false & vicious case against the Respondents, just to get rid of payment.”

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Copy of the petition under Order -7, Rule – 11 CPC is

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annexed as Annexure 2 to the MATA.

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5. In paragraphs 15 and 17 of their written - statement the Respondents have specifically denied the averments made in paragraphs 11 and 13 of the plaint. They have further stated that

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due to non fulfillment of dowry demand of Rupees Two lakhs, the Respondent No. 1 was tortured and the Petitioner (Appellant ) wanted to finish her for which she had filed a case under Section –

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498 – A and other allied offences against him and his other family members – CT No. 591 of 2014 pending in the Court of the SDJM Balasore and D.V Misc Case No. 93 of 2014 in the same Court.

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They have further stated that from 2003—4 while serving as lecturer in Govt. College Phulbani , the Petitioner used to stay in rented accommodation and kept illicit relations with another woman and the two of them had assaulted her and attempted to compel her to terminate her pregnancy in 2003 when she was in an advanced stage and also threatened to murder her . Brother and father of Respondent No.1 on coming to learn of this stopped them, but the Petitioner continued to accelerate the torture and cruelty .

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She gave birth to their daughter on 13.06.2004. Birth of a daughter displeased the Petitioner and his family members and they did not take care of the Respondents. Respondent No. 1 was able to manage with the help of her parents and brother. Petitioner maintained distance from the child and. the latter has remained in the custody of Respondent No.1 and was prosecuting her studies in

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Baripada. and was studying in Class VI at that time . It was further stated that admitting that Respondent No.2 was his child, the Petitioner had made filed C.P. No. 136 of 2010 in the same Court with a prayer to take her custody. He had filed the false and vicious case to get rid of payment. She and her daughter were living in her matrimonial house in Nuaparhi and she had filed D.V Misc case No 93 of 2014 and a proceeding under Section 125 Cr.P.C. for their sustenance. In spite of order passed for payment of interim maintenance, he was not complying with the same.

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At paragraph 2 of the counter claim , it has been stated that

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the Petitioner has admitted that Respondent No 2 is his daughter who was born on 13.06.2004 which is apparent from C.P.No. 136 of 2013 pending in the Court of the Family Judge , Baleswar and in that case he has sought for the relief of custody of the girl child / Respondent No.2 . Copy of the written statement containing the counter claim is annexed as Annexure 3 to the MATA.

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6. The order sheet containing order No.1 dated 12.01.2015 to order dated 26.12.2016 passed in C.P. No. 24 of 2015 –I by the learned Judge Family Court, Balasore has been annexed as Annexure 8 to the MATA.

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7. Perusal of the same reveals that petition dated 09.11.2025 under Order 7, Rule 11 C.P.C. was rejected as none moved. But the case was posted to 28.03.2016 for objection.

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8. On 09.05.2016, the Petitioner – Appellant filed objection to petition dt.09.11.2015 filed by the Respondent. He also filed his written statement/ reply in the counter claim and a petition challenging the maintainability of the counter claim under Order 8

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Rule 6 (c) of the C.P.C. praying to exclude the counter claim as that would change the nature of the civil proceeding and was vague and barred the law of limitation. Copy of the reply to the written statement is annexed as Annexure 4 to the MATA. Copy of the petition under Order 8, Rule 6(c) CPC is annexed as Annexure 6 to the MATA.

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9. The respondent filed objection to the petition under Order 8, Rule 6 on 22.09.2016 stating inter alia that the questions required to be decided in the counter claim are mixed questions of fact and law which cannot be decided at this stage. According to the respondent, the court has jurisdiction to entertain and decide the counter claim along with the original application for declaration.

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Copy of the objection has been annexed as Annexure 5 to the MATA.

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10. The Appellant Petitioner had filed an application on 25.10.2016 with a prayer for issue of a direction to the Petitioner and Respondent No.2 (Child) for undergoing D.N.A. test to prove the paternity of Respondent No.2. This application had been posted for filing of objection and hearing. Copy of the petition is

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annexed as Annexure 7 to the MATA.

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11. On 29.11.2016, the respondent was heard in the matter of admissibility of the counter claim was heard and the case was posted to 16.12.2016 for orders. On 16.12.2016, the respondent No. 1 filed copy of order dated 17.11.2015 passed in C.P. No. 136 of 2013 along with copy of petition and objection. The case was heard on that day and on 19.12.2016 and posted to 26.12.2016 for orders.

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IMPUGNED ORDER

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12. Relying on photocopies of the certified copies of order dated 17.11.2015 passed in C.P. No. 136 of 2013 (C.P. No.

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1050/2010) and the copy of the petition under Order 6 (a) of the Hindu Minority and Guardianship Act read with Section 7 of the

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Family Court’s Act instituted by the Appellant and the objection filed by the Respondents, the learned Judge Family Court relied on the admission of the Appellant Petitioner that Respondent No.2 is his daughter and is residing with Respondent No.1. He observed that although the Petitioner-Appellant in the earlier suit had clearly admitted that the Respondent No.2 is his own daughter born from his marriage with Respondent No.1, but for some ulterior motive wanted to disown the legitimacy of Respondent No.2 and as admission is the best evidence, though not conclusive, yet decisive and law leans in favour of legitimacy and frowns upon bastardity, referring to the decision of the Hon’ble Supreme Court in the case of Smt. Kamti Devi & Another vrs. Poshi Ram held that the case instituted by the Appellant -Petitioner was with frivolous motive and is barred by the law of estoppels and the continuance of the proceeding would be against the interest of justice and dismissed the same as not maintainable. Copy of the order dated 26.12.2016 in contained in Annexure 8 to the MATA.

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SUBMISSIONS

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13. Mr. B. Bhuyan, learned counsel appearing for the Appellant submits that though the application had been filed by the

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Appellant for D.N.A. of Respondent No.2, but without considering the said application, the learned Judge, Family Court has dismissed the suit. He has further submitted that the Appellant on humanitarian ground had earlier filed the petition for custody of Respondent No.2 the child from Respondent No.1, but Respondent No.2 is not his child and the impugned has been passed mechanically with utter disregard to the statute and the settled position of law and is therefore liable for interference.

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14. Mr. H.B. Dash, learned counsel appearing for the Respondents has supported the portion of the order dismissing the suit holding that admission is the best piece of evidence and that the suit had been filed by the Appellant with the oblique motive of avoiding payment of payment to his daughter Respondent No 2. and he had done so by concealing relevant facts and his own admissions in earlier court proceedings. He had filed C.P. No. 252 of 2009 in the Court of The Judge, Family Court Cuttack where during evidence in his cross examination made on dated 21.12.2021 in paragraph 25, the Appellant has claimed that he had

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borne the expenditure towards her delivery. He had filed C.P. No.1056 of 2010 under Section – 6 (a) of the Hindu Minority and

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Guardianship Act 1956 read with Section 7 of the Family Courts Act 1984 in the Court of the Learned Family Judge , Cuttack for taking custody of the child in wherein he has pleaded that on 13.06.2004 the female child was born out of their wed lock and in paragraph 2 and 17 of the petition. In paragraph 15 of the petition he has referred to her as his daughter. In his objection filed in CrI.P. No 76 of 2012 filed by the Respondents before the Judge Family Court, Balasore claiming maintenance, he has admitted that the child was born out of their wed lock. In his objection filed in DV Misc case no 93/2014 before the SDJM, Balasore, in paragraph 9 of his objection , he has admitted / stated that the child was born out of the wed lock on 13.06.2014 and at paragraph 16 he has stated that he is ready to maintain the child along with her study expenses if the order is passed at the earliest. Order was passed in Cr. Proceeding No 76 of 2012 on 18.11.2014 for payment of interim maintenance to an extent of Rs 15,000/- to the Respondents (wife and daughter). Thereafter on 12.01.2015, the Appellant filed CP No 24 of 2015 before the Judge, Family Court Balasore for a declaration he is not the father of the child/respondent no-2 with oblique motive and in order to avoid payment of maintenance to

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her. He has relied on the decisions of the Hon’ble Supreme Court in the case of Srihari Hanumandas Totala vs Hemant Vithal Kamat reported in 2021 SCC OnLine SC 565: 2021 9 SCC 99 , and T. Arivandandam vs T.V. Satyapal & Another reported in : (1977) 4 SCC 467 : AIR 1977 SC 2421. Relying on the decision in T. Arivandandam (supra), Mr. Dash, learned counsel for the Respondent has submitted that when the Petitioner had admitted in his plaint in C.P. No. 1056 of 2010 supported by an affidavit that Respondent No.2 is his daughter, he was estopped from making a contrary claim in C.P. No. 24 of 2015 that she was not his daughter. The C.P. No. 24 of 2015 was therefore evidently a frivolous petition and did not have any merit and was therefore liable to be dismissed.

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He has filed a note of submission on 18.11.2022, enclosing

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copies of the petition for divorce in C.P. No. 252 of 2009 and copy of his petition in C.P. No 1056 of 2010.

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STATUTORY PROVISIONS

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15. The relevant provisions which are relevant for deciding the case are Section 17, Section 58, Section 70 and Section 145 of the

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Indian Evidence Act and Order 7 Rule 11 and Order 12 Rule 6 of

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Code of Civil Procedure which are reproduced here for easy reference.

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Indian Evidence Act

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Section 17 Admission defined. An admission is a

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statement, oral or documentary or contained in electronic form , which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

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Section 58. Facts admitted need not be proved . —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

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Section 70. Admission of execution by party to attested document. —The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

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Section 145. Cross-examination as to previous statements

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in writing. —A witness may be cross-examined as to previous statements made by him in writing or reduced

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into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.1145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

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Code of Civil Procedure

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Order 7 Rule 11. Rejection of plaint - The plaint shall be rejected in the following cases: -

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(a) where it does not disclose a cause of action;

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(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;

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(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the

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requisite stamp-paper within a time to be fixed by the Court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law;

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Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamppapers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

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Order 12 Admissions

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1. Notice of admission of case .—Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

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2. Notice to admit documents .—Either party may call upon the other party to admit, within seven days from the date of service of the notice any document, saving all exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be

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allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.

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2A. Document to be deemed to be admitted if not denied after service of notice to admit documents .—(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability: Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.

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(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.

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3. Form of notice .—A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.

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3A. Power of Court to record admission .— Notwithstanding that no notice to admit documents has been given under rule 2, the Court may, at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall, in such a case,

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record whether the party admits or refuses or neglects to admit such document.

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4. Notice to admit acts .—Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts, mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs:

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Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice.

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5. Form of admissions . —A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions of facts shall be in Form No. 11 in Appendix C, with such variations as circumstances may require.

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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

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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.

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(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.”

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As per the provisions of Order 12 Rule 6, a suit can be

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dismissed on the basis of admitted facts, admitted documents and

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admitted pleadings.

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CASE LAW

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16. In the case of T. Arivandandam (supra), the Supreme Court inter alia stated that the father of the Petitioner has contested

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an eviction proceeding. After losing it he filed an appeal which was dismissed. Against his dismissal, he moved the revision, which

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was summarily rejected by the High Court but six months time had granted the time to vacate the premises. After enjoying the benefit of this order, he moved for further time to vacate. Thereafter, the Petitioner filed a suit before the Court of Munsif for a declaration

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that an order of eviction which has been confirmed by the High Court one obtained by fraud and injunction against its execution.

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When this was brought to the notice of the High Court during hearing of the prayer for extension of time for vacate, the learned Judge granted time to the Petitioner on the basis that the suit would be withdrawn by the Petitioner. But father and son did not withdraw the suit and they filed another suit before the Munsif which praying for an ex parte injunction. But the Respondent entered appearance and after hearing him the Munsif vacated the order of injunction. Thereafter the Petitioner came to the High Court in revision and obtained an order of injunction. The first Respondent applied for vacation. When the matter came up for hearing before the Hon’ble Single Judge, the Petitioner submitted that the Single Judge could not hear the matter. On the next date he heard the revision and dismissed it. The Supreme Court held as

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follows:

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“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints .The learned Munsif must remember that “if on a meaningful -not Page 20 of 32

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formal- reading of the plaint it is manifestly vexatious and meritless ,in the sense of not disclosing and does not disclose the clear right to sue, he should exercise power under Order VII Rule 11 of the C.P.C., taking care to see to see that the ground mentioned therein is fulfilled. And if clever drafting has created the illusion of a cause of action, nip it is the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shotdown at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:

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"It is dangerous to be too good””…

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In the case of Srihari Hanumandas Totala (supra), the

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Supreme Court inter alia stated that on the case of rejection of a

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plaint under Order 7 Rule 11 of the C.P.C., as follows :

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“24. In a more recent decision of this Court in Shakti

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Bhog Food Industries Ltd. v. Central Bank of India and Another: (2020) 17 SCC 260 , a three Judge bench of this Court, speaking though Justice A.M.Khanwilkar, was

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dealing with the rejection of a plaint under Order 7 Rule 11 by the trial court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. State of Maharashtra : (2003) 1 SCC 557 , Church of Christ Charitable Trust vs Ponniaman Educational Trust : (2012) 8 SCC 706 (supra), and observed that .

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“11. It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 .”

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25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:

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25.1 To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

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25.2 The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

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25.3 To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

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25.4 Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

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In the case of S.M. Asif vs Virendar Kumar Bajaj : (2015)

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9 SCC 287 , the Supreme Court has held:

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“ 8. The words in Order 12 Rule 6 CPC “may ” and “ make such order …” show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and

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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 12 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.

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9. In the suit for eviction filed by the respondentlandlord, 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 respondentlandlord. 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 12 Rule 6 CPC.

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10. Having regard to the stand taken by the parties, in our view, an opportunity has to be afforded to the appellant to put forth his defence and contest the suit and therefore, the matter is to be remitted to the trial court for a fresh hearing, however, subject to the condition that the

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appellant should pay the arrears of rent at the rate of Rs.44,000/- per month within a period of eight weeks. Further the appellant shall pay Rs.1,00,000/- per month to the respondent-landlord as compensation for use and occupation of the suit premises with effect from 01.08.2015 and the respondent-landlord shall issue necessary receipt/acknowledgment for having received the same. The trial court vide its order dated 30.09.2013 while directing the payment of Rs. 44,000/- per month has stipulated a condition that in the event of the appellant succeeding, the said amount would be adjusted against the balance sale consideration amount under the agreement for sale dated 19.08.2011. Having regard to the said order passed by the trial court, payment of sum of Rs.1,00,000/- per month would also be subject to the final outcome of the eviction suit as well as the suit for specific performance.( emphasis

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supplied )

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In the case of Himani Alloys Ltd vs. Tata Steel Ltd. :

¶198

(2011) 15 SCC 273 , the Supreme Court has held:

¶199

“It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor

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peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon.

¶204

( See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India : (2000) 7 SCC 120; Karam Kapahi vs. Lal Chand Public Charitable Trust : (2010) 4 SCC 753 ; and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha :(2010) 6 SCC 601) . There is no such admission in this case.

¶205

11. In view of the above, we allow this appeal, set aside the orders of the learned Single Judge and the division bench of the High Court dated 22.2.2008 and 22.9.2008. We make it clear that we have not recorded any finding nor expressed any opinion in regard to the merits of the case or in regard to any part of the suit claim. It is possible that on evidence being led, the respondent is able to establish that Rs.47,06,775/70 was in fact due as on

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31.3.1999 and that it continues to be due. We request the High Court to dispose of the suit expeditiously. ”

¶210

In the case of Uttam Singh Dugal & Co.Ltd vs. Unied

¶211

Bank Of India : (2000) 7 SCC 120, it has been held as follows:

¶212

“17. Learned counsel for the Petitioner contended that admissions referred to in Order XII, Rule 6 CPC should be of the same nature as other admissions referred to in other rule preceding this Rule. Admissions generally arise when a statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872. Admissions are of many kinds : they may be considered as being on the record as actual if that is either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Secondly as between parties by agreement or notice. Since we have considered that admission for passing the judgment is based on pleadings itself it is unnecessary to examine as to what kinds of admissions are covered by Order XII, Rule 6 CPC.”

¶213

In the case of Karan Kapoor vs. Madhuri Kumar : 2022 SCC 496, the Supreme Court held :

¶214

“ 16. Thus, legislative intent is clear by using the word ‘may’ and ‘as it may think fit’ to the nature of admission.

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The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke the power of Order XII Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by other, and the Court is satisfied to the nature of admission, then the parties are not compelled for fullfledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the Court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the Court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the Court a decree be drawn accordingly and parties to the case is not required to go for trial .”

¶219

ANALYSIS

¶220

17. At the initial stage of the suit, the Court has the power to reject the plaint in exercise of power under Order 7 Rule 11 of the CPC on the grounds provided therein or dismiss the suit in exercise of power under Order 12 Rule 6 of the CPC on the basis of admitted facts or documents.

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18. There can be no quarrel over the settled proposition of law

¶225

that the admission which is clear, unequivocal and unconditional may entitle the plaintiff or defendant to a judgment based on such admission. But this admission has to be unequivocal. If this is so, the defendant should not be relegated to the rigors of a long drawn trial.

¶226

19. As per the provisions of Order 12 Rule 6 of the CPC , a suit can be dismissed on the basis of admitted facts, admitted documents and admitted pleadings. Order 12 Rule 6 of the CPC

¶227

plays a vital role in minimizing litigation and enabling speedy disposal of cases especially frivolous cases. The Court can pass judgment on the basis of admitted facts. Order 12 Rule 6 of the CPC can therefore be resorted to by a defendant for the dismissal of the suit on the basis of admitted averments. The object of Order 12 Rule 6 of the CPC is not to relegate a party to an unnecessary trial where facts are admitted and the object of Order 7 Rule 11 of the CPC is not to hold a trial where the plaint does not make out any cause of action or the suit is barred by law.

¶228

20. But what would amount to admission so as to warrant exercise of power under Order-12 Rule-6 of the CPC?

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“ Admission ” has not been defined in the CPC but Section-17 of

¶233

the Indian Evidence Act defines admission to be a statement made in the oral, documentary or electronic form suggesting an inference to a fact-in-issue or relevant fact. Section 58 of the Indian Evidence Act provides that where a fact has been admitted by the parties or their agents, there would be no requirement to prove such facts.

¶234

However it has to be proved before the Court that such fact has indeed been admitted and the proviso to the Section gives a discretionary power to the Court to require such admitted facts to be proved by other means.

¶235

21. Without calling for the original case record or the certified copies of the plaint and order, the learned Court on perusal of the photocopies of the plaint in the earlier case - C.P.No.1056 of 2010 / C.P.No.136 of 2013, has dismissed the suit. No opportunity has

¶236

been provided to the Appellant (Petitioner) to scrutinize the documents or explain the admission allegedly attributed to him.

¶237

22. It cannot be disputed that admissions made either in the pleadings or before the Court at the time of hearing of the case are admissible under Section 58 of the Indian Evidence Act, but these admissions have to be proved in accordance with law in the

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subsequent suit / proceedings. Relying on photocopies of orders or documents without confronting them to the maker will lead to difficult situations and will give rise to multiplicity of litigation instead of minimizing it. The legislative intent behind providing such a discretionary power to the Court was for situations where certain admissions have been made by a party and the court is satisfied with the nature of such admission, it can pass a judgment or decree based on such admission. Power under Order 12 Rule 6 of the C.P.C should therefore be exercised only where the admission of documents or facts is clear, unambiguous and categorical. After examining the “admission”, the Court should be satisfied that it can be attributed to the Petitioner . If there is any doubt in the mind of the Court as regards the acceptability of such admission after the same is confronted to the person who made it ,

¶242

the Court cannot dispose of the suit in exercise of power under Order 12 Rue 6 of the CPC on the basis of such admission.

¶243

CONCLUSION

¶244

23. In view of the above discussion, we are of the view that

¶245

the impugned order dated 26.12.2016 passed in C.P. No. 24 of 2015 passed by the learned Judge, Family Court, Balasore is liable

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for interference. It is accordingly set aside. The matter is remanded

¶250

to the Court of the learned Judge, Family Court, Balasore. The learned trial court shall proceed with the case expeditiously in accordance with law.

¶251

24. The MATA is allowed to the extent as indicated.

¶252

25. We make it clear that we have not expressed any opinion

¶253

on the merit of the case.

¶254

………………………….
[ (Savitri Ratho, J)
. I agree .
……………………….
(S. Talapatra, J)
Orissa High Court, Cuttack.
The 17 th day of May, 2023.
Puspa P.A / Sukanta Sr. Stenographer.

¶255

Signature Not Verified

¶256

Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: PERSONAL ASSISTANCE Reason: Authentication Location: orissa high court Date: 29-May-2023 15:32:17

¶257

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¶258

MATA No. 20 of 2017

Khagendra Sethi v. Annapurna Sethi

Case brief

What is this about?

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Khagendra Sethi v. Annapurna Sethi

Case brief

What is this about?

What did the court decide?

What the court decided

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