Sunil Kumar vs Satish Kumar Wanchoo
2015 Latest Caselaw 4498 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                     R.S.A. No.171/2015 & C.M. No.8110/2015

                                           Decided on : 29th June, 2015

SUNIL KUMAR                                       ...... Appellant
                       Through:    Mr. Sudhir Naagar & Mr. G.P. Sah,
                                   Advocates.

                          Versus

SATISH KUMAR WANCHOO                     ...... Respondent
             Through: Counsel for the respondent.

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

V.K. SHALI, J.

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

judgment dated 19.2.2015 passed by Sh. Kuldeep Narayan, the learned

Additional District Judge, Shahdara District, Karkardooma Courts, Delhi

in R.C.A. No.65/2014 titled Sunil Kumar vs. Satish Kumar Wanchoo.

2. Before dealing with the submissions made by the learned counsel

for the appellant, it may be pertinent here to give brief facts of the case.

The respondent/plaintiff, Satish Kumar Wanchoo, is the owner and

landlord of Flat No.E-01, Indraprastha Apartments, I.P. Extension,

Patparganj, Delhi-92. His case was that he had let out the aforesaid flat to

the present appellant/tenant, Sunil Kumar, on a lease of 11 months

starting from 1.4.2010 on a monthly rent of Rs.16,000/-. The lease deed

was stated to have been executed on 18.3.2010. On expiry, the aforesaid

lease was renewed by a fresh lease deed for a period of 11 months; last

lease deed having been executed on 29.6.2012 for a period of 1.5.2012 to

31.3.2013 at an enhanced rent of Rs.19,350/-. It has been alleged that

after termination of tenancy on 31.3.2013, by efflux of time the

appellant/tenant was asked to vacate the premises, however, he did not do

so. A letter was sent to the appellant/defendant on 4.4.2013, which was

duly served upon him. Yet another letter was served on the

appellant/defendant on 20.6.2013 requesting him to vacate the premises.

A legal notice dated 21.8.2013 was also served on the

appellant/defendant. Since he did not vacate the premises, consequently,

suit for possession was filed against him.

3. The appellant/defendant filed his written statement and admitted

that he is a tenant in the suit premises since 2010. It is also admitted by

him that lease deed was executed on 18.3.2010 for a period of 11 months;

however, he denied that any other lease deed was executed on 29.6.2012.

It was further alleged that on 22.3.2012, the respondent/plaintiff came to

the appellant/defendant and asked him to vacate the suit premises, which

was sought as the respondent/plaintiff was reportedly selling the flat

whereupon the appellant/defendant offered to purchase the flat in

question. It is further alleged that pursuant to this discussion, price of

Rs.1 crore was fixed for the flat and a sum of Rs.10 lacs was paid as an

advance by the appellant/defendant to the respondent/plaintiff; however,

no document or even receipt was ever executed in token of having

received the money on account of having agreed to sell the flat in

question to him by the respondent. It has further been stated that as the

aforesaid understanding was arrived at between the appellant/defendant

and the respondent/plaintiff, the respondent/plaintiff after some time

refused to sell the suit property stating that the price of the flat has

increased to Rs.1.5 crores whereupon the appellant/defendant wanted

refund of his money. It has been stated that the respondent/plaintiff being

short of funds, agreed to reduce the rate of rent from Rs.19,350/- to

Rs.2,500/- per month till the time the entire payment is given back to the

appellant/defendant.

4. After pleadings of the parties, the respondent/plaintiff filed an

application under Order XII Rule 6 CPC seeking judgment on admission.

It was urged by the respondent/plaintiff that the appellant/defendant has

admitted all the three prerequisites for passing a decree under Order XII

Rule 6 CPC for which the application was filed and reply of the

appellant/defendant was invited. These three factors were (i) relationship

of landlord and tenant, (ii) rate of rent, which was never in dispute, and

(iii) the premises under tenancy.

5. So far as the rate of rent is concerned, the appellant/defendant has

taken a defence that the rate of rent got reduced from Rs.19,350/- or for

that matter from Rs.16,000/- to Rs.2,500/- per month. The answer to seek

such a drastic reduction of rent is not far to seek. It is actuated by an

ulterior motive that if the rent is alleged to be less than Rs.3,500/- per

month then the suit for possession would not lie and such a party would

be left to obtain eviction of his tenant under the Rent Act which is one of

the most difficult thing to do in Delhi because in that event the landlord

has to satisfy the Rent Controller about the existence of a ground for

eviction.

5. The trial court on an application under Order XII Rule 6 CPC

passed a judgment on the basis of admission as in its view the defence

which was taken by the appellant/defendant was on the face of it false

and frivolous. The learned trial court also referred to the submission

made by the learned counsel for the appellant/defendant that the

admission made by the appellant/defendant was not unambiguous or

unequivocal. It was the case of the appellant that he was depositing a

sum of Rs.2,500/- per month with the court as rentals. The judgments

which are sought to be relied upon by the appellant/defendant before this

court were also referred to before the trial court, but they were not relied

upon as there was a clear cut admission on the part of the

appellant/defendant. These judgments are Himani Alloys Ltd. Vs. Tata

Steel Ltd.; (2011) 15 SCC 273, Parivar Seva Sansthan vs. Dr. (Mrs.)

Veena Kalra & Ors.; 86 (2000) DLT 817 (DB), Raj Kumar Chawla vs.

M/s. Lucas Indian Services; AIR 2006 Delhi 266, Mohan Prasad Jha vs.

Shambhu Prasad Singh; 82 (1999) DLT 281 and Puran Chand Packaging

Industrial Pvt. Ltd. Vs. Smt. Sona Devi; 2009 (2) Civ. CC 29. The first

appellate court accepted the finding of fact returned by the trial court.

Feeling aggrieved, the present regular second appeal has been filed.

6. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondent.

7. The second appeal is permissible only when a substantial question

of law is involved in the matter. Even if the question is not being framed

by the appellant, the question is to be framed by the court and only then

the matter is to be proceeded.

8. In the instant case, the plea which has been taken by the

appellant/defendant is that he had agreed to purchase the flat in question

from the respondent/plaintiff on a sum of Rs.1 crore out of which he had

paid an advance of Rs.10 lacs for which there is no document in writing.

There is no agreement to sell signed between the parties, therefore, ex

facie this plea of the appellant/defendant has been considered to be

unreliable or unworthy of any credence and therefore, has been ignored

by the two courts below. In any case the sale and purchase of the flat in

question is an independent transaction and cannot forestall the passing of

a decree which is based on admissions. This is an independent transaction

and the objection which is taken by the appellant/defendant is not an

objection which goes to the root of the matter. If at all anything was

agreed to by those persons who own the flat or who had represented the

appellant/defendant to purchase the flat, they will face the music but

certainly this cannot be a ground for stalling a judgment on the basis of

the admission in the instant case which is clear, unambiguous and

unequivocal. In any case this is a question of fact and not a question of

law much less substantial question of law. So far as the judgments which

are relied upon by the appellant are concerned, they are already

considered by the two courts below. All these judgments are dealing with

the question as to when an admission can be treated to be an unequivocal,

unambiguous warranting passing of a decree in the facts of a particular

case. An admission whether it is unequivocal and unambiguous is a

question of fact which has already been gone into by the two courts

below against the appellant.

8. The second appeal, as has been stated, is permissible only when a

substantial question of law is involved in the matter which the learned

counsel for the appellant has failed to show. Hence, the appeal is without

any merit and the same is dismissed.

V.K. SHALI, J.

JUNE 29, 2015/'AA'