M/S. Ksd Properties Pvt. Ltd. vs P.P. Design Estate
2009 Latest Caselaw 2766 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          IA No.706/2009 in CS (OS) No.1857/2006

           IA No.320/2008 in CS (OS) No.761/2007

                       Judgment reserved on:   16th July, 2009

%                      Judgment decided on :      22nd July, 2009

M/s. KSD Properties Pvt. Ltd.                      ......Plaintiffs
                     Through: Mr. J.P. Gupta, Adv. with Mr. Rikky
                              Gupta, Adv.

                       Versus
P.P. Design Estate                                  .....Defendants
                       Through: Mr. Rahul Gupta, Adv. with Mr. Gagan
                                Gupta, Mr. Rajnish Mishra, Mr. Raman
                                Kapoor and Ms. Aanchal Dhingra,
                                Advs.

                                 AND
M/s. P.P. Design Estate & Ors.                     .....Plaintiffs
                      Through: Mr. Rahul Gupta, Adv. with Mr. Gagan
                               Gupta, Mr. Rajnish Mishra, Mr. Raman
                               Kapoor and Ms. Aanchal Dhingra,
                               Advs.

                       Versus
Geeta Devi & Anr.                                    ......Defendants
                       Through: Mr. Deep Dhamija, Adv. for Def. No.1
                                Mr. J.P. Gupta, Adv. with Mr. Rikky
                                Gupta, Adv. for Def. No.2
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                 No

2. To be referred to Reporter or not?                              No

3. Whether the judgment should be reported                         No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I propose to decide two applications being I.A

No. 706/2009 under Order XII Rule 6 read with Section 151 CPC in CS

(OS) No.1857/2006 filed by the plaintiff in this case for passing a

decree of possession in favour of the plaintiff and against the defendant

in respect of property bearing No.R-2, Green Park, New Delhi on the

basis of admissions made by the defendant and IA No.320/2008 under

Section 151 CPC in CS (OS) No.761/2007 filed by the plaintiff in that

case for consolidation of the two connected suits.

2. Issues in CS (OS) No.1857/2006 were framed on 6th August,

2007 and the same read as under :

"1. Whether the tenancy of the defendant was terminated by way of abundant caution by a legal and valid notice dated 31st August, 2005 and 23rd July, 2005, if so, to what effect ? OPP

2. Whether the plaintiff is the owner of the property No.R-2, Green Park, New Delhi ? OPP

3. Whether the defendant is an unauthorised occupant in respect of the suit property ? OPP

4. Whether the plaintiff is entitled to a decree for possession ? OPP

5. Whether the plaintiff is entitled for damages/mesne profits, if so, at what rate and for what period? OPP

6. Whether the plaintiff is entitled for interest, if so, on what amount, at what rate and for what period ? OPP

7. Whether the suit has been instituted by a duly authorised person and verified in accordance with law ? OPP

8. Whether the suit has been properly valued or the purpose of Court fees and jurisdiction for the relief of possession ? OPP

9. Whether the suit is bad for non joinder of parties?

OPD

10. Whether the defendant is in occupation of the suit property in part performance of an oral agreement to sell? If so to what effect? OPD

11. Relief."

3. After framing of the issues, directions were issued to lead

evidence, however, the defendant filed an application being IA

No.10475/2007 under Order XIV Rule 5 read with Section 151 CPC for

framing of additional issues. Pursuant to this application, an additional

issue was framed on 12.09.2007 to the following effect:

"12. Whether the suit of plaintiff is barred on account of Estoppel and Acquiescence as alleged by the defendant? OPD"

4. While disposing of this application on 12 th September, 2007

the court has specifically observed that as far as issue No.1 is

concerned, the burden to prove that the defendant has no right in the

property and that the plaintiff is entitled to recover the possession from

the defendant is on the plaintiff. Similarly, the court observed that as

regards Issue No.4 which contemplates whether the plaintiff is entitled

to a decree for possession or not, the plaintiff will have to prove all the

facts averred in the plaint for recovery of possession including the fact

that there was a license for one month which was terminated by Smt.

Gita Devi and the termination of tenancy by the plaintiff was by way of

abundant caution.

5. It was further observed in para 11 of the order dated 12th

September, 2007 that in order to establish that the plaintiff is entitled to

recover the possession from the defendant, the plaintiff shall have to

prove the averments made in the plaint including the averment that Smt.

Gita Devi had created a license in favour of the defendant. This

application was partly allowed.

6. By order dated 12th October, 2007 it was recorded that the

affidavit of evidence had been filed and the matter was put up for cross

examination of plaintiff‟s witness PW 1 on 17th January, 2008.

7. It appears from the record that when the matter was again

listed on 17th January, 2008, PW 1 Mr. K.S. Dhaka was present for cross

examination and the defendant pointed out to the Joint Registrar that it

had filed an application for consolidation of this suit with another suit

being CS (OS) No.761/2007 which is pending consideration. In light of

this fact, the defendant did not cross examine PW 1.

8. The matter was listed on 27th February, 2008 when it was

again sent to the Joint Registrar for cross examination of the plaintiff‟s

witness on 12th March, 2007 and by this time also, the other suit had not

been consolidated with the present suit. This order was challenged by

way of appeal by the defendant being FAO(OS) No.111/2008 which

was disposed of with the direction that the proceedings in CS (OS)

No.761/2007 be expedited so that at a later stage both the suits can be

taken up for final hearing and decided together. As far as the application

seeking consolidation of the two suits is concerned, there was a

direction by the Division Bench that the same shall be taken up for

consideration and decided at an early date.

9. Thereafter, the present application under Order XII Rule 6

CPC was filed by the plaintiff.

10. The case of the plaintiff is that it had purchased the suit

property by virtue of two registered sale deeds dated 17 th May, 2005

from its erstwhile owner Smt. Gita Devi for valuable consideration. The

defendant in the suit is in unauthorised occupation of the suit property to

the detriment of the plaintiff. There is no document executed by either

Smt. Gita Devi or by the defendnat in the present suit and as such the

defendant is in unlawful occupation of the suit property.

11. The contention of the plaintiff is that after purchasing the

suit property legal notices dated 23rd July, 2005 and 3rd November,

2005 were sent calling upon the defendant to hand over the suit

property else the defendant would be liable to pay damages. As the

defendant did not reply to the said legal notices and retained the

possession, therefore, the plaintiff had to file the present suit.

12. I have heard the learned counsel for the parties in the

pending application. Learned counsel for the defendant has argued that

there is no admission on the part of the defendant in the written

statement. Rather, the defendant has contested the suit very seriously.

Learned counsel has referred to para 4, 5, 13, 26, 30 and 38 of the

written statement as well as various paras of the written statement on

merit.

13. As regards the present application under Order XII Rule 6 of

the CPC, 1908, I have gone through the submissions of both parties as

well as the written statement of the defendant very carefully. I have also

perused the decisions submitted by the parties.

14. I find no merit in the contentions of the plaintiff as I have not

come across a single admission on part of the defendant in its written

statement, contrary to all that has been averred by the plaintiff. The

paragraphs cited by the plaintiff in its application as paragraphs of

admissions by the defendant do not appear to be admissions at all.

15. There are many decisions wherein the meaning and scope of

„admission‟ as regards Order XII Rule 6 CPC has been discussed. One

such case is that of Raj Kumar Chawla v. Lucas Indian Services 129

(2006) DELHI LAW TIMES 755 (DB) wherein it has been held as

follows:

"5. The expression „Admission‟ has been given a wider meaning and connotation so as to take within its ambit admissions made by a party in pleadings or otherwise, orally or in writing. These provisions thus are capable of liberal construction and without imposition of any unreasonable restriction, must be permitted to operate but the Courts have to be careful while passing a decree on admission. The Court essentially should look into the fact that all essential ingredients of an admission are satisfied before such a decree is passed in favour of any of the parties to the suit. Admission has to be unambiguous, clear and unconditional and the law would not permit admission by interference as it is a matter of fact. Admission of a fact has to be clear from the record itself and cannot be left to the interpretative determination by the Court, unless there was a complete trial and such finding could be on the basis of cogent and appropriate evidence on record.

7. Admission, understood in its common parlance still must be a specific admission. There is a very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally should decline in the cases of the latter category."

16. Keeping in mind the scope of „admission‟ as given in the

above cited judgment, I find that there is not a single instance in any

pleadings or elsewhere where the defendant has admitted any such thing

as claimed by the plaintiff. Further, evidence has already been submitted

by the plaintiff in the present case. At this stage, considering all the

above-stated facts, it would not be appropriate to allow the plaintiff‟s

application. Application disposed of accordingly.

17. As regards I.A No. 320/2008 in C.S (OS) No. 761/2007 for

consolidation of both connected matters, I find no valid reason on

record as to why the suits should not be consolidated.

18. The suit referred was filed by the plaintiff P.P. Design Estate

in CS (OS) No.761/2007 for specific performance and mandatory

injunction against the defendants Smt. Geeta Devi and M/s KSD

Properties Pvt. Ltd in respect of same property bearing number R-2,

Green Park, New Delhi. Allegedly, defendant no. 1 sold the said

property by oral contract to the plaintiff and then illegally executed two

sale deeds in favour of defendant no. 2 with regard to the same property.

The defendant no. 2 in this case is the plaintiff in C.S (OS) No.

1857/2006 wherein it has claimed absolute title and interest over the suit

property on the basis of the said two sale deeds. In that case also, the

plaintiff herein has filed its written statement unequivocally pleading the

existence of an oral agreement with Smt. Geeta Devi as regards the suit

property, with a total sale consideration of Rs. 1.50 Crore besides other

terms.

19. A perusal of the pleadings in both the suits and the issues

framed clearly show that both the suits are to be consolidated to avoid

multiplicity of proceedings, delay and unnecessary expense. The issue

of possession of the plaintiff as regards the suit property, rights of

defendant no. 2 as regards the same and existence of oral agreement

between plaintiff in the present case and Smt. Geeta Devi are all

reslevant questions for consideration in both the suits. Further, such

consolidation shall relieve the parties of adducing the same evidence

twice and shall ensure that all issues and matters are heard and tried at

once and then decided.

20. I hereby allow this application and accordingly consolidate

CS (OS) No.761/2007 with CS (OS) No.1857/2006 titled "K.S.D.

Properties Pvt. Ltd. Vs. P.P. Design Estate" for trial and decision. It is

directed that the evidence of the parties shall be recorded in earlier

matter being CS (OS) No.1857/2006.

CS (OS) No.1857/2006 & CS (OS) No.761/2007

List these matters before the Court on 7th October, 2009.

MANMOHAN SINGH, J.

JULY 22, 2009 sa