Delhi State Civil Supply ... vs Smt. Charanjit Kaur & Ors.
2009 Latest Caselaw 3291 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI



+                     RFA NO. 296 OF 2009



                                Date of Decision: 21st August, 2009




#     DELHI STATE CIVIL SUPPLY CORORATION LTD.    ..... Appellant
!                          Through:   Mr. Anil Kumar, Advocate


                   Versus



$     SMT.CHARANJIT KAUR & ORS.                     ..... Respondents
^                        Through:       Mr. Anuj Kr. Sinha, Advocate



      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the digest?



                        JUDGMENT

P.K.BHASIN, J:(ORAL)

This appeal is against the judgment of the learned Additional

District Judge passed on 17th July, 2009 in Suit No. 630/2008 filed by

the respondents 1-3 herein against the appellant-defendant and its

Managing Director for possession and damages/mesne profits in

respect of premises No. 8, 8A, Regal Building, Connaught Place, New

Delhi whereby while deciding a preliminary objection regarding the

non-maintainability of the suit raised by the appellant-defendant

because of arbitration agreement between the parties a decree for

possession in respect of the aforesaid premises has also been passed

against the appellant-defendant by invoking Order 12 Rule 6 of the

Code of Civil Procedure, 1908.

2. The relevant facts are that the respondents no.1 to 3 herein

had filed the suit for possession and damages/mesne profits in

respect of the premises No. 8, 8-A, Regal Building, Connaught Place,

New Delhi on the allegations that the same were given on license by

them to the appellant-defendant with the permission of plaintiff

No.4(respondent no.4 herein) who was the owner of the aforesaid

premises, vide licence agreement dated 27th April, 1992 from

01/03/92 to 28/02/95 for running of a wine shop. The appellant-

defendant was to pay licence fee @ 12.5% of the gross profit from

the total sales of liquor every month. It was pleaded that after the

expiry of the period of licence "the tenancy had expired by efflux of

time and tenancy became monthly tenancy." That tenancy was

terminated vide notice dated 28/06/08 and the defendant was

required to vacate the premises in its occupation on or before 19 th

July,2008 but it had failed to vacate the premises. So, the suit for

possession and damages @ Rs.3,333/- per day was filed.

3. The appellant-defendant had contested the suit and in its

written statement one of the objections raised was that the suit

premises were given to it on licence and not on rent and that there

was an arbitration clause in the agreement dated 27th April,1992

between it and the respondents 1-3 and so the suit was not

maintainable. Other pleas taken were that its licence was not

terminated validly and also that its licence had been renewed with

mutual consent of the parties.

4. Learned trial Judge decided to examine as a preliminary issue

the objection of the appellant regarding the jurisdiction of the Court

to entertain the suit for possession in view of the alleged arbitration

clause in the licence agreement between the parties. The learned

trial Judge heard the arguments and vide order dated 17th July, 2009

rejected the appellant's objection regarding the non-maintainability

of the suit. However, while rejecting that objection the trial Judge

also proceeded to pass a decree for possession against the appellant

invoking Order 12 Rule 6 CPC by observing that the appellant-

defendant had admitted the receipt of notice of termination of its

license and further that even if the relationship between the parties

was to be considered as that of landlord-tenant the tenancy of the

appellant could be a monthly tenancy at the most which could be

terminated by 15 days notice and since admittedly the appellant had

been served with the notice dated 28/06/08 requiring it to vacate the

premises in its occupation the suit of the plaintiffs was liable to be

decreed insofar as the relief of possession is concerned. It was also

observed that even though as per the agreement between the

parties three months notice of termination of the licence was

required to be given but that clause was not attracted since that

clause could be invoked only during the subsistence of the

agreement which had already expired in 1995. Suit was accordingly

decreed in part and for the relief of damages/mesne profits the suit

was kept pending.

5. Feeling aggrieved, the appellant filed the present appeal.

6. The main grievance urged by learned counsel for the appellant

is that neither any application had been moved by the respondents

under Order 12 Rule 6 CPC nor at the time of hearing of arguments

on the objection of the appellant regarding non-maintainability of the

suit any arguments were advanced from either side on the question

of passing of a decree under Order 12 Rule 6 CPC because of any

admissions in the written statement by the appellant-defendant and

further that the appellant-defendant had, in any case, not made any

admission regarding termination of its license and in fact had

categorically claimed that there was no valid termination of the

license as per the agreement between the parties. Learned counsel

for the respondents has fairly conceded that at the time of hearing of

the arguments on the appellant's objection regarding non-

maintainability of the suit in view of the arbitration agreement

between the parties no submissions were made from either side for

passing a decree under Order 12 Rule 6 CPC. So, the learned counsel

for the respondents submitted that he has no objection if the

impugned judgment to the extent it grants the decree for possession

in respect of the suit premises is set aside but liberty may be given

to the respondents to pray to the trial Court for a decree of

possession under Order 12 Rule 6 CPC which prayer can be

considered after giving an opportunity to both the parties to make

their respective submissions on this aspect of the matter.

7. In view of the aforesaid submissions of the learned counsel for

the parties the impugned judgment of the trial Court is set aside to

the extent a decree for possession has been passed against the

appellant-defendant clarifying that if the respondents-plaintiffs make

any request for passing of a decree under Order 12 Rule 6 CPC or if

the trial Court itself also decides to once again invoke Order 12 Rule

6 CPC the matter shall be decided afresh in accordance with law after

giving an opportunity to both the parties to advance their respective

submissions. It is also clarified that this Court has not gone into the

merits at all as far as the applicability or otherwise of Order 12 Rule 6

CPC to the facts of the present case is concerned and so the learned

trial Court while considering this aspect shall take the decision

uninfluenced by the aforesaid concession having been made in this

Court on behalf of the respondents for setting aside the decree for

possession passed under Order 12 Rule 6 CPC.

The appeal stands disposed of accordingly and the parties are

left to bear their own costs.

August 21, 2009                                         P.K. BHASIN,J
nk