A.P. Sen, J.
1. This revision under Section 115 of the Code of Civil Procedure.filed by the plaintiff, seeks to challenge the validity of a direction made by the IIIrd Additional District Judge, Jabalpur, on 8th November 1968 in terms of Order XII. Rule 6 of the Code of Civil Procedure, upon an application made by the defendants, directing it to be placed in possession of the property in suit 'without prejudice to the rights of the parties'.
2. That direction came to bemade in the following circumstances.The plaintiff. M/s Arun General Industries Ltd., Calcutta, which is the lesseeof the establishment known as 'ArunBoard & Paper Mills' at Umaria, havingacquired a lease of the same from theState Government of Madhya Pradesh interms of Agreement dated 21st April 1961,made certain additions and alterationstherein. On or about 6th August 1964 theplaintiff entered into an Agreement withthe defendant No. 2. Kundanlal Jain, forthe sale of the establishment for a sum ofRs. 1,25,000/- on certain conditions.Amongst others, the plaintiff stipulatedfor the transfer of its interest in the lease,including the buildings, sheds, structures,machinery, stores and other materials inthe said establishment in their existingconditions. This description of the leasehold premises includes 99.36 acres of landadjacent to the factory, but it appearsthat the plaintiff had earlier surrenderedthe land to the Government by its letterdated 25th July 1964. In terms of the saidagreement, the defendant No. 2 paid tothe plaintiff a sum of Rs. 25,000/- on orabout 10th August 1964, and was placedin possession of the property. At the time,the defendant No. 2 nominated the defendant No. 1 M/s. Rishab . Katni as his nominee in whosename the lease was to be transferred. Thedefendant No. 3. Nemichand Jain, hasbeen impleaded by the plaintiff as aguarantor for the due performance of theagreement. The suit is primarily for therecovery of the balance of Rs. 1,00,000/-towards the price with interest thereon.
3. The entire dispute between the parties now turns on this surrender. The defendants allege that the plaintiff had concealed the fact that it had surrendered these 99.36 acres of land which formed an essential part of its lease with the Government under the Agreement dated 21st April 1961, and that the transfer of these lands was an essential term of the Agreement dated 6th August 1964 between the parties. Anticipating this difficulty, the plaintiff had claimed the alternative relief of return of the establishment together with profits which the defendants may have earned. The main or primary relief, of course, was specific performance of the agreement by payment of the balance amount of Rs. 1,00,000/- together with interest. We are only concerned at the moment with the alternative relief and it is based on the following averments in para 15 of the plaint which read as follows:--
'In case it is held that such No Objection letter had not been granted or that the 99.36 acres of land were surrendered by the Plaintiff and that such surrender was duly accented by the Government of Madhya Pradesh, the Plaintiff pleads alternative as under:--
(a) If the Government of Madhya Pradesh has not granted the No Objection for the contemplated transfer, the said Agreement cannot be specifically performed and so the said Agreement has become void and inoperative.
(b) As the said 99.36 acres of land have been surrendered by the Plaintiff to the Government of Madhya Pradesh and as such surrender has been duly accepted by the said Government, the Plaintiff is unable to transfer all the lands contemplated by the Agreement and hence the performance of the contract has become impossible on the doctrine of frustration.
Under the circumstances, either the Defendants must signify the assent to take the transaction of the remaining part of the land with the appurtenances thereto after paying the full agreed price or if they are not willing to do so, they are bound to deliver back vacant possession of the said plant and the establishment including all buildings, structures and machinery etc., and also the additions and alterations made by the plaintiff and the Plaintiff is entitled to a decree for ejectment against the said Defendants in respect of the said property and the Defendants are liable to account for all the profits made therefrom, from the time they began running the plant. They must also pay back to the plaintiff all the benefits received by them in the meanwhile out of the transaction in question.
Such earned profit therefrom is tentatively valued by the Plaintiff at Rs. 5,000/-.'
4. From the papers placed before me. either party has tried to assert that the other was in breach. I would, however, refrain from expressing any opinion on that question or from interpreting the effect of the documents that have been referred, particularly the correspondence which passed between the plaintiff and the Government on the one hand and that between the parties on the other, because any expression of opinion on any of these aspects would necessarily prejudice one of the parties. Assuming that there was a breach on the part of the plaintiffin surrendering the lands to the Government or concealing the fact of surrender from the defendants, the question is, whether the Court is entitled to make a direction of this nature under Order XII, Rule 6 of the Code on an application of the defendants. That provision reads:--
'Any party may at any stage of a suit where admissions 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 parties: and the Court may upon such application make such order, or give such judgment, as the Court may think just.'
The rule, it will be observed, is expressed in comprehensive terms and the only requisite for a judgment under the rule is that there must be clear and unequivocal admission either in the pleadings themselves or de hors the pleadings.
5. As a rule, admissions in pleadings cannot be dissected. Therefore when the defendant wants to take advantage of an admission made by the plaintiff in the pleadings, the pleadings have to be read as a whole. In other words, admissions cannot be split up (See Dular Singh v. Sitaram, ILR (1938) Nag 167 = (AIR 1937 Nag 184)). So, if an admission in a pleading is made subject to a condition, it must either be accepted subject to the condition or not accepted at all. See Birendra Nath Mallik v. Brahma Brate Rav. ILR (1946) 1 Cal 652. Nevertheless, it is well settled that Order XII, Rule 6 is not restricted in its operation to cases where the plaintiff accepts the admission of the defendant in entirety or where the claim is severable into distinct portions and defendant admits liability in respect of one fragment of such claim: See per Mookerjee J. in Premsuk Das Assaram v. Udairam Guneabux ILR 45 Cal 138 -(AIR 1918 Cal 467) where the nature and content of the power under Order XII, Rule 6, has been enunciated with great clarity.
6. Normally, Order 12, Rule 6 of the Code, contemplates an application by the plaintiff for judgment on admission. In my view the converse to this should equally be true. There is no reason why the defendant cannot confess judgment to a portion of the plaintiff's claim with a view to cut down his eventual liability, on principle. In the absence of any precedent to the contrary. I do not find any justification for curtailing the ambit of that provision which must enure to the benefit of both the parties. As Mookerjee, J. aptly observed in Premsukdas's case ILR 45 Cal 138 = (AIR 1918 Cal 467) (supra):
'It would be obviously improper for the Court to read into the rule qualifications which may restrict its application. But a judgment on admission is not a matter of right, it is in the discretion of the Court, so that if a case involves questions which cannot be conveniently disposed of on a motion under the rule, the Court may, in the exercise of its discretion, refuse the motion. The discretion is judicial and an erroneous exercise thereof may be open to correction by a Court of Appeal which, however, on well established principles, will be slow to interfere, unless either of the parties has been manifestly and unfairly prejudiced.' following the dictum of Jessel M. R. in Mellor v. Sidebottom, (1877) 5 Ch. 342 interpreting Rules and Orders of the Supreme Court. Order XXXII, Rule 6 which is in pari materia with the present rule. At another place, the learned Judge declined to interpret Order XII, Rule 6 so as to restrict its operation stating.-
'In my opinion, it would be lamentable if the discretion, which, for the best of reasons, has been left free and untrammelled by the legislature, were to be crystallized by judicial decisions, as it would become in course of time, by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion which must be applied with due regard to the varying circumstances of each particular case. I must consequently decline to interpret Order XII, Rule 6, so as to restrict its operation 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.....'
It would thus appear that the powers under Order XII, Rule 6 must be left free and untrammelled which cannot be crystallized into any rigid rule of universal application, but the discretionary powers thereunder must be applied with due regard to the varying circumstances of each particular case.
7. Applying these principles to the facts of the present case, it would appear that the case before me falls within the scope of Order XII, Rule 6 and no sufficient grounds have been assigned to induce me to hold either that the order under revision was unjust to the plaintiff or that the learned Judge in making a direction for delivery of possession to him 'withoutprejudice to the rights of the parties' in terms of that rule, had acted illegally or with material irregularity in the exercise of his jurisdiction. Relying upon Dularsingh's case, ILR (1938) Nag 167 = (AIR 1937 Nag 184) (supra.) the learned counsel urged that the pleadings can be dissected. There can hardly be any quarrel with that proposition which has already been stated earlier. It is equally true that if an admission is made subject to a condition, it must either be accepted subject to that condition or not accented at all. These principles, however, are not applicable here. In this connection, the learned counsel draws my attention to the opening words of paragraph 15 of the plaint which read 'In case it is held', for his submission that the right to the alternative relief arises only upon an adjudication that there was a frustration of the contract consequent upon the alleged surrender of 99.36 acres of land and therefore the primary relief of specific performance cannot be had. On the contrary, the plaintiff's claim consists of two distinct portions and nothing prevented the defendant from confessing judgment to one portion 'without prejudice to the rights of the parties' as regards the other portion of the claim.
8. As regards the alleged surrender, it is asserted by the learned counsel for the applicant that there was merely a proposal to surrender but the Government did not accent the terms suggested and, instead, issued a No-objection certificate for the transfer of rights to the defendant No. 2. The learned counsel, therefore, urges that it was wrong to suggest that the original contract cannot go on. As against this, the learned counsel for the non-applicants has drawn my attention to a large number of documents showing that the plaintiff had already parted with 99.36 acres of land which formed a major part of leased premises and thus it was not in a position to fulfil its part of the contract. But, as I have already stated, it is neither desirable nor fair for me to make any pronouncement on this aspect namely, on the question where the breach lies. That is a matter on merits which has vet to be tried in the suit. In Premsuk Das's case ILR 45 Cal 138 = (AIR 1918 Cal 467) (supra) Mookerjee, J., had observed:
'The discretion of the Judge is judicial and an erroneous exercise thereof may be open to correction by a Court of appeal which, however, on well established principles, will be slow to interfere unless either of the parties has been manifestly and unfairly prejudiced.'
That being the scope of interference in appeal, much less is there any ground for interference with the direction in revision under Section 115 of the Code of Civil Procedure.
9. The result is that the revision fails and is dismissed. Counsel's fee Rs. 50-/, if certified.