ORDER Dr. M.K. Sharma, J.
1. The present revision petitions are directed against the order dated 7th December, 1998 passed by the Civil Judge, Delhi in Suit No. 55/1997 dismissing the two applications one filed under Order 7 Rule 11 of the Code of Civil Procedure and the other under Order 12 rule 6 of the Code of Civil Procedure. As both these petitions arise out of the same order passed by the trial court and as the issues arising for consideration are overlapping and similar, I propose to dispose of both the petitions by this common order. As both the plaintiff as also the defendants filed separate revision petitions in this court as petitioners, I propose to describe them as plaintiff and defendants in the present order in order to avoid any confusion.
2. Smt. Shobha Rani Mehra filed a suit in the court of the Civil Judge, Delhi which was registered as Suit No. 55/1997. It was alleged in the plaint that the ground floor portion of property No.13/29-30, W.E.A., Karol Bagh, New Delhi was given on rent by the plaintiff to petitioner No.1 and its partners, who are petitioner Nos. 2 to 5 in Civil Revision No.393/99, on 12.12.1983 @ Rs. 4,500/- per month. It was alleged in the plaint that a memorandum of understanding to the aforesaid effect was executed in between the parties and that w.e.f. 1.1.92 the rent was increased to Rs. 4,950/-. It was also stated that the tenancy between the parties was in accordance with the English calendar month starting from first of each calendar month and thereby ending on the last day of each calendar month and that the property was let out for commercial purpose and that business of restaurant is being carried on therefrom. It is alleged that legal notice dated 25th January, 1995 was served on the defendants terminating their tenancy on the close of 8.2.1995 and accordingly the aforesaid suit.
3. The defendants including M/s. Trishul Enterprises contested the suit by filing a written statement admitting themselves to be tenant of the plaintiff However, they challenged the right of the plaintiff to terminate the tenancy, inter alia, on the ground that the plaintiff under the lease deed has no right to terminate the tenancy is for an indefinite period and that the right, if any, to terminate the tenancy vests absolutely on the defendants alone. In support of the aforesaid contention, reliance had been placed by the defendants upon clauses 4,5,8 & 11 of the lease deed. The legality of the notice terminating the tenancy has also been challenged on the ground that it is issued in violation of the terms of the lease deed dated 12.12.1983. It is also pleaded that the tenancy cannot be terminated as the defendants are protected under Section 53(A) of the Transfer of Properties Act because the defendants have done several acts including taking over possession of the premises and payment of Rs. 2.50 lacs for improvement in the premises in terms of the lease deed in part performance of the contract.
4. An application under Order 7 Rule 11 of the Code of Civil Procedure was also filed by the defendants contending, inter alia, that the plaint is liable to be rejected on the ground that there is no cause of action for the suit and also that the suit is barred. After filing of the written statement, the plaintiff filed an application under Order 12 Rule 6 of the Code of Civil Procedure contending, inter alia, that since the rent admittedly is being paid at more than Rs. 4500/- per moth and the tenancy being according to the English calendar month and having been terminated in accordance with law, the suit is to be decreed in view of the admission in the written statement. Both the aforesaid applications were taken up by the trial court and after considering the pleadings of the parties and arguments of the counsel appearing for parties and also upon perusal of the records, dismissed both the applications giving reasons for his conclusions. Being aggrieved by the aforesaid order, the defendants and the plaintiff have both filed two petitions, on which I have heard the learned counsel appearing for the parties. For convenience sake I first propose to take up the revision petition filed against the order relating to the application filed by the defendants under Order 7 Rule 11 CPC since the decision on the same shall have effect on the application under Order 6 Rule 17 CPC also.
5. Before adverting to the submissions on the merit of the aforesaid two revisions, it would be necessary to place on record certain facts relevant for the purpose of deciding the aforesaid two revision petitions. It is a common case of the parties that the memorandum of understanding (lease deed) was executed between the parties, a copy of which is placed on record. The said memorandum of understanding was executed on 12.12.1983 and the premises were let out to the defendants by the plaintiff at a rent of Rs. 4500/- per month. The said tenancy was for commercial purpose and the plaintiff undertook not to interfere with the possession of the tenant under any circumstances and the tenant was permitted to do any business in the said shop for which the landlady undertook not to raise any objection. It was also stipulated in clause 8 of the said memorandum of understanding that the tenancy of the shop would continue till the will of the tenant and that the landlady is not permitted to get ejection of the tenant from the said shop till the tenant wishes to continue as tenant to the said shop.
Under Clause-4 it was stipulated that the a sum of Rs. 4500/- per month had been paid by the tenant in advance as monthly rent and Rs. 2.50 lacs had been paid to the landlady of the shop on account of interior decoration done in the said shop and that the said amount of Rs. 2.50 lacs was not refundable under any circumstances.
6. Counsel appearing for the defendants, during the course of his submission, in support of the application under Order 7 Rule 11 CPC submitted that the suit is liable to be dismissed because the suit is based on false hood, misstatement and also for suppression of facts and the plaint is liable to be rejected on the ground that there is no cause of action for the suit and that the suit is also barred. it was submitted that the suit is barred by specific terms of the contract which is averred in the plaint and also in view of Section 106 of the Transfer of Property Act inasmuch as the memorandum of understanding contains a clause that till the will of the defendants, the plaintiff would not be permitted to get the ejection of the defendants which is a contract between the parties and contrary to the applicability of the provisions of Section 106 of the transfer of Property Act and therefore provisions of section 106 of the Transfer of Property Act are not applicable to the facts of the present case. It was also submitted that the plaintiff has no cause of action for the suit in view of terms of the lease deed dated 12.12.1983 according to which the premises were leased to the defendants for indefinite period and, therefore, the said deed did not require any registration and the said deed being binding on the parties there was prohibition for the plaintiff from seeking ejection of the defendants. It was also submitted that even otherwise the said lease deed being an admitted document in the plaint and having been acted upon by the parties is binding on the plaintiff and, therefore, the plaintiff has no cause of action and the plaint is liable to be rejected. It was also submitted that the plaintiff having failed to plead in the plaint the material fact that the lease deed dated 12.12.1983 requiring registration was not registered and the same was void and inadmissible, the plaint is liable to be rejected. It was also submitted that monthly tenancy was created independently of and dehors the lease deed 12.12.1983 and the said monthly tenancy was created by the plaintiff in favour of the defendants in respect of the premises in dispute and, therefore, in view of order 6 Rule 2 CPC the plaint lacks cause of action and on that ground also the plaint was liable to be rejected.
7. It was also submitted that the plaintiff has no cause of action to institute the suit in view of the facts admitted in the plaint and the suit is also barred under the provisions of Section 53(a) of the Transfer of property Act and, therefore, the plaint is liable to be rejected under Order 7 Rule 11 CPC as it does not disclose a cause of action and because the suit is barred by law.
8. Counsel appearing for the plaintiff refuted all the aforesaid allegations and submitted that the alleged memorandum of understanding (lease deed) dated 12.12.1983 is a compulsorily registrable document under Section 107 of the Transfer of Property Act read with Section 17 and 49 of the Indian Registration Act but was in fact not registered and, therefore, the contents thereof could not be looked into. He submitted that it is an admitted case of the defendants in the written statement that the tenancy is according to the English calendar month starting with first of each calendar month and thereby ending on the last day of the each calendar month and, therefore, the tenancy was admittedly from month to month according to English calendar month and as such the submission of the counsel for the defendants is devoid of merit. It was further submitted that the provisions of Section 53(a) of the Transfer of Property Act is not available to the tenant. He submitted that the said provisions cannot be invoked for the purpose of deciding the application under Order 7 Rule 11 of the Code of Civil Procedure because at this stage what is to be looked into is only the plaint and not the defense as raised by the defendants and, there fore, reliance sought to be placed on the aforesaid provisions is misplaced, for the tenant could use the aforesaid provisions as a shield and not as a sword and the plaint cannot be rejected by giving benefit of the provisions of Section 53(a) of the Transfer of Property Act to the defendant at the stage of deciding the application under Order 7 Rule 11 of the Code of Civil Procedure.
9. It is settled position of law that at the stage of deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, what is to be looked into is only the statements made in the plaint and nothing else. whether the averments made in the plaint give rise to a cause of action, is to be examined in the context of the plaint and at that stage no reference is required to be made to the averments made in the written statement. A Division Bench of this court in Steel Authority of India Ltd. & Ors. Vs. Rameshwar Dass Bishan Dayal & Anr. has held that it is well-settled that while considering the application under Order 7 Rule 11 CPC, the Court is not required to take into consideration the defense set up by the defendant in his written statement and the question whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the plaint itself and not the defense set up in the written statement. It was also held that while considering the application the strength or weakness of the case of the plaintiff is not to be seen. therefore, for the purpose of deciding the present case, the defense set up by the defendants in the written statement could not be referred to in order to find out whether the plaint discloses cause of action or not. At this stage the merit, strength or weakness of the case made out in the plaint is of no consideration and consequence.
10. In support of his contention that the plaint is liable to be rejected, counsel for the defendants has mainly put forward four Fould submissions before this court. I propose to take up all the aforesaid submissions one by one and deal with the same. the first ground of attack was that the suit is barred by clauses 8 & 11 of the memorandum of understanding/lease deed dated 12.12.1983. It is alleged by the plaintiff herein that the memorandum of understanding (lease deed) dated 12.12.1983 was preceded by a verbal agreement the parties arrived at on 31.10.1983, in terms of which possession of the shop was to be delivered to the defendants by the landlady and that subsequently with the increase of rent a fresh tenancy came into effect from 1.1.1991. Therefore, the contents of the documents ' namely, clauses 8 & 11 of the lease deed cannot be looked into and relied upon for the purpose of deciding the application under Order 7 Rule 11 CPC.
11. His further contention is that the said document, namely, the memorandum of understanding/lease deed dated 12.12.1983 requires registration and is compulsorily registrable under the provisions of Indian Registration Act and, therefore, the contents of the said document could not be referred to and relied upon except for collateral purpose and not at all for the purpose deciding the application under Order 7 Rule 11 CPC.
12. The said submission was sought to be refuted by the counsel appearing for the defendants contenting, inter alia, that the said lease deed is binding on the plaintiff having been admittedly acted upon an furthermore relied upon by the plaintiff in the plaint and, therefore, the suit is barred by clauses 8 & 11 of the lease deed/memorandum of understanding dated 12.12.1983 which was the second limb of arguments of the counsel for the defendants. Since the aforesaid two limbs of the arguments are inter related and inter connected, I propose to take up both the submissions together.
13. It is the definite case of the plaintiff that possession of the premises in question was given to the tenant pursuant to the verbal agreement arrived at between the parties on 31.10.1983, which was followed by the agreement on 12.12.1983 which is admittedly not a registered document. The said agreement according to the plaintiff came to be varied with the change of the rate of rent for the premises w.e.f. 1.1.91. It cannot be said that the aforesaid contention raised on behalf of the plaintiff are in any manner frivolous or vexatious. It is stated in the plaint that the tenancy was created between the parties firstly by the verbal agreement which was substituted by a memorandum of understanding and subsequently by a mutual agreement between the parties varying the terms and enhancing the rent w.e.f. 1.1.1991 and that the said tenancy was according to the English calendar month starting from the first day of each calendar month and thereby ending on the last day of the said calendar month. The said facts which are pleaded as material facts with the further facts stated in the plaint that the aforesaid tenancy was terminated by a notice issued by the plaintiff, in my considered opinion, constitute a cause of action requiring the parties to go to the trial. It cannot be said under any circumstances that there is no cause of action for the suit on the basis of the averments made in the plaint. The cause of action, as is now settled, is a bundle of facts and such material facts as stated in the plaint constitute a cause of action requiring the parties to go to trial. As is held in Steel Authority's case (supra) for the purpose of deciding the application under Order 7 Rule 11 CPC what is required to be looked into is whether or not a meaningful reading of the plaint discloses a cause of action and that while considering the application the strength or weakness of the case of the plaintiff is not be seen. On a plain and meaningful reading of the plaint, it is apparent that cause of action for the suit is disclosed. defense taken is that the suit is barred which requires evidence and proof. Such pleas cannot be examined and decided at this stage as was held by the Division Bench.
14. The next contention to be looked into is whether the suit is barred under the provisions of clauses 8 & 11 of the lease deed, for according to the counsel for the defendants tenancy was for life time and, therefore, the said tenancy could not have been terminated by issuing a notice under Section 106 of the Transfer of Property Act. This aspect of the matter would definitely need investigation, for the intention of the parties would have to be gathered not only from the clauses of the agreement but also from the attending circumstances, which would be available only when the parties lead their evidence.
15. Applicability of the provisions of Section 106 & 107 of the Transfer of Property Act could be examined only at the stage after the parties have led their evidence and stated on oath about the existence or non-existence of a contract to the contrary so as to exclude applicability of the provisions of Section 106 & 107 of the Transfer of Property Act. Memorandum of understanding is referred to by the plaintiff in her legal notice to the defendants and also in the plaint.
Counsel appearing for the plaintiff sought to submit that the said document was referred to and was not relied upon by the plaintiff and, therefore, the said reference cannot be said to be an act of reliance on the part of the plaintiff on the lease agreement/memorandum of understanding deducing therefrom that the memorandum of understanding is an admitted document. This again, in my considered opinion, would need investigation in the light of the evidence adduced by the parties and at this stage it cannot be said that the suit is barred under any circumstances only because reference to the said deed is made in the plaint and in the legal notice issued by the plaintiff.
16. The next contention of the counsel for the defendant was that the suit is barred under the provisions of Section 53(a) of the Transfer of Property Act. Counsel appearing for the defendants sought to base the aforesaid submission on the basis of allegation that there was a written lease deed described as memorandum of understanding, which is admitted and that possession of the premises was also delivered to the defendants pursuant to the said terms of the lease deed and that the rent fixed by the said lease deed is being regularly paid by the defendants to the plaintiff and that the premises have been put to commercial use and that Rs. 2.50 lacs was paid by the defendants to the plaintiff as recorded in Clause 4 of the lease deed and therefore part performance is complete and provisions of Section 53(a) of the Transfer of Property Act is applicable.
17. Pleadings in respect of applicability of the provisions of Section 53(a) of the Transfer of Property Act have been pleaded in the written statement by way of defense. As has been held by the Division Bench of this court, in order to find out the applicability of the provisions of Order 7 Rule 11 CPC only the averments made in the plaint are to be looked into and no defense taken by the defendants could be looked into at that stage for the purpose of deciding the said application. In my considered opinion, the aforesaid plea, namely, the plea of applicability of Section 53(a) of the Transfer of Property Act is a plea taken up as a defense and necessary evidence in support of the said contention is to be led during the trial and at this stage by looking at the averments made in the plaint and the documents filed along therewith, it cannot be said that the plaint is barred because the provisions of Section 53(a) of the Transfer of Property Act an applicable. In order to establish the plea of part performance and applicability of Section 53(a) of the Transfer of Property Act, as pleaded in the written statement, evidence would have to be led by the parties in support and against the said plea and this is not the stage where the aforesaid plea could be examined and decided by this court in absence of proof of the pleadings of the parties. It was also submitted by the counsel appearing for the defendants that the suit is based on falsehood and suppression of material facts. In support of the aforesaid allegation he relied upon the alleged misdescription of the lease deed by the plaintiff as memorandum of understanding. He also submitted that the plaintiff has further suppressed the terms of the lease deed in the plaint which prohibited her from seeking ejection of the tenant against their will. Whether there is any suppression of fact or not is again a matter of evidence which is to be led and established and this is not the stage where such an investigation could be made.
18. Considering the entire facts and circumstances of the case relating to the application under Order 7 rule 11 CPC, I am of the considered opinion that the said application did not have any merit and is liable to be dismissed, which was so done by the trial court which I uphold.
19. This leaves me to discuss and give my orders on the revision petition filed by the plaintiff against the order dismissing the application filed under Order 12 rule 6 CPC. Needless to mention that it is settled position by now that such an application could be allowed only when there is clear unambigous, unconditional and unequivocal admission in the written statement to the averments made in the plaint. In the decision of this court in State Bank of India Vs. M/s Midland Industries & Ors. that before the court could act under Order 12 Rule 6 CPC the admission must be clear, unambinguous, unconditional and unequivocal. It was further held in the said decision that if a case involves questions which cannot be conveniently disposed of on a motion under this rule, the court is free to refuse to exercise discretion in favour of the party invoking it and the said rule is not intended to apply where there are serious questions of law to be examined and decided. In the present case, not only serious questions of law as delineated in the preceding paragraphs are involved but in my considered opinion, there is no clear admission on the part of the defendants admitting the claim of the plaintiff in the plaint. Serious questions of fact and law have been raised in the written statement disputing the claim of the plaintiff. It is alleged that the lease executed between the parties is for an indefinite period and the tenancy was for the life time and it was at the will and behest of the defendants that the tenancy could be terminated which allegation would require proof and investigation. The applicability of the provisions of Section 53(a) of the Transfer of Property Act is also a defense raised. These are serious questions of both law and facts, which are to be investigated upon and/or proved or disproved through evidence and thereafter decided during the trial. It cannot be said that the case made out in the plaint has been admitted by the defendants in their written statement. Even otherwise, the applicability of the provisions of Sections 106-107 of the Transfer of Property Act as also interpretation of the provisions of Section 53(a) of the Transfer of Property Act and applicability thereof to the facts of the present case are involved in the present suit which are, in my considered opinion, serious questions of law which need consideration and, therefore, the provisions of Order 12 Rule 6 CPC cannot be said to be applicable to the facts and circumstances of the present case. Therefore, the said application also has no merit and was rightly dismissed by the trial court.
20. Accordingly, I uphold the order passed by the trial court on both the applications and both the civil revisions are dismissed as having no merit but without any costs.