Rajesh v. Sunil Gangwal

1. Petitioner seeks early hearing and disposal of the petition in question.

2. Learned counsel for petitioner submits that in view of the fact that there is clear-cut admission made by the defendant, it is a fit case where the learned Trial Court should have allowed his application moved under order XII Rule 6 CPC.

3. In view of the request made by the learned counsel for petitioner, the matter is taken up today itself.

4. Application stands disposed of accordingly. CM(M) 4121/2024

5. Petitioner had filed a suit seeking recovery of Rs.6.90 lacs against the defendant. The suit was earlier filed under Order XXXVII CPC but on the request of the plaintiff himself, the suit was converted into an ordinary one.

6. Admittedly, the written statement has already been filed by the CM(M) 4121/2024 2 defendant and he was also examined by the learned Trial Court under Order X CPC read with Section 165 of the Indian Evidence Act (Section 168 of Bhartiya Sakshya Adhiniyam, 2023). Based on his such examination, the plaintiff contends that, since, there is clear cut and unambiguous admission with respect to the execution of pro-note in question, there was no reason for the learned Trial Court to have dismissed the application.

7. Right here, this Court would clarify that the power vested with any such Court under Order XII Rule 6 CPC is discretionary in nature and no party can claim admission decree, as a matter of right. Reference in this regard be made to S.M. Asif v. Virender Kumar Bajaj: 2015 SCC OnLine SC 717 wherein the Hon’ble Supreme Court has held as under:-

8. Obviously, the case of the petitioner is based on the pro-note and he claims that he had given a sum of Rs.6.90 lacs in cash. Such transaction in cash is in teeth of the specific provision contained under Section 269ST of Income Tax Act, 1961.

9. Be that as it may, fact remains that when the written statement was filed by the defendant concerned, he, though, in para 7 of his such written CM(M) 4121/2024 3 statement admitted that he had filled up the pro-note on the assurance of meeting-members but he, also, in no uncertain terms contended that he had no dealing, whatsoever, with the plaintiff.

10. According to him, he had taken a sum of Rs.50,000/- from one Mr. Vijay Kirar, who is brother of the plaintiff and when, he was asked to return the money, said Mr. Vijay Kirar gathered some persons and then it was decided in the meeting that defendant would give some cheques and a pro-note in the name of Mr. Vijay Kirar.

11. He, though, admitted that the pro-note was filled up by him but he also contended that the liability was only of Rs.50,000/- and such amount he owned to the brother of the plaintiff and not to the plaintiff. His examination under Order X CPC is also, more or less, consistent with the averments made by him in the written statement.

12. Merely, because he admits that the pro-note is in his hand and bears his signatures would not, automatically, entitle the petitioner to have admission decree, straightaway.

13. It is not appropriate to take out one line in isolation. The stance of the defendant has to be read in toto and comprehensively.

14. The Court has gone through the impugned order dated 22.10.2024 and it is noticed that the learned Trial Court has also given due consideration to all such aspects of the case. It also observed that though, the presumption might be in favour of the plaintiff but the defendant cannot be denied any opportunity to lead evidence to discharge the burden placed on him under the law.