Ranjit Vohra & Ors. vs Aruna Saha & Ors.
2011 Latest Caselaw 1308 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) NO.2441/2009

                                            Date of Decision : 07.03.2011

RANJIT VOHRA & ORS.                                  ......Plaintiffs
                                 Through:      Mr. Meet Malhtora, Sr.Adv.
                                               with         Mr.Swetank,
                                               Advocate.

                                     Versus

ARUNA SAHA & ORS.                               ...... Defendants
                                 Through:      Mr.G.Singh, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                      NO
2.     To be referred to the Reporter or not ?           NO
3.     Whether the judgment should be reported
       in the Digest ?                                   NO

V.K. SHALI, J.

IA No.7718/2010

1. This order shall dispose of an application bearing IA

No.7718/2010 under Order 12 Rule 6 read with Section 151

CPC for passing a judgment on the basis of admission.

2. Briefly stated that facts of the case are that the plaintiffs

Sh.D.B.Vohra and his son Sh.Ranjit Vohra filed the present

suit for mandatory injunction against the defendant no.1

Sh.Aruna Saha and her husband defendant no.2

Sh.S.K.Saha. It was alleged in the plaint that the plaintiff

no.2 is aged over 90 years and the plaintiff no.1 is his only

surviving son. The plaintiff no.2 is the owner and in

possession of property bearing no.E-14/9, Vasant Vihar, New

Delhi, which comprises of ground floor, first floor and second

floor along with garage and two servant quarters on the the

plot of land measuring 400 sq. yds. It is alleged that the

aforesaid plot of land was allotted to the plaintiff no.2 in the

year 1970 as he was employed in the Indian Railways.

Plaintiff no.2 had been predeceased by his wife, one daughter

and one son and consequently, the plaintiff no.1 is the sole

surviving son of the plaintiff no.2.

3. It is alleged that the defendant no.1 was employed as a

domestic servant by the wife of plaintiff no.2 and as a part of

the condition of service, defendant no.1 was permitted or

rather was granted a licence to use the servant quarter on the

first floor of the garage block of the property E-14/9, Vasant

Vihar, New Delhi. The defendant no.1 worked as a domestic

help of the plaintiff's family for about 18 years and during

this period, she continued to remain in occupation of the

same. It is alleged that after the death of the wife of plaintiff

no.2, she was orally asked to vacate the premises w.e.f.

15.10.2009. The defendant no.1 instead of vacating the said

servant's quarter chose to file a Civil Suit bearing

No.800/2009 at Patiala House Court where she claimed

herself to be the owner of the said premises, under her

occupation by way of adverse possession. The defendant no.1

had also claimed an injunction against forcible dispossession.

4. The said suit was dismissed as withdrawn, on the

undertaking purported to have been given by the plaintiff

no.1 that they will not use any force against the defendant

no.1 seeking retrieval of the possession of the suit premises.

The plaintiff thereafter sent a notice dated 15.11.2009 to the

defendant asking them to vacate the premises within a week

which period expired on 26.11.2009, failing which she was

stated to be liable to pay the charges @`10,000/- per month

w.e.f. 26.11.2010.

5. It is now alleged that as the defendant no.1 or her husband

defendant no.2 have not vacated the garage block under their

occupation consequently, the present suit for mandatory

injunction asking them to hand over the vacant and peaceful

possession of the servant's quarter at E-14/9, Vasant Vihar,

New Delhi has been filed against them. In addition to this,

the plaintiffs have also claimed mesne profit @ `10,000/- per

month from the defendant for the illegal use and occupation

of the premises after termination of their licence.

6. The defendants have filed their joint written statement in

which various preliminary objections with regard to the

unauthorized disconnection of electricity and water by the

plaintiffs have been taken. It is alleged that despite the

assurance having been given by the plaintiff in Court of

Mr.Kuldeep Narayan, City Civil Judge, South, Patiala House

Courts, New Delhi, the defendants have been deprived of

these essential amenities.

7. The second objection taken is that the suit is not properly

signed and verified by the plaintiff no.2 who is the owner of

the suit property. The third objection was with regard to the

misjoinder of parties inasmuch as it is alleged that the

plaintiff no.1 has no right in the suit property. The fourth

objection is that the suit has not been properly valued and

thus the State is being deprived of its Revenue. The fifth

objection is that the relief of mandatory injunction could not

be granted to the plaintiff in the nature in which it has been

sought and last but not the least, that the plaintiffs have no

locus standi to file the present suit.

8. So far as the merits of the case are concerned, it is not denied

by the defendants that they were handed over the possession

of the servant's quarter over the garage block as a part of the

condition of employment of defendant no.1 by the wife of the

deceased plaintiff no.2.

9. The factum of receipt of notice dated 15.11.2009 is also not

disputed by the defendants on the ground that the same was

duly replied by the defendants. It is denied by the defendants

that they are liable to pay for unauthorized use and

occupation charges @ `10,000/- w.e.f. 26.11.2009.

10. The defendants have set up two pleas in their written

statement. Firstly, that defendant no.1 as a part of condition

of service was permitted to use the servant quarter over the

garage plot, however, wife of plaintiff no.2 used to deduct a

sum of `500/- to `1,000/- from her salary which was linked to

her employment and it was a condition that the same would

he handed over to her at the time of vacation of the premises.

11. The second plea which has been taken by the defendants is

that the portion which was under their occupation was gifted

to them by plaintiff no.2. It is stated that as a consequence

of these facts, the plaintiffs are not entitled to the retrieval of

possession of the said portion of premises.

12. The plaintiffs denied all these preliminary objections and the

objections as regards to merits except the objection in respect of

the absence of signature of plaintiff no.2 in the plaint.

13. After completion of pleadings, an application under Order 12

Rule 6 CPC has been filed by the plaintiffs, wherein it has

been prayed that the judgment on the basis of admission be

passed against the defendants on account of having admitted

the fact that the premises in question was given to the

defendant no.1 as a licencee and secondly, that the said

licence has been admittedly terminated, initially orally

thereafter by a written notice dated 15.11.2009, therefore, the

plaintiff is entitled to a decree of mandatory injunction

requiring the defendants to vacate the licensed premises.

14. So far as the question of defence which has been set up by

the defendant for not vacating the premises is concerned, it is

stated that two defences have been taken. Firstly, that there

was certain deductions to the tune of `500/- to `1,000 which

was being made from the salary of the defendant no.1 by the

wife of plaintiff no.2 which was to be released to her at the

time of vacation of premises and secondly, that the suit

property was gifted to her by the plaintiff no.2.

15. It has been contended by the learned counsel for the plaintiffs

that both these pleas are totally false and non tenable in law.

There is no evidence with regard to the deposit of money by

the defendant no.1 either with the wife of the plaintiff or any

other member of the family. It is alleged that this plea of the

defendant seems to be an ex facie false. In any case, if the

defendant no.1 has deposited any money, she ought to have

taken an action for the retrieval of the same and her right to

recover the same does not get forfeited, if she has any

because of the present decree being passed on admission.

16. So far as the gift of servant's quarter by the plaintiff no.2 in

favour of the defendant no.1 is concerned, it is stated that

since gift is in respect of immovable property, therefore, it has

to be registered by virtue of Section 17 of the Registration Act,

1908. In the absence of the same, the plea of gift cannot be

taken cognizance of.

17. The defendant has filed reply to the application and contested

the passing of decree on the basis of admission which has

been stated by the defendant that there is no categorical,

unambiguous admission on the part of the defendants which

would warrant passing of a judgment on the basis of

admission purported to have been made by the defendant

no.1. It is stated that apart from these two pleas which have

been taken by the defendant hereinabove, the defendant has

taken various other preliminary objections.

18. I have heard the learned counsel for the parties and perused

the record.

19. Order XII Rule 6 CPC lays down as under:-

"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 think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule 1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

20. A perusal of the aforesaid provision and the judicial

pronouncements clearly show that the admission on the basis

of which a judgment or a decree can be passed must be

unequivocal, unambiguous and clear. It has been also laid

down that while doing so, the admission so made need not be

contained in the pleadings itself. An admission can also be

taken cognizance of, if it is made by a party by way of a

document, letter or in other pleading. Further, if any

objection taken by the defendant goes to the root of the

matter and would oust the jurisdiction of the Court in passing

the judgment or decree itself, then the judgment on

admissions should not be passed. Last but not the least

passing of a judgment on admission is a matter of discretion

with the Court and cannot be claimed as a matter of right by

a party.

21. Keeping these parameters in view at the threshold, the

objections which are raised by the defendants regarding the

maintainability of the application filed by the plaintiff under

Order XII Rule 6 seem to be only a ploy to take advantage of

the delay being caused due to the processes of law, thereby

continuing to enjoy the possession of the premises in

question. It may be pertinent here to mention that it is not in

dispute that the defendant no. 1 was admittedly put in

possession of the premises in question in the capacity of a

servant by the wife of plaintiff no. 2 almost 18 years back.

Therefore, the occupancy or the possession of the premises in

question by defendant no. 1 was permissive in nature.

Defendant no.1 being the employee of the plaintiff at best

could be in such possession in capacity of a licensee. It is

also not disputed by the defendant no. 1 that the defendant

no. 2 is her husband, he has been made a party because it

has been given to understand that he was a party to the civil

suit filed by the defendants, and therefore, had to be made a

party to the present proceedings. It is because of this

reason that defendant no. 1 has taken an objection with

regard to the mis-joinder of parties. However, this

preliminary objection is of no consequence because as the

defendant no. 2 is the husband, the petitioners wanted to be

extra cautious by making him also a party. It is not an

objection which will go to the root of the matter and disentitle

the plaintiffs to obtain the decree provided they satisfy the

requirement of Order XII Rule 6, CPC.

22. The defendant no. 1 has also not denied the receipt of notice

terminating her licence as she has replied to the same. So

once it is established that she was in possession of the

premises as a licensee and her licence is terminated, she was

under an obligation to have vacated the premises. The

defendant no. 1 has resisted the grant of passing of decree on

the basis of admission on two basic objections- firstly, that

while being an employee of the wife of plaintiff no. 2, a sum of

`500/- to `1000/- was being deducted from her salary and

was being kept as a saving of defendant no.1. It is alleged

that there was an understanding that at the time of vacation

of premises the said amount would be returned to defendant

no.1. The defendant no. 1 has not produced even an iota of

documentary evidence to show that any such amount was

deducted by the wife of plaintiff no. 2 from the wages of

defendant no. 1. Even otherwise, it is admittedly not the case

of defendant no. 1 that any deduction was made by the

plaintiffs as a pre-condition for vacating the premises in

question. Therefore, this plea of defendant no. 1 on the face

of it seems to be only an after thought which is being set up

by the defendant to perpetuate her possession of the suit

premises on account of the slow progress of the matter

enabling her to enjoy the possession. It may be pertinent

here to mention that the learned counsel for the plaintiff

notwithstanding this false and frivolous plea reportedly

having been taken by defendant no. 1, had very fairly offered

to give a sum of Rs.50,000/- to the defendant no.1 without

prejudice to his rights and contentions in the instant case but

it seems that defendant no. 1 wanted to black mail the

plaintiffs by opening her mouth too wide and thereby wanting

to eat more than what she could chew.

23. All these facts clearly establish that this plea is totally false

and the case cannot be permitted to be put on trial and

deprive the plaintiffs of the judgment on the basis of

admission.

24. The second objection which is diametrically contrary to the

earlier objection resisting the plea of possession is that the

wife of plaintiff no. 2 had during her life time gifted the

premises in question to defendant no. 1. It is an established

position that under Section 17 of the Registration Act, 1908,

no right, title or interest can be created in any immovable

property of value of more than Rs. 100 by a document which

is unregistered. In the instant case, there is not even a shred

of document much less a registered document.

25. The defendant no. 1 is claiming herself to be the owner of the

premises in question an oral gift in respect of an immovable

property which is not only pre-posterous but seems to be on

the basis of an advice given by some lawyer who is ignorant

about the legal position. Therefore, this plea also does not

save the possession of defendant no. 1.

26. It has to be now examined whether the objections which have

been taken by the defendants by way of preliminary

objections can be said to be of such a nature which would

disentitle the plaintiffs to a decree on the basis of admission.

27. In this regard, so far as the objection with regard to

misjoinder of parties is concerned, that has already been

dealt with hereinabove. The other objections in my view are

not of such a nature which will go to the root of the matter

thereby depriving the plaintiffs of their legitimate right to get

a decree of mandatory injunction in respect of the suit

premises.

28. The first objection taken by defendant no. 1 was that he has

been deprived of essential amenities like electricity and water

which has nothing to do with the suit in question as she had

availed an appropriate legal remedy at Patiala House Courts

in this regard.

29. The second objection that has been taken is that the suit is

not properly signed and verified by plaintiff no. 2 who was the

owner of the house. This objection loses its significance

inasmuch as on date, the plaintiff no. 2 has admittedly died

and is survived by only one son, who is the plaintiff no.1

herein, and therefore, the suit having been signed by the

plaintiff no.1, it is of no consequence even if it is assumed for

the sake of argument that the suit was not signed by plaintiff

no. 2. It may be pertinent here to mention that the plaintiff

no. 2 at the time of filing of the suit, was aged around 90

years as is stated in the plaint and was suffering from

ailments which had incapacitated him from movement of his

limbs. Being bedridden and living his life merely as that of a

vegetable, he was being attended to by the defendants as

attendants. Therefore, there was some reason for the plaintiff

no. 2 for not having signed the plaint. In any case, it has lost

its significance as on date because he is no more and the

plaintiff no. 1 is the sole successor of plaintiff no. 2. As

regards the payment of the court fees and the relief of

mandatory injunction to retrieve the possession is concerned,

I feel that this objection is also taken only technically to oust

the jurisdiction of the Court. I feel that as the defendant was

only in permissive occupation of the premises as a licensee

therefore there should be no impediment in passing a decree

of mandatory injunction requiring the defendants to remove

themselves from the licensed premises forthwith.

30. For the reasons mentioned herein above, I am of the

considered opinion that the defendant no. 1 has tried to take

advantage of the slow progress with which the case has

proceeded on account of heavy pendency and has absolutely

no defence to continue to be in the possession of the suit

premises as she admittedly was a licensee and her licence has

been validly terminated. She is taking advantage of the slow

progress only to black mail the plaintiffs by extracting either

money or for other ulterior motives.

31. I, therefore, allow the application of the plaintiff under Order

XII Rule 6, CPC and decree the suit and pass a mandatory

injunction requiring the removal of the defendants from the

licensed premises. However, so far as the relief of damages

etc. are concerned, no such decree is passed as it has neither

been admitted by the defendants nor pressed by the plaintiff

if the application in question is allowed. Let a decree sheet be

drawn.

V.K. SHALI, J.

MARCH 07, 2011 RN/MA