Brij Lal vs Kuldeep Kaur
2015 Latest Caselaw 594 Del

*         HIGH COURT OF DELHI AT NEW DELHI
+           RSA No.385/2014 & CM No.20363/2014 (for stay)

                                       Decided on : 21st January, 2015

    BRIJ LAL                                             ..... Appellant
                         Through:    Mr. Sudhir Nagar, Advocate.

                         versus

    KULDEEP KAUR                                           ..... Respondent

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant against the

judgment dated 03.09.2014 passed by the learned ADJ upholding the

judgment dated 07.08.2013 of the learned trial court passing a

preliminary decree of possession in favour of the respondent/plaintiff

and against the present appellant/defendant.

2. Briefly stated the facts of the present case are that the

respondent/plaintiff filed a suit for possession on account of arrears of

rent and mesne profit.

3. The case set up by the respondent/plaintiff was tha the present

appellant was a tenant on the ground floor of the suit property i.e.

2151/6A, New Patel Nagar, Delhi with effect from 01.07.2006 on a

monthly rent of Rs.4,500/- apart from water and electricity charges. It

was alleged that later on the rent was increased to Rs.5,000/-. It had

also been stated that the tenancy was on month to month basis and the

appellant/defendant had not paid rent since August, 2009. Vide a

legal notice dated 07.07.2012, his tenancy had been terminated and

instead of complying with the notice and handing over of the

possession of the suit property to the respondent/plaintiff in terms of

the agreement, the appellant/defendant continued to occupy the suit

property and hence the present suit was filed.

4. A reference was also made in the plaint that the

appellant/defendant had filed a petition before the Additional Rent

Controller under Section 45 of the Delhi Rent Control Act, which was

dismissed and then he filed a suit which was disposed of with the

directions to the respondent/plaintiff that she will not dispossess the

appellant/defendant without due process of law.

5. The present suit was contested by the appellant/defendant. He

admitted that the rent was Rs.5,000/- per month and that there was a

relationship of landlord and tenant between the respondent/plaintiff

and the appellant/defendant. However, he disputed that he had paid

rent only up to August, 2009 and on the contrary in his written

statement, he stated that he had paid the rent up to July, 2012. The

receipt of legal notice terminating his tenancy was also disputed by

the appellant/defendant. However, it had been contended by him that

the appellant was assured of continuance of his tenancy by the

respondent/plaintiff in case the appellant/defendant pays a sum of

Rs.4 lakhs to her. The appellant/defendant has stated that on

09.08.2012, he had paid a sum of Rs. 4 lakhs to the son of the

respondent/plaintiff as suggested by the respondent/plaintiff and as a

consequence of which, the respondent/plaintiff was to not claim rent

from the appellant/defendant for a period of three years.

6. After completion of pleadings, the respondent/plaintiff filed an

application under Order 12 Rule 6 CPC to which reply was called for

and the learned Civil Judge passed a preliminary decree of possession

in favour of respondent/plaintiff and against the appellant/defendant

on 07.08.2013 by observing that the appellant/defendant had admitted

that he was a tenant in the suit premises on a month to month basis.

The rent of Rs.5,000/- being in excess of Rs.3,500/- was also not in

dispute though the receipt of notice was denied by the

appellant/defendant. However, the court observed that filing of the

suit itself is a notice in terms of the judgment of the Apex Court in

M/s Nopany Invetments (P) Ltd. V.Santokh Singh; AIR 2008 SC 673.

With regard to payment of Rs.4,00,000/- by the appellant/defendant to

the son of the respondent/plaintiff, the court observed that as no

counter claim/set off has been pleaded, the said payment has no

bearing on the claim of the respondent/plaintiff. Therefore, a

preliminary decree of possession was passed in favour of the

respondent/plaintiff and against the appellant/defendant.

7. The appellant/defendant, feeling aggrieved by the order of the

learned trial court dated 07.08.2013, preferred a first appeal before the

learned ADJ who upheld the judgment of the learned trial court by

observing that so far as the payment of Rs.4,00,000/- by the

appellant/defendant to the son of the respondent/plaintiff is

concerned, that is not acceptable and as no counter claim has been

filed for the same, the appellant/defendant can avail separate legal

remedies in accordance with law against the said allegation.

8. Still feeling aggrieved, the appellant/defendant has preferred

the present regular second appeal. The second appeal is admissible

when there is a substantial question of law involved in the matter. It

has been laid down by the apex court in a number of judgments that

the perversity in the finding of fact in the light of the evidence or

otherwise is a question of law. Reliance in this regard may be had to

Kulwant Kaur v. Gurdial Singh Mann (dead) by L.Rs. and others; AIR

2001 SC 1273.

9. In the instant case, I feel that the finding of fact returned by the

courts below with regard to the payment of Rs.4,00,000/- purported to

have been made by the appellant/defendant to the son of the

respondent/plaintiff suffers from perversity. One cannot lose sight of

the fact that the preliminary decree for possession has been passed on

the basis of admission purported to have been made by the

appellant/defendant in his written statement.

10. However, before dealing with the facts to see as to whether

there is an admission or not, it may be pertinent to refer to Order 12

Rule 6 CPC which reads as under:

" 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 part 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 up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

11. The aforesaid provision has been a subject matter of judicial

pronouncements in a number of cases and it has been repeatedly held

by the said judicial pronouncements that before an admission in the

pleadings or otherwise is read against a party, before passing a

judgment under Order 12 Rule 6 CPC on the basis of an admission,

the said admission must be unambiguous & unequivocal. Reliance in

this regard may be had to Puran Chand Packaging Industrial P. Ltd.

v. Sona Devi & Anr.; 154 (2008) DLT 111 (DB) and R.K.Markan v.

Rajiv Kumar Marken & Anr.; 97 (2002) DLT 754.

12. It has also been held that while reading an admission in the

written statement or in other pleading of the party, the document as a

whole is to be read and not that one sentence or one paragraph is torn

out of context.

13. In the light of the aforesaid facts, if we see the written

statement filed by the appellant/defendant, it can by no stretch of

imagination be said that the appellant/defendant has made an

unambiguous and unequivocal admission, which would have

warranted passing of a preliminary decree of possession against the

present appellant/defendant.

14. It may be pertinent here to refer to the written statement where

no doubt the appellant/defendant has admitted that he is a tenant in

respect of the ground floor and that there is a relationship of landlord

and tenant, it is also not disputed that the tenancy is oral and on

month to month basis and the rent is Rs.5,000/- per month. He has

categorically stated that the respondent/plaintiff had agreed to extend

the tenancy of the appellant/defendant if he paid a sum of

Rs.4,00,000/- to the respondent/plaintiff or if the respondent/plaintiff

was not to available, the payment of said amount to her son. It has

been averred in the written statement that this amount of

Rs.4,00,000/- was actually paid by him in the presence of Mr.Mohan

Lal s/o Sh.Gainda Ram, R/o N-291, Raghubir Nagar, Delhi and

Sh.Ram s/o Late Mathura Dass, R/o Nav Durga Mohalla, Gali No.21,

183/B-1, Baljeet Nagar, New Delhi. As a consequence of this

payment, it was assured to the appellant/defendant that the

respondent/plaintiff would not claim any rent for a period of three

years. If that be so, the tenancy gets extended as an oral tenancy from

month to month basis. The relevant averments made in para 10 of the

written statement read as under:

"That on 09.08.2012, the plaintiff had orally apprise the fact to the defendant that the plaintiff is in dire need of money to the tune of Rs.4,00,000/- and requested the defendant either to pay a sum of Rs.4,00,000/- to the plaintiff or in the absence of the plaintiff to pay the same to her son namely Manjeet Singh. It is submitted here that the plaintiff had orally given the assurance to the defendant that if the defendant pays a sum of Rs. 4,00,000/- to the plaintiff, then the plaintiff shall not demand the rent of the tenanted premises continuously for a period of three years. The plaintiff had also assured to the defendant that the plaintiff shall sell the tenanted premises to the defendant if in future the plaintiff shall dispose of the premises and accordingly the defendant had given a sum of Rs.4,00,000/- cash to the son of the plaintiff namely Manjeet Singh in the absence of the plaintiff. It is submitted here that the abovesaid money was given to the son of the plaintiff namely Manjeet Singh in presence of (1) Sh.Mohan Lal son of Sh.Gainda Ram R/o N-291, Raghubir Nagar, Delhi and (2) Shri Ram son of Late Mathura Dass, R/o Nav Durga Mohalla, Gali No.21, 183/B-1, Baljeet Nagar, New Delhi. It is submitted here that Manjeet Singh looks after the affairs of the tenanted premises. It is submitted here that prior

to giving a sum of Rs.4,00,000/- to the son of the plaintiff, the electricity supply of the tenanted premises was disconnected and the plaintiff assured to the defendant that if the aforesaid amount is given by the defendant to the plaintiff or her son as stated above in that situation the electricity supply shall be restored and accordingly the plaintiff had restored the electricity supply of the tenanted premises after receiving a sum of Rs.4,00,000/- from the defendant."

15. In the light of the aforesaid facts, if the stand of the

appellant/defendant is accepted by the court after examination of the

appellant/defendant as well as two witnesses which he may like to

produce during the course of recording of evidence, it may knock out

the case of the respondent/plaintiff in its entirety and, therefore, the

admission purported to have been made by the appellant/defendant

could not treated to be an unambiguous or unequivocal admission so

as to warrant passing of preliminary decree of possession in favour of

the respondent/plaintiff. I feel that the judgment of the trial court

dated 07.08.2013, upheld by the first appellate court vide order dated

03.09.2014 by observing that payment of Rs.4,00,000/- purported to

have been made by the appellant/defendant to the son of the

respondent/plaintiff has nothing to do with the creation of tenancy or

that no counter claim has been filed by the appellant/defendant, is

bereft of any logic or merit and in my opinion. The

appellant/defendant was not required to file any counter claim. It was

good enough for him to have claimed that his tenancy gets extended

by implication on account of the payment of the aforesaid amount

which would have been on month to month basis. This is the

perversity with which the concurrent findings returned by the two

courts below suffer. Therefore, the present regular second appeal is

allowed and the judgment and decree passed by the trial court vide

order dated 07.08.2013 and judgment of the first appellate court dated

03.09.2014, upholding the view taken by the trial court, are set aside.

16. The parties are directed to appear before the learned trial court

on 15.02.2015 where after the learned trial court is directed to

proceed ahead with the matter after framing of issues and finish off

trial as expeditiously as possible. Expression of any opinion herein

before may not be treated as an expression on the merits of the case.

A copy of the order be sent to the trial court and be given dasti to the

learned counsel for the parties.

V.K. SHALI, J JANUARY 21, 2015/dm