Delhi High Court

Union Of India vs Rashid Jung . on 2 December, 2014

$~22
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     RFA 628/2014
                                             Decided on 2nd December, 2014
    UNION OF INDIA                           ..... Appellant
                  Through   : Mr. Anurag Ahluwalia, Adv.
                  versus
    RASHID JUNG                              ..... Respondent
                  Through   : Mr. Wasim Ashraf, Adv.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(Oral)

Caveat No. 1065/2014

1.    Since caveator has appeared, caveat is discharged.


CM Appl. No. 19770/2014 (exemption)

2.    Allowed, subject to all just exceptions.

3.    Application is disposed of.

RFA 628/2014

4.    Arguments heard and material placed on record perused.

5.    On an application under Order XII Rule 6 of the Code of Civil

Procedure, 1908 ("Code", for short) filed by the respondent, trial court has

passed a decree of possession in favour of respondent and against the

appellant in respect of the tenanted premises, that is, ground floor of
RFA 628/2014                                                Page 1 of 11
 property known as Park Mansion, Sar Syed Ahmad Road, Darya Ganj, New

Delhi - 110002 (hereinafter referred to as "suit property"). Aggrieved by

the judgment and decree dated 11th September, 2014 passed by the trial

court, appellant has preferred this appeal.

6.    Facts

of the case, relevant for the disposal of present appeal, are that

respondent, being co-owner of the suit property, filed a suit for possession

and recovery of damages/mesne profits against the appellant. He alleged

that his father had leased out the suit property to appellant in the year 1951

vide a Lease Deed. Lease was renewed from time to time and the last such

lease executed between the parties expired in the year 1988. Thereafter, no

fresh lease deed was executed, though some talks of extension of lease took

place between the parties. Request of respondent for execution of lease on

enhanced rent remained unaddressed by the appellant. Respondent

demanded rent @ `33/- per square feet as per the MCD rates applicable for

Darya Ganj locality but respondent declined to pay the same. Respondent

filed a writ petition being WP(C) No. 5706/2007, which was disposed of

vide order dated 2nd February, 2009, in accordance with the admissions of

appellant and a monthly rent of `17,014/- was fixed with liberty to the

respondent to claim further amounts and such other remedies as may be

available to him under the law at appropriate forum. Since respondent was

not willing to keep appellant as tenant, appellant was called upon to vacate

the suit property within two months vide legal notice dated 12th October,

2009. However, possession of the suit property was not handed over by the

appellant to respondent. Instead appellant sent a reply dated 10th December,

2009. Appellant was in unauthorized possession of the suit property since

1988. Since possession was not handed over despite legal notice dated 12 th

October, 2009, hence the suit.

7. In the written statement, appellant did not deny that respondent was

joint owner of the suit property. However, it was alleged that suit was bad

for mis-joinder of necessary parties as other co-owner was not impleaded. It

was not disputed that appellant was occupying the suit property as a

"tenant". It was denied that appellant was in illegal occupation of the suit

property after expiry of the lease. Appellant alleged that rent was increased

from time to time. Lastly, rent was increased to `17,014/- in terms of

decision of Floor Rent Assessment Committee (FRAC) dated 29 th June,

2007. Appellant alleged that rent @ `17,014/- was paid regularly, in terms

of the decision of FRAC coupled with the order passed by the High Court.

It was alleged that appellant requested for execution of the fresh Lease Deed

but issue remained pending on the part of respondent. Rent was fixed by the

FRAC after calculating the same as per the Government norms. Fresh Lease

Deed could not be executed due to non-cooperation of appellant. It was

alleged that notice dated 12th October, 2009 was not delivered in the office

of Secretary of the concerned Ministry but was served on the Senior

Superintendent of Post Office (defendant no. 2), who was not a „competent

authority‟. There was no valid termination of tenancy for the want of a valid

notice under Section 106 of the Transfer of Property Act, 1882 ("the Act",

for short). Thus, suit was not maintainable.

8. From the perusal of written statement, it is clear that landlord - tenant

relationship between the parties is not in dispute. Appellant did not dispute

that its status in the suit property was that of a "tenant". It is also not in

dispute that respondent was the co-owner and landlord in respect of the suit

property. Rent of the suit property being `17,014/-, that is, more than

`3,500/- is also not in dispute. No plea has been taken in the written

statement that suit is hit by Section 50 of the Delhi Rent Control Act, 1958

("DRC Act", for short). It is also not in dispute that suit property is in

possession of defendant no. 2. Receipt of the notice dated 12 th October,

2009 is also not in dispute. In the plaint, a specific averment was made that

notice was replied by the defendant. This fact has not been disputed in the

written statement. Only plea taken is that no proper notice under Section

106 of the Act was issued and the suit was filed without impleading other

co-owner.

9. Contention of the appellant that suit is not maintainable having been

filed by the co-owner has no force. Supreme court in Sri Ram Pasricha Vs.

Jagannath and Ors. AIR 1976 SC 2335 in context of the suit for eviction

filed by the co-owner has held thus:

"25. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part- owner or a fractional owner of the property. The position will, change only when partition takes place."

10. A Full Bench of Allahabad High Court in Gopal Das and Anr. Vs.

Ist Addl. District Judge, Varanasi and Ors. AIR 1987 ALL 261, after

placing reliance on various judgments has held that one co-owner can bring

an action for eviction of the tenant, and it is not necessary to implead all the

co-owners in such proceeding. Thus, plea of appellant that suit was bad for

mis-joinder of parties as other co-owner was not impleaded as a party is not

well founded and is, thus, rejected.

11. It would be relevant at this stage to refer to Order XII Rule 6 of the

Code, which reads as under:-

"Order XII - Admission (The First Schedule)

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."

12. A perusal of the aforesaid provisions makes it clear that the said

provision envisages that 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. The whole object of incorporating

the procedure of Order XII Rule 6 of the Code is to grant a quick relief to

commercial litigants whenever the Court finds any legally enforceable

admission, the Court will help the litigants to get quick relief.

13. In Uttam Singh Duggal & Co. Ltd. vs. United Bank of India,

(2000) 7 SCC 120, in the context of Order XII Rule 6 of the Code Supreme

Court has held thus: "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." In Charanjit Lal Mehra and Ors.

Vs. Smt. Kamal Saroj Mahajan and Anr. AIR 2005 SC 2765, Supreme

Court held that Order XII Rule 6 of the Code is enacted for the purpose of and

in order to expedite the trials and if there is any admission on behalf of the

defendants or an admission can be interred from the facts and circumstances of

the case without any dispute, then, in such a case, in order to expedite and

dispose of the matter such admission can be acted upon.

14. In Ms. Rohini Varshnei vs. R.B. Singh, 155 (2008) DLT 440, a

Division Bench of this Court has held thus: "It is trite to say that in order to

obtain a judgment on admissions, 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)     A relationship of landlord and tenant;

ii)    Expiry of the tenancy of afflux of time or determination by valid notice
to quit; and

iii) The rent of the premises being more than `3,500/- per month in view of the provisions of the said Act."

15. Similar view has been expressed in Atma Ram Properties Pvt. Ltd. vs.

Pal Properties Pvt. Ltd. & Ors. 2002 (62) DRJ 623 and Sky Land

International Pvt. Ltd. vs. Kavita P. Lalwani 191 (2012) DLT 594. Coming

back to the facts of this case, landlord - tenant relationship between the

respondent and appellant is not in dispute. Rent of the premises being more

than `3,500/- is also an admitted fact. As regards notice under Section106 of

the Act is concerned, it has not been disputed that respondent had served a

notice dated 12th October, 2009 on the appellant. It is trite law that

nomenclature of the documents will not make any difference. It is the contents

of the documents, which have to be seen to construe the real import of the

subject matter in issue. By the said notice, appellant was called upon to

handover the vacant possession of the suit property within two months, which

meets the requirement of Section 106 of the Act. That apart, service of

summons along with the plaint itself amounts to notice under Section 106 of

the Act. In Nopany Investments (P) Ltd. vs. Santosh Singh (HUF) 146

(2008) DLT 217 (SC), Supreme Court held that tenancy would stand

terminated under general law on filing of a suit for eviction. In Jeevan Diesels

and Electricals Ltd. vs. Jasbir Singh Chadha (HUF) and Anr. 182 (2011)

DLT 402, it has been held as under:-

"(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex.PW1/3 is that the Respondents/Plaintiffs admittedly filed a copy of this notice along with the suit way back in the year 2007. Once the summons in the suit along with documents were served upon the Appellant/tenant, the Appellant/tenant would obviously have received such notice. Even if we take this date when the Appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the Appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice along with documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the Appellant/tenant has no right to stay in the premises and

consequently the decree for possession was rightly passed by the trial Court."

16. It may be noted here that Special Leave Petition against the Jeevan

Diesel (supra) has been dismissed by the Supreme Court.

17. In Payal Vision Limited vs. Radhika Choudhary (2012) 11 SCC 405,

Supreme Court has held thus "in a suit for recovery of possession from a tenant

whose tenancy is not protected under the provisions of the Rent Control Act, all

that is required to be established by the plaintiff landlord is the existence of the

jural relationship of landlord and tenant between the parties and the termination

of the tenancy either by lapse of time or by notice served by the landlord under

Section 106 of the Transfer of Property Act. So long as these two aspects are

not in dispute the court can pass a decree in terms of Order 12 Rule 6 CPC". In

this case, admissions can safely be culled out with regard to the fact that there

existed landlord-tenant relationship between the respondent and appellant; rent