Shalu Gill vs Joginder Pal Babbar
2014 Latest Caselaw 6752 Del

$~34
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA 526/2014, CM Nos.17676-17677/2014

                                             Decided on 15th December, 2014

      SHALU GILL                                        ..... Appellant
                          Through      Mr. M.L. Sharma and Ms. Suman,
                                       Advocates
                          Versus

      JOGINDER PAL BABBAR                                ..... Respondent

                    Through            Mr. Sandeep Khurana, Mr. Manuj
                                       Aggarwal and Ms. Seemab Ali
                                       Fatima, Advocates
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. The respondent filed a suit for recovery of possession, permanent

injunction, recovery of damages and unpaid rent against the appellant. On

an application under Order 12 Rule 6 of Code of Civil Procedure, 1908

(hereinafter referred as CPC) filed by the respondent, trial court has passed a

decree of possession. As regard other reliefs, suit is still pending.

Aggreived by the decree of possession, appellant has preferred this appeal.

2. The respondent alleged in the plaint that he had let out the DDA Flat

No.307, Ground Floor, LIG Category, Pocket-3, Madipur, New Delhi to

appellant on a monthly rent of `6,000/- with effect from 01.05.2012 for a

period of 11 months, vide a registered Rent Deed dated 27.04.2012. After

two months, the appellant stopped paying rent. Despite his request, the

appellant did not pay rent, consequently, respondent terminated the tenancy

vide notice dated 24.09.2012 and called upon the appellant to vacate the suit

property within 30 days. Since the appellant did not vacate the suit property,

hence, the suit.

3. After service of summons, appellant appeared in Court on 06.02.20l3

and stated that she had not engaged a counsel. She was granted time to

engage a counsel. She was given liberty to approach the Legal Aid

Authority in case she was not in a position to engage a lawyer and the matter

was adjourned to 25.03.2013. On the said date, the appellant appeared

through her counsel Sh. Shashvat Kumar. Her brother-in-law (dewar) also

appeared in court along with said counsel. Subject to costs of `500/-,

written statement of appellant was taken on record and the matter was

adjourned to 28.05.2013. Subsequently, on an application under Order 39

Rule 10 CPC appellant was directed to pay rent from 1.11.2012 to 1.11.2013

to the respondent in four instalments. Appellant paid the amount vide three

cheques dated 29.11.2013, 29.01.2014 and 28.05.2014.

4. In her written statement, the appellant did not deny the landlord tenant

relationship between the parties. Execution and registration of the Rent

Deed dated 27.04.2012 was also not disputed. However, it was denied that

the appellant stopped paying rent with effect from 01.07.2012. She alleged

that she had already paid the rent upto the month of October 2012.

Respondent had made a categorical statement that vide legal notice dated

24.09.2012, tenancy was terminated and appellant was called upon to vacate

the suit property within 30 days. The receipt of the notice was not disputed.

However, it was alleged that respondent got the legal notice issued on the

frivolous grounds, despite the fact that there was no breach of agreement

with regard to non payment of rent. Subsequently, an application for

amendment of written statement was filed but on 03.07.2014 which was

dismissed. By way of amendment appellant sought to incorporate that her

father-in-law was a tenant and rent was `2500/-, inasmuch as he paid

`3,50,000/- as security. Another application was filed in which it was stated

that her husband and brother-in-law were tenants on the monthly rent of

`1500/-. It was further alleged that respondent took nude photographs of

appellant and started blackmailing her. He took her forcibly to Sub-

Registrar's Office on 27th April, 2012 and got the Rent Deed executed by

blackmailing her. However, the fact remains that original written statement

stands and the defence taken therein alone has to be considered.

5. It is trite law that in a suit for possession filed by a landlord against

the tenant following three ingredients have to be established by the

plaintiff:-

(a) there exists a landlord tenant relationship between the plaintiff and defendant.

(b) rent of the premises being more than `3,500/- so as to exclude the applicability of Section 50 of the Delhi Rent Control Act.

(c) termination of tenancy under Section 106 of the Transfer of Property Act.

6. In Jatinder Nath Gupta vs. STC of India MANU/DE/1869/2012, a

learned Single Judge of this court has 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

`3,500/-; and (iii) the tenancy should have been validly terminated.

Similar is the view expressed in Atma Ram Properties Pvt. Ltd. vs.

Pal Properties Pvt. and Ors., 2002 (62) DRJ 623, Punjab National Bank vs.

Virendra Prakash & Another 188 (2012) DLT 48 and Sky Land International

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

7. In Charanjit Lal Mehra and Ors. vs. Smt. Kamal Saroj Mahajan and

Anr. AIR 2005 SC 2765, Supreme Court has held that Order 12 Rule 6 CPC

is enacted for the purpose and in order to expedite the trials and if there is

any admission on behalf of the defendants or an admission can be inferred

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.

8. The legal position thus emerges that a decree on admission under

Order 12 Rule 6 CPC can be passed where there is a clear, unambiguous and

unequivocal admission made by one party of the case of the other party.

However, no such straight jacket formula can be adopted. Each case has to

be viewed in its own facts. The admission can be inferred from the

pleadings, documents placed on record or otherwise. Wherever there is a

clear admission of facts on the face of which it is impossible for the party

making such admission to succeed, a judgement can be passed.

9. Now coming back to the facts of present case, landlord - tenant

relationship is not in dispute. Rent of property being more than `3,500/- is

also an admitted fact in view of the registered Rent Agreement. Thus,

provisions of Delhi Rent Control Act are not attracted in this case. As

regards termination of tenancy is concerned, the same has also been

admitted in the written statement. Even otherwise, the service of summons

with the plaint itself amounts to notice under Section 106 of the Transfer of

Property Act. (please refer to Nopany Investments (P) Ltd. vs. Santokh

Singh (HUF) 146 (2008) DLT 217 (SC) and Jeevan Diesels and Electricals

Ltd. vs. Jasbir Singh Chadha (HUF) and Anr. 182 (2011) DLT 402.

10. Learned counsel for the appellant has contended that the respondent

was blackmailing the appellant on the pretext that he was in possession of

her nude photographs. Appellant had not engaged Sh. Shashvat Kumar nor

had authorized him to appear in the matter. Said counsel was engaged by

the plaintiff. Thus, her written statement cannot be read against her. I do

not find any force in this contention. This is the only written statement on

record, duly signed by her in English language. A perusal of record shows

that appellant's husband and brother-in-law had also appeared in court along

with her as well as her counsel on different occasions, inasmuch as, cheques

in court were also given by her while accompanied by her husband. Her

statement recorded in Court on 15.07.2014 also shows that she is not a

truthful person. She deposed that name of her counsel was Mr. Rajeev,

however, the record shows that Mr. Shashvat Kumar had appeared on

25.03.2013 along with her brother-in-law, inasmuch as, written statement

has been signed by the appellant that too in English.

11. Learned counsel has next contended that without framing issues trial

court could not have pronounced the judgment since no clear admissions of

facts as alleged in the plaint, were made. He has placed reliance on

Kochukesavan Nair vs. Gouri Amma 1967 KLT 257. The judgment relied

upon by the appellant's counsel is in the context of different facts. In this

case, clear, categorical and unambiguous admissions have been made in the

written statement with regard to the landlord-tenant relationship, amount of

the rent as also with regard to the termination of the tenancy, thus, trial court

has rightly pronounced the judgement on admission.

12. Accordingly, the appeal is dismissed.

A.K. PATHAK, J

DECEMBER 15, 2014 RB