D.K.Seth, J. - (1.) The preliminary objection : Maintainability of the appeal : Mr. Santanu Mukherjee, learned Counsel for the respondent, had taken a preliminary objection as to the maintainability of the appeal. According to him, the decree was passed on 20th December, 2001. Against the said decree, a review application was preferred on 3rd/4th January, 2002. This review was partly allowed by an order dated 15th July, 2002. Therefore, when the appeal was preferred on 11th September, 2002 against the judgment and decree dated 20th December, 2001, there was no judgment and decree, which stood modified by reason of the order dated 15th July, 2002, being the decree against which the appeal could have been preferred. The subsequent dismissal of the review application or rejection thereof on account of not being pressed by the applicant would not alter the situation and would still affect the maintainability of the appeal. In support of his contention. Mr. Mukherjee had relied upon a decision in Sushil Kumar Sen vs. State of Bihar, 1975(3) SCR 942. Relying on this decision, he contended that the principle laid down therein fully applies in the facts and circumstances of this case. Therefore, this appeal cannot be maintained. "(1). Mr. Barun Roy Chowdhury, learned Counsel for the appellant, on the other hand, points out that this decision in Sushil Kumar Sen (supra) is distinguishable. According to him, the moment, the application for review was not pressed before this High Court in connection with the cross-objection against the part of which the review was refused, the whole review episode becomes redundant and only remains on the record and it evaporates in the eye of law, As such it is the decree dated 20th December, 2001, which remains to be appealed against. Therefore, the appeal is very much appealable. "(2). On the question of this preliminary objection, we find that the principles of law upon a review application being allowed or rejected are settled proposition of law. If a review application is allowed, no matter whether the decree is reaffirmed, modified or reversed on review it is the decree that is passed on review even though affirmed, would be the decree relevant for being appealed against. This is a settled proposition of law as was recognized in the said decision of Sushil Kumar Sen (supra) relying on the decisions in Nibaran Chandra Sikdar vs. Abdul Hakim, AIR 1928 Cal 418; Kanhaiya Lal vs. Baldev Prasad, ILR 28 All 240; Brijbaso Lal vs. Salig Ram, ILR 34 All 282 and Pyari Mohan Kundu vs. Kalu Khan, ILR 44 Cal 1011. "(3). We have also occasion in this High Court in Full Bench to decide this question in K. N. Mishra vs. Union of India, AIR 2003 Cal 307 : 2003(10) AIC 913 (Cal HC) : 2003(2) CLJ 637 : 2003(3) CHN 535, following the decision in Gour Krishna Sarkar vs. Nil Madhab Saha, 36 CLJ 484 : AIR 1923 Cal 113. But the question remains, if the review application is rejected at the very first stage and second stage is not reached and the third stage is not concluded in, in that event, whether the order of rejection of the review application would have the same effect of reviving the decree as a fresh decree on the date of rejection of the review application. Mr. Mukherjee had contended that by reason of rejection of the review application, the decree that has been passed is affirmed and as such it would be treated as a fresh decree passed on the date of the rejection of the review application. In fact, according to him, the decree that was sought to be reviewed stands affirmed and revived as soon review application is rejected. He also contends that it would depend on the facts and circumstances of each case, namely, whether at one point of time the decree was reversed and the subsequent rejection would amount to revival of the decree and would not be the same old decree, which would be appealable. "(4). The decision in Sushil Kumar Sen (supra) seems to be distinguishable on facts. In that case on review the decree was modified, and the appeal was preferred against both the decree including the modified one. But the grounds were taken only with regard to the modified decree not with regard to the original decree which stood revived after the modified decree was ultimately set aside. In such circumstances, it was held that the appeal could not be maintained against the old decree in the absence of any ground taken against the old decree. This is not the case here. Here the appeal has been preferred against the original decree and the grounds have been taken as against the same. Therefore, the principle laid down in the said decision is not applicable on account of the distinct feature available in the present case. "(5). That apart, on the rejection of the application for review, no new decree is passed. Neither the original decree is affirmed. On rejection of the review application, the original decree continues. If the review is withdrawn, the entire process evaporates. In the eye of law there remains no review. The original decree continues. "(6). The second ground on the maintainability raised by Mr. Mukherjee was that at the time when the appeal was preferred the original decree stood modified by the order passed on the review application, which was allowed partly. As such at that point of time no appeal against the decree dated 20th December, 2001 could be preferred namely at a point of time when the review application stood allowed by an order dated 15th July, 2002 when the appeal was preferred on 11th September, 2002. The contention seems to be very attractive but when the review application was rejected or dismissed on account of being not pressed the whole process of review remains only on record and there was no review in the eye of law in order to have any impact on the original decree that was passed. Even though at that point of time when the appeal could not have been preferred, yet when in the ultimate result the review application ended in evaporation by reason of it is being not pressed, it cannot be said to be not maintainable. It would be too technical a procedure when the appeal was preferred within time, may be in anticipation, by reason of the subsequent development, in the peculiar facts and circumstances of this case, it is not possible to hold that the appeal would be unsustainable. Therefore, we are unable to agree with the contention of Mr. Mukherjee with regard to the maintainability of the appeal and the preliminary objection is, therefore, overruled. Delay : Whether defeats Order 12 Rule 6 CPC :
(2.) Now on the question of merit of the case, it appears that the decree was passed under Order 12 Rule 6 of the Code of Civil Procedure (CPC). Elaborate argument was made for and against the decree by the respective counsel, which we do not like to deal with separately. We would be dealing with the respective submissions made by the learned Counsel for the respective parties at appropriate stages as would be relevant for the present purpose. "Order 12 Rule 6 CPC empowers a Court to pass a decree on admission made by a party either in the pleadings or otherwise, whether orally or in writing, on the basis whereof the Court at any stage may pass the decree. Mr. Roy Chowdhury had contended that when the suit was ready for evidence, the application under Order 12 Rule 6 was filed and stressed that this provision is aimed at expediting the hearing. But this principle of expedition would not be relevant in view of the expression used in Rule 6 itself empowering the Court to pass such decree at any stage of the suit either on the application of any party or on its own motion without waiting for the determination of any other question between the parties. Therefore, delay in making the application will not stand in the way of passing a decree under Order 12 Rule 6. Order 12 Rule 6 : Admission : Test :"
(3.) The admission has to be made in the pleading or otherwise. It may be oral. It may be in writing. In this case the admission was not made in the pleadings. It is neither made orally nor in writing. Mr. Mukherjee contends that the expression "otherwise" would include any admission made in course of any other proceedings particularly when such admission is made in another proceeding between the same parties involving the same property. He also contends that the admission need not be made by the party himself either orally or in writing. It would be sufficient if the party relies on or adopts a document authored by someone else containing certain statement in relation to the admission sought to be proved and such document is adduced in evidence and is acted upon and adopted by exhibiting the same. "(1). In support of his contention, he had referred to the texts from the Phipson on Evidence, 14th Edition, page 671. He also relied on Corpus Juris Secundum at page 711 Article 282 and reiterated the same from 1996 Edition Volume 32 of the same book at pages146 and 147; and on Evidence, Second Edition by Christopher B. Mueller and Laird C. Kirkpatrick. He also drew our attention to page 258 of Phipson & Elliot - Manual of the Law of Evidence, 11th Edition, by Universal, the First India Reprint 2001; and to page 51, Volume 70, Halsbury's Laws of England, 4th Edition, Article 65, about the form of admission. In support of his contention, he had also relied on the decision in Brickell vs. Hulse from the English report, Volume CXII, King's Bench Division XLI and referred to the observations made in the said judgment. He also referred to the decision in London Syndicates vs. Lord, 1878(8) Chancery Division 84. Mr. Mukherjee relied on Mc Cormick - on Evidence, 5th Edition at page 165; and upon Evidence in Trials At Common Law by John Henry Wigmore Volume 4 revised by James H. Chadbourn revision 1972 at page 138 Article 1073. Mr. Mukherjee also supported his contention by referring to Order 32 Rule 6 of the English Code. "(2). On the other hand, Mr. Roy Chowdhury had relied upon the decisions in Chikkam Koteswara Rao vs. Chikkaram Subbarao & Ors., AIR 1972 SC 1542; M. Gulamali Abdul Hossain & Co. vs. Binani Properties Private Limited & Ors., 13 CWN 591 and Balraj Taneja & Anr. vs. Sunil Madan & Anr., 1991(8) SCC 390 : 1999 SAR (Civil) 885. Relying on these decisions, he contended that the admission must be clear, unambiguous and unequivocal. It must either be made in the pleading or otherwise. But it would not include a statement made by anyone in course of a matter contended in another proceedings between the same parties. He elaborated his submissions while placing those decisions, with which we shall be dealing with hereafter. "(3). Having considered the above contention of the respective Counsel, we would prefer to discuss the relevant authorities and citations referred to by them respectively as would be relevant for our present purpose. "(4). The reference to the passage from Phipson on Evidence (14th Editionpage 671) does not help us in the present context, as would be apparent from the passage which we better quote :" "Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them. So, as we have seen documents which a party has caused to be made or knowingly used as true in a judicial proceeding to prove a particular fact, are admissible against him in subsequent proceedings to prove the same fact, even on behalf of strangers. Documents furnished by persons specifically referred to for information are evidence against the referrer; though a mere general reference will not have this effect". "(5). In this case, the present document has been used for a particular purpose, which was enumerated in the application on the strength whereof the document was produced. That apart it was not a document but a part of the pleading in a suit being hotly contested between the parties wherein the very allegation of cancellation of the agreement was the bone of contention and was ultimately decided between the parties by the Court where the appellants herein had stood their ground denying cancellation. Therefore, the above passage would not be of any aid to us for ascertaining the extent of the admission for the purpose of Order 12 Rule 6. "(6). There is no doubt about the legal proposition relied upon by Mr. Mukherjee referring to Corpus Juris Secundum (page 711 Art. 282) viz. : "An admission may be contained in a writing made by a party or his authorized agent, or adopted by him by some unequivocal act." In order to be an admission of a party by adoption, the adoption must be made by the party against whom it is used as an admission by some unequivocal act. Whether the adoption was made by an unequivocal act would be a question, which has to be considered on the basis of materials on record. Here, in this case, the adoption of that document was confined to the extent and for the purpose as mentioned in the application pursuant to which the document was produced in the ejectment suit; it cannot stretch beyond the scope of the extent and purpose indicated in the said application. This document was purposefully exhibited by the appellant herein only to establish his claim with regard to Thika Tenancy. Admittedly, this document being part of the pleading was subject matter of a litigation between the parties in another suit where the cancellation was being resisted tooth and nail by the appellant herein and as such this adoption so far as it relates to the admission about the cancellation of the agreement cannot be said to be an unequivocal act on the part of the appellant. "(7). The reference to the 1996 Edition of Corpus Juris Secundum (Vol. 32 pages 146-147) by Mr. Mukherjee also does not clinch the issue for him; inasmuch as a judicial admission in an affidavit used in a case is admissible against a party making or adopting the affidavit and may also be admitted in another action to which he is a party, is a settled proposition of law. This proposition can be similarly explained in the same manner by adopting the observation made by us in paragraphs 3.5 and 3.6 above. "(8). In the passage from Evidence (2nd Edition by Christopher B. Muller &Laird C. Kirkpatrick) referred to by Mr. Mukherjee, it is commented that : "Where, for example, a party obtains the affidavit of another and offers it in a proceeding in support of a request for a warrant, judgment, or Court order, it is reasonable to view such conduct as adoption. Use at trial of an affidavit by a witness may waive any objection that the party offering it might otherwise have to the substantive use of same affidavit by the other side, a result that may be explained in terms of opening the door, waiving objection, or adopting the substance of the affidavit. Likewise use of written statements in an effort to qualify for some status, benefit, or privilege, where the party is expected to take care in making his presentation, as in connection with applications for credit or loans, may reasonably be viewed as adoption". This can also be explained in the same manner as observed by us in paragraphs 3.5 and 3.6 above. "(9). Mr. Mukherjee placed reliance on Phipson & Elliot Manual of the Law of Evidence (11th Edition, by University, the First India Reprint 2001, page 258 viz. : "Admission may be oral or in writing or by conduct, where a man signs or recognizes or adopts or acts upon any document, it may be tendered against him as an admission and so as evidence of the truth of its contents." Relying on the 10th Edition of the same book by Sweet & Maxwell he drew our attention to the passage "where a man signs or recognizes or adopts or acts upon any document, it may be tendered against him as an admission and so as evidence of the truth of its contents (at page 165)." This principle, if applied to in the present context, in that event, the observation made in paragraphs 3.5 and 3.6 above would aptly explain the proposition. We need add no more. "(10). The passage in Article 65 cited by Mr. Mukherjee from Halsbury's Laws of England, 4th Edition (Vol. 70 page 51) commented that : 'Generally, any document which a party has signed or otherwise recognized, adopted, or acted upon may be tendered against him as an admission, although mere failure to answer a letter or object to an account will not necessarily have this effect." This may similarly be explained as in paragraphs 3.5 and 3.6 above having regard to the context of the present case so far as its application as was sought to be attracted by Mr. Mukherjee in the present case. "(11). Mr. Mukherjee relied upon the following observation made in Brickell vs. Hulse, English Report, Volume CXII, Ring's Bench Division XLI : Lord Denman C.11. "It is very important that this question should not be left subject to doubt. There can, I think, be no question but that a statement which a party produces on his own behalf, whether on oath or not, becomes evidence against him." Patteson J. "The statement in the affidavit was used by this defendant for the purpose of staying proceedings. Supposing the party swearing it had been in fact an officer who merely used the defendant's name, the defendant is identified with him as far as this question is concerned. When a party, for any purpose, produces document containing certain statements, such statements are, as against him, evidence of the facts which they contain. Coleridge J. "This is a very clear case when we attend to the facts. On one side, the defendant makes an application to a Judge, and arms himself with a statement, which he mades his own, and uses. That is clearly evidence against him afterwards of the facts in the statement. The statement may be of more or less avail; and it may be matter of remark that the person making the affidavit is present and is not called. But (458) that is not the question here. In Chancery, the depositions are sealed up from the time of their being taken until publication passes. This is like the case of a party calling a witness, whose evidence he does not bear till it is given. The present is the case of a party using a statement which he has seen before he uses it, and which is neither the more nor the less admissible for being made upon oath." This is also similarly explained in the context of the present case as in paragraphs 3.5 and 3.6 above. "(12). Mr. Mukherjee placed reliance on the following passage from London Syndicates vs. Lord, 1878(8) Chancery Division 84 viz. "There is no, as far as I know, any virtue in one mode of admission rather than in another. It is a sufficient admission for the purpose of making an order for payment into Court. It seems to me there is an ample admission for this purpose in the present case, and even if I had not arrived at the conclusion I have arrived at on the first po.int. I should think the order was right on the second and, therefore, I should make the order as to the 5411." This also would not be applicable in the context of the present case in view of our observation made in paragraphs 3.5 and 3.6 above, which will explain the inapplicability in the said passage in the present context. "(13). Mc Cormick on Evidence (5th Edition, page 165), relied upon by Mr. Mukherjee commented that : "Does the introduction of evidence by a party constitute an adoption of the statements of witnesses so that they may be used against the party as an admission in a subsequent law suit? The answer ought to depend upon whether the particular circumstances warrant the conclusion that adoption in fact occurred and not upon the discredited notice that a party vouches for its own witnesses. When a party offers in evidence a deposition or an affidavit to prove the matters stated therein the party knows or should know the contents of writing so offered and presumably desires that all of the contents be considered on its behalf since only the portion desired could be offered. Accordingly, it is reasonable to conclude that the writing so introduced may be used against the party as an adoptive admission in another suit." The applicability of the above principle in the present context seems to have been explained by us in paragraphs 3.5 and 3.6 above and we add no further. "(14). The observation "The party's use of a document made by a third person will frequently amount to approval of its statements as correct and thus it may be received against him as an admission by adoption" made in Evidence in Trials At Common Law by John Henry Wagmore revised by James H. Chadbourn Revision 1972 (Vol. 4 at page 138 Article 1073) is also explained by the observation made by us in paragraphs 3.5 and 3.6 above. "(15). The phraseology of Order 32 Rule 6 of the English Code referred to by Mr. Mukherjee are identical with those of Order 12 Rule 6 of the Code of Civil Procedure. However, we are of the view that there is no quarrel about the principles laid down in the commentaries or the works cited by Mr. Mukherjee. The question is as to how this principle is to be applied in a particular facts and circumstances of a case. There are some similarities in the principles followed by the Indian Courts and, therefore, though vehemently contended by Mr. Roy Chowdhury, Mr. Mukherjee's reference to the English decisions and the authorities and works cannot be brushed aside. On the other hand, it has to be considered and applied in consonance with the Indian principles which generally follows the English principles unless it is statutorily contradictory. The Indian Principle : "(16). The English principles were adapted to suit the Indian context when the Anglo-Saxon Jurisprudence and the system of justice delivery system were introduced in India by the British during the former's subjugation. Though the Indian Courts had followed the English principles, but the Indian Courts did not surrender its identity and had always moulded the principles in the Indian context and followed such principles as it used to suit our purpose. Gradually the Indian Courts have developed its own principles and precedents. On occasions it has deviated from the English principles. We no more can follow the English principles blindly. We are to adapt our own system, though we may not overlook the English principles. We may draw inspiration from the English principles and follow the same as it may suit us in our own context. However, after we have given ourselves the Constitution of India and the Apex Court has been established, we may persuade us to follow the English principles as far as practicable but in consonance with the law laid down by the Apex Court. By reason of Article 141, the decision of the Apex Court is binding on all Courts in India. In case there are decisions of the Apex Court, in that event, we may follow the English principles so far as those are not inconsistent with the principles laid down by the Apex Court. Therefore, we are to examine the English principle in the Indian context having regard to the ratio laid down by the Apex Court as well as the High Courts, though we may not ignore the persuasive value of the English principles being conscious of the fact that those are not binding on the Courts in India. "(17). In Chikkam Koteswara Rao, AIR 1972 SC 1542 (supra) cited by Mr. Roy Chowdhury, it was held that before a right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. In Uttam Singh Dugal & Co. Ltd. vs. Union Bank of India & Ors., 2000 Supreme Court Reporter (Civil) 778 : 2002(7) SCC 120 : AIR 2000 SC 2740, relied upon by the Apex Court in Chikkam Koteswara Rao (supra), it was held that Order 12 Rule 6 comes under the heading' admissions' and a judgment on admission could be given only after due opportunity to the other side to explain the admission, if any made; that such admission should have been made only in the course of the pleadings or else the other side will not have an opportunity to explain such submission; that even though the provision reads that the Court may at any stage of the suit make such order as it thinks fit, effect of admission, if any, can be considered only at the time of trial; that the admission even in pleadings will have to be read along with Order 8 Rule 5(1) of CPC and Court need not necessarily proceed to pass an order or a judgment on the basis of such admission but call upon the party relying upon such admission to prove its case independently; that during pendency of other suits and the nature of contentions raised in the case, it would not be permissible at all to grant the relief before trial; that the expression 'admissions' made in the course of the pleadings or otherwise will have to be read together and the expression 'otherwise' will have to be interpreted 'ejusdem generis'. "(18). In Rakesh Wadhwan & Ors. vs. Jagdamba Industrial Corporation &Ors., 2002(5) SCC 440 : AIR 2002 SC 2004 : 2002 SAR (Civil) 539, relied upon by Mr. Roy Chowdhury, it was held that admission is never a piece of evidence and can be explained; it does not conclusively bind a party unless it amounts to an estoppel. Value of an admission has to be determined by keeping in view the circumstances in which it was made and to whom. A mere failure to object cannot be placed on a footing higher than an admission. If the two clear cut admissions made by the tenants, referred to in the said case, were to be weighed against the landlord's mere failure to object about a wrong averment as to rate of rent in a case where it was not a point in issue, then no inference other than the one of the rate of rent being Rs. 2,000/- per months could have been drawn. "(19). In M. Gulamali Abdul Hossain & Co., 13 CWN 591 (supra), it was held that it is well-settled that admission in pleadings are to be taken in their entirety. Any document in order to be established or an admission is to be introduced into evidence by tendering that piece of admission, if it is in the nature of document. Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions contained in the Evidence Act. The reason for section 31 of the Evidence Act is to give the party an opportunity of dealing with admissions to show the circumstances under which they came into existence. "(20). In Balraj Taneja, 1991(8) SCC 390 (supra), it was held that this rule was substituted in place of the old rule by the Code of Civil Procedure (Amendment) Act, 1976, with the objects and reasons viz. : "Under Rule 6, where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable a 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. The rule is wide enough to cover oral admissions. The rule is being amended to clarify that oral admissions are also covered by the rule. "(21). Under this rule, the Court can, at any interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the Court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit." Referring to section 58 of the Evidence Act in the said decision, the Apex Court had held that "The proviso to the section specifically gives a discretion to the Court to require the facts admitted to be proved otherwise than by such admission. The proviso corresponds to the proviso to Rule 5(1) Order 8 CPC. "(22). In view of the above, it is clear that the Court, at no stage, can act blindly or mechanically. While enabling the Court to pronounce judgment in a situation where no written statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit." The principle vis-a-vis the present case :;