Full Text
FAO(OS) 350/2013
ARVINDER KAUR & ORS Appellants
Through : Mr.Bhagat Singh, Adv.
Through
HON'BLE MR. JUSTICE NAJMIWAZIRI
02.08.2013 The present appeal is directed against an order of9^*"May, 2013 wherebythe defendant/appellant's application under OrderXIIRule 6
CPC for dismissal of the suit was rejected. The plaintiff- i.e. the respondent, in the present appeal - claims partition. The defendants had urged that the plaintiffhad been given in adoption to his uncle.
The plaintiff's contention, on the other hand, was that the adoption was no longer in existence since it had been cancelled. The plaintiff relied upon certain documents, including affidavits, one ofwhich was •
2013:DHC:6965-DB filed during the pendency ofthe suit, and certain otherproceedings, to contend that the plaintiffhad unambiguously been adopted as the son ofJagbir Singh, second respondent. It was thus contended that the plaintiffcould not maintain the suit for partition.
/ The learned Single Judge by the impugned order took note of the previous proceedings as well as the unsuccessful attempts ofthe defendants to have the suit rejected and thereafter observed that relief under Order XII Rule 6in the peculiar facts and circumstances relief could not be granted.
ORDER
11. Ithasfurther been enquiredfrom the counselfor the defendants no. lto4/applicants that ifthe claim of the defendants no.lto4/applicants isfor dismissal on the basis ofthe aforesaid admission ofdocuments, whether the right oftheplaintijfto given explanation therefor can be shut out by dismissal ofthe suit.
12. No answer isforthcoming.
13. I am ofthe view thatthe admissions which are in the nature ofevidence cannot invite disposal under Order 12 Rule 6 of the CPC inasmuch as decision cannot be onpart ofthe evidence only andwithout giving opportunity to the parties to lead entire evidence.
14. There is thus no merit in the application which is dismissed." J Learned counsel for the defendants urged that the impugned order errs in law and relies upon previous unsuccessful attempts of the defendants/appellants, which have ultimately persuaded the learned Single Judge. It was contended that each ofthe documents, particularly the affidavits, unequivocally state that the plaintiff was the son of Jagbir Singh; ifso, he could not have claimed partition,of the suit properties which were originally owned by Sardar Amarjeet Singh. This Court has carefully considered the submissions. The law pertaining to decree on admissions no doubt states that the approach ofthe Court should be to give effect to unambiguous admissions and curtail litigation whenever possible. However, the rulings are also clear that what appears to be an admission can often times j^e ' explained otherwise during the course ofafull trial. This is precisely what had persuaded the learned Single Judge, as is evident from reading ofpara 11, to reject the application for decree ofdismissal on admission. This Court is of the opinion that no error is found with the impugned order since the plaintiff, being in carriage ofproceedings, could have a possible explanation about the documents given the opportunity of trial. The Court further notices that vide order dated 9'^ May, 2013, parties have been released from the rigours of Section 52 of the Transfer of Property Act, 1882. The Court thereafterproceeded to in para 22, frame issues and set downthe suit for trial. In view ofthe above reasons and having regard to all particular circumstances, the Court isofthe opinion that there isno infirmity in the impugned order. The appeal isaccordingly rejected.
S. RAVINDRA BHAT, J
NAJMI WAZmi, J AUGUST 02, 2013 'sn'