Gujarat High Court
Mahadevprasad Amanbhai Prajpati vs Manjulaben Tarachand Nagar on 24 June, 2025
NEUTRAL CITATION
C/FA/2771/2022 ORDER DATED: 24/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2771 of 2022
With
CIVIL APPLICATION NO. 1 of 2022
In R/FIRST APPEAL NO. 2771 of 2022
With
CIVIL APPLICATION (FOR EXTENSION OF TIME) NO. 1 of 2025
In R/FIRST APPEAL NO. 2771 of 2022
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MAHADEVPRASAD AMANBHAI PRAJPATI
Versus
MANJULABEN TARACHAND NAGAR & ANR.
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
MR NV GANDHI(1693) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/06/2025
ORAL ORDER
1. The present First Appeal is filed under Section 96 of the Civil Procedure Code, 1908 by appellant - original defendant challenging the judgment and decree dated 18.06.2022 passed by City Civil Court, Ahmedabad in Civil Suit No. 112 of 2012.
2. Heard learned advocate Mr.Amit Patel for the appellant - original defendant and learned advocate Page 1 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined Mr.N.V.Gandhi for respondents - original plaintiff.
3. Brief facts of the case are as under:-
3.1 The original plaintiffs - present respondents filed Civil Suit possession and arrears of rent for the property situated on front portion of the first floor bearing House No.327, situated at Vaniyavas, Azad Chowk, Naroda Gam, Ahmedabad. The suit property consists of one room, kitchen and hosiery. The defendant was let out suit property from 15.01.2002 on monthly rent of Rs.800/-. 3.2 The suit was resisted by defendant - appellant by filing Written Statement at Ex.20 and denied the contentions raised by respondents-plaintiffs. Thereafter, plaintiffs filed an application at Ex.34 under Order XII Rule 6 of the Civil Procedure Code (For short 'the Code') seeking decree on admission. The said application was resisted by the appellant by filing reply. After hearing the Page 2 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined parties, learned trial Court allowed the application, and suit of the plaintiffs was decreed on 18.06.2022. 3.3 Being aggrieved and dissatisfied with the impugned judgment and decree, appellant - original defendant has filed First Appeal.
4. Learned advocate for the appellant submitted that, prior to the institution of suit, appellant had filed HRP Civil Suit No.1378 of 2006 before the learned Small Cause Court, Ahmedabad, seeking relief of injunction.
However, the said suit came to be dismissed on 01.04.2011.
4.1 It is further submitted that, respondents had filed HRP Civil Suit No.2515 of 2006 for the property situated on the rear portion of first floor of House No.327. Respondents filed another suit being HRP Civil Suit No.2516 of 2006 for the property situated on the front Page 3 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined portion of the first floor. Both the suits were filed before the learned Small Cause Court, Ahmedabad. HRP Civil Suit No. 2515 of 2006 came to be decreed against the present appellant and the decree has been executed in favour of the respondent-plaintiff. However, HRP Civil Suit No.2516 of 2006 came to be dismissed on the ground that the landlord's allegation in that suit was that the tenancy was created after 2001 and as per Section 4A of the Bombay Rent Act, any tenancy created after the cut-off date, the provisions of the Bombay Rent Act would not be applied. Therefore, the said suit was dismissed without entering into the merits of the case, and the issue of tenancy was never decided. After dismissal of the suit by the learned Small Cause Court on 01.04.2011, respondent-plaintiff filed the present suit for recovery of possession of the front portion of first floor. In the written statement, it is specific averments made by the appellant-defendant that the Civil Court has no jurisdiction to try and decide the suit and Page 4 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined has denied the tenancy being created after 2001. It is also contended in the Written Statement that the plaintiff has to establish that the suit property was let out to the appellant from 15.01.2002.
4.2 It is submitted that there is no admission in worth name in the written statement regarding the allegations raised in the plaint. It is further submitted that the appellant is occupying the suit property since 1998 as a tenant. Therefore, the provisions of Order XII Rule 6 of the Code are not applicable in the given set of facts. 4.3 In support of his contentions, learned advocate for the appellant has relied upon the following decisions.
(i) Payal Vision Ltd. Vs. Radhika Choudhary reported in 2012 (11) SCC 405 : 2012 LawsSuit (SC) 605;
(ii) S.M.Asif Vs. Virender Kumar Bajaj reported in 2015(9)SCC 287 : 2015 LawSuit (SC) 757 and
(iii) Karan Kapoor Vs. Madhuri Kumar reported in 2022 (9) SCC 496 : 2022 LawSuit (SC) 776. Page 5 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025
NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined 4.4 It is further submitted that the Court can pass a decree under Order XII Rule 6 of the Code of Civil Procedure, if the jural relationship between the parties and service of notice of termination of tenancy under Section 106 of the Transfer of Property Act, are not disputed in the Written Statement. It is further submitted that the defences raised by the defendant in the Written Statement goes to the root of the matter and the exercise of discretion in passing a decree under Order XII Rule 6 of the Code is against the scope of the said provision. Mere relationship of the landlord and tenant cannot be said to be an unequivocal admission to decree the suit under the provisions of Order XII Rule 6 of the Code.
5. Per contra, learned advocate for the respondents
- plaintiffs has supported the judgment and decree and submitted that the plaintiff filed two Civil Suits being HRP Civil Suit No.2515 of 2006 for the rear portion on the first Page 6 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined floor and HRP Civil Suit No.2516 of 2006 for the property situated on front portion of the first floor. Both suits were tried and decided by the learned Small Causes Court, Ahmedabad. The HRP Civil Suit No.2515 of 2006 came to be decreed and the plaintiffs have received the possession of the property. However, HRP Civil Suit No.2516 of 2006, came to be dismissed. The plaintiffs in that suit contended that the suit property was let out to tenant on 15.01.20022 at monthly rent of Rs.800/- per month. Considering the provisions contained in Section 4A of the Bombay Rent Control Act, the learned Small Cause Court held that since the tenancy is post suspension of Rent Act, for want of jurisdiction, the suit came to be dismissed. The said judgment and decree were not assailed by either of the parties before the learned Appellate Bench of the Small Causes Court, Ahmedabad.
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NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined 5.1 Before the institution of the suit for possession, respondents had issued a notice under Section 106 of the Transfer of Property Act dated 12.05.2011 which was received by the appellants on 13.05.2011. In the Written Statement, there is no specific denial regarding the non- receipt of the notice. However, defendant-appellant has contended in the Written Statement that the notice which has been sent by the plaintiff is wrong. 5.2 It is further contended that the contention of tenancy which was pleaded in HRP Civil Suit No.2516 of 2006 has been put to a rest and HRP Civil Suit No.1378 of 2006 which was filed by the appellant - tenant came to be dismissed by the competent Rent Court. 5.3 Reliance which has been placed by learned trial Court in the case of Payal Vision Limited Vs. Radhika Choudhary, reported in (2012) 11 SCC 405, lays down correct proposition of law.
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NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined 5.4 Learned advocate for respondent has relied upon the decision in the case of Karam Kapahi & Ors. Vs. M/s. Lal Chand Public Charitable Trust and Anr. reported in AIR(2010) SC 2077 and submitted that the Court has the power to pass a decree under Order XII Rule 6 of the Code of Civil Procedure (CPC).
5.5 In the case of Karam Kapahi (supra), learned advocate for the respondent has specifically relied upon paragraph Nos.48 and 49, which is reproduced as under:-
"48. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it `ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment.
49. If the provision of order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of order 12 Rule 1 is limited to admission Page 9 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined by `pleading or otherwise in writing' but in Order 12 Rule 6 the expression `or otherwise' is much wider in view of the words used therein namely: `admission of fact.........either in the pleading or otherwise, whether orally or in writing'.
5.6 It is contended by learned advocate for the respondent that, in absence of a specific denial regarding the jural relationship of landlord and tenant respectively coupled with none denial of receipt of the notice would give a power to the Court to pass a decree under Order XII Rule 6 of the Code of Civil Procedure. By issuance of notice, the tenancy of the appellant - tenant was terminated by respondent-landlord. Learned trial Court has therefore, rightly exercised the powers by resorting to the provisions of Order XII Rule 6 of Code.
6. I have considered the submissions canvassed by learned advocates for the respective parties and also perused the record. It appears from the plaint that the suit for possession alongwith arrears of rent was filed against Page 10 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined the appellant-tenant. The HRP Civil Suit No.1378 of 2006 which was filed by the appellant against the respondents before the learned Small Causes Court, Ahmedabad, seeking a relief of permanent injunction came to dismissed on 01.04.2011. It appears from the submissions of learned advocate for the appellant that, no appeal is filed against the judgment and decree passed in HRP Civil Suit No.2515 of 2006. However, Civil Appeal No.83 of 2011 is filed against the judgment and decree of dismissal of HRP Civil Suit No.2516 of 2006 by the appellant. This fact is culled out from paragraph No.7 of the written statement. If the judgment and decree passed in HRP Civil Suit No. 2516 of 2006 is perused, it appears that the said suit came to be dismissed by the learned Small Causes Court on the ground for want of jurisdiction, as the tenancy, as per the case of landlord, was post 2001, more particularly, dated 15.01.2002. While dismissing suit, all issues were not dealt with on merits. Therefore, HRP Civil Suit No.2516 of 2006 Page 11 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined is decided without testing the merits and demerits of the respective parties.
7. Coming back to the controversy raised in the present appeal with regard to the scope of Order XII Rule
6 of the Code of Civil Procedure, it would be profitable to reproduce Order XII Rule 6 of the Code:-
Order XII Rule 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 application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may thing fit, having regard to such admissions."
8. Rule 6 mandates that where admissions of fact has 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 application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think, having regard to Page 12 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined such admissions. To invoke the provisions of Rule 6 of Order XII there has to be an admission of fact which is made either in pleading or otherwise.
9. A decree can be passed under order XII rule 6 on the basis of an admission whether it is contained in the pleadings or elsewhere. Such an admission may be in writing or may even be oral. No particular form of admission is necessary. The admission in writing can be either in a written statement in that very suits, counters or affidavits in the miscellaneous proceedings and in certain cases the admission in the pleadings in other proceedings. The admission has to be unambiguous, certain and incapable of any confusion. When defendant raises issues of law and fact, judgment would not be passed on admission under rule 6.
In order to enable the Court to pass a judgment under order XII rule 6 of the Code on the basis of Page 13 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined admissions in the pleadings, Court must come to the conclusion that there is a clear and unequivocal admission of the defendant in respect of the claim of the plaintiff. Although order XII rule 6 is couched in wide terms but it can be acted upon only where admissions are clear, unambiguous and unequivocal. When defendant raises questions of fact or law, Which are required to be considered at the time of trial of the case, no decree can be passed in terms of order XII rule 6 of the Code. Accordingly, pleadings of parties are required to be considered and scrutinized to find out if the decree on the alleged admissions of the defendant can be passed in the present case.
10. While exercising the powers under Rule 6 of Order XII, the Court has to be satisfied with the fact that there is an admission of a fact. On reading of the provisions, the discretion vest with the Court and it is not Page 14 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined a right of a party. While exercising such discretion, the Court has to ascertain that the admission is clear, unequivocal and unambiguous and for such exercise of discretion, the Court has to consider the Written Statement as a whole. And the Court has to be satisfied that defendant has admitted a fact pleaded by plaintiff and on such clear admission powers under Rule 6 of Order XII cane be exercised.
11. In the present case, an assertion is made by the plaintiff in the plaint that the tenancy of the appellant- defendant is created on 15.01.2002 and since the competent rent Court did not decide the suit and dismissed the suit for want of jurisdiction, a Notice of termination dated 12.05.2011 came to be issued to the appellant and since the defendant-tenant did not act as per the notice of termination, the suit was filed for claiming possession and arrears of rent. It appears from the Written Statement that Page 15 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined defendant has raised a dispute of the jurisdiction by contending that the defendant is in possession of suit property as tenant before 2001 more particularly since 1998. When the dispute of jurisdiction is raised by the defendant in the Written Statement, the exercise of discretion under Order XII Rule 6 was uncalled for. On reading the contentions raised in the Written Statement, it appears that there is no clear, unequivocal and unambiguous admission on the part of defendant, whereby a decree can be passed without a full fledged trial.On reading written statement, Court may find that the defence raised by defendant, eventually may fail after the trial. And the defence which is raised may not be sufficient to oust the plaintiff from claiming possession of the property. But that exercise can only be done after the trial is complete. The judgment and decree of the dismissal of HRP Civil Suit No.1378 of 2006 was not challenged by the tenant and that dismissal of suit has attained finality. The Page 16 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined judgment and decree passed in HRP Civil Suit No.2516 of 2006 was assailed before the learned Appellate Court and the same is pending on the date of filing of the Written Statement is a fact which ought not to have gone unnoticed by the learned trial Court.
12. In the HRP Civil Suit No.2516 of 2006, the same defence is raised by the tenant that he is in possession of the property as tenant from 01.10.1998. The defence which has been raised by the defendant in the Written Statement requires a trial and therefore, no decree can be passed by invoking the provisions of Rule 6 of Order XII in the facts of the present case. Resultantly, present First Appeal succeeds. Accordingly, judgment and decree dated 18.06.2022 is hereby quashed and set aside. The Civil Suit No.112 of 2012, is restored to its original file. Learned trial Court shall decide the suit on its own merit and without being influenced by the observations made Page 17 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025 NEUTRAL CITATION C/FA/2771/2022 ORDER DATED: 24/06/2025 undefined hereinabove.
13. Since the Civil Suit is of 2012 and plaintiff is waiting for outcome of the suit, the learned trial Court shall decide the present suit as early as possible preferably within a period of 6 months from the date of receipt of this order. Both the parties shall give full cooperation to the learned trial Court in speedy disposal of the suit without seeking unnecessary adjournments.
14. Record and proceedings, if any, received, be sent back to the concerned Court forthwith.
15. In view of the disposal of the main matter, the connected Civil Applications stand disposed of accordingly.
(D. M. DESAI,J) MANOJ Page 18 of 18 Uploaded by MANOJ KUMAR(HC01092) on Thu Jul 10 2025 Downloaded on : Fri Jul 11 22:08:25 IST 2025