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In the High Court of Karnataka at Bengaluru

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In the High Court of Karnataka at Bengaluru IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01 st DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR C.R.P. NO.22 OF 2011 (IO) C/W C.R.P. NO.23 OF 2011 CRP NO.22 OF 2011 BETWEEN: DAYANAND R SHETTY, AGED 64 YEARS, SON OF DEVAKI SHEDTHI, RESIDING AT SHILPA SHEELA HOUSE, HERGA VILLAGE, UDUPI TALUK, PARKALA POST OFFICE, UDUPI DISTRICT. …PETITIONER (BY SRI.B.V.KRISHNA, ADVOCATE) AND: V PRABHAKARA HEGDE, AGED 69 YEARS, SON OF LATE SOORAPPA HEGDE, ADVOCATE AND NOTARY, RESIDING AT KUNJI BETTU OF SHIVALLI VILLAGE, UDUPI TALUK AND DISTRICT. ...RESPONDENT (BY SRI.SHAKER SHETTY, ADVOCATE) 2 THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE 1908 AGAINST THE ORDER DATED 20.11.2010 PASSED ON IA NO.XII IN O.S.NO.126/2001 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, UDUPI, ALLOWING THE IA NO.XII FILED UNDER ORDER 23 RULE 1 CPC. CRP NO.23 OF 2011 BETWEEN: DAYANAND R SHETTY, AGED 64 YEARS, SON OF DEVAKI SHEDTHI, RESIDING AT SHILPA SHEELA HOUSE, HERGA VILLAGE, UDUPI TALUK, PARKALA POST OFFICE, UDUPI DISTRICT. …PETITIONER (BY SRI.B.V.KRISHNA, ADVOCATE) AND: V PRABHAKARA HEGDE, AGED 69 YEARS, SON OF LATE SOORAPPA HEGDE, ADVOCATE AND NOTARY, RESIDING AT KUNJI BETTU OF SHIVALLI VILLAGE, UDUPI TALUK AND DISTRICT. ...RESPONDENT (BY SRI.SHAKER SHETTY , ADVOCATE) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE 1908 AGAINST THE ORDER DATED 20.11.2010 PASSED ON IA NO.IX IN O.S.NO.126/2001 ON THE FILE OF THE ADDL. 3 SENIOR CIVIL JUDGE, UDUPI, DISMISSING THE IA NO.IX FILED UNDER ORDER 12 RULE 3(A) AND 6 CPC. THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER C.R.P.No.22/2011 is filed for setting aside the order dated 20.11.2010 passed on I.A.XII filed under Order XXIII Rule 3 CPC in O.S. No.126/2001 on the file of Civil Judge (Sr. Dn.), Udupi. 2. C.R.P. No.23/2011 is filed for setting aside the order dated 20.11.2010 passed on I.A.IX filed under Order XII Rule 3(A) and (6) CPC in O.S. No.126/2001 on the file of Civil Judge (Sr. Dn.), Udupi. 3. The aforesaid revision petitions are filed against the common order dated 20.11.20110 on I.As.9, 11, 12 and on memo dated 27.08.2010. 4 4. These revision petitions are of the year 2011. Several opportunities were given to the counsel for the revision petitioner. But there is no representation. 5. Heard the counsel for the respondent. It is the case of the petitioner that there was an agreement of sale between the petitioner and respondent in respect of the immovable property. The respondent filed a suit (in O.S.No.126/2001) for specific performance of agreement of sale in respect of the schedule immovable property which was numbered as O.S. No.126/2001. In the said suit the plaintiff’s evidence was concluded and posted for defendant’s evidence. On 24.08.2010 the petitioner realizing his mistake filed an application under Order XII Rule 3(A) and (6) CPC to decree the plaintiff’s claim for specific performance based on the facts. Admitting the suit averments the Hon’ble trial Judge made the enquiries and was about to decree the suit. At that juncture the respondent filed a counter to the 5 application. Thereafter on 27.08.2010 the respondent filed a memo for withdrawal of the suit in O.S. No.126/2001. The petitioner filed a counter memo. The trial Court passed the order on IAs. 9, 11 and 12 and the memo dated 27.8.2010. Being aggrieved by the said order the petitioner has preferred the aforesaid petitions. 6. This Court had no opportunity to hear the submissions of the counsel for the petitioner. 7. The learned counsel for the respondent submitted that the revision petition is not maintainable against the order passed on I.A. under Order XII Rule 3(A) and (6) CPC. As far as the order passed on IA filed under Order XXIII Rule 1 CPC is concerned, at any stage the plaintiff can withdraw his suit against all or any of the defendants. The Court has got power to consider the same and pass appropriate order. Since the withdrawal of the suit was unconditional, the 6 defendant had no right to object the withdrawal of the suit by the plaintiff-respondent. The revision petition is not maintainable because the order passed in the suit would not have been finally decided. In fact the petitioner herein had filed a separate suit stating that he had lent money of Rs.5,00,000/- and for recovery of the said amount. The said suit was dismissed on merits. When the defendant had denied the execution of the agreement and alleged that it was a fabricated agreement of sale and also filed a criminal complaint in this regard he had no locus standi to file an application under Order XII Rule 6 of CPC and seek a decree on the admission. In support of his contention he has relied on the following decision. (2011) 15 SCC 273 Himani Alloys Limited vs. Tata Steel Limited wherein it is held as under- “ Civil Procedure Code, 1908 – Or. 12 R.6 – Judgment on admission – Nature and scope of – Held, being an enabling provision, it is neither mandatory nor peremptory but 7 discretionary – The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits – Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim – In short the discretion should be used only when there is a clear “admission” which can be acted upon – Evidence Act, 1872, Ss.17 and 58.” 8. As could be seen from the order passed on IAs. 9, 11 and 12 the trial Court has observed that as per the legal principle laid down by the Hon’ble Supreme Court the plaintiff has got unqualified right to withdraw the suit under Order XXIII Rule 1 CPC. Further it is observed that in the affidavit filed in support of IA 9 the defendant has withdrawn the 8 allegations leveled against the plaintiff and prays for decree as prayed for. Order XII Rule 6 CPC enables the Court to pronounce the judgment on admissions. In the case on hand, there are no grounds to show that the admission of the defendants is clear, unambiguous and unconditional, as the defendant had denied the execution of agreement of sale and the allegation about creation of fabricated document. 9. If the plaintiff had not filed any application for withdrawal of suit, the matter would have been different. Merely because the defendant admit the claim of the plaintiff which does not mean that any vested right had been accrued to the defendant. On these reasoning the IA 9 filed under Order XII Rule 3 (A) and (6) CPC and IA 12 filed under Order XXIII Rule 1 CPC is allowed. 10. On going through the impugned order passed on IAs.9 and 12 and the submission of counsel 9 for respondent, there are no valid grounds to hold that the impugned order is erroneous and no other reasons made out to admit the petitions. Hence these petitions are dismissed. Sd/- JUDGE Ykl .
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