Jatinder Nath Gupta vs Stc Of India
2012 Latest Caselaw 1195 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1544/1992

%                                            Judgment dated 22.02.2012

       JATINDER NATH GUPTA                  ..... Plaintiff
                Through: Mr.R.P. Sharma and Ms.Parul Sharma,
                         Advocates for plaintiff no.1
                         Mr.Sandeep Narain and Ms.Anju Lal,
                         advocates for plaintiff no.2
                         Mr.Ashok Jain and Mr.Pankaj Jain,
                         Advocates for the plaintiff no.3

                   versus

       STC OF INDIA                 E                ..... Defendant
                 Through:       Mr.Rakesh Tiku, Sr. Advocate with
                                Ms.Manjusha Wadhwa and Mr.Amit
                                Panigrahi, Advocates

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
IA.No.16402/2009

1.

This an application under Order 12 Rule 6 CPC filed by the plaintiff. The necessary facts to be noticed for disposal of this application are that initially six plaintiffs had instituted the present suit for possession, recovery of arrears of rent and damages. The plaintiffs claim themselves to be the owners of the property bearing No.22 Rajpura Road, Civil Lines, New Delhi, which was purchased by them by means of a perpetual lease deed dated 31.05.1973. The defendant was a tenant before the property was purchased by the plaintiffs. The last paid rent was Rs.10,995/-. After purchase of the suit property vide letter dated 12.09.1973 the plaintiffs

informed the defendant that rent of the property be paid to plaintiff no.1, who had the authority on behalf of the other plaintiffs to accept the rent. The defendant has been paying rent prior to termination of the lease in favour of the plaintiffs. The plaintiffs also brought it to the notice of the defendants that some unauthorized constructions have been carried out by them, despite the objections being raised by plaintiffs. By a legal notice dated 01.04.1991 sent by registered AD post and also under certificate of posting, tenancy of the defendant was terminated. By another notice of 25.10.1991 the defendant was informed that the cheque for Rs.54,975/- was not being encashed, as the tenancy of the defendant had been terminated. As the possession was not handed over, the present suit was filed.

2. In the year 1994 the plaintiff had filed a similar application under Order 12 Rule 6 CPC, however, the same was withdrawn on 20.07.2005, when the following order was passed:

"IA.No.11872/1994 in CS(OS)1544/1992

This application which was being pressed under Order XII Rule 6 read with Section 151 CPC in relation to the relief of possession alone is permitted to be withdrawn with liberty to file the same in the event the Suit is not disposed of in terms of the order passed today.

Accordingly, the application stands disposed of as withdrawn.

CS(OS) 1544/1992 Additional documents/original documents, if any, be filed within 10 days from today.

List this Suit for admission/denial of documents before the Joint Registrar on 8th August, 2005 on which date the parties shall admit or deny the documents.

In the event any party fails to complete the admission/denial of documents on that date or any other date

given by the Joint Registrar, adverse inference by the Court shall be drawn against the defaulter.

List this case for framing of issues before Court on 16th August, 2005.

The parties shall file their list of witnesses within one week from today and summon the witnesses before the Joint Registrar on the date already fixed. On that date there shall be scrutiny of witnesses before the Joint Registrar.

Parties are at liberty to take dasti summons and summon their witnesses for 29th August, 2005 before the Court.

The admitted rent in terms of the order of the Court dated 7th May, 2003, if not paid, should be paid within one week from today.

Copy of the order be given dasti to the Counsel for the parties under the signature of Court Master."

3. As there was not much progress in the suit, the present application was filed by the plaintiff, which has also remained pending. No reply has been filed by the defendant.

4. Learned senior counsel for the defendant submits that the reply filed to the earlier application (IA.No.11872/1994 under Order 12 Rule 6 CPC) be treated as a reply to the present application as well.

5. Mr.Sharma, counsel for the plaintiff submits that the relationship of landlord and tenant has not been disputed by the defendant, which is evident from reading of paragraph 2 of the written statement, in response to para 2 of the plaint. The receipt of legal notice has also not been denied, which is evident upon reading of paragraph 9 of the written statement, the rate of rent has also not been denied, which is over Rs.3,500/-, which also finds mention in the written statement. Mr.Sharma, counsel for the plaintiff has relied in the case of Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. & Ors. 66 (1997) DLT 54 (D.B.) and more particularly paragraph 17, in support of his

submission that the plaintiff is entitled to a decree under Order 12 Rule 6 CPC in the light of the admission made by the defendants. Paragraph 17 of the judgment is reproduced below:

"17. The question now is that whether there is any admission or not so as to entitle the plaintiff to have a decree for possession. The factors which deserve to be taken into consideration in order to enable the Court to pass a decree in plaintiff's favour as regards possession in such like suit 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. One of the modes stated therein is by efflux of time limited by the lease. Only on unequivocal admission of the above two factors will entitle the plaintiff to a decree on admission. Admission need not be made expressly in the pleadings. Even on constructive admissions Court can proceed to pass a decree in plaintiff's favour."

6. Counsel for the plaintiff has also placed reliance in the case of Smt. Chander Kanta Singhal Etc. Vs. M/s.Kapadia Exports & Anr. 1998 All India High Court Cases page 153 and more particularly paragraph 15, in support of his contention that simply to say that the notice is invalid is not sufficient, and the defendant must state as to how the same is invalid. Paragraph 15 of the judgment is reproduced below:

"15. As stated earlier, the defendant did not specifically raise the question in the written statement that Shri Mahajan had not given notice on behalf of the landlords. It is necessary that a person objecting to the validity of the quit notice under Section 106 of the Transfer of Property Act must plead which of the requirements of Section 106 has not been complied with. The mere fact that the defendant contended in the written statement that the suit is bad for want of valid and binding notice terminating the tenancy

does not tantamount to making requisite pleas. Consequently, averments made in paragraphs No.2 and 6 of the written statement cannot be construed as an allegation that all requirements of Section 16 of the Transfer of Property Act were not complied with."

7. Counsel for the plaintiff has also placed reliance in the case of M/s.S.L.

Associates Pvt. Ltd. Vs. Karnataka Handloom Dev. 62 (1996) DLT 386 and more particularly paragraphs 9 & 12, which are reproduced below:

"(9) Even assuming in favour of the plaintiff that the lease was to be further extended for a period of three years without the consent of the plaintiff as per the terms of the said agreement. That period of three years has also now come to an end during the pendency of the suit. No doubt, a suit must be practical in all stages on the cause of action as it existed on its date of commencement. But the Court may however in suitable cases take notice of the events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions. This must be done by the Court by giving relief to the parties on the basis of altered circumstances in order to shorten litigation and get complete justice between the parties. As the defendant has entered into the possession on account of lease deed and such a period of lease deed is offered during the pendency of the suit by giving the interpretation of the terms of the agreement in favour of the defendant. The plaintiff is entitled to get a relief of eviction under the provisions of Rule 6 of Order 12 CPC. The facts of the case before me are exactly similar with the facts of the case before the Division Bench of the Madhya Pradesh High Court in the case of Sikar Chand and Others v. Mast Bari Bai and Others (AlR 1974 Madhya Pradesh 75) and in that case also a decree for eviction who passed in favour of the plaintiff under the provisions of Rule 6 Order 16 of Civil Procedure Code that would be quite dear from the following head note of the said case:

"WHERE in a suit for eviction after the expiry of a lease on the defense being taken that under a

compromise the term of the lease was extended by 10 years the plaintiff made an application (without admitting the agreement) that even if such an agreement took place they were entitled to a decree for possession under Order 12 Rule 6 since the extended term had also expired, it was open to the Court to base a judgment under Order 12 Rule 6 against the defendant on the basis of his own admissions because it is clear from the case as set up by him that he was not entitled to continue in possession of any case after the expiry of the fresh term of 10 years. The word "otherwise" in Order 12 Rule 6 clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings but also de hors the pleadings. Such admissions may be made either expressly or constructively.

It is no doubt true that ordinarily the plaintiff is entitled to a relief only on the basis of the cause of action stated in the plaint but it is open to the Court in suitable cases to afford a relief on the basis of the case as set up by the defendant. In such a case there is no prejudice to the defendant because the relief legitimately springs from the case as set up by him."

(12) Thus I hold that in view of the admissions given by the defendant of having come in the possession of the premises on the strength of document dated 7.11.86 and in view of the terms of the said document and admissions of the defendant, the plaintiff is entitled to get a decree for eviction. No doubt, the plaintiff has made claim for mesne profits but the mesne profits could be decided by a separate enquiry under the provisions of Rule 12 of Order 20 of the Code of Civil Procedure and for that purpose it is not necessary to keep the suit pending. Similarly; taking into consideration that the defendant is an undertaking of Government of Karnataka and it is a showroom of the undertaking of the Government of Karnataka, I would give three months period for the defendant to vacate the premises. I, therefore, pass the following order; The defendant should vacate the suit premises and handover peaceful possession of suit premises to the plaintiff on 17.6.96. An enquiry be held under Order

20 Rule 12 for determining the mesne profits from the date of the suit till the date of delivery of possession. Defendant to pay costs of plaintiff and bears its own. A decree in above terms be drawn. The suit and all pending IAs stand disposed of in view of the disposal of the suit."

8. Mr.Rakesh Tiku, learned senior counsel for the defendant has vehemently opposed this application and submits that in this case issues were framed on 08.05.2007 and framing of issues would show that parties were at variance in terms of Order 14 of the Code of Civil Procedure. Counsel for the defendant also submits that once the issues are framed and parties are held to be at variance, there can be no occasion to entertain application under Order 12 Rule 6 CPC, as admission and variance are diametrically opposite to each other. It is further submitted that there is no fresh material on record after the year 2005 which would entitle the plaintiff to file the subsequent application i.e. present application under Order 12 Rule 6 of the CPC. Elaborating his argument further with respect to this submission, learned senior counsel for the defendant submits that after the year 2005 it is the plaintiff who has delayed the hearing of the present matter and he cannot derive benefit of his own wrong, thus the application under Order 12 Rule 6 CPC should not be entertained. It is further submitted that the matter was delayed on account of in fighting between the co-plaintiffs. It is pointed out that the plaintiff no.3 and 4 had sold their shares in favour of the newly added plaintiff on 21.07.2005 and on account of this fact there was delay. Mr.Tiku, learned senior counsel for the defendant has relied on a decision rendered by a Single Judge of this Court in the case of Punjab National Bank & Anr. Vs. S.Kartar Singh reported in 66 (1997) DLT 857 to canvass his argument that once the trial has commenced, it would be necessary to go through the entire trial and then to decide the matter under Order 12 Rule 6 CPC. Mr.Tiku, has also

placed reliance in the case of Tek Chand Narula & Ors. Vs. Jammu & Kashmir Bank Ltd. 2000 VII AD (Delhi) 764, to show that in the event the tenant raises a ground of assailing the validity and illegality of a notice of termination an application under Order 12 Rule 6 CPC should not be entertained.

9. Counsel for the defendant has also placed reliance on Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha 2010 6 SCC 601 to buttress his argument that before passing a decree under Order 12 Rule 6 CPC the court must have satisfied that the admissions made must be clear and unambiguous.

10. I have heard counsel for the parties and perused the application and the reply filed to the earlier application under Order 12 Rule 6 CPC. This suit has been pending in this court since the year 1992. The law with regard to Order 12 Rule 6 CPC has been laid down by the Apex Court in the case of Uttam Singh Duggal and Company Ltd. Vs. United Bank of India & Ors, reported at (2000) 7 SCC 120, relevant portion of which reads as under:

12. As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled". We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed."

11. It was observed in the case of Rajiv Sharma and Another Vs. Rajiv Gupta, reported at (2004) 72 DRJ 540, that the purpose of Order XII Rule

6 of the CPC is to enable the party to obtain speedy justice to the extent of relevant admission, which according to the admission, if the other party is entitled for. Admission on which judgment can be claimed must be clear and unequivocal. In the case of Ms. Rohini V R.B.Singh, reported at 155 (2008) DLT 440 it has been held as under; "it is trite to say that in order to obtain judgment on admission, the admissions must be clear and unequivocal. In the matter of landlord and tenant there are only three aspects which are required to be examined - (i) Relationship of landlord and tenant; (ii) expiry of tenancy by efflux of time or determination of valid notice to quit; and (iii) the rent of the premises being more than Rs.3500/-, per month, in view of the Act".

12. Upon considering various decisions relied upon, it can be held that while dealing with an application under Order 12 Rule 6 CPC relating to a suit for possession three factors must be satisfied by the landlord: (i) the landlord tenant relationship should not be disputed; (ii) the rate of rent should be over Rs.3,500/-; and (iii) the tenancy should have been validly terminated.

13. Admittedly during the pendency of the matter the plaintiff nos.1 and 2 have died and by an order dated 14.01.2003 the application under Order 22 Rule 3 CPC was allowed, on the no objection given by counsel for the defendant. Admittedly a review sought of the order dated 14.01.2003 was dismissed on 16.01.2004. Subsequently on the property having been sold by plaintiffs no.3 and 4 the purchaser (plaintiff no.3 herein) had made an application under Order 12 Rule 10 CPC, as there was no opposition to the said application and no objection was taken that plaintiff no.3 was not the legal owner, the plaintiff no.3 was impleaded at the no objection given by counsel for the defendant by order dated 20.07.2009. Thus the landlord tenant relationship stands established.

14. In the written statement the defendants have admitted the rate of rent which is over Rs.3,500/- and the receipt of legal notice.

15. The submission made by Mr.Tiku, counsel for the defendant that once the parties are held to be at variance, the application under Order 12 Rule 6 CPC cannot be entertained, as admission and variance are diametrically opposite to each other. While the arguments made by counsel for the defendant seem to be attractive, but the same is unacceptable, in view of the language of Order 12 Rule 6, which is reproduced below:

"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."

16. A bare reading of the provisions would show that the intention and purpose of the legislature was not to prolong the trial, however, in case of any admission a decree was to be passed under Order 12 Rule 6 CPC. Reading of this provision and the law laid down show that the admission need not be only in the pleadings, but it can be either in any document or otherwise and at any stage.

17. In the case of Parivar Seva Sansthan Vs. Dr. (Mrs.) Veena Kalra & Ors.

86 (2000) DLT 817 (DB), the Division Bench has held that Order 12 Rule 6 CPC can be filed at any stage. Relevant paragraph of the judgment reads as under:

"10. The use of the expression "any stage" in the said rule itself shows that the legislature's intent is to give it widest possible meaning. Thus merely because issues are framed cannot by itself deter the court to pass the judgment on

admission under order 12 rule 6, CPC. The case of PNB Vs. Kartar Singh (Supra) runs into only two paragraphs without any discussion. Observations made in the case, referred to by the learned counsel, in support of his argument do not reflect any proposition of law. The order must have been passed on the facts of that case."

18. Although, I find force in the submission made by Mr.Tiku, learned senior counsel for the defendant that the suit is pending since the year 1992 and even in the year 2005 the plaintiff had withdrawn the application under Order 12 Rule 6 CPC and now that the trial has commenced, there is no urgency in the matter. A perusal of the order-sheets certainly reveal that the matter has been adjourned not only on account of the defendant, but even on account of the plaintiff, however, mere pendency of the matter for a long period of time by itself cannot be a ground for not entertaining an application under Order 12 Rule 6 CPC, provided all other relevant factors are taken into consideration.

19. Another submission of Mr.Tiku, learned senior counsel for the defendant that the legal notice issued by the plaintiff stands waived on account of the fact that plaintiff kept on receiving rent from the defendant. I find no force in the submissions made that the legal notice issued has been waived on account of the fact that the defendant was tendering rent, for two reasons: firstly the rent received was not encashed and secondly even otherwise it is no longer res intergra that in case a landlord accepts rent even after termination by legal notice, it does not amount to waiver.

20. In the case of Central Bank of India Vs. Shri Lalit Kumar Bhargava (HUF). 2006 V AD (DELHI) 169, it was held as under:

"12. The law is well-settled that no tenant can be allowed to retain possession of the tenanted premises without payment of rent/ damages for its use and occupation. The law is

equally well-settled through a catena of judgments, both of High Courts and of Supreme Court, that mere acceptance of rent after service of notice to quit does not amount to create of a new tenancy and that the notice to quit is not waived by mere acceptance of rent."

21. Another ground urged by counsel for the defendant that plaintiff cannot take advantage of his own wrong and prays that the application under Order 12 Rule 6 CPC is not acceptable for the reasons that ultimately it is for the court to decide the matter one way or the other and not that a pendency of the Order 12 Rule 6 application is to the advantage of the one party or to the other, and in case the plaintiff is not entitled to any relief, application would have been dismissed and thus it cannot be said that such an application cannot be entertained.

22. Another submission made by counsel for the defendant that the government had issued a notification under Sections 4 and 6 of the Land Acquisition Act with regard to the law in question. I do not see how this can come in the way of landlord in filing the application under Order 12 Rule 6 CPC, and it is for the landlord to see that as to what was its effect, and not for the tenant.

23. It is also submitted that the plaintiff must satisfied the court as to what is the material which has come on record after 2005, which has led to the filing of the present application. The submission made is without any force as the earlier application which was filed in the year 1994 was simply withdrawn in the hope that the matter would be decided expeditiously. The court had granted liberty to the plaintiff to move an application in case the matter was not decided as per the schedule fixed. There is no bar against the plaintiff in filing the present application.

24. The judgments relied upon by counsel for the defendant are not applicable to the facts of the present case, as the tenancy in this case was terminated

as far back as in the year 1991. Admissions made in the written statement are clear, unambiguous and unequivocal, as a result of which the present application is allowed. The suit for possession is decreed in favour of the plaintiffs and against the defendant.

CS(OS) 1544/1992

25. Issue no.3 and 4 with regard to mesne profit and interest are kept alive.

Plaintiff will file affidavit by way of evidenced within six weeks. If the same are not filed with the time allowed, right to file the same shall stand closed.

26. List the matter before Joint Registrar on 26.03.2012, the date already fixed.

G.S.SISTANI,J FEBRUARY 22, 2012 ssn