Saket Cultural Club (Regd) vs Oriental Bank Of Commerce
2002 Latest Caselaw 539 Del

JUDGMENT

R.C. Jain, J.

1. This civil revision is directed against the order of the learned Additional District Judge, Delhi dated 14th May, 1998 by which an application under Order 12 Rule 6 moved on behalf of the petitioner-plaintiff herein praying for a judgment in its favor based on certain admitted position in the suit has been dismissed.

2. The brief facts to be noted for the disposal of this petition are that the petitioner-club has filed a suit for recovery of possession after terminating the tenancy of the respondent-Bank by means of a notice under Section 106 of Transfer of Property Act. The rent of premises being admittedly over Rs. 3500/- per month. The suit is being contested by the respondent-Bank, inter alia, on the ground that the said notice of termination of tenancy issued on behalf of the petitioner/plaintiff-Club stood waived in as much as a new tenancy was created by means of a lease agreement dated 26.4.1984 at enhanced rent of Rs. 20,800/- per month. The petitioner-Club sought a judgment simply on the position that the receipt of notice terminating the tenancy was not disputed and the tenancy stood terminated w.e.f. the particular date and they are entitled to possession. Application was opposed on the ground that fresh tenancy came into being on increase of rent after serving of the notice for termination of tenancy and the respondent-Bank was not liable to ejectment from the suit premises.

3. I have heard the learned counsel for the parties and have given my thoughtful consideration to their respective submissions. Learned counsel for the petitioner seeks to assail the impugned order mainly on the ground that there is no waiver of the notice and in any case no reliance can be placed on the lease agreement dated 26.4.1984, which is an unregistered document which could not have created tenancy for more than one year in terms of the provisions of the Transfer Property Act. Learned counsel for the respondent has contended that the question as to whether a fresh tenancy came into being and the notice of termination has been waived or not are to be answered by the Court after a full dress trial and the trial court was justified in declining the prayer of the petitioner. In support of his contention, he has also placed reliance on a Supreme Court decision titled Anthony v. KC Ittoop & Sons and Ors. 2000 VI AD (SC) 96 wherein it has been held as under:-

"When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

When it is admitted by both sides that appellant was inducted into the possession of the building by the owner thereof and that appellant was paying monthly rent or had agreed to pay rent in respect of the building, the legal character of appellant's possession has to be attributed to a jural relationship between the parties. Such a jural relationship, on the fact situation of this case, cannot be placed anything different from that if Lesser and lessee falling within the purview of the second paragraph of Section 107 of the T.P. Act extracted above. From the pleadings of the parties there is no possibility for holding that the nature of possession of the appellant in respect of the building is anything other than as a lessee."

4. The admitted factual position which would entitle the plaintiff straightaway to a judgment and decree in his favor under the provisions of Order 12 Rule 6 CPC should be unequivocal and clear. In the case in hand, there exists no such admission on the part of the respondent. Rather the respondent has come out with specific defense pleas and the question whether those defense pleas have any substance or not cannot be decided unless the parties go on trial.

5. On a consideration of the matter, this Court is of the view that on the face of the facts and circumstances and the material obtaining on record, the learned trial court was justified in not passing the judgment in favor of the petitioner while having recourse to the provision of Order 12 Rule 6 CPC. The impugned order does not suffer from any infirmity, material irregularity much less any illegality which warrants any interference by this Court. The revision petition being devoid of any merits is dismissed, leaving the parties to bear their own costs.