Anil Kumar Sharma vs Kailash Chand Kochhar
2011 Latest Caselaw 5628 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No. 200/2011

                   Judgment delivered on: 22 November, 2011

Anil Kumar Sharma                           ..... Appellant

                             Through    Mr. Virendra Singh, Adv.

                   versus

Kailash Chand Kochhar                               ..... Respondent

                        Through    Nemo.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR:

KAILASH GAMBHIR, J. (Oral):
*

1. By this second appeal filed under Section 100 of the

Code of Civil Procedure, 1908 the appellant seeks to challenge

the order dated 4.11.2011 passed by the learned first appellate

court and judgment and decree dated 9.8.2011 passed by the

learned trial court in favour of the respondent.

2. The short controversy that has led to the filing of the

present appeal is that the respondent had filed a suit for

possession, recovery of rent and damages against the appellant

in respect of the property bearing no A-20, South Extension,

Part-I, New Delhi-110049 wherein he had filed an application

under Order XII rule 6 CPC to claim judgment based on the

admissions made by the appellant which application was

allowed by the learned Trial Court vide order dated 9.8.2011.

Aggrieved with the same, the appellant filed an appeal under

section 96 CPC against the said order which vide judgment and

decree dated 4.11.2011 was dismissed and feeling aggrieved

with the same, the appellant has preferred the present appeal.

3. Challenging the orders of both the courts below, Mr. Jha,

learned counsel for the appellant submits that the appellant

had disputed the termination of his tenancy as no valid legal

notice terminating the tenancy of the appellant was admitted

by the appellant either in his written statement or in the reply

filed by him to the application filed by the respondent under

Order 12 Rule 6 CPC. Counsel submits that in fact the

respondent through his eviction notice himself duly

acknowledged the fact of the extension of lease in favour of the

appellant which fact in the said notice supports the defence of

the appellant pleading extension of his lease for a period of five

years. In support of his arguments, counsel has placed

reliance on the judgment of the Apex Court in the case of

Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha &

Anr. (2010) 6 SCC 601. Counsel further contends that so far

extension of the lease is concerned, the Hon'ble Supreme

Court has clearly taken a view that the extension of the lease

does not require any execution or registration, if such an

extension is for a period of one year or more. In support of his

arguments, counsel has placed reliance on the judgment of the

Apex Court in Hardesh Ores Pvt. Ltd. Vs. M/s. Hede

&Company, JT 2007(7) SC 150.

4. I have heard learned counsel for the appellant at

considerable length and given my careful consideration to the

arguments advanced by him.

5. For claiming decree of possession, following three

aspects are required to be examined:

1. Whether there is a relationship of landlord and tenant between the parties.

2. Whether the rent of premises is more than Rs.3,500/- per month.

3. Whether the tenancy of the tenant has expired either by efflux of time or the same is determined by a legal and valid

notice in terms of the Section 106 of the Transfer of the Property Act.

6. There cannot be any divergent view on the point that

a decree under Order XII Rule 6 CPC can be passed only when

there is an unambiguous and unequivocal admission on the part

of the respondent with regard to the above three aspects either

in the pleadings or otherwise. There also can arise no doubt

that such a decree can be passed by the learned trial court at

any stage of the suit either on the application made by the

parties or even by the court on its own motion. For better

appreciation the said provision is reproduced as under:

"ORDER XII: ADMISSIONS

6. 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 upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

The aim of the said rule is to get a speedy judgment and save

the parties from the rigmarole of protracted litigation.

Discussing the scope and ambit of the said provision, the

Hon'ble Supreme Court in Karam Kapahi vs. Lal Chand

Public Charitable Trust (2010)4SCC753 held as under:

"46. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about 'which there is no controversy' [See the dictum of Lord Jessel, the Master of Rolls, in Thorp v.Holdsworth in (1876) 3 CD 637 at 640]. In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976.

47. Prior to amendment the Rule read thus:

6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just.

48. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it 'ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment.

...............

50. Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan (Smt.) and Anr. : (2005) 11 SCC 279 at page 285 (para 8) ]. .........

54. In Uttam Singh (supra) this Court made a distinction between a suit just between the parties and a suit relating to

Specific Relief Act where a declaration of status is given which not only binds the parties but also binds generations. The Court held such a declaration may be given merely on admission (para 16, page 128 of the report)."

As would be seen from the above observations of the Hon'ble

Apex Court, the object of the said rule is to enable a party to

obtain speedy judgment at least to the extent of the relief on

which there is a clear and unequivocal admission on the part of

the defendant and on such admitted facts, the learned trial

court may not enter the trial. It is further a settled legal

position that merely because the trial court has framed the

issues, the same would not be a ground for rejecting or not

entertaining the application moved by the plaintiff under Order

XII Rule 6 CPC.

7. In the facts of the case at hand the relationship of

the landlord and the tenant is not in dispute. It is also not in

dispute that the rent of the premises is more than Rs.3,500/-

p.m. The only dispute raised by the appellant in the present

second appeal is that the tenancy was not validly terminated

in terms of Section 106 of the Transfer of the Property Act. It is

an admitted case between the parties that the agreement

dated 26.5.2006 was executed between the parties and the

lease in favour of the appellant was for a period of eleven

months commencing from 10.11.2005 and the said eleven

months period came to an end on 9.10.2006. Two legal

notices were sent by the respondent i.e. 31.8.2009 and

30.9.2009. Through legal notice dated 30.9.2009, the tenancy

of the appellant was terminated w.e.f. 10.10.2009, by which

time also he was required to hand over the peaceful and

vacant possession of the tenanted premises. On a perusal of

the impugned judgment passed by the learned trial court, it is

manifest that during the admission/denial of documents, the

appellant had admitted the receipt of said notices, although

he had denied the contents of the said notices. The validity of

the said termination notice was challenged by the appellant in

the first appeal on the ground that the tenancy of the appellant

was not terminated by 15 days notice, and therefore, the said

notice dated 30.9.2009 was not in conformity with the mandate

of Section 106 of the Transfer of the Property Act. This issue

has been discussed much in detail by the learned trial court

as well as by the learned appellate court and this court does

not find any illegality or perversity in the reasoning given by

both the courts below. The learned appellate court in para 24

of the impugned order has correctly held that the technical

defences with respect to notices should not be permitted as

long as 15 days period had expired prior to the filing of the

suit. It is not in dispute that the suit for possession was filed

by the respondent after expiry of 15 days period and therefore

it cannot be held that 15 days time was not given to the

appellant before filing of the suit of possession by the

respondent. This court, therefore, does not find any merit in

the arguments canvassed by the counsel for the appellant,

challenging the validity of the legal notice.

8. Coming to the second argument of the counsel for

the appellant that the lease was extended for a period of five

years, this argument is also devoid of any force as admittedly

no lease deed in writing was executed between the parties

after execution of the first lease deed which was for a period of

eleven months. Both the learned courts below rightly held that

in terms of Section 107 of the Transfer of the Property Act,

lease for a period of one year or more is compulsorily

registerable and therefore, there could not have been any

extension of lease for a period of five years as claimed by the

appellant and on the expiry of the period of lease, the appellant

became tenant month by month and his monthly tenancy was

validly terminated by the respondent through legal notice dated

30.9.2009.

9. In the light of the above, this court therefore, does

not find any merit in the present second appeal as no

substantial question of law has been raised by the appellant for

the decision of this court.

10. There is no merit in the present second appeal, the

same is dismissed accordingly.

November 22, 2011                            KAILASH GAMBHIR,J
mg