Hassan Din and Others vs Ghaya

Sunil Hali, J.—Instant Civil Second Appeal impugns the judgment and order of the learned District Judge, Poonch, dated 22nd of April'06,

whereby the 1st appeal filed by the Appellants against the judgment and decree passed by the learned Sub Judge, Surankote dated 24th of

March'04, has been dismissed.

The facts for the disposal of this appeal are that Respondent filed a civil suit in the court of learned Sub Judge, Surankote, seeking permanent

prohibitory injunction restraining the Appellants herein from interfering in any manner over the suit property comprising in Survey No. 598 and 599

situated at village Kalar Katal. The said suit was decreed in favour of the Respondent by the trial court vide its judgment dt. 24th of March'04.

The Appellants preferred an appeal against the aforementioned order before the court of learned District Judge, Poonch, who dismissed the

appeal vide order, impugned dt. 22nd of April'06, being not maintainable. It is against the said order, as indicated above, the present appeal has

been filed.

A perusal of order dt. 24th of March'04, passed by the learned trial court shows that the Appellants appear to have filed written statement in

which it was asserted that the Appellants (Defendants) have no concern with the suit property. It was keeping in view the said statement made by

the Appellants, judgment and decree came to be passed in favour of the Respondent. When the matter came before the Ist Appellate court,

placing reliance on Order XII R.(6) and Section 96(3) of the Code of Civil Procedure, the appeal was dismissed vide order impugned.

It is averred in the present appeal that the Appellants were owner in possession of the land in question and the Respondent concealed the fact

from the trial court that the matter has been remanded to the Tehsildar concerned for denovo inquiry after a revision petition filed before the J&K

Special Tribunal, Jammu, with respect to the same property, was accepted. It is stated that when the Respondent had pleaded before the trial

court that the land in dispute is under his possession and the said fact was being disputed, the trial court should have framed the issues and decided

the same in accordance with the law. It is further contended that the statement which was alleged to have been made by the Appellants on which

reliance was placed by the trial court while passing the decree, was not made with free will but under pressure as the son of the Respondent who is

working as a Special Police Officer managed to get the Appellants arrested in a false case and they were physically and mentally tortured by the

police in Police Station, Surankote. It is stated that this aspect of the matter was not taken note of by the Ist appellate court.

This Court vide order dt. 24th of March'07, on noticing that the written statement referred to in the order of the learned trial court is not on the

record, directed the Sub Judge, Surankote, to submit a report after perusing the suit file regarding the existence of the written statement, if any,

filed by the Appellants.

In pursuance to the aforementioned order, the report has been submitted by the officer concerned stating therein that on 24th of March'04, the

Defendants (Appellants) had appeared in person before the trial court and filed a written statement which is available on the file, wherein the

Appellants submitted on oath that they have no concern with the Survey No. 598 and 599 and this has been treated as written statement by the

court below while passing the judgment and decree dt. 24th of March'04.

I have heard learned Counsel for the parties and perused the record.

As noticed above, a suit for permanent prohibitory injunction was filed by the Plaintiff-Respondent herein on: the ground that he is owner in

possession of land comprising in Survey Nos. 598 and 599 situated at village Kalar Katal measuring about 12 kanals. On the said suit having been

filed, a notice was issued by the trial court to the Defendant-Appellants who are stated to have filed a written statement stating therein that they

have no concerned with the land in question. This statement of the Appellants has been construed to reflect that there was no dispute between the

parties. A decree accordingly was directed to be passed by the trial court in favour of the Respondent.

It be seen that in the report which has been submitted in pursuance to the order passed by this Court on 24th of March'07, it has been stated

that only a statement was made by the Appellants to the effect that they have no dispute over the land in question which has been treated as a

written statement by the trial court. However, looking to the order passed by the trial court, it appears that some written statement was filed by the

Appellants and in pursuance to that, their statement was also recorded.

The said statement, as indicated above, has been construed to be an admission under Order XII R.6 of Code of Civil Procedure. For facility

of reference, the aforementioned provision in so far as relevant is being reproduced below:

Order XII Rule 6. judgment on admissions.

Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit,

either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties,

make such order or give such judgment as it may think fit, having regard to such admissions.

The aforementioned Rule postulates that where a party makes a statement in the pleading or otherwise, the court may pass an order or give

such-judgment as it may think fit, having regard to such admissions. The stage of making admission under the Code of Civil Procedure, comes only

after the parties have filed their pleadings. It envisages a stage after the written statement has been filed. It conveys that after the written statement

has been filed, a party can make an admission on facts.

In the present case, there is no written statement filed by the Appellants. Only their statement has been recorded. It is also not a case where on

non filing of the written statement, decree could be passed under Order VIII R.10 Code of Civil Procedure. Be that as it may, even if there is no

written statement filed or if any admission is made under O.XII R.6, the court cannot pass a decree unless the Plaintiff shows that he has some

prima facie title over the property in question. The court cannot blindly pass a judgment merely because the written statement has not been filed or

where the admission has been made by a party. It is a matter of courts' satisfaction, and therefore, only on being satisfied, that there is no fact

which needs to be proved on account of being admission, the court can conveniently pass the judgment against a party who has not filed the

written statement. The bare minimum that is expected from the court is to indicate that the Plaintiff has some right to claim the property independent

of any admission for which a decree is required to be passed.

The other aspect is that the statement which has been relied upon by the trial court and upheld by the Ist Appellate Court which has become

the basis for passing of the judgments impugned does not satisfy the requirement of Order XII R.6. All that the statement reflects is that the

Appellants have no dispute in respect of the Survey Nos. , referred to above. The same cannot be treated as an admission on the part of

Appellants that the land in question is owned by the Plaintiff-Respondent and cannot be termed to be an admission as envisaged by Order XII R.6.

Assuming for a while that there was an admission on the part of Defendant-Appellants but once it is contended by them that there is no dispute

in respect of the property claimed to be owned by the Respondent, the appropriate course should have been to dismiss the suit as there was no

triable issue which was required to be determined by the learned trial court. I am fortified in this view by a judgment of the Apex Court reported as

Balraj Taneja and Another Vs. Sunil Madan and Another, What has been observed by the Apex Court in the above case is being reproduced

below:

As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the Defendant in his written statement nor the court

should proceed to pass judgment blindly merely because a written statement has not been filed by the Defendant traversing the facts set out by the

Plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the Defendant, the Court should be a

little cautious in proceeding under Order 8, Rule 10, Code of Civil Procedure. Before passing the judgment against the Defendant it must see to it

that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the Plaintiff without

requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no

fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the Defendant who has not filed

the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different

versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the Plaintiff to prove the facts so as to

settle the factual controversy...

In view of the above, I set aside the orders impugned passed by the courts below and direct the case to be remanded to the trial court who

shall proceed in the trial afresh after allowing the Appellants to file their written statement.

Parties to appear before the trial court on 10th of Jan' 2010. Appeal disposed of accordingly.