Delhi High Court
Aparna Ashram Society & Anr. vs Mr.Mohan Jha & Ors. on 8 November, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 27th August, 2024
Pronounced on: 8th November, 2024
+ RFA 9/2022, CM APPL. 1010/2022, CM APPL. 1011/2022, CM
APPL. 17527/2022, CM APPL. 17652/2022, CM APPL.
19125/2024, CM APPL. 25610/2024, CM APPL.
25611/2024, CM APPL. 25612/2024, CM APPL. 25613/2024 &
CM APPL. 37046/2024
APARNA ASHRAM SOCIETY & ANR. .....Appellants
Through: Mr. Ashish Dholakia, Senior
Advocate with Mr.Shubhoday
Banerjee, Mr. Sanjay Khanna,
Mr.Pragya Bhushan,
Mr.Karandeep Singh and Mr.
Tarandeep Singh, Advocates.
versus
MR.MOHAN JHA & ORS. .....Respondents
Through: Mr. Sanjeev Anand, Sr. Advocate
with Mr. Arush Khanna and Mr.
Vaibhav Mehra, Advocates for R-2
to R-5.
Mr Sanjay Katyal, Standing
Counsel for DDA.
Dr. Surya Prakash, Advocate for
Aparna The Deity.
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant regular first appeal has been filed by the appellants
under Section 96 of the Code of Civil Procedure, 1908 (hereinafter as
‘CPC’) seeking the following reliefs:
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KUMAR BABBAR
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“(a) call, summon and peruse the records of the Ld. Trial
Court of Sh. Jay Thareja, Ld. ADJ-07, South-East District,
Saket Courts, Delhi in Civil Suit No.7447/2016 titled as
“Apama Ashram Vs. Mohan Jha & Ors. “;
(b) admit the present appeal;
(c) set-aside the impugned judgment and Decree both dated
04.12.2021 and observations made therein passed by the Ld.
Trial Court of Sh. Jay Thareja, Ld. ADJ-07, South East
District, Saket Courts, Delhi in Civil Suit No.7447/2016
titled as “Apama Ashram Vs. Mohan Jha & Ors.”;
(d) remand back the present matter to the Ld. Trial Court for
its adjudication on the issues framed in the suit;
(e) award the cost of the appeal in favour of the appellants
and against the respondents.
(f) pass any other order(s) or relief, which this Hon’ble
Court may deem fit, just and proper in the facts and
circumstances of the case in favour of the appellants and
against the respondents, in the interest of justice.”
FACTUAL MATRIX
2. The appellant no.1/plaintiff (hereinafter as ‘appellant
Society/plaintiff’) was given possession of the property bearing plot
number A-12, New Friends Colony, New Delhi (hereinafter as ‘suit
property’) after voluntary donation by one Shri Gurcharan Singh Sethi in
the year 1976. The appellant no.2 is the elected president of the appellant
society.
3. In the year 2009, a suit bearing no. 7447/16 seeking permanent
injunction was filed by the appellant society through its authorized
representative (hereinafter as ‘AR’) namely Mr. K.S. Pathania against the
respondents alleging the respondents’ intention to take possession of the
suit property illegally.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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4. During the proceedings before the learned ADJ, South-East
District, Saket Courts, Delhi (hereinafter as ‘learned Trial Court/Court
below’) various applications were filed by the parties for different
concerns, and the same were pending for adjudication before the learned
Court below.
5. One such application dated 10th September, 2009 under Section
151 of the Code of Civil Procedure, 1908 (hereinafter as ‘CPC’) was filed
by the appellant Society for replacing one Mr. Murali Chaudhary in place
of Mr. K.S. Pathania and the same was allowed vide order dated 19th
December, 2012, and therefore, Mr. Murali Chaudhary was replaced as
the authorized representative.
6. In the year 2014, Mr. Pathania filed an application under Section
151 of the CPC for his substitution by stating to be the authorized
representative of the appellant Society, however, the same was dismissed
vide order dated 27th January, 2015.
7. Thereafter, multiple applications were filed by various persons
stating to be the authorized representatives of the appellant Society and
one such application was filed by one namely Mr. Subhash Dutta which
was listed for pronouncement of orders on 4th December, 2021.
8. On 4th December, 2021, it is stated that the learned Trial Court
dismissed the suit in its entirety by holding that the appellant society is
not represented by an authorized person, and therefore, the suit cannot be
tried.
9. Aggrieved by the same, the appellant Society has filed the instant
regular first appeal seeking setting aside of the order dated 4th December,
2021.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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PLEADINGS BEFORE THIS COURT
10. The appellant society has taken the following grounds in the
pleadings for setting aside the impugned order.
“A. Because the impugned judgment and decree is against
the facts and based on conjectures and surmises and is liable
to be set-aside.
B. Because the impugned judgment and decree is not
tenable in the eyes of law and is not based upon the legal
jurisprudence and hence is liable to be set-aside
C. Because the impugned judgment and decree is based
on the assumptions and presumptions of the Ld. Trial Court
and hence is liable to be set-aside.
D. Because the impugned judgment dated 04.12.2021 is
based upon conjectures and surmises which have been
derived by the Ld. Trial Court based on its assumptions and
presumptions and without the support of documents filed in
the suit having evidentiary value or on documents or
submissions having legal sanctity.
E. Because the impugned judgment dated 04.12.2021 is not
based upon the ratio descendie of the precedents mentioned
and referred to in the impugned judgment but the obiter
dicta of the same.
F. Because the impugned judgment dated 04.12.2021 is not
tenable in the eyes of law as it has been the precedent that
no two suits have almost the same facts. The implementation
of the pre-decided judgments/orders needs to be evaluated in
accordance with the facts of the case in hand before the trial
court and only those parts of the decided judgments/orders
be applied which cannot be distinguished according to the
facts of the case.
G. Because the Ld. Trial Court while passing the impugned
judgment dated 04.12.2021 has adorned the judicial activism
inasmuch as the Ld. Trial Court on one hand refused to take
on record the “Brief Notes” filed on behalf of Ld. counsel for
the applicant Sh. Subhash Dutta (appellant no.2 herein) on
04.12.2021 on the ground that the same do not pass the
muster of the law laid down in ‘Kiran Chhabra Vs. PawanSignature Not Verified
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KUMAR BABBAR
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Kumar Jain, (2011) 178 DL T 462′ and also that the same
had been filed at the nth hour, without even supplying a copy
to the other side; however, on another side, the same was
kept on the file. Needless is to mention that the Hon’ble High
Court of Delhi in the above-mentioned judgment being
C.S.(OS) No.1671/2009 decided on 14.02.2011 titled as
‘Kiran Chhabra & Anr. Vs. Pawan Kumar Jain & Ors.” had
laid down certain guidelines with respect to the structure of
the written arguments. However, while passing the said
judgment/order, the Hon’ble Mr. Justice J.R. Midha of
Hon’ble High Court of Delhi in his wisdom abstained from
directing the Registrar of this Hon’ble Court to implement
this direction by bringing suitable/ appropriate
modifications into the Delhi High Court Rules. Therefore, at
best this judgment can be treated as precedent for seeking
guidance for preparing the written arguments.
H. Because the impugned judgment dated 04.12.2021in itself
has not been structured in the form of judgment. This is clear
from reading the portion of the order-sheet dated 04.12.2021
of the suit C.S. No.7447/2016 recorded at 10 AM by the Ld.
Trial Court. The Ld. Trial Court recorded “In order to pass
the requisite order in this suit …………………..” meaning
thereby the ld. Trial Court intended to pass certain orders on
the pending applications and not the judgment for deciding
the suit. Pertinent is to mention here that at the time of
passing the impugned judgment, the Ld. Trial Court was
insesien with following applications filed in the suit:-
a. Application U/s 151 CPC filed by the appellant no.2 Sh.
Subhash Dutta on 03.03.2020 seeking permission to pursue
the suit on behalf of the appellant no.1 as it’s A.R.;
b. Application U/o 1 Rule 10 CPC filed on behalf of Smt.
Kumkum Chaudhary through Aparna the Deity, seeking
impleadment as defendant no. 7 in the s·aid suit; c.
Application U/o VI Rule 17 CPC and Order XXIII Rule 3
CPC filed on behalf of Sh. Murli Chaudhary;
d. Application filed by Sh. B.S. Pathania, seeking review of
the order dated 30.11.2018 in the suit;
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KUMAR BABBAR
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e. Application filed by the defendants no.2 to 5 seeking
expeditiously disposal of the suit;
This ground is further fortified from the order-sheet dated
18.11.2021 passed by the Ld. trial Court in the suit. The
relevant portion of the order dated 18.11.2021 after the
appearances of the parties and their advocates read as
under:
“The arguments qua the application filed by Sh. Subhash
Dutta under section 151 of CPC, 1908 as well as all the
other pending applications have been heard List for
clarification/order, on 04.12.2021 at 04.00 pm.”
I. Because the impugned judgment dt. 04.12.2021 is liable to
be set-aside as the parties were not given an opportunity to
address their arguments on the disposal of the suit itself.
Leave aside the arguments, the parties to the lis in the
present suit were not even notified by the Ld. Trial Court at
the time of addressing their arguments on their respective
applications that they are required to address their
arguments on the maintainability of suit itself rather than
maintainability of the applications.
J. Because the impugned judgment dt. 04.12.2021 is liable to
be set-aside as the same is based on hyper technicalities and
not on the merits of the case. It is trite that endeavor of the
court ought to be to decide the issue on merits and not on
hyper technicalities.
K. Because the impugned order/judgment is cryptic. Order
20 Rule 2 of C.P.C., 1908 clearly says that a judgment must
address on each issues of the suit. The impugned judgment is
bereft of discussing the issues. The impugned judgment is
bereft of issue-wise finding by the Ld. Trial Court. The
impugned judgment is sans the legal analysis of the issues
leave aside the material propositions.
L. Because the decree dated 04.12.2021 drawn on the basis
of impugned judgment dt. 04.12.2021 is in itself cryptic. This
is clear from the text and formation of the impugned
judgment itself. The Ld. Trial Court has mentioned a number
of ‘Footnotes’ in the impugned judgment. The impugned
judgment is bereft of specific mentioning as to whether the
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KUMAR BABBAR
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contents of the footnotes are part of the impugned judgment
or not. Further the effect of said footnotes is to be taken only
as reference or to be relied upon for arriving at a just
conclusion in terms of the impugned judgment, is in itself a
big confusion. The decree-sheet 3S drawn by the Ld. Trial
Court is not in terms of the practice and procedure of Delhi
High Court Rules. The decree is silent about the important
details which ought to be mentioned in the same.
M. Because the impugned judgment dt. 04.12.2021 is bad in
law as the Ld. Trial Court while passing the impugned
judgment dt. 04.12.2021 has relied upon the file of C.S.
No.7634/2016 titled as Sh. Alok/Sh. Murli Chaudhary &Anr.
Vs. Laxman & Ors. decided by the Court of Ld. ADJ-04,
South District, Saket Courts, New Delhi on 27.08.2016
which was ·not part of the judicial record in the suit.
Moreover, the parties and especially the plaintiffs were not
given appropriate opportunity to clarify its stand qua the
observations/ orders/judgments/decree passed therein as
well as the appeal and S.L.P. arising therefrom, especially in
the light of the admitted facts that plaintiff society was not
even a party to the civil suit no.7634/2016. It is trite that for
applying an order/judgment or any observation/castigation
passed in an order/judgment upon a person (living or
juristic), the person must have been party to the proceedings.
Neither the plaintiff/appellant no.1 society was party to the
C.S. No.7634/2016 nor to the orders/judgments passed
therein or to the appeal and SLP arising therefrom, hence
any observation/castigation passed in the said suit, ought not
to be applied to the detriment of the plaintiff society in the
suit at hand. .. Furthermore the order/judgment passed in
C.S . No.7634/2016 was not inrem but in personam.
Therefore, the approach of the Ld. Trial Court in applying
the observations made in C.S. No.7634/2016 is erroneous
and illegal. The same is beyond the jurisdiction of the Ld.
Trial Court. Hence the impugned judgment is liable to be
set-aside on the ground that the reasoning arrived at by the
Ld. Trial Court is based upon extraneous circumstances.
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N. Because the Ld. Trial Court relied upon RFA
No.7842/2016 and SLP (C) No.36062/2016 arising out of
C.S. No.7634/2016 titled as Sh. Alok/Sh. Murli Chaudhary &
Anr. Vs. Laxman & Ors. and orders passed therein to arrive
at a conclusion that a document filed therein being
Resolution dated 05.04.2006 of the alleged Governing
Council of the plaintiff society inter-alia had the names of
Sh. Subhash Dutta, Sh. Murli Chaudhary and Sh. K.S.
Pathania on left side and the signatures of Sh. K.S. Pathania
on the right side and therefore the current applicant Sh.
Subhash Dutta (appellant no.2 herein) are accomplices,
belonging to a faction that has already been found by way of
the said judgments and order, to consist of persons, not duly
associated with the plaintiff (para no.5 of the impugned
judgment).
O. Because the impugned judgment/order dated
04.12.2021 is liable to be set-aside as the material
proposition/issue in the present matter/ suit was not about
the composition/office bearers of the plaintiffs society. The
infightings between the members of the Governing Council
of plaintiff society/appellant no.l has never been the material
proposition before the Ld. Trial Court, hence such
observations of the Ld. Trial Court about the office
bearers/members of the Governing Council of the society in
the impugned judgment are liable to be set-aside. Moreover,
no evidence had been led in the matter to arrive at such
conclusion and/or observation, hence it is abundantly clear
that these observations are based upon conjectures and
surmises and are beyond the pleadings and prayers and so
beyond the scope of the jurisdiction of the Ld. Trial Court.
The Ld. Trial Court ought to have desisted from castigating
the image of the plaintiff society/appellant no.l herein. Such
aspersions passed by the Ld. Trial Court in the impugned
judgment do not withstand the judicial scrutiny and hence is
liable to be set-aside. Such castigating remarks are in the
nature of innuendos. The judicial ethic says that before
affecting the reputation of a person on the basis of certain
documents being part of pre-decided suit, to which the said
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person was not even party, a suitable opportunity must be
given to the said person to explain the contents of the said
document before arriving at the conclusion. It is admitted
fact from the impugned judgment itself that neither the
applicant Sh. Subhash Dutta/appellant no.2 herein nor the
person named Sh. K.S. Pathania were given any opportunity
by the Ld. Trial Court to address their arguments on the
resolution dated 05.04.2006. The act of Ld. Trial Court in
arriving at conclusion adverse to the interest of the applicant
Sh. Subhash Dutta/appellant no.2 herein and Sh. K.S.
Pathania without giving them an opportunity of being heard,
is in disregard to their fundamental right as enshrined in the
Constitution of India, 1950 being “RIGHT TO BE
HEARD/AUDI ALTERM PARTEM’.
P. Because the above aspersions casted by the Ld. Trial
Court on Sh. K.S. Pathania cannot even survive as the Ld.
Predecessor of the Trial Court vide order dated 19.12.2012
had allowed Sh. Murli Chaudhary to represent the plaintiff
society being its A.R. instead of Sh. K.S. Pathania. The effect
of the said order was that Sh. K.S. Pathania was estopped
from. attending the matter/suit on behalf of the plaintiff
society/appellant no.1 herein and the advocate engaged by
him was got discharged. Although Sh. K.S. Pathania filed an
application U/s 151 CPC seeking his appointment as A.R. of
the plaintiff society in place Sh. Murli Chaudhary on the
basis of subsequent developments/resolution passed by the
plaintiff society, however, the ld. Predecessor court of the
trial Court vide order dated 27.01.2015 dismissed the said
application of Sh. K.S. Pathania. Hence, it is crystal clear
that at the time of passing of such adverse
remarks/aspersions by the ld. Trial Court, Sh. K.S. Pathania
remained absent. Hence, the observation of the ld. Trial
Court qua Sh. K.S. Pathania ought to be outrightly vexed.
The observations ought to be deleted from impugned
judgment.
Q. Because the Ld. Trial Court while passed the impugned
judgment dt. 04.12.2021 in para no.5, has refer:red to an
order No.ROS(SE)/ 5766/1973/1181 dated 09.12.2020
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passed by the Registrar of Societies, South East District,
Govt. of NCT Delhi, relied upon by Sh. Subhash
Dutta/appellant no.2 herein, to arrive at a conclusion that
the said order cannot be accepted to be correct/legal order
with certain footnotes. The Ld. Trial Court has exceeded its
jurisdiction in arriving at this conclusion. Needless is to
mention that the said order dated 09.12.2020 of Registrar of
Societies was neither the issue in hand nor any evidence was
led with regard to it. None of the parties to the lis either
denied the said order nor adduced any evidence in rebuttal
of the same or any evidence to prove that the said order was
passed on the basis of misrepresentation or incorrect facts.
The Ld. trial Court exceeded its jurisdiction in holding the
said order to be an incorrect or illegal order. This is an
outreach of jurisdiction and ought to be deprecated. The Ld.
Trial Court had breached the judicial discipline. The Ld.
trial court ought not to have decided on the legality of the
said order dt. 09.12.2020 without going into the merits of the
facts and circumstances/ documents giving rise to the
passing of the said order 09.12.2020 by the Registrar of
Societies (in fact that order is 04.12.2020 and not
09.12.2020 as recorded in the impugned judgment).
Moreover, the legality/tenability of the order
No.ROS(SE)/5766/1973/1181 dated 09.12.2020 was not
before the Ld. Trial Court. Therefore, the observation of the
Ld. Trial Court qua the abovementioned order ought to be
expunged being beyond jurisdiction and consequently the
impugned order is liable to be set-aside on this ground also.
R. Because the impugned judgment dt. 04.12.2021 is liable
to be set-aside as technically the plaintiff society/appellant
no.1 herein remained unrepresented at the time of dismissal
of the suit. Para no.4 of the impugned judgment clearly
mentions that the erstwhile A.R. namely Sh. Murli
Chaudhary of the plaintiff society was excluded from
representing it w.e.f. 03.12.2019, while the application of
appellant no.2 Sh. Subhash Dutta seeking permission to
pursue the suit on behalf of the plaintiff society as its A.R.
was yet to be decided, therefore, the ld. Trial Court before
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dismissing the suit ought to have issued court notice to the
plaintiff society stating therein the fact that it (plaintiff
society) remained unrepresented through a duly authorized
A.R. In the absence of such court notice, it is imperative that
the plaintiff society/ appellant no.1 herein remained
unaware about the proceedings of the Ld. Trial Court.
Therefore, the impugned judgment dt. 04.12.2021 by which
the suit is dismissed, clearly hits the root cause of the right
of the society as the plaintiff society. Although the Ld. Trial
Court in the impugned judgment in para no. 7 clearly
mentions that the plaintiff society (being a juristic person)
remains unrepresented by a natural person w.e.f.
03.12.2019, yet in its wisdom instead of issuing the court
notice to the plaintiff society, giving it an opportunity to get
represented/ remove the said deficiency, passed an adverse
order against it. This goes to hit the fundamental principle
or ‘RIGHT TO BE HEARD’ or ‘RIGHT TO BE DULY
REPRESENTED’ of the juristic person.
S. Because the Ld. Trial Court grossly erred in dismissing
the suit of the appellants/plaintiff society in absence of its
due representation by a duly authorized representative and
therefore, the impugned judgment dt. 04.12.2021 is liable to
be set-aside.
T. Because the Ld. Trial Court in para no.1 of the impugned
judgment dt. 04.12.2021 has relied upon certain judgments.
The judgments relied upon are distinguishable from the facts
of the present case. The judgment titled as “K.R Impex V.
Punj Lloyd (2019) SCC OnLine Del 6667, being
C.S.(Comm.) 646/2016 decided by the Hon’ble High Court of
Delhi on 08.01.2019, is a commercial suit with its distinct
facts and circumstances. In terms of the Commercial Courts
Act, 2015 (Amended upto date) and the purpose for which
said Act was promulgated, expediency in disposing of
commercial disputes. on the basis of the admitted
pleadings/transactions was imperative. In the said case of
K.R. Impex, the defendant company, although disputed the
liability in its Written Statement, however, in its statement of
account/ledger, produced before the Hon’ble Court U/o 11
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Rule 14 of CPC, certain claim/amount due to the plaintiff
was shown. The Hon’ble Court took such figures as
mentioned in the statement of account/ledger of the
defendant company as its admitted liability and therefore
passed the judgment & decree in terms thereof under order
XII rule 6 CPC. No· such facts and circumstances were there
in the present suit before the Ld. Trial Court. The plaintiff
society/ appellant no.1 herein filed the present suit for
permanent and mandatory injunctions in respect of the suit
property being A-12, Friends Colony, New Delhi against the
defendants no.1 and 5/respondents herein. The defendant
no.6 in the original suit (DDA) was the performa party. The
plaintiff society later on amended the suit to clarify the
address of the suit property as A-12, New Friends Colony
(East), New Delhi. The relief claimed was that of mandatory
and permanent injunctions against the defendants no.1 to 5.
During the course of its trial, the suit was further amended
by the plaintiff to incorporate the prayer of seeking
possession from the defendants no.2 to 5, when the
subsequent fact emerged from the pleadings that the
defendant no.l had handed over the physical possession of
the suit property to the defendants no.2 to 5 in breach of the
temporary injunction order (later withdrawn). Hence the
facts of the present case are clearly distinguishable from the
facts of the suit of K.R. Impex relied upon by the Ld. Trial
Court.
U. Because the observation of the Hon’ble High Court of
Delhi in case of K.R. Impex, stated in foregoing para, as
regards “H. It is the bounden duty of the court, to at all
stages of a suit, ensure that no litigant, for own benefit and
to the prejudice of his opponent, by making a far;ade of a
case or a defence, is not permitted to buy time of the court
and which is always to the prejudice of other deserving
cases” and further observation made in para no.25 of the
judgment of the said case “the court on each and every date
of hearing has to ensure that no litigation which is
deadwood remains pending on the roster of the court at the
cost of other deserving litigations and it is the duty of the
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court to eliminate the deadwood on each and every stage” as
relied upon by the Ld. trial Court in the impugned judgment,
are further distinguishable from the facts of the cases relied
upon and the facts of the present suit. In the relied upon
judgment in case titled ‘A.N. Kaul Vs. Neerja Kaul &Anr.,
(2018) SCC OnLine Del 9597’ being C.R.P. No.189/2017
decided on 03.07.2018 by the Hon’ble High Court of Delhi,
the defendants were in possession of the suit property of the
plaintiff and admitted his ownership. The Hon’ble Court on
the basis of such admission in the pleadings decreed the suit
under order XII Rule 6 CPC. In another relied upon
judgment in case titled as ‘Dr. Zubair UL Abidin and Ors.
Vs. Sameena Abidin@ Sameena Khan, (2014) 214 DLT 370’
being FAO(OS) 427/2013 decided by the Hon’ble High
Court of Delhi on 14.07.2014, the Ld. Division Bench set-
aside the order of the Ld. Single Bench vide which the Ld.
Single Judge had deferred the decision of deposit of ad-
valorem court fee on the quantum of the damages claimed
till the disposal of the suit. The defendant therein moved an
application U/o 7 Rule 11 CPC seeking rejection of the
plaint on the basis of under valuation of the suit and non
deposit of the ad-valorem court fee on the claim of the
plaintiff. The facts of the above mentioned relied upon case
laws are entirely distinguishable from the facts of the case in
hand. Neither impugned judgment/order mentions about the
dismissal of the suit on the ground of under valuation of the
subject matter of the suit property/relief claim nor has the
suit been dismissed under order VII rule 11 CPC on the
ground of deficit court fee. The impugned judgment dt.
04.12.2021 is bereft of the fact that the plaintiff was given an
opportunity to amend the suit/prayer and giving proper
valuation to the relief claimed or that the plaintiff failed to
pay the ad-valorem court fee upon the value of the reliefs
claimed despite being given the opportunity. Hence the
dismissal of the suit by the Ld. Trial Court is without
specifically mentioning the provision under order VII rule 11
CPC, although with the passing remarks, in itself is illegal
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and therefore, the impugned order is liable to be set-aside
itself.
V. Because the approach of the Ld. Trial Court in dismissing
the suit under Order XV Rule 1 of CPC, 1908 at the stage of
cross examination of PW-1 is erroneous and illegal and
hence liable to be set-aside. The provision of Rule 1 under
Order XV CPC says “where at first hearing of a suit it
appears that the parties are not at issue on any question of
law or of fact, the court may at once pronounce judgment”.
Admittedly the suit was not at the stage of first hearing. The
suit was filed in the year 2009. The suit maneuvered through
various routes and reached at the stage of cross examination
of PW -1. Hence the provisions of order XV Rule 1 CPC
have been wrongly applied by the Ld. Trial Court. The
legislature in their wisdom had deliberately mentioned the
words ‘first hearing’. The words ‘first hearing’ as appearing
in the said provision cannot be stretched to a stage of cross
examination of PW -1. The Trial Court grossly erred in
doing the same. Therefore, the impugned order/judgment is
liable to be set-aside on this ground itself.
W. Because neither of the party in the suit has ever raised
the issue as regard to the admission of any fact in the suit
and also because the provisions of Order 12 Rule 6 were
neither raised by any party nor had been subjected to
discussion and argument before the Trial Court. In the entire
previous order sheet, there had been clear contentions of
both the parties, as such the question of a decree on
admission under order 12 Rule 6 does not arise and neither
this provision was available and applicable in the facts and
circumstances of the case.
X. Because the applicability of the Order XV has neither
been raised or discussed by either party and all of a sudden
in the impugned judgment the Ld. Trial Court has wrongly
reached to the conclusion that the parties are not at issue.
Whereas there remains 14 Issues framed by the Ld. Trial
Court and further Additional Issues framed by the Ld. Trial
Court which ought to have been decided by recording the
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KUMAR BABBAR
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evidence which has been abruptly left in between by the
Trial Court and passing the impugned judgment and decree.
Y. Because the impugned Judgment and Decree is beyond
the scope of the pleading of the parties and issues framed by
the Ld. Trial Court. In fact, in the entire impugned judgment
there is absolutely nothing from the pleading of the suit and
Issues as framed in the suit. As such, the judgment and
decree is liable to be set-aside.
Z. Because the evidence led by plaintiff by examining PW1
K. S. Pathania even remained un-conclusive as the cross-
examination was not complete and the impugned judgment
failed to address whether the commenced evidence was
required to be completed or have been aborted prematurely
by passing the impugned judgment and decree without
adhering to the procedure of law as laid in the Civil
Procedure Court and the High Court Rules framed in this
regard.
AA. Because al-through the pleadings of the parties in the
present suit, the admitted fact is that the allottee/auction
purchaser of the suit property namely Sh. Gurcharan Singh
Sethi intended to donate the suit property to the plaintiff
society (Aparna Ashram). The original owner namely Sh.
Gurcharan Singh Sethi had even sought permission from
defendant no.6/DDA/ respondent no.6 herein. The
respondent no.6/DDA had granted conditional permission.
Later on, the allotment of the land was cancelled by the
DDA, which is restored subsequently. It is further the
admitted fact arising from the pleadings that the LRs of
original owner Sh. Gurcharan Singh Sethi i.e. respondents
no.2 to 5 herein/ defendants no.2 to 5 in the suit, had
preferred a Writ Petition (Civil) before the Hon’ble High
Court of Delhi being W.P.(C) No.1949/1997 wherein the
Hon’ble High Court of Delhi vide its order dated 26.11.2003
observed that the LRs. of original owner Sh. Gurcharan
Singh Sethi i.e. respondents no.2 to 5 herein/ defendants no.2
to 5 in the suit, are devoid of the title in the suit property as
their predecessor-in-interest had already expressed his
intention to donate the suit property in favour of the Aparna
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KUMAR BABBAR
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Ashram Society i.e. plaintiff/ appellant no.2 herein. The
defendants no.2 to 51 respondents no.2 to 5 herein did not
challenge the said order and hence it attained finality.
Furthermore it is the admitted fact that the suit property
remained in the possession of the plaintiff society into which
the defendant no.1 (Pujari/Priest) was admitted as
permissive user. Therefore, the assumption of the Ld. Trial
Court that the plaintiff has filed the present suit on frivolous
grounds is based on conjectures and surmises. The dismissal
of the suit by the ld. Trial Court on this ground, though not
specifically mentioned, however, referred to, is illegal,
unlawful and hence is liable to be set-aside. The plaintiff
society based on the evidences could substantiate and prove
its case.
BB. Because, had the Ld. Trial Court passed a reasoned
judgment deciding the issues/material issues/additional
issues involved/ framed in the suit on merits, the entire
evidences of the parties needs to be led and only then the
same could have been analyzed on the touch stone of judicial
scrutiny. The absence of the same, the haste of the Ld. Trial
Court in dismissing the suit on un-established
preponderance of probabilities, clearly points to the fact that
the impugned judgment dt. 04.12.2021 will fail the muster of
the scrutiny of the Appellate Court and hence is liable to be
set-aside.
CC. Because the Ld. Trial Court in para no.9 of the
impugned judgment dt. 04.12.2021, though has observed “it
is not within the jurisdiction of this court to make any deep
inquiry into the inter-se dispute between the members of the
plaintiff’, yet the effect of the impugned judgment dt.
04.12.2021 goes to the fact that the Ld. Trial Court has held
Sh. K.S. Pathania and Sh. Subhash Dutta(appellant no.2
herein) as incapable to represent the plaintiff society thereby
indirectly benefiting the other group of Sh. Laxman
Chaudhary and Smt. Kumkum Chaudhary whose application
for direct impleadment, although denied, yet the benefit of
the observations in the impugned judgment dt. 04.12.2021
coupled with aspersions with regard to order dated
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KUMAR BABBAR
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09.12.2020 of Registrar of Societies (stated supra) would
lead to inter-se disputes between the members of the plaintiff
society. Therefore, the impugned judgment dt. 04.12.2021 is
liable to be set-aside.
DD. Because the Ld. Trial Court has completely gone out of
track by not considering pleading of the parties and chose to
pass order and observation which was not part of the
pleading. That by making some observation, a serious
illegality has been caused to the judicial process of law
where a Trial Court is bound to constrained itself within the
four comer of the pleading and the file only, any observation
beyond the pleading and the file is illegal, unlawful and not
binding upon the parties in regard to observations which
may are likely to be affected by those observations. The
observation of Ld. Trial Court as regard to the judgment and
decree passed in Civil Suit No. 7634 of 2016 decided on
27.08.2016 are against the law because the parties to the
suit were not before the Trial Court as such passing of
observation at their back regarding the suit is not binding
upon those parties subject-matter of suit no. 7634 of 2016.
Accordingly, all observations regarding this suit made in the
impugned judgment by the Trial Court deserves to be
expunged. The observation of the Ld. Trial Court as regard
to Order Dated 04.12.2020 passed by the Registrar of
Societies are against the l19 principal of law and natural
justice because the parties to the said order of Registrar of
Societies were not before the Trial Court, as such any
observation in this regard are not admissible in the eyes of
law, the same deserves to be expunged by this Hon’ble High
Court of Delhi.
EE. Because the Civil Revision arising out of the civil Suit
were pending before the Hon’ble High Court. The CWP
bearing No. 3650/1997 in respect of Order of the Registrar
of Societies dated 04.12.2020 is also pending before the
Hon’ble High Court and now fixed for 11.01.2022. As such,
passing of impugned judgment and decree and making
observation regarding the subject matter which is already
pending before the Hon’ble High Court is beyond the
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KUMAR BABBAR
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jurisdiction of the Trial Court and the impugned judgment
and decree deserves to be set-aside on this ground.
FF. Because the observation at Footnote No. 6 by the Ld.
Trial Court can be termed as a miscarriage of justice for the
reason neither the Ld. Trial Court was competent to make
any comment over the Order Dated 29.04.2017 passed by
the Court ofLd. ADJ-IV Saket and neither this was subjected
in the suit which was dealt by the Ld. Trial Court. In fact, the
Ld. Trial Court has misunderstood the entire dispute
pertaining to inter-se Members of the Society and not the
previous Court while passing the Order Dated 29.04.2017.
The observation at Footnote No. 6 is totally out of pleading
and out of subject-matter of the suit which was in the hand of
the Ld. Trial Court and as such the observation at Footnote
No. 6 in the impugned judgment and decree deserves to be
expunged in the First Hearing itself.
GG. Because the impugned judgment dated 04.12.2021 is
liable to be set-aside as Ld. Trial Court in its para no.9 has
referred to a judgment titled as ‘Vishwa Ahinsha Sangh Vs.
Panchsheel Marketing Pvt. Ltd. reported as (2011) SCC
OnLine Delhi 2691 being F.A.O. No.400/2006 and F.A.O.
No.401/2006 decided on 05.07.2011, wherein Hon’ble High
Court of Delhi opined that the core issue involved was
landlord-tenant relation wherein the plaintiff society being
landlord had filed suit through it’s A.R. seeking possession.
The appellant did not mention in his appeal that the A.R.
who filed the suit was not a duly authorized A.R. The main
issue was not inter-se dispute .between the office Bearers of
the Society. Similarly, here in this case it has not been
proved that the suit had not been filed by a duly authorized
A.R. of the plaintiff society. Hence the referred case 1s
distinguishable from the facts of the present case.
HH. Because the ld. Predecessor of the trial court vide its
order dated 03.12.2019 relying upon the judgment dated
27.08.2016 passed in C.S. No.7634/2016 and order dated
04.10.2016 passed by the Hon’ble High Court of Delhi in
R.F.A. No.784/2016 and further order dated 16.12.2016 by
Hon’ble Supreme Court of India in S.L.P.(C) No.36062/2016
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KUMAR BABBAR
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titled as Alok/Sh. Murli Chaudhary & Anr. Vs. Laxman &
Ors. held that Murli Chaudhary cannot represent Aparna
Ashram Society. The Ld. Court in the said order further
observed that since this suit was filed through A.R. K.S.
Pathania, who was later replaced by Murli Chaudhary vide
order dated 19.12.2012, which is challenged in C.M.(Main)
before Hon’ble High Court of Delhi. Therefore, in view of
C.M.(Main) pending before Hon’ble High Court of Delhi,
present suit is kept pending for awaiting the decision of Hon
‘ble High Court of Delhi in the said C.M.(Main). The Ld.
Court made clear that in case application of K.S. Pathania
in the Hon’ble High Court of Delhi is dismissed, suit is not
maintainable through Murli Chaudhary and same shall be
liable to be dismissed. Meaning thereby decision of
C.M.(Main) filed by K.S. Pathania remained sine qua non
for· this suit. Therefore, the Ld. Trial Court ought to have
waited for the. outcome of the Civil Misc. (Main)
No.813/2015.
4. That the appellants seek indulgence of this Hon’ble Court
to urge and argue and rely upon other grounds/documents at
the time of hearing arguments on the present appeal.
5. That the main issues before this Hon’ble Appellate is
whether the Ld. Trial Court has grossly erred in disposing of
the suit in haste without going into the merits of the main
issues. The Trial Court ought not to have reviewed the
orders of its Predecessor Court without giving an
opportunity to the plaintiffs/parties to clarify on the issue.
The Ld. Trial Court exceeded its jurisdiction and
overreached, assumed the jurisdiction when the trial court
observed that order dated 09.12.2020 (actually 04.12.2020)
passed by the Registrar of Societies (South East District),
Govt. of NCT of Delhi in ROS(SE)/5766//1973/1181 was not
a correct/legal order. The Ld. Trial Court was in grave error
in casting aspersion on the registration/existence of the
plaintiff society.
6. That the appellant no.1 is a society registered under the
Societies Registration Act vide Registration bearing No.S-
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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5766/73-74 dated 25.05.1973 issued by Registrar of
Societies, CPO Building, Kashmere Gate, Delhi having
registered office at A-50, New Friends Colony (East),
Mathura Road, New Delhi and being a juristic person, it
requires a natural person to represent itself before the court
of law and therefore, Sh. Subhash Dutta has been authorized
by the appellant no.1 society to represent it before courts of
law and especially in this appeal before this Hon’ble Court
vide Resolution dated 03.01.2022. Original Resolution dated
03.01.2022 in favour of Sh. Subhash Dutta is annexed as
ANNEXURE-N.
7. That certified copies of the evidence by way of affidavit
dated 08.12.2011, examination-in-chief dated 21.01.2012
and examination-in-chief of PW-1 dated 24.02.2012 are
annexed as ANNEXURE-O (COLLY.).
8. That the appellants have not filed any other similar
Regular First Appeal either before this Hon’ble Court or
before the Hon’ble Supreme Court of India. The present
appeal is within its limitation period. The requisite court fee
on the present appeal has been paid.”
11. Pursuant to the above said grounds, the respondents have filed the
reply and a convenience compilation. The summary of reply/written
submissions reads as under:
3. That a perusal of the aforementioned facts would make it
abundantly clear that:
(a) The Suit Property, which was allotted by the DDA in
the name of Mr. Gurcharan Singh Sethi, was never
transferred in favor of the Appellant No. 1.
(b) The infightings between different factions of the
Appellant Society, with regard to its representation, have
caused serious prejudice to the rights and entitlements of
the Respondents 2 to 5 to enjoy the Suit Property.
(c) That as on 4 November 2011 and 4 July 2013, the Suit
Property has been mutated, and a subsequent lease deed
(“New Lease Deed”) (ANNEXURE-R-8 andSignature Not Verified
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KUMAR BABBAR
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ANNEXURE-R-10 of the present Written Submissions,
respectively) has been executed by the DDA in favour of
Respondents No. 2 to 5, and the wives of Respondents 3
and 4. This fact is also affirmed by the DDA in their
written statement before the Ld. Trial Court.
4. That it is further submitted that the entire purpose of the
proceedings is now academic and infructuous since the New
Lease Deed is not subject matter of challenge in the Suit or
this Appeal, and, therefore, the present Appeal should be
dismissed on this ground alone.
5. That, without prejudice to the aforesaid, the Respondents
2 to 5 seek to highlight the objections raised against the
present Appeal, in brief, for the sake of convenience of this
Hon‟ble Court, herein below.
6. THAT THE APPEAL IS NOT VALIDLY INSTITUTED
SINCE THE APPELLANT NO. 1 IS NOT
REPRESENTED BY ANY NATURAL PERSON
6.1 That the Appellant No. 1, which is claimed to be a
society registered under the Societies Registration Act,
has filed the present Appeal through its alleged
Authorized Representative/alleged President, Mr. Subhash
Dutta (“Alleged A.R.” or “Appellant No. 2”). The
authority to file the present Appeal has been given by,
one, K.S. Pathania, who has himself been held to be not
associated with the Society in view of, inter-alia: (a) the
Order dated 19 December 2012 passed in the Suit, and (b)
the Order dated 27 January 2015 passed in the Suit, as
held in the Judgment. Therefore, the said grant of
authority is itself defective, rendering the Appeal defective
as well. That the Judgment has also extensively dealt with
and held that neither Mr. K.S. Pathania, nor the Appellant
No. 2, Subhash Dutta, were ever authorised to represent
the Appellant No. 1. (Para 5 to 9 of the Judgment).
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KUMAR BABBAR
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6.2 That it is further crucial to note that for the purposes
of representation of the Appellant No. 1 in the present
Appeal, the Appellant No. 2 has preferred an
accompanying application under Section 151 of CPC,
seeking permission to represent the Appellant No. 1
Society as its authorized representative, which has been
registered as CM No.1011/2022, and remains pending
adjudication. Therefore, in addition to what the Ld. Trial
Court has observed in its Judgment, to hold the Appellant
No. 2 and KS Pathania, to belong to a faction not
associated with the Appellant Society, it is clear that the
application filed before this Hon‟ble Court is also
defective, without authority, and liable to be dismissed.
7. OWNERSHIP OF THE PROPERTY WAS NEVER
TRANSFERRED TO THE APPELLANT(S)
7.1 That it is an admitted position that the ancestor of the
Respondents 2 to 5 had intended to donate the Suit
Property. However, upon expressing such intention to the
DDA, the DDA put forth certain conditions, which were
never complied with as it involved monetary
considerations. Since no such monetary considerations
were made or conditions put forth by the DDA were
fulfilled, no such transfer of the title of the Suit Property
was done.
7.2 That, in any case, in view of Section 123 of Transfer of
Property Act, 1882 read with Section 17 of Registration
Act 1908, no transfer of property can happen, by way of a
gift, unless by way of a registered document/deed.
8. SETTING ASIDE OF THE IMPUGNED ORDER AND
THE REMAND BACK TO THE TRIAL COURT WOULD
CAUSE GRAVE PREJUDICE:
8.1 As has been explained above, that the Respondents 2
to 5 by virtue of the New Lease Deed dated 4 July 2013
are the true and rightful owners of the Suit Property, andSignature Not Verified
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KUMAR BABBAR
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the Appellants have failed to show that they have acquired
ownership or possession of the Suit Property. That in the
event this Hon‟ble Court proceeds to allow the appeal and
remands the matter back to the Ld. Trial Court, it would
again revive the battle of representation between the
factions of Subhash Dutt and Laxman Chaudhary, since
there is no current person authorised to represent the
Appellant Society. This will cause immeasurable delay
and prejudice to the Respondents, who have acquired
lawful rights over the Suit Property. The Suit was filed in
2009 (15 years ago), and given the extant circumstances
between the two factions, the Suit will likely continue for a
considerable length of time and the Respondents 2 to 5
would be left languishing for justice.
8.2 That the Respondent Nos. 2 to 5 have no interest in the
internal rivalry between the various factions of the
Appellant No. 1 Society. The Respondents 2 to 5 have
consistently stated that it is not of any interest to them as
to who is representing the society as they are completely
unconcerned with the same. Their only interest lies in
their entitlement over the Suit Property. The Respondents
2 to 5, per se, have no objection if some of the
observations pertaining the validity/authority of Appellant
No. 2 to represent Appellant No. 1 are expunged, subject
to the Appellants being agreeable to getting the Appeal
disposed of on the ground that the rights of the
Respondents 2 to 5 stand crystallized by way of the New
Lease Deed dated 4 July 2013 executed by the Respondent
No. 6/DDA in their favour.
9. That in view of the aforesaid, it is humbly prayed that
this Hon‟ble Court may kindly be please to dismiss the
captioned Appeal.
SUBMISSIONS
(On behalf of the appellant Society)
12. Mr. Ashish Dholakia, learned senior counsel appearing on behalf
of the appellant Society submitted that the learned Trial Court erred in
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KUMAR BABBAR
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exercising its powers under Order XII Rule 6 of the CPC as there is no
admission in the plaint and the issues were already framed by the learned
court below.
13. It is submitted that the learned Trial Court erred in holding that no
challenge was made to the registered deed dated 4th July, 2013 whereas,
the appellant society has already challenged the same by filing another
suit.
14. It is submitted that the learned Trial Court erroneously placed
reliance on the orders passed in another suit filed by one Mr. Murli
Chowdhry against Laxman Chowdhry whereas the authorized
representatives of the appellant Society were not even party to the said
proceedings.
15. It is submitted that the suit property was gifted to the appellant
Society by the predecessor of the R2-R5, however, the said respondents
obtained a perpetual lease in their favor by colluding with the respondent
no.7/DDA.
16. It is submitted that the learned Trial Court erred in not appreciating
the settled position of law where the admission on Order XII Rule 6 of
the CPC is only warranted when there are clear and unambiguous
admissions made by the party whereas in the instant case, specific issues
were framed and evidence were ought to be led in that regard, and there
were no clear or categorical admissions.
17. It is submitted that the learned Trial Court erred in not abiding by
the tests laid down for passing judgment on admissions and therefore, the
impugned order is liable to be set aside.
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KUMAR BABBAR
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18. It is submitted that even though the resolution dated 5th April, 2006
appointed one Mr. Murali Chowdhry and Mr. Alok Chowdhry as the
authorized representative, however, the same was done for other purposes
and not for the suit, therefore, the abovesaid resolution was not
conclusive.
19. It is also submitted that Mr. Pathania and Mr. Dutta are the
authorized representatives of the appellant Society and the said issue has
attained finality by virtue of order dated 4th December, 2020 passed by
the Registrar of the Societies, whereby, both of them were recognized as
the member and President of the appellant society respectively.
20. Therefore, in view of the foregoing submissions, the learned senior
counsel submitted that the present appeal be allowed and the impugned
order be set aside.
(On behalf of the respondent nos.2-5)
21. Per Contra, Mr. Sanjeev Anand, the learned senior counsel
appearing on behalf of the respondent nos.2-5 vehemently opposed the
instant appeal submitting to the effect that the suit property was never
transferred in favor of the appellant Society and thus, the impugned order
has been passed in accordance with the law.
22. It is submitted that there are huge infights between the various
factions of the appellant Society and the same has already caused serious
prejudice to the rights and entitlements of the respondent no.2-5 to enjoy
the suit property.
23. It is submitted that the suit property was mutated on 4th November,
2011 and 4th July, 2013 and a subsequent lease has been executed by the
respondent DDA in favor of the legal heirs of Mr. Gurcharan Singh Sethi.
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KUMAR BABBAR
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24. It is submitted that the new lease deed is not the subject matter of
the challenge in the suit and therefore, the present appeal may be
dismissed on the said ground alone.
25. It is submitted that the appellant Society has not filed the instant
appeal validly as the same is stated to be filed by the alleged President
namely Mr. Subhash Dutta, however, in the proceedings before the
learned Court below, one Mr. Pathania was stated to be the authorized
representative.
26. It is submitted that the ownership of the suit property was never
transferred to the appellant Society as the conditions put forth by the
respondent DDA for transfer of the same were never complied and
therefore, the title of the suit property was never transferred.
27. It is submitted that the said factum of transfer of the ownership was
duly apprised to the learned Court below, hence, the judgment was passed
on the basis of the same.
28. Therefore, in view of the foregoing submissions, the learned senior
counsel submitted that the present appeal being bereft of any merit may
be dismissed.
ANALYSIS AND FINDINGS
29. Heard the learned counsel for the parties and perused the records.
30. The instant appeal is admitted.
31. It is the case of the appellant Society that the learned Court below
erroneously dismissed the suit filed by them on the basis of alleged
admission and therefore, the said order is bad in law as the same does not
take into account the entirety of the matter. It has been contended that
there exists issues which are triable in nature which the learned Trial
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KUMAR BABBAR
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Court ought to have taken into consideration and therefore, the impugned
order is liable to be set aside as the same contravenes the settled position
of law for passing judgment on admissions under Order XII Rule 6 of the
CPC.
32. In rival submissions, the above said contentions were rebutted by
stating that the members of the appellant society have created factions
amongst themselves and therefore, there is no authorized representative.
Furthermore, it is stated that the ownership of the suit property was never
transferred to the Society and therefore, mutation of a subsequent lease
dated 4th July 2013 transfers the title of the suit property in favor of the
respondent no.2-5 and the suit was rightly dismissed by the learned court
below.
33. In the instant appeal, the primary contention of the appellant
Society is that the learned Trial Court erroneously passed the impugned
order on the basis of alleged admission, therefore, attracting the contours
of Order XII Rule 6 CPC which was not required at that stage as the
learned Trial Court had already proceeded with examination of the
witnesses.
34. At this stage, this Court finds it imperative to reproduce the
impugned order. The relevant parts of the same reads as under:
“2. In view of the aforesaid position of law, I had examined
the record of this suit, with the assistance of the Ld.
Advocate for the parties, on 18.11.2021 and interalia found
(a) that this suit was filed in the name of the plaintiff (a
society registered under the Societies Registration Act,
1860) by Sh. K.S. Pathania, by claiming that he was
authorized to file this suit in the name of the plaintiff, bySignature Not Verified
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KUMAR BABBAR
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virtue of a resolution dated 10.07.2008, passed by the
Governing Council of the plaintiff; (b) that vide Order dated
19.12.2012, a Ld. Predecessor Judge, after hearing the
parties at length, had replaced Sh. K.S. Pathania and
ordered that henceforth, Sh. Murli Chaudhary will have the
authority to pursue this. suit on behalf of the plaintiff; (c)
that the said Order dated 19.12.2012, was not immediately
challenged by Sh. K.S. Pathania before the Hon’ble High
Court of Delhi; (d) that as a consequence thereof, during
19.12.2012 to 24.05.2014, this suit was pursued by Sh. Murli
Chaudhary, on behalf of the plaintiff, without any
interference by Sh. K.S. Pathania; (e) that on 24.05.2014,
Sh. K. S. Pathania had filed an application under Section
151 of CPC, 1908, seeking permission to pursue this suit on
behalf of the plaintiff, by claiming that the Order dated
19.12.2012 was erroneous and by claiming that during
19.12.2012 to 24.05.2014 (particularly on 26.04.2014), he
had again been authorized by a duly constituted Governing
Council of the plaintiff, to pursue this suit on behalf of the
plaintiff; {f) that the”said application of Sh. K.S. Pathania
was dismissed by another Ld. Predecessor Judge, on
27.01.2015; (g) that upon dismissal of the said application,
Sh. K.S. Pathania had challenged the previous Order dated
19.12.2012 and the Order dated 27.01.2015, before the
Hon’ble High Court of Delhi, by way of CM(M)
No.813/2015, Sh. K.S. Pathania & Anr. v Mohan Jha & Ors.
(henceforth CM(M) No.813/2015) and (h) that vide Order
dated 27.11.2019, passed in CM(M) No.813/2015, the
Hon’ble High Court of Delhi, after finding the conduct of Sh.
K.S. Pathania to be dilatory, had made it clear that there is
no stay qua the proceedings of this suit and directed this
Court to proceed with this suit, as expeditiously as possible.
Signature Not Verified
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
18:37:54
3. In addition to the aforesaid, I had inter-alia found that
vide Order dated 03.12.2019, another Ld. Predecessor
Judge, after taking note of (i) the judgment dated
27.08.2016, passed by the Court of Ld. ADJ-04, South
District, Saket Courts, New Delhi in CS No.7634/2016, Sh.
Alok/Sh. Murli Chaudhary & Anr. v Laxman & Ors., (ii)
judgment dated 04.10.2016, passed by the Hon’ble High
Court of Delhi in RFA No. 784/2016, Sh. Alok/Sh. Murli
Chaudhary & Anr. v Lax man & Ors. and (iii) the Order
dated 16.12.2016, passed by the Hon’ble Supreme Court in
SLP(C) No.36062/2016, Sh. Alok/Sh. Murli Chaudhary &
Anr. v Laxman & Ors., had concluded that since, in the said
series of judgments and order, Sh. Murli Chaudhary had
been held to be never duly associated with the plaintiff, Sh.
Murli Chaudhary cannot be permitted to pursue this suit on
behalf of the plaintiff. Also, I had inter-alia found that
having drawn the said conclusion qua the authority of Sh.
Murli Chaudhary to pursue this suit on behalf of the
plaintiff, in the Order dated 03.12.2019, the Ld. Predecessor
Judge, instead of instantly dismissing this suit, for want of
any authorized person to pursue this suit on behalf of the
plaintiff, had simply adjourned this suit, awaiting further
Order(s) of the Hon’ble High Court of Delhi in CM(M)
No.813/2015 qua the authority of Sh. K.S. Pathania, to
pursue this suit on behalf of the plaintiff.
4. In addition to the aforesaid, I had also inter·alia found
that since the exclusion of Sh. Murli Chaudhary, as the
representative of the plaintiff in this suit w.e.f. 03.12.2019,
Sh. Subhash Dutta has come forward and filed an
application under Section 151 of CPC, 1908, on 03.03.2020,
seeking permission to pursue this suit on behalf of the
plaintiff.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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5.In my view, the aforesaid application, the arguments qua
which were heard on 18.11.2021, is liable to be dismissed
because a perusal of (a) the plaint of CS No.7634/2016, Sh.
Alok/Sh. Murli Chaudhary & Anr. v Laxman & Ors.
(henceforth ‘CS No.7634/2016’), decided by the Court of Ld.
ADJ-04, South District, Saket Courts, New Delhi, on
27.08.2016, (b) the copy of resolution dated 05.04.2006 of
the alleged Governing Council of the plaintiff (filed in CS
No.7634/2016)2 inter·alia bearing the names of Sh. Subhash
Dutta3 , Sh. Murli Chaudhary and Sh. K.S. Pathania on left
side and the signatures of Sh. K.S. Pathania on the right
side4, (c) the judgment dated 27.08.2016, passed by the
Court of Ld. ADJ·04, South District, Saket Courts, New
Delhi in CS No.7634/2016, (d) judgment dated 04.10.2016,
passed by the Hon’ble High Court of Delhi in RFA
No.784/2016, Sh. Alok/Sh. Murli Chaudhary & Anr. v
Laxman & Ors. and (e) the Order dated 16.12.2016, passed
by the Hon’ble Supreme Court in SLP(C) No.36062/2016,
Sh. Alok/Sh. Murli Chaudhary & Anr. v Laxman & Ors.,
clearly reveals that Sh. K.S. Pathania, Sh. Murli Chaudhary
and the current applicant, Sh. Subhash Dutta are
accomplices, belonging to a faction 5 that has already been
found by way of the said judgments and order, to consist of
persons, not duly associated with the plaintiff and because in
the wake of the said judgments and order, the order No.
ROS(SE)/5766/1973/1181 dated 09.12.2020 passed by the
Registrar of Societies, South-East District, Government of
NCT of Delhi, relied upon by Sh. Subhash Dutta, cannot be
accepted to be a correct/legal order.6 Thus, the aforesaid
application is dismissed.
6. The first cascading effect of the dismissal of the aforesaid
application is the review of the Order dated 06.03.2021,
whereby this Court, through the undersigned, had allowed
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an application under Order XXII Rule 4 of CPC, 19087
under the wrong impression that on that day Sh. A.K: Gupta,
Ld. Advocate was representing the plaintiff whereas the truth
was that on that day, he was only representing Sh. Subhash
Dutta, a person wanting to be the representative of the
plaintiff. Since, the said Order was passed under a wrong
impression and thus suffers from an error apparent on
record, the said Order is reviewed and impleadment of Smt.
Shelly Sethi, Sh. Kuber Sethi and Sh. Nanak Sethi as the LRs
of the defendant no.3, is withdrawn.
7. The second cascading effect of the dismissal of the
aforesaid application is that in this suit, this Court continues
to not have any natural person to represent the plaintiff
w.e.f. 03.12.2019. In my view, the only legal consequence of
the said scenario, in light of the positive direction given to
this Court by the Hon’ble High Court of Delhi vide Order
dated.27.11.2019, passed in CM(M) No.813/2015, to
expeditiously dispose of this suit, is that this suit has to be
dismissed. Thus, this suit is dismissed. At this stage, it is
clarified that this suit is also liable to be dismissed (a)
because it was instituted by Sh. K.S. Pathania, who, as stated
earlier in this judgment, never had the requisite authority to
represent the plaintiff, in this Court or elsewhere8 and (b)
because in this suit, the plaintiff has not raised any challenge
qua the registered lease deed dated 04.07.2013, executed by
the defendant no.6, DDA in favor of the defendants no.2 to 5,
during the pendency of this suit, which further legitimizes the
claim of the defendants no.2 to 5 qua the suit property viz. A-
12, Friends Colony (East), New Delhi and that as an
alternative to what has been said in the first two sentences of
this paragraph, this suit shall also be treated to have been
dismissed on account of the said reasons.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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8. Before parting with this Order, it is necessary to bring
closure to all the pending applications of this suit. The
application filed by Aparna the Deity through Smt. Kurftkum
Chaudhary, under Order 1 Rule 1 0 of CPC, 1908, seeking
impleadment as defendant no.7 in this suit, is dismissed as
infructuous. The applications filed by Sh. Murli Chaudhary
under Order VI Rule 17 of CPC, 1908 and under Order
XXIII Rule 3 of CPC, 1908, are dismissed because it has
been settled all the way till the Hon’ble Supreme Court that
Sh. Murli Chaudhary never had the authority to represent
the plaintiff. The application filed by Sh. B.S. Pathania,
seeking review of the Order dated 30.11.2018, is dismissed
because in view of the dismissal of this suit by way of this
Order, the said application pales into insignificance. Lastly,
the application filed by the defendants no.2 to 5, seeking
expeditiously disposed off this suit as per the Order dated
26.04.2011, passed by the Hon’ble High Court of Delhi in
FAO No.327/201 0, Aparna Ashram v Mohan Jha & Ors., is
disposed off, as infructuous.
9. Now, before finally parting with this Order, I find it
necessary to clarify (a) that in view of the judgment of the
Hon’ble High Court of Delhi in Vishwa Ahimsa Sangh v
Panchsheel Marketing Pvt. Ltd. (2011) sec Online Del 2691
it is not within the jurisdiction of this Court to make any
deep inquiry into the inter-se dispute between the members
of the plaintiff; (b) that apart from the above-noted reasons,
the plaintiff deserves to be non-suited because the conduct of
all its agents/representatives (Sh. K.S. Pathania and Sh.
Murli Chaudhary) and proposed agent/representative (Sh.
Subhash Dutta) till date, falls within the four corners of
Section 41 (i) of the Specific Relief Act, 1963, which requires
this Court to look into the conduct of the agents of a plaintiff,
seeking reliefs of injunctions from this Court;10 and (c) that
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I have refrained from imposing costs upon the plaintiff, only
because the actual wrongdoers in this suit are Sh. K.S.
Pathania and Sh. Murli Chaudhary, who for a good part of
the life of this suit were masquerading as representatives of
the plaintiff.”
35. Upon perusal of the aforesaid contents of the impugned order, it is
made out that the learned Court below had dismissed the suit filed by the
appellant Society by stating two reasons, firstly being that Mr. Pathania
never had the requisite authority to file and the suit and represent the
plaintiff/appellant Society before the Court and secondly being that the
suit property has already been transferred in favor of the respondent nos.
2-5 vide a lease deed dated 4th July, 2013.
36. While dismissing the suit, the learned Trial Court relied upon the
orders stemmed from separate proceedings and the details of the same are
as follows:
findings made by the learned ADJ-04, South district, Saket Courts,
New Delhi in CS 7634/2016,
Judgment dated 14th October, 2016 passed by this Court in RFA
bearing no. 784/2016,
Order dated 16th December, 2016 passed by the Hon’ble Supreme
Court in SLP(C) no. 36062/2016.
37. Furthermore, the impugned order also points out how the suit
pending before the learned Court below did not have any legal
representative to represent the plaintiff due to alleged feud between the
society members, therefore, deeming it necessary to dismiss the same.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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38. In this regard, the learned senior counsel for the appellant
Society/plaintiff submitted that after substitution of Mr. Pathania with one
Mr. Murali Chowdhry, the appellant society had meeting, whereby, it was
decided that Mr. Pathania and Mr. Dutta will be representing the
appellant society and therefore, they had respectively filed their
substitution application, however, the same were wrongly rejected on the
basis of the CS 7634/2016, however, the said case does not have any
bearing on the locus standi of both the individuals.
39. Furthermore, the learned senior counsel also contended that the
said orders did not bind either Mr. Pathania or Mr. Dutta not to be part of
the appellant Society and therefore, judgment on the pretext of no
representation on behalf of the appellant Society is bad in law as the
admission has not been made by the party in the said regard.
40. Before delving into the aspect of whether the said contentions hold
any water or not, this Court deems it appropriate to briefly explain the
scope and intent behind the judgment passed on admissions as provided
under Order XII Rule 6 of the CPC.
41. The interpretation of the said provision has been subject to the
judicial scrutiny where it has been held time and again that the admission
should be unambiguous, clear, unconditional and unequivocal in order to
pass a judgment under Order XII Rule 6 of the CPC.
42. The settled position of law as reiterated in a catena of judgments
makes the said relief as a discretion upon the Civil Courts where the
concerned Court need to be satisfied that there is no fact which is needed
to be proved on account of alleged admissions and the Court can pass a
judgment, however, if the plaint and the written statement itself indicates
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KUMAR BABBAR
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that there are disputed questions of fact involved in the case regarding
which two different versions are set out, the Court is required to ascertain
the facts to settle the factual controversy.
43. In Shantez v. Applause Bhansali Films Pvt. Ltd. Company, 2009
SCC OnLine Bom 405, the Division Bench of the Bombay High Court
delved into the aforesaid aspect and held as under:
“4. The learned Counsel further relied upon the judgment in
the case of Uttam Singh Dugal and Co. Ltd. v. Union Bank
of India, (2000) 7 SCC 120 : AIR 2000 SC 2740 to buttress
his submission that a decree on admission as contemplated
under Order XII Rule 6 of the Code is wide enough to
include an admission of fact in the pleadings or otherwise
whether orally or in writing. On the basis of any of this, the
Court could pass a decree on admission. The provision is
capable of wide construction but it has to be applied in strict
sense i.e. the ingredients specified under this provision must
be satisfied before a decree can be claimed by the Applicant
under this provision. The admission made may be in the
pleadings or otherwise which would include documents or
any other material which is on the Court file but it must be
unambiguous and definite admission. It is not proper for the
Court to pass a decree on inference. In fact, in absence of an
unambiguous and definite admission of liability and
quantum, it would be difficult for the Court to pass a decree
on such basis. It will be useful to make a reference to the
case of Raj Kumar Chawla v. Lucas Indian Services, 2006
(129) Delhi Law Times 755 where the Court discussed the
intent and scope of the term “admission” as contemplated
under Order XII, Rule 6 of the Code, held as under:–
“5. The provisions of Order XII are intended to provide
expeditious grant of decree in favour of a plaintiff in a suit
or proceedings where the defendant has made any admission
in the pleadings or otherwise, orally or in writing of any
amount due. The plaintiff would be entitled to a decree on
the basis of such admission without waiting for completionSignature Not Verified
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of the trial. The provisions of Order XII, Rule 6 were
incorporated by way of amendment. The legislative object of
these provisions is to curtail the period for determination of
disputes between the parties to a suit and ensure that a
decree on admission is passed without any unnecessary
hindrance. The expression „Admission‟ has been given a
wider meaning and connotation so as to take within its ambit
admissions made by a party in pleadings or otherwise, orally
or in writing. These provisions thus are capable of liberal
construction and without imposition of any unreasonable
restriction, must be permitted to operate but the Courts have
to be careful while passing a decree on admission. The
Court essentially should look into the fact that all essential
ingredients of an admission are satisfied before such a
decree is passed in favour of any of the parties to the suit.
Admission has to be unambiguous, clear and unconditional
and the law would not permit admission by inference as it is
a matter of fact. Admission of a fact has to be clear from the
record itself and cannot be left to the interpretative
determination by the Court, unless there was a complete
trial and such finding could be on the basis of cogent and
appropriate evidence on record. Rule 6 of Order XII
certainly enables a party to obtain a speedy judgment fully
or partially to which according to the admission of the
defendant the plaintiff is entitled to. In the case of the Uttam
Singh Duggal and Co. v. Union Bank of India, (2000) 7 SCC
120 : AIR 2000 SC 2740 the Court while explaining the
scope and ambit of these provisions held as under:
“Learned counsel for the appellant contended that Order
XII, Rule 6 comes under the heading „admissions‟ and a
judgment on admission could be given only after the
opportunity to the other side to explain the admission, if any,
made; that such admission should have been made only in
the course of the pleadings or else the other side will not
have an opportunity to explain such admission, that even
though, the provision reads that the Court may at any stage
of the suit make such order as it thinks fit effect of admission,
if any, can be considered only at the time of trial; that theSignature Not Verified
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KUMAR BABBAR
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admission even in pleadings will have to be read along with
Order VIII, Rule 5(1) of Civil Procedure Code and Court
need not necessarily proceed to pass an order or a judgment
on the basis of such admission but call upon the party
relying upon such admission to prove its case independently,
that during pendency of other suits and the nature of
contentions raised in the case, it would not be permissible at
all to grant the relief before trial as has been done in the
present case; that the expression „admissions‟ made in the
course of the pleadings or otherwise will have to be read
together and the expression „otherwise‟ will have to be
interpreted ejusdem generis.
As to the object of the Order XII, Rule 6, we need not say
anything more than what the legislature itself has said when
the said provision came to be amended. In the objects and
reasons set out while amending the said rule, it is stated that
„where a claim is admitted, the Court has jurisdiction to
enter a judgment for the plaintiff and to pass a decree on
admitted claim. The object of the Rule is to enable the party
to obtain a speedy judgment at least to the extent of the relief
to which according to the admission of the defendant, the
plaintiff is entitled”. We should not unduly narrow down the
meaning of this Rule as the object is to enable a party to
obtain speedy judgment. Where other party has made a plain
admission entitling the former to succeed, it should apply
and also wherever there is a clear admission of facts in the
face of which, it is impossible for the party making such
admission to succeed.
The next contention canvassed is that the resolutions or
minutes of meeting of the Board of Directors, resolution
passed thereon and the letter sending the said resolution to
the respondent bank cannot amount to a pleading or come
within the scope of the Rule as such statements are not made
in the course of the pleadings or otherwise. When a
statement is made to a party and such statement is brought
before the Court showing admission of liability by an
application filed under Order XII, Rule 6 and the other sideSignature Not Verified
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KUMAR BABBAR
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has sufficient opportunity to explain the said admission and
if such explanation is not accepted by the Court, we do not
think the trial Court is helpless in refusing to pass a decree.
We have adverted to the basis of the claim and the manner in
which the trial Court has dealt with the same. When the trial
Judge states that the statement made in the proceedings of
the Board of Directors meeting and the letter sent as well as
the pleadings when read together, leads to unambiguous and
clear admission with only the extent to which the admission
is made is in dispute. and the Court had a duty to decide the
same and grant a decree. We think this approach is
unexceptionable.
6. The powers under Order XII, Rule 6 of the Code has to be
exercised judicially on the facts and circumstances of each
case. The admission on the basis of which the Court wishes
to pass a decree has to be unambiguous, clear and
unconditional. There is no doubt that in a suit there can be
more than one decree passed at different stages and each
decree being separate and independent is enforceable in
accordance with law, was the principle stated by (1970) 3
SCC 124 : AIR 1971 SC 1081 Chanchal v. Jalaluddin.
Admission understood in its common parlance still must be a
specific admission. There is very fine distinction between
unambiguous and specific admission on the one hand and
vague averments of facts which, if proved, could even
tantamount to an admission on the part of a party to the suit.
The Court has to consider the need for passing a decree on
admission under these provisions only in the cases of first
category and normally should decline in the cases of the
later category.
7. The term „Admission‟ in section 70 of the Evidence Act
relates only to admission of a party in the course of the trial
of the suit and not to the attestation of a document by the
party executing it. The essential feature of admission is that
it should be „Concise and deliberate act‟. It must not be
something which was not intended and was not the intention
of the party. Pre-requisite to admission are unconditional,Signature Not Verified
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KUMAR BABBAR
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unambiguous and intend the same to be read and construed
as admission. The scope of admission of a claim is also
explained under Order DC, Rule 8 of the Code of Civil
Procedure, which contemplates that there must be a claim as
laid down in the plaint which is admitted, for the ground
stated therein and not simply an admission of cause of
action. The legislative intent is clear from the provisions of
the Code that an admission has to be unambiguous and
clear. The Black’s Law Dictionary explain the word
„Admission‟ as follows:
“admission: Any statement or assertion made by a party to a
case and offered against that party; an acknowledgment that
facts are true. Admission against interest. A person’s
statement acknowledging a fact that is harmful to the
person’s position as a litigant. An admission against interest
must be made either by a litigant or by one in privily with or
occupying the same legal position as the litigant”.
8. It is also a settled principle of civil jurisprudence that
judgment on admission is not a matter of right and rather is
a matter of discretion of a Court. Where the defendant has
raised objection which will go to the very root of the case, it
would not be appropriate to exercise this discretion. The use
of the words „May‟ and „make such orders‟ or „give such
judgment‟ spells out that power under these rules are
discretionary and use of discretion would have to be
controlled in accordance with the known judicial cannons.
The cases which involves questions to be decided upon
regular trial and the alleged admissions are not clear and
specific, it may not be appropriate to take recourse to these
provisions. In the case of Pariwar Sewa Sansthan v. Dr.
(Mrs.) Veena Kalra, AIR 2000 Delhi 349 the Court examined
at length the provisions and the need for an admission to be
unequivocal and positive. The admission would obviously
have the consequences of arriving at that conclusion without
determination of any question and evidence. The Court while
relying upon the case of Balraj Taneja v. Sunil Madan,
(1999) 8 SCC 396: AIR 1999 SC 3381 and Dudh Nath
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KUMAR BABBAR
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Pandey v. Suresh Chandra Bhattasali, (1986) 3 SCC 360 :
AIR 1986 SC 1509 held as under:
“In Razia Begum v. Sahebzadi Anwar Begum it was held
that Order 12 Rule 6 has to be read along with the proviso to
Rule 5 of Order 8 that is to say, notwithstanding the
admission made by the defendant in his pleading, the Court
may still require the plaintiff to prove the facts pleaded by
him in the plaint.
Thus, in spite of admission of a fact having been made by a
party to the suit, the Court may still require the plaintiff to
prove the fact which has been admitted by the defendant.
At this stage it would be useful to recall some factual
contentions emerging from the pleadings: In 1995 the
appellant/defendant was asked to vacate and hand over
possession of the suit premises, on the ground of the
violation of the terms of the lease; On 25th May, 1996 a
notice was alleged to have been served upon the defendant,
requiring it to vacate the premises, on 12th September, 1996,
tenancy is alleged to have expired by efflux of time and on
8th September, 1996, telegraphic notices were also alleged
to have been served upon the defendant. The defendant had
pleaded that they were the contractual tenants in respect of
the basement since 12-9-1990 and in respect of ground floor
since 29-11 -1985; that the lease deeds dated 12-5-1994
were never acted upon and were sham documents; two
tenancies existed in respect of the ground floor and two
tenancies existed in respect of the basement and plaintiff
Nos. 1 and 2 used to get separate cheques in their individual
names, in respect of each of these portions. In fact, the
plaintiffs did not deny the fact that they had been receiving
the rent separately in their respective names, with regard to
the ground floor and basement tenancies. However, it was
pleaded that in 1995, the defendants started issuing two
separate cheques in the name of each of the plaintiffs for
their convenience. On the basis of these pleadings trial
Court, inter alia, framed specific issues that whether the
defendant is a contractual tenant or not and whether theSignature Not Verified
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lease was validly terminated or was terminated by efflux of
time?
The question whether defendant became contractual tenant
after 1995, when they were called upon to vacate the
premises on the ground of alleged violation of the terms of
the lease, and effect of the circumstances leading to the
acceptance of the rent by the two plaintiffs individually in
their respective names would require trial. These questions
could not be determined without evidence and, therefore, it
cannot be said to be a case of “unequivocal” and clear
positive admission, which is an essential requirement of law
for a decree on admission. Learned trial Court instead of
concentrating on the question that whether there was any
admission on the part of the defendant or not in its pleadings
or elsewhere, proceeded to adjudicate upon some of the
issues on merits by observing that the pleas raised by
defendant are unbelievable, which could not have been done.
There being triable issues raised going to the root of the
case, the trial Court ought to have proceeded to try the suits
and returned findings on merits. The impugned judgment
and decrees are thus liable to be set aside and the suits
deserve to be remanded for trial in accordance with law”.
5. It will be further useful to make a reference to a judgment
of this Court in Western Coalfields Ltd. v. Swati Industries,
2004 (1) Bom. C.R. 322 where the Court took the view that
admission made by the parties has to be absolute and
unconditional and where in the written statement it had been
specifically stated that in terms of another contract, the said
amount had already been appropriated. This is not an
unqualified admission on part of defendant which would
invite a decree against it for the said amount. Nature of
admission is neither conclusive to invite order under Order
12, Rule 6 of Civil Procedure Code nor would operate as
estoppel against defendant under section 115 of Evidence
Act. The provision of Order XII, Rule 6 of the Code
contemplates an admission of fact and such admission could
not be inferred
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KUMAR BABBAR
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6. In the present case, the appellants had relied upon the
letters written by the respondents to the Insurance Company
or to the Police Authorities, that related to the claim which
included the claim regarding furniture belonging to the
appellants. In the written statement filed, the respondents
have denied their liability. They have made out the case of
bailment in terms of sections 148, 151 and 152 of the Indian
Contract Act and denied that they have any liability towards
the appellants for the alleged loss. According to the
appellants even if it was considered to be a case of bailment,
still the liability would be there as it is for the respondents to
show that they had taken all proper care and precaution for
use of the material and furniture given to them on hire. This
issue can only be determined during the trial. At best these
documents including the claim made to the Insurance
Company can be termed as partial admission to the extent of
value of the goods but it cannot be inferred from these
documents that the respondents have admitted their liability
to pay for the losses and make good the amount of loss
claimed by the appellants. These are the matters which can
be decided by the Court finally only after the parties have
been given an opportunity to lead evidence in support of
their case. In other words, unambiguous admission of
liability would be a pre-requisite for decreeing any amount.
The admission at best can be treated as a partial admission
of the value of the goods and nothing more. The liability to
make good the losses is de hors the value of the goods. The
learned Single Judge while rejecting the application noticed
that the respondents would be in the position of bailee and
as such would be bound to take as much care of the goods
bailed to them as a man of ordinary prudence would under
similar circumstances, take of his own goods of the same
bulk, quantity and value as the goods bailed under the
provisions of section 151 of the Indian Contract Act. Further
the learned Single Judge held that the appellants would have
to establish the lack of care, if at all, on the part of the
respondents in respect of damage to the furniture hired by
them. This reasoning of the learned Single Judge is in
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KUMAR BABBAR
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consonance with the provisions of sections 148 and 151 of
the Indian Contract Act, 1872. Under section 152 of the
Indian Contract Act, the bailee in absence of any special
contract is not responsible for the loss, destruction or
deterioration of the thing bailed, if he has taken due amount
of care described under section 151. It would be a matter
which would require consideration of the Court during the
course of the trial.
7. In the same Notice of Motion No. 2561 of 2007, the
Applicants had also claimed certain interim orders while
titling the application as for decree on admission. It is a
settled principle of law that the Order XII, Rule 6 of the
Code cannot be used where vexed and complicated questions
or issues of law arise and it does not contemplate passing of
interim orders. Reference in that regard can be made to the
case of Manisha Commercial Ltd. v. N.R. Dongre, AIR 2000
Delhi 176 as well as to a judgment in the case of Gorivelli
Appanna v. Gorivelli Seethamma, AIR 1972 A.P. 62.
8. In light of this position of law and nature of the documents
referred to by the appellants, we have no hesitation in
holding that it was not a case for passing a decree on
admission.
9. For the reasons stated above, we find no merit in the
Appeal and the same is accordingly dismissed, with no order
as to costs.”
44. In the instant case, the judgment as rendered by the learned Trial
Court is based on two considerations as mentioned above. Coming to the
first consideration, i.e. the appellant society does not have any authorized
representative, this Court is of the view that the same is entirely based
upon the findings of the various Courts in the suit bearing CS no.
7634/2016 filed by one Mr. Murali Chowdhry against Mr. Laxman
Chowdhry.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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45. As per the relevant material, i.e. the order dated 27 th August, 2016
passed by the learned ADJ-04, South district, Saket Courts, New Delhi in
CS no. 7634/2016, judgment dated 14th October, 2016 passed by the Co-
ordinate Bench of this Court in RFA bearing no. 784/2016 and order
dated 16th December, 2016 passed by the Hon’ble Supreme Court in
SLP(C) no. 36062/2016′ Mr. Pathania and Mr. Dutta were not a party to
the said suit and the proceedings in the same were for different cause of
action arising between the different parties.
46. The relevant extracts of the recall application filed by Mr. Pathania
in CS no. 7634/2016 for recall of the order dated 27th August, 2016 also
depicts that the suit was dismissed and no party was granted any relief.
47. Furthermore, it is also clear that the documents/relevant records
pertaining to the CS no. 7634/2016 were summoned by the learned Court
below suo motu and no party to the suit referred to the same.
48. It is an admitted position that the instant suit before the learned
Court below was filed for mandatory injunction against the alleged illegal
occupation by the respondent no.1 i.e. the pujari employed initially for
the caretaking of the temple managed at the suit property by the appellant
Society.
49. It is also undisputed that the plaint filed before the learned Trial
Court was amended subsequently to seek same reliefs against the legal
heirs of late Sh. Gurcharan Singh Sethi, who allegedly attempted to
demolish the temple erected thereon.
50. The material on record as placed by the parties herein depicts that
the CS no. 7634/2016 was filed by Mr. Murali Chowdhry seeking
declaration that he and his group members are the real members of the
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KUMAR BABBAR
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appellant Society, however, Mr. Murali Chowdhry was disentitled to
represent the appellant Society, therefore, the issue regarding the
representation of the Society attained finality where Mr. Pathani and Mr.
Dutta were never barred from representing the appellant Society.
51. The above-mentioned factum does not constitute as the essential
ingredient to hold that the appellant society does not have any authorized
representative, rather the same only depicts that one Mr. Murali
Chowdhry is disentitled from representing the appellant society.
52. It is no doubt that earlier, the Court had substituted Mr. Pathania
with Mr. Murali, however, pursuant to the decision taken in the GBM of
the appellant society, both Mr. Pathania and Mr. Dutta had duly filed
applications for their impleadment as the authorized representatives.
53. Therefore, at this juncture, it is apposite to state that the learned
Court below erred in relying upon the same to hold that the appellant
Society is without any authorized representative whereas the order passed
in the above said civil suit only pertains to one Mr. chowdhry, who is
unrelated to the proceedings before the learned Trial Court in the matter
pending appeal herein.
54. Now coming to the question of whether Mr. Pathania and Mr.
Dutta are the authorized representatives of the appellant Society or not.
For the same, it is imperative for this Court to refer to the documents
clarifying the position of the parties.
55. One such relevant document is the order dated 4th December, 2020
bearing no. ROS(SE)/57/66/1973/1187 passed by the Registrar of the
Societies, New Delhi. The extracts of the said order reads as under:
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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On perusal of aforesaid representations and earlier
representation dated 21/09/2020 submitted by the applicant,
it has been observed that:-
(a) The original records of Aparna Ashram Society
(registration no.S-5766 of the year 1973) registered under
the Societies Registration Act, 1860 is not available in the
office of Registrar of Societies and as per the letter
No.S/5766/rfs/2008/689 dated 20/06/08 available in the
society file, the main file is missing prior to 28/06/1978 and
same was also intimated to the Supdt. Of
Police:CBI:SPE:SIC vide letter No. S/5766 dated 28/06/78.
But for reconstruction of the file hearings were carried out
through various years.
(b) Further, as per the documents available in the society file
maintained in this office, the then Registrar of Societies
conducted an enquiry into the rival claims of the parties and
the then Registrar of Societies directed both parties to
submit their documents and also to produce the original
documents available with them. Shri K. S. Pathania
produced all the original documents available with the
Governing Council before the then Registrar of Societies.
However, the Shri Laxman Chaudhary failed to produce any
original document before the then Registrar of Societies in
support of his claim pertaining to the Aparna Ashram
Society. In the order sheet dated, 12.04.2001, the then
Registrar of Societies has observed that both parties were
directed to produce various documents/registers in their
possession in support of their contentions. However, Sh,
Laxman Chaudhary could not produce the requisite
documents. In the next order dated 15.05.2001, the then
Registrar of Societies has observed that neither Sh. Laxman
Chaudhary nor any person appeared on his behalf and the
record was also not produced. The then Registrar of
Societies has observed that Laxman Chaudhary has no
locus-standi in the case. Sh. K.S. Pathania had filed an
application for obtaining certified copy of the list of
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KUMAR BABBAR
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governing council and certified copy of the registration
certificate of Aparna Ashram Society, however the then
Registrar had directed Sh. K.S. Pathania to obtain the
directions from the Hon’ble Court in this regard as the
dispute is pending between the parties. Sh. Kashmir Singh
Pathania filed writ petition No.283/2002, titled as ‘Kashmir
Singh Vis. Registrar of Societies’ before the Hon’ble Delhi
High Court and in the order dated 15.01.2002, the Hon’ble
High Court had directed the Registrar to issue the certified
copy of the documents as requested by Sh. K.S. Pathania.
(c) The applicant (Sh. K.S, Pathania) has earlier
submitted/enclosed Hon’ble High Court of Delhi orders
dated 17.12.2019 in ITA matters Nos. 391, 392, 396, 397,
398, 401, 402, 407, 400, 399, 394, 405, 406, 469 of 2018 and
Hon’ble ITAT, Delhi order dated 06/01/2020 in ITA
No.3153/DEL/2014(Assessment Year:1982-83] in support of
his claim that applicant had/has been pursuing the cases on
behalf of the Society before Civil Courts/Income Tax
Authorities, As per the aforesaid judgment and records
submitted with representations in this office, they are the
persons, who are carrying the activities of the Aparna
Ashram society.
(d) Further on consideration of the above representation, the
entire record maintained at this office pertaining to Aparna
Ashram Society and correspondences, letters and orders
have been examined in view of Representation dated
22.10.2020 of Mr. K. S. Pathania. It has been observed that
Sh. K.S. Pathania has also stated in his representation dated
21/09/2020 that “Murli Chaudary, Renu Chaudhary, Nand
Kishore, K. K. Gupta had been expelled from Aparna
Ashram Society vide resolution dated 18.10.2015” and has
further enclosed list of General Body and Governing
Council since 1994 to 2019-20 (for the year 2019-20 names
of Sh. Subhash Dutt, President, Sh. B. S. Pathania,
Director/Member Governing Council, Sh. S.P. Verma,
Director/Member Governing Council, Sh. K. S. Pathania,
Director/Member Governing Council, Sh. Ashok Kumar,
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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Member/General Body, Sh. S.K. Bali, Member/General
Body, Sh. Bharat, Member/General Body, Sh. Himanshu
Sharma, Member/General Body have been mentioned).
(e) On examination of records, it reveals that Aparna
Ashram Society was registered in year 1973-74 under the
Societies Registration Act, 1860 bearing No. 5766/73-74. As
per the Rules & Regulations of aforesaid society submitted
by the applicant that Swami Dhirender Bharamachari was
the Founder Director and only Life Member of Aparna
Ashram Society.
(f) After the death of Swami Dhirender Bharamacharl
(Founder Member of Aparna Ashram Society) on
09.06.1994, various persons tried to claim Membership and
Member of Governing Body and President of the said
Aparna Ashram Society. However, in the meantime, as per
noting order dated 08.09.2000, it becomes clear that the
entire record from this office pertaining to this Society was
obtained by C.B.I. and thereafter the Original Files had
never returned from the office of C.B.I. despite efforts by this
office.
(g) In the Noting order dated 30.08.2011, the then Registrar
of Societies has observed that applicant Mr. K. S. Pathania
has submitted the List of Governing Body for the year 1973
onward alongwith Minutes of Meeting etc. However, the
then Registrar of Societies further asked from Mr. K. S.
Pathania to submit original documents as per Noting order
dated 20.10.2011, and in response, the present applicant Mr.
K. S. Pathania submitted following documents in Original to
the then Registrar of Societies:
Register of Minutes of Book: –
From 08.01.1990 to 17.10.1996,
From 04.05.1997 to 27.08.2000,
From 02.09.2000 to 25.03.2010,
From 26.04.2010 to 30.05 2011.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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(h) As per the Note of the then Registrar of Societies Dated
25.08.2014, it was observed that Mr. K. S. Pathania has
shown original records pertaining to induction of general
body members and also it was observed that Mr. K. S.
Pathania has filed the Income Tax Tribunal Appeals and
record to that effect has been submitted to this office.
(i) In addition to Office Order pertaining to Aparna Ashram
Society, the copies of various Income Tax Appeals of 2014-
15 pertaining to Assessment Year commencing from 1979-80
onwards and this office has also in receipt of Order Dated
29.09.2017 passed by Income Tax Appellate Tribunal
whereby all appeals of Aparna Ashram Society were allowed
and the all appeals were contested on behalf of Mr. K. S.
Pathania as Authorized Representative and Mr. Subhash
Dutt, Advocate and Member of Governing Council of the
Society.
(j) That the applicant (Sh. K.S. Pathania) has earlier
submitted/enclosed Hon’ble Suit no CS.No.68/2012 Titled as
“Aparna Ashram Vs Mohan Jha & Ors, in which Shri
Laxman Chaudhary filed an application under order 1 rule
10 Civil Procedure Code 1908 before Hon’ble Inderjeet
Singh ADJ-03, South Saket claiming himself to be the
president of Aparna Ashram society but in order dated
24.09.2011 it is held that applicant/Laxman Chaudhary is
not a necessary party to the suit, the applicant is dismissed
for the following reasons:-
(i) There is no documentary record that he is an elected
president of the plaintiff/ashram.
(ii) There is no plausible reasons explained that if certain
things are supposed to be in his personal knowledge, he is
to be treated to be the necessary party. The application
does not decipher whether the applicant Laxman
Choudhary wants to be arrayed as plaintiff or the
defendant.
(iii) Plaintiff is master and author of its is whom is to be
pleaded party within the domain of plaintiff. The plaintiff
even opposes locus-standi of the applicant, there is noSignature Not Verified
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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question of arraying him as plaintiff and no relief is
claimed against the applicant/Laxman Chaudhary, he
cannot be arrayed as defendant.
(iv) Prima facie the rules and regulations read with the
memorandum of association of the Aparna Ashram, the
governing Council is to look after the part of institution or
withdrawal of legal proceedings, the applicant/Laxman
Chaudhary has no role to play under these regulations.
Accordingly, application stand disposed off.
(k) After dismissal of aforesaid case, Mr. Laxman
Chaudhary filed a review application U/S 114 r/w 151 CPC
1908 before Hon’ble Sandeep Yadav ADJ- 06, Saket Court,
same was dismissed with the reasons that the present case
applicant has not been able to show that the order dated
24.09.2011 was obtained by fraud. Therefore, these
judgments will not help the applicant. In (2009) 14, SC
Cases 063 Inderchand Jain vs Motilal it was held that “the
power of review can be exercised for the correction of the
mistakes but not to substitute a view.” It was further held
that, “such powers can be exercised within the limits of the
statute dealing with the exercise of power. The review
cannot be treated like an appeal disguise.” The court finds
no merit in the application u/s 114 of CPC. Same is
accordingly dismissed.
On the other hand, Mr. Alok, Mr, Murll Chaudhary &
Others have filed a Civil Suit No. 7634/16 titled “Alok and
Others Vs. Laxman and Others” before ADJ- 04 (South),
Saket Court, New Delhi. Thereafter, Immediately an R.F.A.
No. 784 of 2016 was filed by said Mr. Alok in Delhi high
Court and same was dismissed on 04.10.2016. Again, a
Special Leave to Appeal (C) No 36062/2016 was preferred
before the Hon’ble Supreme Court of India and same was
accordingly got dismissed. Further, in relation to this
matter, Hon’ble ADJ- 04(South), Saket Courts, New Delhi
has issued order dated 29/04/2017(on, the application filed
by Sh. K.S. Pathania under Section 151 CPC in Suit No.7634
of 2016), in which it has been held by the Hon’ble ADJ-
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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04(South), Saket Courts, New Delhi that “It is also Important
to mention here that the Civil Suit No. 7634/2016 titled as
Alok & Ors vs. Laxman & Ors In which judgment dated
27.08.2016 was passed, was dismissed and no relief was
granted to either party”.
(l) Further, on the basis of Application dated 21.09.2020
filed by Mr. K. S. Pathania, the earlier letter dated
30.01.2020 sent by this office to Income Tax Department has
been reviewed by this office vide letter dated 07.10.2020 sent
by this office to Income Tax Department.
In view of the above and various facts submitted by the
applicant in his representation dated 21/09/2020 &
22/10/2020, the claim of the applicant regarding its
members mentioned in representation dated 22/10/2020
being the General Body and Governing Council of the
Aparna Ashram Society for the year 2019-2020 having the
mandate to carry the activities of the Aparna Ashram society
is as under:-
General Body
i) Shri Subhash Dutt
ii) Shri B.S. Pathania
iii) Shri S.P. Verma
iv) Shri K.S. Pathania
v) Shri Ashok Kumar
vi) Shri S.K. Bali
vii) Shri Bharat
viii) Shri Himanshu Sharma
Governing Council
(i) Shri Subhash Dutt President
(ii) Shri B.S.Pathanla, Director/Member of Governing
CouncilSignature Not Verified
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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(iii) Shri S.P. Verma Director/Member of Governing
Council
(iv) Shri K.S Pathanla Director/Member of Governing
CouncilOn the basis of aforesaid facts, the above General Body and
Governing Council of the Aparna Ashram Society
(Registration No. S-5766/1973-74) is affirmed and certified
copies be issued accordingly.
56. Upon perusal of the aforesaid extracts, it is made out that the
learned Registrar had duly mentioned the details regarding the members
of the appellant Society where Mr. Pathania and Mr. Dutta’s name finds
mention with their respective positions in the appellant Society.
57. It is also pertinent to note that even though the learned Trial Court
casted doubt regarding the authenticity of the same and termed it illegal,
this Court is of the view that since the same was not under challenge
before the learned Court below, the said observations ought not to have
been passed.
58. It is a well settled position of law that the Courts are duty bound to
confine to the pleadings and cannot adjudicate an issue alien to the
pleadings.
59. In the instant case, the adjudication of the issue on the basis of the
said order as passed by the learned Registrar of Societies can be termed
as excess of the jurisdiction by the learned Court below, hence, the said
observations do not meet the criteria to uphold the same.
60. Furthermore, the legality of the order dated 4th December, 2020,
was tested by the division bench of the Punjab and Haryana Court in
CACP 11/2024 and the Court relied upon the said document to arrive at
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
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the conclusion for adjudication of dispute between the parties and
thereby, passed the order dated 31st July, 2024.
61. Therefore, the order dated 4th December, 2020 passed by the
Registrar of the Societies is a legally sound order and the validity of the
same cannot be tested without a challenge made to it.
62. At last, this Court deems it appropriate to determine the relevance
of the case laws cited by the learned senior counsel for the appellant to
supplement his arguments.
63. Firstly, the learned senior counsel cited the judgment rendered by
this Court in the case of Krishna Kumari v. Sunil Kumar Goel & Anr
2014 SCC OnLine Del 4621 whereby, the settled position of law
regarding judgment on admission was discussed. The relevant paragraphs
of the said judgment reads as under:
“18. The purpose of Order 12 Rule 6 CPC is to avoid
waiting by the plaintiff for part of the decree when there is a
clear, unequivocal, unambiguous and unconditional
admission of the defendant in respect of the claim of the
defendant. The rule only secures that if there is no dispute
between the parties, and if there is on the pleadings or
otherwise such an admission as to make it plain that the
plaintiff is entitled to a particular order or judgment he
should be able to obtain it at once to the extent of admission.
But the rule is not intended to apply where there are serious
questions of law to be asked and determined.
19. Likewise where specific issues have been raised in spite
of admission on the part of the defendants the plaintiff would
be bound to lead evidence on those issues and prove the
same before he becomes entitled to decree and the plaintiff
in that event cannot have a decree by virtue of provision of
Order 12 rule 6 CPC without proving those issues. The caseSignature Not Verified
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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of State Bank of India v. Midland Industries AIR 1988 Delhi
153 is relevant in this regard.
20. In Manisha Commercial Ltd. v. Shri N.R. Dongre 85
(2000) DLT 211 it was observed that “Where facts are not in
dispute, and the legal contentions can easily be decided, a
judgment under Order XII can be appropriately delivered.”
64. Another case relied upon by the learned senior counsel for the
appellant Society is the judgment given by the Co-ordinate Bench of this
Court in Satish Swaroop & Anr. v. Nipon Dholua 2023 SCC OnLine
Del 8034, whereby it was held as under:
62. There is no doubt that Rule 6 of Order XII of the CPC,
has been couched in a very comprehensive manner.
However, before a court can act under Rule 6 of Order XII
of the CPC, the admission must be clear, unambiguous,
unconditional and unequivocal. Furthermore, seeking a
judgment on admissions made by a defendant under Order
XII Rule 6 of the CPC, is not a matter of right rather the
same is a matter of discretion of the Court; no doubt such
discretion has to be exercised judicially and on the basis of
the facts of the case at hand.
63. If a case involves questions which cannot be
conveniently disposed under this rule, the Court is free to
refuse to exercise its discretion in favor of the party invoking
it. It is not in each case where Order XII Rule 6 of the CPC,
is invoked that the Court is obliged to pass a decree as the
same would depend upon its own peculiar facts.
64. It is peculiar to note that where the defendants have
raised objections which go to the very root of the case, it
would not be proper to exercise this discretion and pass a
decree in favor of the plaintiff. The purpose of Order XII
Rule 6 of the CPC, is to avoid the pendency of a suit, when
there is a clear, unequivocal, unambiguous and
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KUMAR BABBAR
Signing Date:12.11.2024
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unconditional admission by the defendant in respect of the
claim of the plaintiff.
65. The rule only secures that if there is no dispute between
the parties, and if there is, on the pleadings, or otherwise,
such an admission that crystallizes that the plaintiff is
entitled to a particular order or judgment he should be able
to obtain it at once, to the extent of such admissions.
66. However, the rule is not intended to apply where there
are serious questions of law which are to be asked and
determined. Likewise, where specific issues have been raised
in spite of admission on the part of the defendants, the
plaintiff would be bound to lead evidence on those issues
and prove the same before he becomes entitled to the decree
and the plaintiff in that event cannot have a decree by virtue
of the provisions under Order XII Rule 6 of the CPC, without
proving those issues.
67. The Hon’ble Supreme Court in the case titled as
Charanjit Lal Mehra v. Kamal Saroj Mahajan, (2005) 11
SCC 279, has held that Order XII Rule 6 of the CPC, has
been enacted for a specific purpose, which is to expedite the
trials. If there is any admission on behalf of the defendants
or any admission that can be inferred from the facts and
circumstances of the case without any dispute, then, in order
to expedite the proceedings, the said case could be disposed
of.
68. Further, the power under the said provision is not only
discretionary but also requires exercise of caution, and
unless there is an ambiguity in the admission, the Court may
pass a judgment. The Hon’ble Supreme Court in the
judgment of S.M. Asif v. Virender Kumar Bajaj, (2015) 9
SCC 287, had delved into the aspect of the extent of the
Court’s discretion to exercise its power under Order XII
Rule 6 of the CPC. The Hon’ble Court observed as follows:
“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 ofSignature Not Verified
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KUMAR BABBAR
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right. Judgment on admission is not a matter of right and
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.”
69. It is trite law that when a Civil Court deals with an
application under Order XII Rule 6 of the CPC, the Court
shall not only look into the pleadings but also the documents
annexed thereto, in order to ascertain the position of the
purported „admissions‟ emerging from the pleadings and
evidence on record of such Civil Court.
70. This Court is of the considered view that to make an
order or to pronounce a judgment on admissions is at the
discretion of the Court. Firstly, the word „may‟ is used in
Order XII Rule 6 of the CPC, and not the word „shall‟ which
prima facie shows that the provision is an enabling one. The
provisions of Rule 6 of Order XII of the CPC, are
discretionary and not mandatory or obligatory in nature and
it is not incumbent on the Court to make an order or to
pronounce a judgment in favour of the plaintiff in all cases
on the basis of such admissions by the defendant.
71. It is also clear that when a defense is set up and it
requires evidence for the determination of the issues, then
the provisions of Order XII Rule 6 of the CPC, are not
applicable and therefore, a judgment cannot be passed in
this regard. Accordingly, the pleadings of parties are
required to be considered and scrutinized to reach to the
conclusion to pass such judgment as sought, on the basis of
the alleged admissions.
72. The admissions need not be made specifically,
particularly, or expressly, and could be constructive
admissions also. The test, therefore, is first, whether
admissions of facts arise in the suit, second, whether such
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KUMAR BABBAR
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admissions are plain, unambiguous and unequivocal, third,
whether the defense set up is such that it requires evidence
for determination of the issues and fourth, whether
objections raised against rendering the judgment are such
which go the root of the matter or whether these are
inconsequential, thereby, making it impossible for the party
to succeed even if entertained. The said view has been
enunciated by the Hon’ble Supreme Court in the judgment
passed in Hari Steel & General Industries Ltd. v. Daljit
Singh, (2019) 20 SCC 425 and reaffirmed in Satish Chander
Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.
65. Upon perusal of the both cases, it is clear that the judgment on the
basis of admission needs to meet the test as crystalised in the above said
cases.
66. Briefly stated, the test with respect to the admission firstly
includes, the admission of fact in the suit, secondly, the said admissions
should be plain, unambiguous and unequivocal, and lastly, the objections
raised against rendering of the judgment needs to go to the root of the
matter which ultimately makes it impossible for the party to succeed
lateron.
67. The application of the above said test in the factual matrix of the
instant case depicts that the learned Court below did not abide by the
settled position of law in holding that the case of the appellant Society
does not hold any water due to non-representation from the Society.
68. The second reason assigned by the learned Court below also suffers
from material illegality as the lease deed as termed to be unchallenged
has already been challenged in a separate suit as the same raises separate
cause of action, therefore, the same cannot be a reason for dismissal of
the suit filed for separate reason.
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
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69. Therefore, this Court is of the view that the learned Court
committed an error of law in dismissing the suit under Order XII Rule 6
of the CPC.
CONCLUSION
70. In the instant case, the appellant Society has preferred the instant
appeal against the impugned order primarily on the ground that there was
no admission on part of any party to render the suit non-triable.
71. As discussed earlier, the judgment under Order XII Rule 6 of the
CPC can only be passed if there are unequivocal, clear, unambiguous and
or otherwise, and if it is found that there are certain defenses or objections
that give rise to triable issues, it is only just that the issues raised in the
suit be decided after conducting a proper trial.
72. The aforesaid provision is an enabling provision, therefore, it is
neither mandatory nor pre-emptory, and however, it is discretionary.
Hence, the Court, on examination of such facts and circumstances, must
exercise its independent judicial discretion, keeping in mind that a
judgment on admission is a judgment without trial.
73. It is also apposite to reiterate that in order to pass a judgment on
admissions, the entire contents have to be taken as a whole and picking
part averments as form of admissions is not the mandate.
74. Even though the Courts have the discretionary power to pass a
judgment on admission, the same needs to be in consonance with the
conditions laid down in the abovesaid provision.
75. Taking into consideration the observations made in the preceding
paragraphs, it is held that the learned Trial Court erred in rendering a
judgment on the admissions for the following reasons:
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
18:37:54
a) The issues arising in the dispute were triable issues as
the claim made by several factions depicts different picture
and the same can only be clarified after a proper trial by the
learned Court below.
b) The ruling by the Courts in the case stemming from
CS 7634/2016 ought to not have any impact on the
proceedings in the present case as the said case arises out of
a dispute between different parties.
c) The order dated 4th December, 2020 bearing no.
ROS(SE)/57/66/1973/1187 passed by the Registrar of the
Societies was termed invalid without any challenge made to
the said order by any party.
76. As per the settled position of law, admission of the fact or fact-in
issue must be clear from the record itself and cannot be left to the
interpretative determination by the Court, and in the present case, the
learned Trial Court erred in doing interpretative determination of the
admissions alleged by the plaintiff/respondent.
77. Therefore, in view of the foregoing discussions, this Court is of the
view that the learned Court below erred in passing the impugned order
and thus, this Court deems it appropriate to exercise its appellate
jurisdiction.
78. Accordingly, in view of the above facts and circumstances, the
impugned order/judgment dated 4th December, 2021 passed by the
learned ADJ, South-East District, Saket Courts, Delhi in C.S. No.
7447/16 is set aside and the instant appeal is allowed. In light of the same,
this Court deems it appropriate to pass the following directions:
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Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
18:37:54
1. The order dated 4th December, 2020 bearing no.
ROS(SE)/57/66/1973/1187 passed by the Registrar of the
Societies is upheld in view of the observations made
hereinabove.
2. The instant matter is remanded back to the learned Trial
Court and the learned Court is directed to adjudicate the
dispute/C.S. No. 7447/2016 afresh, after considering the
contentions of both sides along with the impleadment
application filed before this Court on behalf of „Aparna, the
Deity‟ as well as any other disputes, if any; and decide the same
expeditiously, preferably within six months, without giving
unnecessary adjournments to either of the parties in accordance
with the law.
3. It is made clear that the observations made by this Court
shall not affect the merits of the dispute.
4. All the parties are directed to maintain the status quo till
the disposal of the civil suit before the learned Trial Court.
79. Accordingly, the instant appeal is disposed of. Pending
applications, if any, stands dismissed.
80. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
NOVEMBER 8, 2024
RT/av/ryp Click here to check corrigendum, if any
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RFA 9/2022 Page 60 of 60
Digitally Signed By:PRAVEEN
KUMAR BABBAR
Signing Date:12.11.2024
18:37:54