Sh. Vimal Khanna & Anr. vs Sh. Kishan Chand Khanna
2010 Latest Caselaw 1517 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+           RFA (OS) No.79/2009 & C.M. No.14129/2009

             Judgment reserved on:       08.03.2010
%            Judgment delivered on:      18.03.2010


SH. VIMAL KHANNA & ANR.                             ..... Appellants
                    Through:       Mr. Rishi Maheshwari, Adv. with
                                   Ms. Naomi Chander, Adv.

                      Versus

SH. KISHAN CHAND KHANNA                              .....Respondent
                    Through:       Mr. Alok Aggarwal, Adv.


      CORAM:
      HON'BLE MS. JUSTICE VIKRAMAJIT SEN
      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?                yes
      3. Whether the judgment should be reported           Yes
         in the Digest?


MANMOHAN SINGH, J.

1. Regular First Appeal from the Original Side has been filed by the

two appellants namely Vimal Khanna and Simmi Khanna against the

Order and Judgment dated 6th August, 2009 passed by the learned

Single Judge in CS (OS) No. 1162/2007 wherein the application filed by

the respondent under Order XII Rule 6 read with Section 151 of Code of

Civil Procedure being F.A. No. 15614/2008 was allowed by decreeing

the suit of the Respondent. The appellants were given one month's

time to vacate the Ground Floor of the suit property bearing No. AE-95,

Shalimar Bagh, Delhi and hand over peaceful possession thereof to the

respondent.

2. The brief facts of the matter before the learned Single Judge in

the suit for possession, injunction and mesne profit filed by the

respondent are that the respondent is a senior citizen aged about 76

years. The appellant Nos. 1 and 2 are the son and daughter-in-law

respectively of the respondent.

3. The respondent was allotted a plot by the DDA measuring 200

square yards in the year 1982. The entire consideration for the

purchase of the said plot was paid by the respondent from his own

earning and sources. Subsequently the respondent applied for

conversion of his lease hold rights in the plot to free hold, on payment

of conversion charges, and the DDA issued a Conveyance Deed in

favour of the respondent.

4. The respondent has two sons and three daughters. All the

children are married. The respondent and his wife Smt. Prem Lata

Khanna are residing on the First Floor of the suit property, their elder

son Mr. Kamal and his family are in possession of the Second Floor

whereas appellants Vimal Khanna and Smt. Simmi Khanna are residing

on the Ground Floor of the premises in question.

5. It was also stated in the plaint that the appellant No. 1 as well as

the elder son of the respondent have their own flats situated at Shri Sai

Baba Group Housing Cooperative Society, Sector-9, Rohini, Delhi which

were purchased by the two sons with the financial assistance of the

respondent. The appellant No. 1 got married with appellant No. 2 in

the year 1985.

6. Out of love and affection, the appellants were permitted to

occupy the Ground Floor of the house. It was stated in the plaint that

the conduct of the appellants had become extremely distrurbing and

the appellants required the respondent to execute a Release /

Relinquishment Deed in respect of the suit property to the respondent.

7. Because of the hostile activities of the appellants, the

respondent was compelled to disown the appellant No. 1 for which

public notice was published way back in March, 2005. However, due to

intervention of common friends and relatives, an undertaking was

given by the appellants to maintain peace in the family and

subsequently, they were permitted to continue residing in the suit

property.

8. Further, the case of the respondent was that the appellants in

fact had openly threatened the respondent that in case he did not

execute a Deed of Release for the property in their favour, they would

cause grievous injury to the respondent and there were various

instances/acts alleged as regards the bad behaviour and harassment

meted out by the appellants vis-à-vis the respondent.

9. It was also stated that the respondent as well as his wife are

suffering from ailments including arthritis and are unable to climb

stairs and thus requested the appellants to let them reside on the

ground floor of the suit property. However, the appellants declined the

said request. Therefore, the suit for possession/injunction and mesne

profit was filed by the respondent against the appellants for eviction of

the latter from the Ground Floor of the suit property.

10. After filing of the Written Statement by the appellants, the

respondent filed the application under Order XII Rule 6 of Code of Civil

Procedure for passing a decree on the basis of admission made by the

appellants. The learned Single Judge allowed the application by the

Order/Judgment dated 6th August, 2009 and decreed the suit for

possession and directions were issued to the appellants to vacate the

ground floor of the suit property and hand over peaceful possession

thereof within one month from the date of passing the said Order.

11. The appellants have now challenged the said Order and

Judgment passed by the learned Single Judge by filing of the present

appeal under Section 96 of the Code of Civil Procedure which has been

heard by us with the consent of the parties.

12. The main challenge in the appeal filed by the appellants is that in

the year 1973-74, the appellant No. 1 joined and actively participated

in the joint family business run by the respondent in the day time and

admitted Zakir Hussain Evening College to complete his graduation. It

was stated in the Written Statement that that in the year 1974, a

partnership firm under the name and style of M/s. Rajneesh Textiles

was started under the partnership of the respondent and his wife. The

respondent being the head of the family was collecting the income of

all the members of the family and making expenditures on behalf of all

the members of the family jointly. It was also stated in the Written

Statement that in the marriage of the daughters in the year 1987 as

well as in the firm M/s Rajneesh Textiles, the appellant No. 2, who is

wife of appellant No. 1, substantially and financially helped the

respondent.

13. Order XII Rule 6 of the Code of Civil Procedure, no doubt, is a

discretion which is to be exercised by the Court judiciously on the facts

and circumstances of each matter. It is settled law that a judgment

can be passed on unequivocal and unambiguous admission. The object

of the said provision is to obtain a speedy justice if an admission is

made by a party against the claim made by the other party.

14. In the present case the following are the admissions made by the

appellants:-

(a) It is unequivocally admitted by the appellants that the

respondent was the owner of the suit property which was

allotted to him by the DDA in the year 1982.

(b) The Conveyance Deed was also issued by the DDA in

favour of the respondent.

(c) The appellants have also admitted that the construction of

the above mentioned plot was started in the year 1982 and

was completed in the year 1983.

(d) Admittedly, the appellant No. 1 was married with the

appellant No. 2 on 12th February, 1985. There is no denial

by the appellants that partnership firm in the name and

style of Rajneesh Textiles was started in the year 1974

wherein the respondent and his wife Smt. Prem Lata were

partners and appellant No. 1 was not a partner of the firm.

(e) As per their own admission, it is stated in the Written

Statement that appellant No. 1 became the partner of the

above mentioned firm only in the year 1992.

(f) Admittedly the appellant No. 1 failed to produce any

cogent evidence on record to show that any money was

paid by him to the respondent at the time of purchase of

the suit property or for construction of the house thereon.

15. From the pleadings before the learned Single Judge and after

having gone through the grounds raised by the appellants in the

appeal, it appears to us that so far as the prayer of the subject matter

of the present dispute for the possession of the suit property on the

Ground Floor of AE-95, Shalimar Bagh, Delhi is concerned, there are

admissions made by the appellants in the Written Statement, as

referred in paragraph 14 of our judgment. It is a matter of fact that

when the property was purchased and construction was carried out by

the respondent, the appellants were not married. Secondly, the

appellant No. 1 became a partner in the family business only in the

year 1992, therefore, it appears that the defence raised by the

appellants before the learned Single Judge was incongruous and also

flimsy as the same was raised without any valid evidence which is

startlingly clear from the fact that the appellants earlier agreed to

vacate the concerned floor of the suit property and wanted to settle

the matter when the matter was listed before the court on 10 th

December, 2007 and the following order was passed:-

―The parties are likely to settle the matter. I am told that the defendants have shifted their residence temporarily to Gurgaon but they have not vacated the premises in question and they are still under defendant's lock and key. Defendants state that they be given a month's time either to shift to the rented premises or their own house."

16. As far as the financial assistance by the appellant No. 2 is

concerned, it is an admitted position that on the date of construction of

the property, the appellants were not married. For the relevant period

when the plot was allotted by the DDA in 1982 and constructed in

1983, there is no cogent evidence placed on record by the appellants

to show that any amount has been received by appellant no. 1 from

M/s. Rajneesh textiles and paid to the respondent. The appellants have

admitted in the Written Statement that they are already in possession

of a flat in Rohini.

17. The respondent has denied the said claim of the appellants

against the respondent. In the face of denial and the failure of the

appellants to produce any evidence as regards the claims made by the

appellants in the written statement, this Court is of the view that no

trial in the main suit is required on the basis of the admitted facts by

the parties.

18. In a similar situation, this Court in the case of Ashoka Estate

Pvt. Ltd. & Ors. Vs. Dewan Chand Builders Pvt. Ltd. and Ors.

reported as 159 (2009) DLT 233 held as under :

―26. The plaintiffs if otherwise found entitled to a decree on admissions, cannot be deprived thereof by astute drafting of the written statement and/or by taking pleas therein which have no legs to stand upon. This Court is to read the pleadings of the parties meaningfully. Issues are to be framed on material and not all propositions of law and fact. A plea, which on the face of it is found by the Court to be untenable, does not require the framing of any issue. The pleas of the defendants in the present case are found by me to be such, without calling for any trial whatsoever. If the said pleas of the defendants on the basis whereof the admitted liability of the defendants is sought to be defeated, are found to be untenable, naturally the impediment to the passing off a decree on the basis of admissions disappear. The Apex Court in T. Arvindam v. T.V. Satyapal, AIR 1977 SC 2421 has held that if on a meaningful -- not formal -- reading, claim is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the trial Court should ensure that bogus litigation is shot down at the earliest stage. Again, in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I & Another, (2004) 9 SCC 512 it was held that when no cause of action is disclosed, the Courts will not unnecessarily protract the hearing of suit; the Court should interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the Courts resources being used up in cases which will serve no useful purpose. It was further held that a litigation which in the opinion of the Court is doomed to fail should not further be allowed to be used as a device to harass. The said propositions equally apply to written statements/defence to the claim also.‖

19. Similar is the situation in Raj Gopal (HUF) Vs. State Bank of

India, 79 (1999) DLT 229, wherein it was observed as under :

8. The purport of Rule 6 of Order 12 of the Code of Civil Procedure is to enable the party to obtain speedy judgment atleast to the extent of the relief which, according to the admission of the other party; he is entitled to. The Division Bench of this Court in Surjit Sachdev v. Kazakhastan Investment Services Pvt. Ltd. & Others, reported in 66 (1997) DLT 54 has held that admission on which judgment could be claimed must be clear and unequivocal one and that such an admission made in the suit or even for a part of the claim enables a party to get a decree passed to the extent of the admission. The aforesaid proposition of law laid down by the Division Bench of this Court is well settled

that in case of clear and unequivocal admissions the suit could be decreed which may be whole or in part for one of the reliefs. In the aforesaid case the Division Bench also laid down the factors which deserve to be taken into consideration to enable the Court to pass a decree in plaintiff's favour as regards possession in such like suit which are--(a) existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as a tenant; and (b) determination of such relation in any of the contingency, as envisaged in Section 111 of the Transfer of Property Act. It was also held that an unequivocal admission of the above two factors would entitle the plaintiff to a decree for possession and that such admission need not be made expressly in the pleadings. Even on constructive admissions the Court can proceed to pass a decree in plaintiff's favour.‖

20. It appears to us that the Respondent had clearly made out a

strong case before the learned Single Judge to pass the order under

the provision of Order VII Rule 6 of the CPC in favour of the

Respondent. Besides, under Order XV Rule 1 of the CPC also, the Court

is empowered to pass such an order where it appears that the parties

are not at issue on the question of law and fact and pronounce the

judgment at once.

21. The appeal is without any force and we find that the order and

judgment passed by the learned Single Judge is not to be interfered

with. The appeal is, therefore, dismissed with no order as to costs.

MANMOHAN SINGH, J.

VIKRAMAJIT SEN, J.

March 18, 2010 acm