Balraj vs Mannu Devi

On this reference coming up before me today, Mr. M. S. Bhat Advocate has appeared for the respondent, Mannu Devi. No body appears for the

petitioner, Balraj, nor has any body appeared on 3.8 1992 on his behalf before the Registry, although vide order under reference parties had been

directed to can e their appearance in the High Court on that date.

The only point on which reference has been made is that there is no proof available on record to sustain the order under reference and also the

order of the Trial Court.

The Trial Magistrate has returned the order in Urdu and exact possible version of the same in English is under

Guardian of the minor child present. Nonapplicant alongwith counsel present. Respondent has in the open court accepted that he was paying Rs.

300/ P.M. as maintenance to the applicant in the case titled Rattanbala vs Balraj. He was also ready to spend the same amount in future also.

Respondent is, therefore, directed that he should pay Rs. 300 P.M. as maintenance to the applicantchild. In these circumstances this file is

consigned to records. The amount of maintenance for the previous month has been given to Rattanbala in the open Court. After this month

respondent shall be continuing the payment.

Announced

22.7.1992."" On a bird's eye view of this order following features become clear:

1That the order has been based on admission of the respondent, Balraj:

2That the application for maintenance is dismissed;

3That the maintenance amount for preceding month has been paid in the Court.

The Trial Magistrate, as is obvious from the order, has proceeded solely on the admission of the respondent before him. The Sessions Court has,

as expressed above, called it to be a case of no evidence and as such makes this reference. So the question before the Court will be whether or

not a fact admitted, needs to be proved. This question is answered by section 58 of the Evidence Act which reads as under:

No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing,

they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by

their pleadings.

This section lays down the following modes of making admission of facts which require no proof after such admission unless the Court in its

discretion requires such fact lo be proved otherwise than by such admission:

a) When parties or their agents agree to admit at the hearing of the proceedings;

b) When the agreement for admission is arrived at before the hearing, and the same agreement is reduced in writing under their hands;

c) Which admission by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.

The case comes within the purview of para (a) above as the party has agreed to admit the minor child's claim of maintenance, on a date when the

petition was fixed before the Trial Court. Once an admission of claim is made, there remains no issue of fact or law on which the parties can be

said to be at variance. A Civil Court under Order 15 Rule 1 is called upon to pass a decree on the first day of admission in such a case. So had the

trial magistrate to do in this case because this is a quasi civil matter.

While appreciating the evidenciary value of admission section 58 (supra) will have to be read in the light of sec. 31 of Evidence Act. This is so

because sec. 31 lays down the true nature of such value by making admissions capable of operating as estoppel under the provisions of the Act.

On a cummulative reading of both the sections I find that parties to a proceeding can either make extrajudicial admissions or judicial admissions.

Former are informal admissions, not appearing on the record of the case, but judicial admissions are being made in the case itself and are fully

binding on the parties that make such admissions. Such admissions can form the basis of the rights of the parties as the same result waiver of proof.

Of course a person making admission can withdraw such admission but he can do so only by proving that such admission was erroneous. It is after

such proof that the maker of the admission can successfully withdraw his admission. An admission undoubtedly has the effect of shifting the onus of

proof on to the person who made such admissions. In other words the presumption that is attached to the correctness of such admission, unless

rebutted, has to work as a conclusive proof and does not require any evidence. Hon'ble Supreme Court in AIR 1960 SC 101 had the occasion to

return a brief note with respect to the proposition that an admission, unless rebutted, is the conclusive proof of a fact. In the instant case the

admission seems to have been made by the father. There also seems to be no withdrawal. I have gone through the revision petition filed before the

learned Sessions Judge. I do not find even a murmer in the same suggesting to throw a challenge to the factum of admission. That being so, in my

opinion, the learned Sessions Judge was not right in holding the order of the Trial Magistrate to be bad on account of having been based on no

evidence.

However, on an examination of Trial Court file I am tempted to observe that the Trial Court while bandingdown the above reproduced order on

22.7.1992 has not taken down the statements of the parties, especially that of the respondent. Admittedly a Court order carries with it a

presumption of correctness but such presumption like others is rebutable. Suppose any body chooses to throw a challenge to such admission,

there must be some basis to sustain the Court order. Proper course would have been to get a compromise from the parties in writing and dispose

of the maintenance application in terms of that compromise. However, if that was not done the Court should have recorded the statements of the

parties, especially that of the respondent, before it and then passed the order. The least that the court should have done was to get signatures of the

respondent on the order sheet as, token of admission. But that also has not been done. The petitioner also did rot chose to appear before the

Court. The proceedings relate to a foresaken minor child. The father has made admission before the Trial Magistrate and in fact acted upon that

admission by making one month's payment in the open court. The object of Sec. 488Cr. PC. which is rehabilitatory provision, is to come to the

rescue of float some wives and loathsome children. Therefore, despite the fact that the Trial Magistrate had not recorded the statement of the

father, I am inclined to hold that this omission in this case lends no infirmity to the order. This is so because by doing that technicalities of

procedural law will make the decision of this Court nonsubstantial and unreal. That is also so because an omission on the part of the Court should

not prejudice the minor child in whose favour monthly maintenance has been granted. In this view I am guided by the famous maxim ""actus curiae

naminem gravabi."", which precisely means that an act of the court should prejudice none. This omission does nit render the order invalid. However,

subordinate courts should be cautious while passing such orders and should ensure that an admission if made should conform to section 58 of

Evidence Act (supra) Court of reference has erred in not taking into account the cardinal principle of law of evidence and the Trial court has

omitted to place something on record to prove that such admission was made before it. Had both the Judicial officers acted in accordance with

law, probably there would arise no occasion for undergoing the whole exercise. On the facts of the case I find no merit in the order of reference

and same is rejected. Order passed by the Trial Magistrate on 2 .7.1992 is, however, upheld.