Rajrani Garg & Another vs Naveen Garg And Others
2014 Latest Caselaw 5366 Del

$~51.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 2283/2013
%                                        Judgment dated 30.10.2014
         RAJRANI GARG & ANOTHER             ..... Plaintiffs
                      Through : Mr.Amit Vohra and Mr.Jagmohan
                                Singh, Advs.

                            versus

         NAVEEN GARG AND OTHERS            ..... Defendants
                     Through : Mr.Ashish Datta, Adv. for defendant
                               no.1.
                               Mr.Sanjay Kumar, Adv. for
                               defendants no.2 and 3.

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

G.S.SISTANI, J (ORAL)

I.A.14691/2014.

    1.

This is an application filed by plaintiff under Order XII Rule 6 for pronouncement of judgment on admissions.

2. The necessary facts, which have given to rise to the filing of the present application, are that the plaintiff is the owner and landlord of the shop bearing no.G-1, Ground Floor, having a super area of 2968.39 sq. ft. and covered area of 1484.19 sq. ft., forming part of North Square Mall, built on plots bearing no.F-1, F-2 and F-3, District Centre, Wazirpur, Netaji Subhash Place, Pitampura, New Delhi.

3. As per the plaint, the plaintiff entered into a registered lease deed dated 27.12.2010 with defendant no.1 as well as late Sh.Chiranji Lal Chopra for a period of five years, commencing from 1.2.2011. Upon

the death of late Sh.Chiranji Lal Chopra the tenancy jointly devolved upon his legal heirs i.e. defendants no.2 and 3 (which is disputed by defendants no.2 and 3). The premises was taken on rent by defendant no.1 and late Sh.Chiranji Lal Chopra for the purposes of running a restaurant in the name and style of „Night Fever Club and Lounge‟. The monthly rent was fixed at Rs.1.50 lakhs, per month, for the first year commencing from 1.2.2011 to 31.2.2012. Subsequently, the monthly rent was increased to Rs.1,57,500/- from 1.2.2012 to 31.1.2013 and Rs.1,65,375/- for the third year commencing from 1.2.2013 to 31.1.2014. The rent was to increase from Rs.1,73,644/- from 1.2.2014 to 31.1.2015 and Rs.1,82,326/- for the fifth year, commencing from 1.2.2015 to 31.1.2016. In addition to the rent, defendant no.1 and late Sh.Chiranji Lal Chopra were to pay electricity, water and maintenance charges directly to the authorities.

4. As per the terms and conditions of the registered Lease Deed dated 27.12.2010 defendant no.1 and late Sh.Chiranji Lal Chopra were to make the payment of rent on or before the seventh day of each English Calendar month in advance and in case of default the plaintiff was entitled to terminate the lease as per Clause 3(b) of the Registered Lease Deed dated 27.12.2010. Since defendant no.1 and late Sh.Chiranji Lal Chopra failed to make the payment of rent from January, 2013, and were in arrears of rent of Rs.16,45,875/- upto the date of filing of the suit and in addition thereto to maintenance charges of Rs.38.00 lakhs and electricity charges of Rs.2.00 lakhs, the plaintiff issued a legal notice dated 29.7.2013 to the defendants thereby terminating the tenancy on account of non-payment of rent, however, the said legal notice was not replied to by the defendants.

5. Learned counsel for the plaintiff submits that the registered lease deed

is an admitted document. The notice terminating the tenancy was issued to the defendants at the correct address, although no reply was received. Counsel for the plaintiff has relied upon the postal receipt, which has been filed on record, to show that the legal notice which was sent by Speed Post was duly acknowledged by the defendants. Counsel further submits that only vague and bald denials have been made by defendant no.1 in the written statement. Counsel contends that in the written statement defendant no.1 has not denied the factum of a registered Lease Deed dated 27.12.2010 and consequently the rent, which is over Rs.3500/-, has also not been denied.

6. Learned counsel for the plaintiff submits that denial, if any, by the defendants is evasive and it is not specific and, thus, no denial in the eyes of law. In support of this submission counsel has relied upon Ghanshyam Das Soni and Anr. v. Sundri Apparels (India) Pvt. Ltd., reported at 196 (2013) DLT 196, wherein the Court has discussed the doctrine of non-traverse. Para 9 of the judgment reads as under:

"9. From the documents placed on record it is quite evident that the plaintiffs have been writing letters to the defendant thereby calling upon the defendant to make payment of arrears of rent failing which the plaintiffs were to initiate civil as well as criminal proceedings against the defendant. The plaintiff has also placed on record various cheques issued by the defendant towards payment of rent but the same were returned dishonoured. The plaintiffs have also placed on record copy of the letter dated 24.2.2010 addressed to Mahesh Chand Mohnani, Director of the defendant company giving 15 days notice to the defendant to make payment of arrears of rent and on failure to do so the tenancy of the defendant shall stand terminated. The plaintiffs have further placed on record copy of the legal notice dated 26.03.2010 and in the said legal notice the plaintiffs clearly notified the said termination of the tenancy of the defendant on the failure of the defendant to pay the

outstanding amount of arrears of rent. The plaintiffs have also placed on record original postal receipts of speed post, original postal receipt of the legal notice dated 26.3.2010 and with the said postal receipts being placed on record, presumption of service of the same arises in favour of the plaintiff under Section 27 of the General Clauses Act, 1897. The admission of the said termination of the tenancy in terms of clause 8 of the lease deed can also be easily inferred from paras no.15,16 of the written statement wherein the defendant has not controverted the factum of determination of their tenancy as averred by the plaintiff in corresponding paras 15 & 16 of the plaint. It is a settled legal position that where denial is not specific or evasive then allegation made in the plaint shall be deemed to have been admitted. This rule is known as Doctrine of Non Traverse embodied in order VIII rule 5 of the Code of Civil Procedure, 1908 and is applicable where the material averment made in the plaint is not specifically denied by the defendant in the written statement and as such an averment is taken to be admitted. The plaintiffs in paras 15 & 16 of the plaint have made specific allegation with regard to the termination of the tenancy with the defendant while on the other hand defendant in reply have raised a plea that there was no real cause for the alleged termination of the tenancy by the plaintiffs. Whether the cause was real or unreal but the defendant has not disputed the fact that their tenancy was terminated by the plaintiffs. The termination of the tenancy was also borne out from the fact that defendants have not denied their liability to make payment of outstanding arrears of rent/ damages to the plaintiff."

7. Learned counsel for defendant no.1 has opposed the present application on the ground that the rent was not paid as the maintenance services were not provided by the mall to the defendants. Counsel further submits that since a No Objection Certificate was not given by the landlord to the mall, officials of the mall refused to accept the maintenance charges. It is further submitted that defendant no.1 was not able to use and utilise the permission on account of non- cooperation on the part of the plaintiffs. Counsel contends that it was

orally agreed between the parties that maintenance charges will be shared equally between the plaintiff and defendant no.1.

8. I have heard learned counsel for the parties, considered their rival submissions and also perused the registered lease deed executed between the parties. The arguments raised by counsel for defendant no.1 do not find mention in any of the paragraphs of the written statement filed. In fact most of the paras of the plaint have been denied by defendant no.1 in the written statement by stating that "the contents of para under reply are matter of record and the plaintiff be put to strict proof therefrom and any submission contrary to the record are totally wrong, false and hence denied".

9. In reply to the specific paras with regard to execution of the lease deed, defendant no.1 has replied in the following manner:

"2. That the content of para under reply are matter of record and any submissions contrary to the records are totally wrong, false and hence denied and each and every contents of para under reply are vehemently and specifically denied in toto word by word".

10. In response to the monthly rent, in para 6 of the written statement it is stated by defendant no.1 as under:

"6. That the content of para under reply are matter of record and any submissions contrary to the records are totally wrong, false and hence denied and each and every contents of para under reply are vehemently and specifically denied in toto word by word."

11. A reading of the written statement would show that defendant no.1 has only made a general denial with regard to the tenancy, the lease

agreement and non-payment of rent. Since the lese deed has been placed on record and there is no specific denial of the same, it is deemed to be admitted. No document has been placed on record by defendant no.1 to show that up-to-date rent was paid. There is also no reply to the legal notice issued by the plaintiff to defendant no.1.

12. Learned counsel for defendants no.2 and 3 submits that while defendants no.2 and 3 have no objection if a decree with regard to possession is passed as after the demise of late Sh.Chiranji Lall Chopra defendants no.2 and 3, who are the legal heirs of late Sh. Chiranji Lall Chopra had no role to play in the running of the restaurant and defendant no.3 has also retired on 31.3.2012.

13. The law with regard to Order 12 Rule 6 CPC more particularly pertaining to tenants has been well-settled by a catena of judgments.

14. 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."

15. 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.

16. 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".

17. Upon considering judgments rendered by the High Court, it can be held that while dealing with an application under Order XII 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.

18. A bare reading of Order XII Rule 6 CPC 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 the 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.

19. Accordingly, present application is allowed. Suit is decreed in favour of the plaintiff and against defendants with regard to prayer A of the plaint pertaining to handing over of physical possession of the suit property bearing no.G-1, Ground Floor, having its super area 2968.39 sq. ft. and covered area of 1484.19 sq. ft. forming part of North Square Mall, built on plots no.F-1, F-2 and F-3, District Centre, Wazirpur, Netaji Subhash Place, Pitampura, Delhi. All rights of defendants no.2 and 3 are kept open to be adjudicated upon at the appropriate stage.

20. Application stands disposed of.

CS(OS) 2283/2013

21. As prayed, let written statement be filed by defendants no.2 and 3 within one week from today. Replication, if any, be filed within four weeks thereafter. Parties shall file documents, which are in their possession and power, within the same period.

22. List this matter before Joint Registrar for admission/denial of documents on 9.12.2014.

23. List this matter before Court for framing of issues on 22.1.2015, when parties shall bring suggested issues to Court.

G.S.SISTANI, J OCTOBER 30, 2014 msr