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Appeal decided on 20th June 1951, from Original Decree No. 83 of 1950 against the Decree of Subordinate Judge, 1st Court of Zillah Chittagong, dated the 19th September, 1949, in Money Suit No. 25 of 1949.

, O. X11, r. 6‑Admission clear and unambiguous‑Court's discretion in passing judgment on such admission‑Appellate Court's powers of interference with judgment.

Rule 6 of Order XII of Civil P. C. provides that if a judge is satisfied that there was a clear and unambiguous admission by the defendant either on the pleading or otherwise he may pass a decree for the said amount. The word "may" in the aforesaid rule indicates that he has a discretion in the matter. No doubt this discretion should be exercised judiciously and the appellate Court can interfere only when such discretion is erroneously exercised.

Premsuk Das Assaram v. Udairam Gungabux I L R 45 Cal. 138 ; Abdul Rahman and Brothers v. Parbati Debi A I R 1933 Lah. 403 rel.

Koramall Ramballav v. Mongilal Dalimchand, 23 C W N 1017 ref.

Gopal Chandra Das and Abani Kanta Bakshi, for Appellant.

Nirmal Chandra Nandi, for Respondent.

‑This is an appeal from a judgment on admission pronounced by S. Ali, Esq., Subordinate Judge, 1st Court, Chittagong, under Order XII, rule 6 of the Code of Civil Procedure.

The plaintiff instituted a suit for recovery of Rs. 59,624‑4‑9 from the defendant. The plaintiff's case was as follows : The defendant purchased 1,200 bundles of cotton yarn of 10lbs. each at the rate of Rs. 32 per bundle and 6,000 bundles of 10 lbs. each at the rate of Rs. 49‑2‑3 per bundle and took delivery of the same on the 3rd January 1949. The bill for the said yarn amounting to Rs. 74,248‑12‑9 was duly presented to the defen dant and on the 5th January 1949. the defendant gave a cheque for Rs. 50,000 in part payment of the said bill, but before the said cheque could be cashed, the defendant stopped the pay ment. Subsequently, he paid Rs. 31,750 by cheque and cash and the balance of Rs. 42,498‑12‑9 remained due. On the 10th January 1949, the defendant agreed to purchase 100 bales of cotton yarn shipped per S.S. "Leneverett" at the rate of Rs. 36‑8‑0 per bundle of 10 lbs. and the arrangement was that the delivery would be taken as soon as the ship arrived at the dock. The defendant, however, failed to take delivery of the said goods and at his request they were kept in the plaintiff's godown. As the defendant failed and neglected to take delivery of the said goods on the 25th March 1949, the plaintiff sold them at the market rate on notice to the defendant and thereby suffered a loss of Rs.16,000. Hence he has claimed Rs. 59,520‑4‑9 (Rs. 42,498‑12‑9+ Rs. 1,22‑8‑0+ Rs. 16,000).

The defendant has filed a very lengthy written statement. On a perusal of the written statement it seems to us that he did not really dispute the claim of the plaintiff for the sum of Rs. 42,498‑12‑9 that remained outstanding from the first bill The real dispute seems to be relating to the second transaction which was entered into on the 10th January 1949, in respect of 100 bales of cotton yarn shipped per S.S, "Leneverett". The defendant's contention is that due to the failure of the plaintiff to deliver the said 100. bales in terms of the contract he suffered a loss and as such he is entitled to claim Rs. 16,000 as damages. After stating various facts the defendant states in paragraph 11 of the written statement as follows:‑

In view of the circumstances stated above the plaintiff is not entitled to decree for Rs. 59,620‑4‑9 in accordance with the plaintiff's account as given in the plaint. The claim of the plaintiff for interest and compensation is not maintainable either in law or in equity. On the other hand in accordance with the account given below out of the plaintiff's claim for Rs. 42,498‑12‑9 by giving a set off for Rs. 12,500 the plaintiff can legitimately claim a sum of Rs. 29,998‑12‑9 without any costs. The defendant never objected to the plaintiff's getting his legitimate dues by compromise on arbitration. The plain tiff is not entitled to costs or compensation.

Thereafter, at the end of the written statement he sets out an account showing how Rs. 29,998‑12‑9 were due to the plaintiff.

On these pleadings an application was made by the plaintiff on the 6th September 1949, for leave to enter judgment for Rs. 29,998‑12‑9 on the ground of admission contained in para graph 11 of the written statement. On that application the learned Subordinate judge decided that the plaintiff was entitled to a judgment under Order XI1, rule 6 of the Code of Civil Procedure, for Rs. 29,998‑12‑9 and that he would be at liberty to prove his claim to the balance. Hence this appeal by the defendant.

The learned Advocate for the appellant has contended that on a reading of paragraph 11 of the written statement it would appear that he did not make an unconditional and unambiguous admission in respect of any amount. Hence he has argued that the learned Subordinate judge was not justified in giving a decree for Rs. 29,998‑12‑9 to the plaintiff and in allowing him to proceed with the suit as to the remainder of his claim. Mr. Das has relied on the case of Koramall Ramballav v. Mongilal Dalimchand 23 C W N 1017 in support of his argument. We have carefully gone through the pleadings. From paragraph 11 of the written statement which we have quoted above as well as from the statement of account given by the defendant at the end of the written statement it seems to us that there was a clear and unequivocal admission therein by the defendant that in any event Rs. 29,998‑12‑9 were due from him to the plaintiff. Mr. Das has asked to read therein that his client had agreed to pay the said amount provided the plaintiff gave up his claim for cost and compensation. We, however, fail to find any such proviso in paragraph 11 of the written statement. Further we may observe that the following sentence in paragraph 11 of the written statement: "On the other hand is accordance with the account given below out of the plaintiff's claim for Rs. 42,498‑12‑9 by giving a set off for Rs. 12,500 the plaintiff can legitimately claim a sum of Rs. 29,998‑12‑9 without any costs", clearly shows that he was not disputing the plaintiff's claim to the said amount. Furthermore the statement of account given thereunder makes it abundantly clear that the defendant ad mitted his liability to the extent of that amount. Further we may observe that in the case reported in 23 C W N 1017 on which Mr. Das has relied, the Court came to the conclusion on the facts of that case that there was no unambiguous and uncon ditional admission, and as such the plaintiff was not entitled to a judgment under Order XII, rule 6 of the Code of Civil Procedure. From the pleadings in this case we have, however, come to the conclusion that there was such an admission and hence the case cited by Mr. Das is not of such help to his client.

Mr. Das has next, argued that the learned Subordinate judge after giving a decree on admission was not justified in allowing the plaintiff to proceed with the rest of his claim. Now Order XII, rule 6 of the Code of Civil Procedure, provides as follows :‑

"Any party may, at any stage of a suit, where admission of fact have been made, either on the pleadings or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the‑parties and the Court may upon such application make such order, or give such judgment, as the Court may think just."

The above rule clearly provides that if a judge is satisfied that there was a clear and unambiguous admission by the defendant either on the pleading or otherwise he may pass a decree for the said amount. The word "may" in the aforesaid rule indicates that he has a discretion in the matter. No doubt this discretion should be exercised judiciously and the appellate Court can interfere only when such discretion is erroneously exercised. However, this in no way restricts the power of the trial Court.

A similar objection was raised in the case of Premsuk Das Assaram v. Udairam Gungabux I L R 45 Cal. 138 and Sanderson C. J. overruled the objection and held that under Order XII, rule 6 of the Code of Civil Procedure, a judge was entitled to give a judgment on admission and to allow the plaintiff to proceed with the rest of his claim. In the said case Mookerjee. J. while agreeing with Sanderson C. J. observed as follows :

I must consequently decline to interpret Order XII, rule 6, so as to restrict its operations to cases where the plaintiff accepts the admission of the defendant in its entirety or where the claim is severable into distinct portions and the defendant admits his liability in respect‑of one such fragment of the claim. I do not also feel pressed by the argument that if a decree is made first on admission in respect of one portion of the claim and then on investigation as to the remainder, there may ultimately be two decrees in same suit. I see nothing objectionable in principle to such a result, specially in view of the provisions of Order XXIV which treats of payments into Court. In my opinion, the case before us falls within the scope of Order XII, rule 6, and sufficient grounds have not been assigned to induce us to hold that the order made by Mr. Justice Fletcher was unjust to the defendant.

This ruling was also followed in the case of Abdul Rahman and Brothers v. Parbati Debi A I R 1933 Lah. 403.

Therefore, we are of opinion that on the clear and un ambiguous admission the learned Subordinate Judge was entitled to exercise his discretion and to enter a judgment for the admitted amount. Further, having regard to the facts and circumstances of the case we cannot say that the discretion of the learned Subordinate judge was wrongly exercised.

In the result we affirm the judgment and decree of the learned Subordinate judge and dismiss this appeal with costs.

The record of the case will be sent down as soon as

‑I entirely agree with my learned brothers ; but I may point out that on reading Order XII, rule 6 of the Code of Civil Procedure, it appears to me that the Legislature intended that when a case has been made out under Order X11, rule 6 of the Code, it does not require an applica tion by the party concerned to get an order according to the admission. In my opinion the Legislature intended that when there has been such an admission the Court can suo moto take action on that. This view of mine finds support from the recent amendments of Order XII, rule 6 of the Code, by the High Court of Madras as well as the High Courts of Patna and Orissa.

A. H. Appeal dismissed.

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