Arvinder Kaur & Ors v. Sahib Singh & Anr

ORDER

02.08.2013 Thepresentappealis directedagainstan orderof9^*"May, 2013 wherebythe defendant/appellant'sapplicationunderOrderXIIRule6 CPC for dismissalof the suit was rejected. The plaintiff-i.e. the respondent,in the presentappeal-claimspartition. The defendants had urged that the plaintiffhad been given in adoptionto his uncle. The plaintiff'scontention,on the otherhand, was that the adoption was no longerin existencesinceit had been cancelled. The plaintiff relieduponcertaindocuments,includingaffidavits,oneofwhich was • filedduringthependencyofthe suit,and certainotherproceedings,to contendthatthe plaintiffhad unambiguouslybeen adoptedas the son ofJagbir Singh, secondrespondent. It was thus contendedthat the plaintiffcouldnotmaintainthe suitforpartition. / The learnedSingleJudge by the impugnedordertook note of the previousproceedingsas well as the unsuccessfulattemptsofthe defendantsto havethe suitrejectedand thereafterobservedthatrelief underOrderXII Rule 6in the peculiarfacts and circumstancesrelief could not be granted.

¶11Ithasfurtherbeenenquiredfromthe counselfor the defendantsno. lto4/applicantsthatifthe claimof the defendantsno.lto4/applicantsisfor dismissalon the basis of the aforesaidadmission ofdocuments, whetherthe rightoftheplaintijfto given explanation thereforcan be shutoutby dismissalofthesuit.

¶12No answerisforthcoming.

¶13I am of the view thatthe admissionswhichare in the nature ofevidencecannot invite disposalunder Order 12 Rule 6 of the CPC inasmuch as decision cannotbe onpart ofthe evidenceonlyandwithout giving opportunity to the parties to lead entire evidence.

¶14Thereis thus no meritin the applicationwhich is dismissed." J Learned counsel for the defendantsurged that the impugned order errs in law and relies upon previousunsuccessfulattemptsof the defendants/appellants,which have ultimately persuaded the learnedSingleJudge. It was contendedthat each ofthe documents, particularlythe affidavits,unequivocallystate that the plaintiffwas the son of JagbirSingh;ifso, he couldnot have claimedpartition,of the suit propertieswhich were originallyowned by SardarAmarjeet Singh. This Courthas carefullyconsideredthe submissions. The law pertainingto decreeon admissionsno doubt statesthat the approach ofthe Courtshouldbe to give effectto unambiguousadmissionsand curtail litigationwheneverpossible. However, the rulings are also clear that what appears to be an admission can often times j^e ' explained otherwiseduringthe courseofafull trial. Thisis precisely what had persuaded the learned Single Judge, as is evident from readingofpara 11, to rejectthe applicationfor decreeofdismissalon admission. This Court is of the opinion that no error is found with the impugnedorder since the plaintiff,being in carriageofproceedings, could have a possible explanationabout the documents given the opportunityof trial. The Court furthernoticesthat vide order dated 9'^ May, 2013, parties have been released from the rigours of Section 52 of the Transfer of Property Act, 1882. The Court thereafterproceededto in para 22, frame issues and set downthe suit for trial. In viewofthe abovereasonsand havingregardto all particular circumstances,the Courtisofthe opinionthatthereisno infirmityin the impugnedorder. The appealisaccordinglyrejected. S. RAVINDRA BHAT, J NAJMI WAZmi, J AUGUST 02, 2013 'sn'

; } $-8 + IN THE HIGH COURT OF DELHI AT NEW DELHI FAO(OS) 350/2013 ARVINDERKAUR& ORS Appellants Through: Mr.BhagatSingh,Adv. versus ' , SAHIB SINGH&ANR. ..... Respondents Through CORAM; HON'BLEMR.JUSTICES. RAVINDRABHAT HON'BLEMR. JUSTICENAJMIWAZIRI