Zahoor Ahmed vs Rajesh Katyal & Anr
2013 Latest Caselaw 4455 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+        IA No. 3987/2013 (O.XII R.6 r/w S.151 CPC) in CS(OS) 2536/2010


%                                           Reserved on: 16th September, 2013
                                            Decided on: 27th September, 2013
ZAHOOR AHMED                                               ..... Plaintiff
                               Through   Mr. Mukul Talwar with Ms. Anju Lal
                                         and Mr. Vipin Singh, Advs.

                               versus

RAJESH KATYAL & ANR                                        ..... Defendants

                               Through   Mr. A.K. Singla, Sr. Adv. with Mr.
                                         Gautam Anand and Mr. Mridul Gupta,
                                         Advs. for D-1 to D-3.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.

By this application, the plaintiff/applicant seeks a decree on

admissions against the defendants.

2. Learned counsel for the plaintiff contends that defendants No. 1 to 3

are the illegal occupants of the suit shop and by a notice dated 16th

September, 2010 the defendants were called upon to discontinue their illegal

user from the said premises and to hand over vacant and peaceful possession

along with damages to the plaintiff. The stand of defendants No. 1 to 3 is

that they are the bona fide tenants of the suit shop. They along with late Shri

Om Prakash Katyal had been inducted as such by defendant No.4. The rent

deed dated 14th August, 1990 was executed between Shri Om Prakash Katyal

along with defendants No. 1 to 3 and defendant No.4. Defendant No.4 has

clarified that the document executed with the defendants No. 1 to 3 and late

Shri Om Prakash Katyal was a license deed and not a rent deed. In view of

this admitted stand and the fact that the license has been terminated by a

notice, the defendants are required to vacate the suit premises and hand over

vacant and peaceful possession of the same to the plaintiff. Further the

defendants No. 1 to 3 had instituted proceedings under Section 27 of the

Delhi Rent Control Act, 1958 (in short „DRC Act‟) against the plaintiff and

others claiming to have become their tenants in respect of the suit shop i.e.

Shop No.7 admeasuring 99 sq.ft. located in the front portion of premises

known as „Hans Cinema‟, situated on G.T. Karnal Road, Azadpur, Delhi,

which application was dismissed by the learned Additional Rent Controller

on 16th November, 1998 holding that the status of defendants No.1 to 3 was

not that of tenants. Since this order has not been challenged by defendants

No. 1 to 3, the same has become final. Thus, a decree be passed. The

defendant No.4 also admits giving an undertaking to this Court in Suit

No.1332/1988 on 27th July, 1989 that he will not sublet or part with any

portion of the demised land except to allow permissive user as pure licencee.

In view of explanation VIII to Section 11 CPC, it is contended that the

question is not whether the finding is binding or not but whether the Delhi

Rent Controller was competent to decide the same. When a Court of limited

jurisdiction returns a finding to that limited extent, the same operates as res

judicata in subsequent proceedings. Reliance is placed on Commodore B.Y.

Wad v. M/s Rallis India Ltd. & Another, JT 2002 (9) SC 549, K. Kishore &

construction (HUF) v. Allahabad Bank, 71 (1998) DLT 581, Rajiv Saluja v.

M/s Bhartia Industries Ltd. & Anr. , 98 (2002) DLT 720 and Ram Raj

Chaurasia v. Ram Bakshi & Another (RFA No. 221/2011 decided by this

Court on 22nd July, 2011).

3. Learned counsel for the defendants No.1 to 3 contends that the

tenancy in favour of defendants No. 1 to 3 was created by M/s Vijay

Cinema, which built the suit property and executed a rent deed dated 14 th

August, 1990 in favour of Shri Om Prakash Katyal, the predecessor in

interest of defendants No. 1 to 3 herein. The answering defendants 1 to 3

were informed of change of landlord and it was informed that Shri Daroga

Mohd. Swalin, Daroga Mohd. Ayub, Aziz Ahmed and Zahoor Ahmed

became co-landlords qua the answering defendants. The plea taken by

defendant No.4 cannot be an admission of the status by the answering

defendants. The compromise arrived at between the parties in the earlier

proceedings was not acted upon and thus subsequent proceedings were

initiated in suit No. 1268/1996. Admittedly as per the site plan, physical

possession of shop Nos. 2, 4, 5 and 7 was with the occupants who continued

to be in possession of the same as per their rights earlier. Further an

adjudication by the Rent Controller under Section 27 of the DRC is not

binding on the civil Court in terms of Section 50(4) of the DRC Act.

Reliance is placed on Jeevan Diesels and Electricals Ltd. v. Jasbir Singh

Chadha (HUF) and another, (2010) 6 SCC 601, Smt. Vidyawanti v. Tokan

Dass, 1974 RLR 23 and Mrs. D. David v. Miss R. Mukha, 1972 RCR 253.

Issues in the present suit have already been framed with regard to locus

standi of the plaintiff to file the present suit, maintainability of the suit under

Section 50 of the Delhi Rent Control Act and hence there being no

admission, the plaintiff cannot seek a decree under Order XII Rule 6 CPC.

4. Heard learned counsel for the parties.

5. Brief exposition of the facts driving the plaintiff to file the presentsuit

is that the plaintiff claim himself to be the owner of property and premises

known as Hans Cinema earlier know as Vijay Cinema situated at G.T.

Karnal Road, Azadpur, Delhi comprising Khasra No.355 Min, Village

Malikpur Chawani, G.T. Karnal Road, Delhi (hereinafter referred to as „suit

property‟). The plaintiff claims to be in actual and exclusive physical

possession and occupation of the entire premises except a small shop

bearingNo.7 admeasuring approx. 99 sq.ft. (approx. 10‟- 4" X 9‟- 6") located

in front portion of the suit property (hereinafter referred to as the „suit

shop‟). The claim of the plaintiff is that defendants No. 1 to 3 are

unauthorizedly occupying the suit shop and carrying on business of selling

glass sheets and glass products under the name and style "M/s Vinni Glass

House". The suit property was earlier owned by his brother Shri Aziz

Ahmed and their 2 paternal uncles Shri Daroga Mohd. Swalhin and Shri

Daroga Mohd. Ayub. Since his brother Aziz Ahmed died as a bachelor

leaving no issues behind on 1st March, 2000 and uncles Daroga Mohd.

Swalhin and Daroga Mohd. Ayub passed away on 28th June, 2005 and 16th

May, 2002 respectively bequeathing their respective shares in the suit

property in favour of plaintiff thus the plaintiff became the sole and absolute

owner of the suit property. The suit property was mutated in the sole name

of the plaintiff in the revenue record. In 1988, the plaintiff along with its

erstwhile joint owners instituted a suit bearing No. 1332/88 in this Court for

possession and mesne profits/damages against M/s Vijay Cinema, a

partnership firm and its partners namely, Shri R.S. Sapru and Mrs. W.C.

Kapoor alias Smt. Raj Rani Kapoor, who were then tenants in respect of a

part of the suit property. During the course of proceedings, a compromise

was arrived at between the parties and a compromise decree under Order

XXIII Rule 3 CPC dated 27th July, 1989 was passed in terms of agreement

dated 24th July, 1989. The terms of compromise inter alia were that

defendants No. 1 to 3 therein were in possession of land measuring 4000

sq.yds as tenants. It was also agreed that defendants No. 1 to 3 will remove

the superstructure and machinery whatever on the said land at their costs

within three months of the termination. One of the major clauses of the

agreement which is relevant for the decision of the present application is

clause (j) which is reproduced as under:-

"(j) That the defendants No.1 to 3 shall not sublet or part with any portion of the demised land, however, allowing permissive user as pure licencee and without transferring any interest whatever in any portion of the same, shall not be objected to by the plaintiffs."

6. Subsequently, another suit came to be filed by the plaintiff and other

co-owners against M/s Vijay Cinema, Shri R.S. Sapru, Mrs. W.C. Kapoor

(Smt. Raj Rani Kapoor) and legal heirs of Shri Mohd. Safiq Ahmed seeking

recovery of possession, mandatory injunction and mesne profits. The said

suit was also settled between the parties and the relevant clause thereunder

having relevance to the present suit is clause 3.10 which reads as under:-

"3.10 That the defendant have surrendered actual, vacant, peaceful and physical possession of the portion of suit property comprising of 3 shops shown in blue in the plan A annexed with the application, on the western side of the property towards G.T. Karnal Road. The Defendants and their legal heirs and any person claiming through the Defendants do not have any right and shall not claim any right in the super-structure of the said shops and rights, if any in the superstructure have surrendered in favour of the plaintiffs. The plaintiffs have taken the physical possession of these shops shown in Blue and the Defendants have verified that no goods of any type of any person are lying in the said shops whose physical possession has been handed over to the plaintiffs. These three shops are also marked as shops bearing Private No.1, 3 and 6 as shown on the site plan A of the property.

The legal possession of shops shown in green and marked as 2,4, 5 and 7 in the plan A has also been handed over by the defendants to the plaintiffs at the time of recording of this compromise between the parties. The Plaintiff shall be entitled to exercise all the rights against the occupants of the said shops.

It is clarified by and between the parties that the land area under the above noted seven shops is approximately 100 sq. yards and the Defendants 1,2,3C,3D,4 & 5 have no right in the same. The open space in front of the said shops, entry gate and pathways shall be common space and shall be used by all the occupants of the shops and the Defendants

no.1,2,3C,3D,4 & 5 and their legal heirs without any objection of any type from any one."

7. A petition was filed by the defendants No. 1 to 3 herein against the

plaintiff and other co-owners before the Rent Controller, Delhi being DR

No. 230/97. Learned Additional Rent Controller held that there was no

relationship of landlord and tenants between the plaintiff herein and

defendant Nos. 1 to 3 herein and thus they were not entitled to move the

petition under Section 27 of the DRC Act. The plaintiff issued a notice

dated 16th September, 2010 to the defendant Nos. 1 to 3 calling upon them to

discontinue the user of the said suit shop and hand over its vacant and

peaceful possession within 15 days of the receipt of notice along with

damages of Rs.20,000/- per month for unauthorized use and occupation of

the suit shop.

8. A perusal of the rent deed dated 14th August, 1990 executed by Shri

Om Prakash Katyal and defendant Nos. 1 to 3 with M/s Vijay Cinema shows

that the suit shop consist of one room on the ground floor, bearing No.7

measuring 10‟-4" X 9‟-6" sq.ft. was rented out at Rs.500/- per month.

However, this rent deed was executed by M/s Vijay Cinema with Shri Om

Prakash Katyal and defendants No. 1 to 3 on 14 th August, 1990 i.e. after the

compromise decree dated 27th July, 1987 between the plaintiff and M/s M/s

Vijay cinema wherein M/s Vijay Cinema had agreed not to sublet the

premises or part with any portion of the demised land however allowing

permissive user as pure licencee without transferring any interest

whatsoever. Thus this rent deed is in clear violation of the compromise

decree dated 27th July, 1989. Further as per clause 3.3 of the compromise

decree dated 27th September, 1996 the defendants No.1 to 3 have the same

rights qua the plaintiffs as they had qua M/s Vijay Cinema. In view of the

stand of defendant Nos. 1 to 3 that they are not licencee but lessee and in

terms of the compromise in suit No.1268/1996 the defendants herein would

continue to have the same right as they had with M/s Vijay Cinema and at

this stage it cannot be said that there being an admission on the part of the

defendants the plaintiff is entitled to a decree on admissions.

9. In Jeevan Diesels (supra) it was held that before a Court can act under

Order XII Rule 6 CPC the admission should be clear and unambiguous. It

was noted:-

"13. In this connection reference may be made to an old decision of the Court of Appeal between Gilbert v. Smith [(1876) 2 Ch D 686 (CA)] . Dealing with the principles of Order 40 Rule 11, which was a similar provision in English Law, James, L.J. held: (Ch D p. 687) "... if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to

the court at once to have that thing done, without any further delay or expense."

(emphasis supplied)

14. Mellish, L.J. expressing the same opinion in Gilbert case [(1876) 2 Ch D 686 (CA)] made the position further clear by saying:

"it must, however, be such an admission of facts as would shew that the plaintiff is clearly entitled to the order asked for".

The learned Judge made it further clear by holding: (Gilbert case [(1876) 2 Ch D 686 (CA)] , Ch D p. 689)

"... The rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleadings which clearly entitles the plaintiff to an order, then the intention was that he should not have to wait, but might at once obtain any order...."

(emphasis supplied)

15. In another old decision of the Court of Appeal in Hughes v. London, Edinburgh and Glasgow Assurance Co. [(1891) 8 TLR 81 (CA)] , similar principles were laid down by Lopes, L.J. wherein His Lordship held:

"judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal".

Both Esher and Fry, L.JJ. concurred with the opinion of Lopes, L.J.

16. In yet another decision of the Court of Appeal in Landergan v. Feast [(1886) 55 LT 42 (CA)] , in an appeal from the Chancery Division, Lindley and Lopes, L.JJ. held that a party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.

17. The decision in Landergan [(1886) 55 LT 42 (CA)] was followed by the Division Bench of the Calcutta High Court in Koramall Ramballav v. Mongilal Dalimchand [(1918-19) 23 CWN 1017] . Sanderson, C.J. speaking for the Bench, accepted the formulation of Lopes, L.J. and held that admission in Order 12 Rule 6 must be a "clear admission".

18. In J.C. Galstaun v. E.D. Sassoon & Co. Ltd. [27 CWN 783] , a Bench of the Calcutta High Court presided over by the Hon'ble Sir Asutosh Mookerjee, J. sitting with Rankin, J. while construing the provisions of Order 12 Rule 6 of the Code followed the aforesaid decision in Hughes [(1891) 8 TLR 81 (CA)] and also the view of Lopes, L.J. in Landergan [(1886) 55 LT 42 (CA)] and held that these provisions are attracted

"where the other party has made a plain admission entitling the former to succeed. This rule applies wherever there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed."

In saying so His Lordship quoted the observation of Sargent, J. in Ellis v. Allen [(1914) 1 Ch 904 : (1911-13) All ER Rep 906] . (See CWN p. 787.)

19. Similar view has been expressed by Broadway, C.J. in Abdul Rahman and Bros. v. Parbati Devi [AIR 1933 Lah 403] . The learned Chief Justice held that before a court can act under Order 12 Rule 6 CPC the admission must be clear and unambiguous."

10. Further this application has been filed by the plaintiff after the issues

have been framed and issues inter alia even relate to locus standi of the

plaintiff to file the present suit besides its maintainability under Section 50 of

the Delhi Rent Control Act. It is well settled that the controller has to make

an inquiry and decide whether there exists a relationship of landlord and

tenant for the purpose of proceedings before it. It is however not final.

Under Sub-Section (4) of Section 50 of the DRC Act, the person aggrieved

by the decision can go to the civil court to get the question of title decided by

the Civil Court. In Vidyawanti v. Token Dass and Anther (1974) ILR Delhi

835 this Court held -

"(11) Question NO. 3: As pointed out by one of us (Deshpande, J.) in Mrs. D. David v. Mrs. R. Makha 1972 R.C.R. 253 (9), the proper procedure under the Act is that in an application by the landlord for the eviction of a person alleged to be his tenant, the jurisdiction of the Controller is not lost merely because the alleged tenant denies the relationship of landlord and tenant. (See also Babulal v. Nandram, [1959]1SCR367). The Controller has to make an inquiry into such relationship and decide whether it existed from before the filing of an application for eviction by the landlord. But this decision binds the parties only for the purpose of the proceeding before the Controller. It is not, however, final. For, under sub-section (4) of section 50 of the Act, the person aggrieved by the decision can go to the civil court to get the question of title decided by the civil court. For instance, a person who alleges himself to be the tenant and whose tenancy is denied by the landlord as well as the landlord who alleges that the person is not his tenant, can go to the civil court to substantiate his contention. Ordinarily, only such a person will go to the civil court who has failed to get a favorable order from the Controller. In the present case, Therefore, the Controller will try the application of Vidyawanti on merits. After the decision of the Controller is known, the party against whom the decision is given will be free to go to the civil court under sub-section (4) of section 50. As Vidyawanti's suit is already pending in a civil court, she will

pursue the suit only if she is unsuccessful in establishing her title before the Controller under section 25. If she succeeds before the Controller under section 25, it would be unnecessary for her to pursue the civil suit. In that event, it would be for the landlord to go to the civil court to rebut the title made good by Vidyawanti before the Controller."

11. Since the suit involves triable issues which need adjudication, the

application is dismissed.

(MUKTA GUPTA) JUDGE

SEPTEMBER 27, 2013 VKM