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2009 (4) TMI 1043
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....ila Cooperative House Building Society Limited on one hand and the plaintiff and the defendant, on the other, a perpetual sub lease was granted in favour of both the plaintiff and the defendant with respect to the said property. 4. The Society vide their letter dated 07.02.2006 has also certified that the plaintiff is a member of the aforesaid Society and one of the owners of the said plot. It is also averred in the plaint that the plaintiff and the defendant jointly applied for permission to construct on the said plot and got the building plans sanctioned from M.C.D. on 09.02.1973. 5. According to the plaintiff, late mother of the parties supervised the construction of the premises and the plaintiff and their mother contributed the funds for construction of the premises and the defendant at the relevant time was serving in the Army and he had no extra money to contribute towards the construction of the house. 6. The construction of the said house was completed and approved by M.C.D. on 26.08.1976 and thereafter the suit property was given on rent and the rent was enjoyed by both the parties equally and was used for maintenance of the house, taxes and expenses for litigati....
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....f herein on the ground that the plaintiff is threatening to evict him from the suit premises in an unlawful manner. The said suit was filed in this Court being CS[OS] No. 402/2006, which is still pending wherein the defendant has admitted that the plaintiff and defendant are co-owners of the premises in various paragraphs. 15. Since the defendant had failed to agree to amicable partition of the property despite various demands, therefore, the present suit has been filed by the plaintiff against the defendant. The present suit along with the interim application being IA No. 9840/2006 was for the first time listed on 04.09.2006 when in the presence of the counsel for the defendant, the interim order was passed. The operative portion of the interim order is as under: It is not in dispute that the plaintiff and the defendant are real brothers and sons of late Shri Mohan Lal Puri. It is also not in dispute that the plaintiff and defendant are co-owners and equal shareholders of the suit property bearing No. S-1/164, Panchsheela Park, New Delhi. Both counsel state that there is likelihood of settlement between the parties being real brothers and there being no dispute a....
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.... wants to sell the entire premises and make a profit for himself. But the plaintiff resented the threats of the defendants and asked them to drop their malafide objectives since he is the rightful co-owner of the said suit property and hence can not be disposed without the due procedure of law." 18. On the other hand, the defendant has also filed an application being IA No. 14836/2007 under Order 7 Rule 11 read with Section 151 CPC praying that the direction be issued to the plaintiff to correct the valuation for the relief of the partition for the purposes of court fees within the time fixed and to supply the requisite court fees stamp papers on the ad valorem market value and on the failure of the plaintiff to do so, to reject the plaint under Order 7 Rule 11 CPC. In this application, the contention of the defendant is that the plaintiff has valued the suit for the purpose of relief of partition for the purposes of jurisdiction at Rs. 1 crore being the market value of the property and the for the purpose of court fee at Rs. 19.50/- under Article 17[6] of the Schedule to the Court Fees Act. 19. It is stated in the said application that the plaintiff is admittedly out of possess....
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....eing held by the plaintiff; and e] After the vacation of the house, it was mutually agreed that the defendant would shift to suit premises as the parties did not want to give the premises on rent due to reason that the plaintiff shall use the premises whenever he visits India. 24. The detail of the plaintiff's visits to India for the period 1999 to 2006, which constitutes more than 15 visits, is given in para-5 of the reply to this application. It is also stated in the said reply that there was a memorandum of understanding dated 28.02.1995 wherein there are admissions to the effect that "the land and property located at S-164, Panchsheel Park, New Delhi is jointly owned property of Pramod C. Puri and Umang K. Puri and both partners agreed to further develop the said property as per the will and wishes of their late mother Smt. Kaushalyavati Puri". In view of the above said objection to the application raised by the plaintiff, it is stated that the plaintiff has throughout enjoyed the joint, symbolic and constructive possession of the premises as co-owner, thus, it is wrong that the plaintiff has been out of possession for the last 40 years. 25. I have hear....
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....intiff are the joint owners of the property and they have equal share to the same. I do not find any merit in the submission of learned Counsel for the defendant. The admission regarding co-ownership is not merely referred in the order dated 04.09.2006 but the same can be gathered from other pleadings and documents also. It is also pertinent to mention that after passing the order dated 04.092006, the defendant filed two applications one under Order 39 Rule 1 and 2 for modification of the interim order and I.A. No. 11353/2006 under Order 8 Rule 1 CPC for extension of time for filing the written statement and in these applications, no such plea was taken. Therefore, it does not lie in the mouth of the defendant to say that the said order dated 4th September, 2006 has been passed without the consent of the parties. 31. Even in the earlier suit filed by the defendant being CS [OS] No. 402/2006 order passed by this Court also indicates that the parties are trying to resolve the matter. Another aspect of the matter is that the defendant in para-6 of the application filed under Order 7 Rule 11 CPC being IA No. 14836/2007 referred to the order passed in his suit being CS [OS] No. 402/2....
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....uivocal. 36. I feel that there is no dispute regarding the proposition of law is concerned, under Order 12 Rule 6 CPC the law is pretty settled, in this connection, the reference has been made to the decision of the Apex Court reported in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India AIR2000SC2740 where their Lordships have held as follows: In the objects and reasons set out while amending Rule 6 of Order 12 CPC 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. 37. Another judgment of the Division Bench of this Court in the case titled as Delhi Jal Board v. Surednra P Malik reported as 2003 III AD Del 419, the Division Bench has held as under: 6. Judgment on admissions. - (1) 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 appli....
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....e 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." 9. The test, Therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment. 38. Learned Counsel for the plaintiff has also cited various judgments on this aspect. However, it is not necessary to refer to all the judgments cited by the learned Counsel as the law on this subject is well settled and has already been discussed in various decisions of the Apex Court as....
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....ties shall render necessary cooperation to the local commissioner to access the property in question. The local commissioner shall file his report within six weeks from the date of visit at the site along with the site plan. A copy of this order be given dasti to the local commissioner for information and compliance. IA No. 14836/2007 in C.S. [OS] No. 1695. 44. As regards the application under Order 7 Rule 11 CPC filed by the defendant is concerned, the defendant has referred various judgments reported as 116(2005)DLT392 Harjit Kaur and Ors. v. Jagdeep Singh Rikhy 80 [1999] DLT 357 Ranjana Arora v. V.P. Aggarwal, 124(2005)DLT305 Sudershan Kumar Seth v. Pawan Kumar Seth and Ors. AIR2007Delhi60 Nisheet Bhalla and Ors. v. Malid Raj Bhalla and Ors. and 128(2006)DLT633 Sonu Jain v. Rohit Garg in support of his submissions and the learned Counsel for the defendant has argued that the plaintiff is neither in possession nor in control or management of the suit property even jointly nor he is in symbolic possession, therefore, the plaintiff has to make good the deficiency in the court fees. On the other hand, learned Counsel for the plaintiff has referred the statements made in the plain....