Gujarat High Court
Mahadevprasad Amanbhai Prajpati vs Manjulaben Tarachand Nagar on 24 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2771 of 2022
With
CIVIL APPLICATION NO. 1 of 2022
In R/FIRST APPEAL NO. 2771 of 2022
With
CIVIL APPLICATION (FOR EXTENSION OF TIME) NO. 1 of 2025
In R/FIRST APPEAL NO. 2771 of 2022
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MAHADEVPRASAD AMANBHAI PRAJPATI
Versus
MANJULABEN TARACHAND NAGAR & ANR.
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
MR NV GANDHI(1693) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/06/2025
ORAL ORDER
1. The present First Appeal is filed under Section
96 of the Civil Procedure Code, 1908 by appellant -
original defendant challenging the judgment and decree
dated 18.06.2022 passed by City Civil Court, Ahmedabad
in Civil Suit No. 112 of 2012.
2. Heard learned advocate Mr.Amit Patel for the
appellant - original defendant and learned advocate
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Mr.N.V.Gandhi for respondents - original plaintiff.
3. Brief facts of the case are as under:-
3.1 The original plaintiffs - present respondents filed
Civil Suit possession and arrears of rent for the property
situated on front portion of the first floor bearing House
No.327, situated at Vaniyavas, Azad Chowk, Naroda Gam,
Ahmedabad. The suit property consists of one room,
kitchen and hosiery. The defendant was let out suit
property from 15.01.2002 on monthly rent of Rs.800/-.
3.2 The suit was resisted by defendant - appellant
by filing Written Statement at Ex.20 and denied the
contentions raised by respondents-plaintiffs. Thereafter,
plaintiffs filed an application at Ex.34 under Order XII
Rule 6 of the Civil Procedure Code (For short 'the Code')
seeking decree on admission. The said application was
resisted by the appellant by filing reply. After hearing the
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parties, learned trial Court allowed the application, and
suit of the plaintiffs was decreed on 18.06.2022.
3.3 Being aggrieved and dissatisfied with the
impugned judgment and decree, appellant - original
defendant has filed First Appeal.
4. Learned advocate for the appellant submitted
that, prior to the institution of suit, appellant had filed
HRP Civil Suit No.1378 of 2006 before the learned Small
Cause Court, Ahmedabad, seeking relief of injunction.
However, the said suit came to be dismissed on
01.04.2011.
4.1 It is further submitted that, respondents had
filed HRP Civil Suit No.2515 of 2006 for the property
situated on the rear portion of first floor of House No.327.
Respondents filed another suit being HRP Civil Suit
No.2516 of 2006 for the property situated on the front
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portion of the first floor. Both the suits were filed before
the learned Small Cause Court, Ahmedabad. HRP Civil Suit
No. 2515 of 2006 came to be decreed against the present
appellant and the decree has been executed in favour of
the respondent-plaintiff. However, HRP Civil Suit No.2516
of 2006 came to be dismissed on the ground that the
landlord's allegation in that suit was that the tenancy was
created after 2001 and as per Section 4A of the Bombay
Rent Act, any tenancy created after the cut-off date, the
provisions of the Bombay Rent Act would not be applied.
Therefore, the said suit was dismissed without entering
into the merits of the case, and the issue of tenancy was
never decided. After dismissal of the suit by the learned
Small Cause Court on 01.04.2011, respondent-plaintiff filed
the present suit for recovery of possession of the front
portion of first floor. In the written statement, it is specific
averments made by the appellant-defendant that the Civil
Court has no jurisdiction to try and decide the suit and
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has denied the tenancy being created after 2001. It is also
contended in the Written Statement that the plaintiff has
to establish that the suit property was let out to the
appellant from 15.01.2002.
4.2 It is submitted that there is no admission in
worth name in the written statement regarding the
allegations raised in the plaint. It is further submitted that
the appellant is occupying the suit property since 1998 as
a tenant. Therefore, the provisions of Order XII Rule 6 of
the Code are not applicable in the given set of facts.
4.3 In support of his contentions, learned advocate
for the appellant has relied upon the following decisions.
(i) Payal Vision Ltd. Vs. Radhika Choudhary
reported in 2012 (11) SCC 405 : 2012 LawsSuit (SC)
605;
(ii) S.M.Asif Vs. Virender Kumar Bajaj reported in
2015(9)SCC 287 : 2015 LawSuit (SC) 757 and
(iii) Karan Kapoor Vs. Madhuri Kumar reported in
2022 (9) SCC 496 : 2022 LawSuit (SC) 776.
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4.4 It is further submitted that the Court can pass a
decree under Order XII Rule 6 of the Code of Civil
Procedure, if the jural relationship between the parties and
service of notice of termination of tenancy under Section
106 of the Transfer of Property Act, are not disputed in
the Written Statement. It is further submitted that the
defences raised by the defendant in the Written Statement
goes to the root of the matter and the exercise of
discretion in passing a decree under Order XII Rule 6 of
the Code is against the scope of the said provision. Mere
relationship of the landlord and tenant cannot be said to
be an unequivocal admission to decree the suit under the
provisions of Order XII Rule 6 of the Code.
5. Per contra, learned advocate for the respondents
- plaintiffs has supported the judgment and decree and
submitted that the plaintiff filed two Civil Suits being HRP
Civil Suit No.2515 of 2006 for the rear portion on the first
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floor and HRP Civil Suit No.2516 of 2006 for the property
situated on front portion of the first floor. Both suits were
tried and decided by the learned Small Causes Court,
Ahmedabad. The HRP Civil Suit No.2515 of 2006 came to
be decreed and the plaintiffs have received the possession
of the property. However, HRP Civil Suit No.2516 of 2006,
came to be dismissed. The plaintiffs in that suit contended
that the suit property was let out to tenant on 15.01.20022
at monthly rent of Rs.800/- per month. Considering the
provisions contained in Section 4A of the Bombay Rent
Control Act, the learned Small Cause Court held that since
the tenancy is post suspension of Rent Act, for want of
jurisdiction, the suit came to be dismissed. The said
judgment and decree were not assailed by either of the
parties before the learned Appellate Bench of the Small
Causes Court, Ahmedabad.
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5.1 Before the institution of the suit for possession,
respondents had issued a notice under Section 106 of the
Transfer of Property Act dated 12.05.2011 which was
received by the appellants on 13.05.2011. In the Written
Statement, there is no specific denial regarding the non-
receipt of the notice. However, defendant-appellant has
contended in the Written Statement that the notice which
has been sent by the plaintiff is wrong.
5.2 It is further contended that the contention of
tenancy which was pleaded in HRP Civil Suit No.2516 of
2006 has been put to a rest and HRP Civil Suit No.1378 of
2006 which was filed by the appellant - tenant came to
be dismissed by the competent Rent Court.
5.3 Reliance which has been placed by learned trial
Court in the case of Payal Vision Limited Vs. Radhika
Choudhary, reported in (2012) 11 SCC 405, lays down
correct proposition of law.
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5.4 Learned advocate for respondent has relied upon
the decision in the case of Karam Kapahi & Ors. Vs. M/s. Lal
Chand Public Charitable Trust and Anr. reported in AIR(2010)
SC 2077 and submitted that the Court has the power to
pass a decree under Order XII Rule 6 of the Code of Civil
Procedure (CPC).
5.5 In the case of Karam Kapahi (supra), learned
advocate for the respondent has specifically relied upon
paragraph Nos.48 and 49, which is reproduced as under:-
"48. In the 54th Law Commission Report, an
amendment was suggested to enable the Court to give
a judgment not only on the application of a party but
on its own motion. It is thus clear that the amendment
was brought about to further the ends of justice and
give these provisions a wider sweep by empowering
judges to use it `ex debito justitial, a Latin term,
meaning a debt of justice. In our opinion the thrust of
the amendment is that in an appropriate case, a party,
on the admission of the other party, can press for
judgment, as a matter of legal right. However, the
Court always retains its discretion in the matter of
pronouncing judgment.
49. If the provision of order 12 Rule 1 is compared
with Order 12 Rule 6, it becomes clear that the
provision of Order 12 Rule 6 is wider in as much as
the provision of order 12 Rule 1 is limited to admission
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by `pleading or otherwise in writing' but in Order 12
Rule 6 the expression `or otherwise' is much wider in
view of the words used therein namely: `admission of
fact.........either in the pleading or otherwise, whether
orally or in writing'.
5.6 It is contended by learned advocate for the
respondent that, in absence of a specific denial regarding
the jural relationship of landlord and tenant respectively
coupled with none denial of receipt of the notice would
give a power to the Court to pass a decree under Order
XII Rule 6 of the Code of Civil Procedure. By issuance of
notice, the tenancy of the appellant - tenant was
terminated by respondent-landlord. Learned trial Court has
therefore, rightly exercised the powers by resorting to the
provisions of Order XII Rule 6 of Code.
6. I have considered the submissions canvassed by
learned advocates for the respective parties and also
perused the record. It appears from the plaint that the suit
for possession alongwith arrears of rent was filed against
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the appellant-tenant. The HRP Civil Suit No.1378 of 2006
which was filed by the appellant against the respondents
before the learned Small Causes Court, Ahmedabad,
seeking a relief of permanent injunction came to dismissed
on 01.04.2011. It appears from the submissions of learned
advocate for the appellant that, no appeal is filed against
the judgment and decree passed in HRP Civil Suit No.2515
of 2006. However, Civil Appeal No.83 of 2011 is filed
against the judgment and decree of dismissal of HRP Civil
Suit No.2516 of 2006 by the appellant. This fact is culled
out from paragraph No.7 of the written statement. If the
judgment and decree passed in HRP Civil Suit No. 2516 of
2006 is perused, it appears that the said suit came to be
dismissed by the learned Small Causes Court on the
ground for want of jurisdiction, as the tenancy, as per the
case of landlord, was post 2001, more particularly, dated
15.01.2002. While dismissing suit, all issues were not dealt
with on merits. Therefore, HRP Civil Suit No.2516 of 2006
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is decided without testing the merits and demerits of the
respective parties.
7. Coming back to the controversy raised in the
present appeal with regard to the scope of Order XII Rule
6 of the Code of Civil Procedure, it would be profitable to
reproduce Order XII Rule 6 of the Code:-
Order XII Rule 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 thing
fit, having regard to such admissions."
8. Rule 6 mandates that where admissions of fact
has 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, having regard to
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such admissions. To invoke the provisions of Rule 6 of
Order XII there has to be an admission of fact which is
made either in pleading or otherwise.
9. A decree can be passed under order XII rule 6
on the basis of an admission whether it is contained in the
pleadings or elsewhere. Such an admission may be in
writing or may even be oral. No particular form of
admission is necessary. The admission in writing can be
either in a written statement in that very suits, counters
or affidavits in the miscellaneous proceedings and in
certain cases the admission in the pleadings in other
proceedings. The admission has to be unambiguous,
certain and incapable of any confusion. When defendant
raises issues of law and fact, judgment would not be
passed on admission under rule 6.
In order to enable the Court to pass a judgment
under order XII rule 6 of the Code on the basis of
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admissions in the pleadings, Court must come to the
conclusion that there is a clear and unequivocal admission
of the defendant in respect of the claim of the plaintiff.
Although order XII rule 6 is couched in wide terms but it
can be acted upon only where admissions are clear,
unambiguous and unequivocal. When defendant raises
questions of fact or law, Which are required to be
considered at the time of trial of the case, no decree can
be passed in terms of order XII rule 6 of the Code.
Accordingly, pleadings of parties are required to be
considered and scrutinized to find out if the decree on the
alleged admissions of the defendant can be passed in the
present case.
10. While exercising the powers under Rule 6 of
Order XII, the Court has to be satisfied with the fact that
there is an admission of a fact. On reading of the
provisions, the discretion vest with the Court and it is not
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a right of a party. While exercising such discretion, the
Court has to ascertain that the admission is clear,
unequivocal and unambiguous and for such exercise of
discretion, the Court has to consider the Written Statement
as a whole. And the Court has to be satisfied that
defendant has admitted a fact pleaded by plaintiff and on
such clear admission powers under Rule 6 of Order XII
cane be exercised.
11. In the present case, an assertion is made by the
plaintiff in the plaint that the tenancy of the appellant-
defendant is created on 15.01.2002 and since the
competent rent Court did not decide the suit and dismissed
the suit for want of jurisdiction, a Notice of termination
dated 12.05.2011 came to be issued to the appellant and
since the defendant-tenant did not act as per the notice of
termination, the suit was filed for claiming possession and
arrears of rent. It appears from the Written Statement that
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defendant has raised a dispute of the jurisdiction by
contending that the defendant is in possession of suit
property as tenant before 2001 more particularly since
1998. When the dispute of jurisdiction is raised by the
defendant in the Written Statement, the exercise of
discretion under Order XII Rule 6 was uncalled for. On
reading the contentions raised in the Written Statement, it
appears that there is no clear, unequivocal and
unambiguous admission on the part of defendant, whereby
a decree can be passed without a full fledged trial.On
reading written statement, Court may find that the defence
raised by defendant, eventually may fail after the trial.
And the defence which is raised may not be sufficient to
oust the plaintiff from claiming possession of the property.
But that exercise can only be done after the trial is
complete. The judgment and decree of the dismissal of
HRP Civil Suit No.1378 of 2006 was not challenged by the
tenant and that dismissal of suit has attained finality. The
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judgment and decree passed in HRP Civil Suit No.2516 of
2006 was assailed before the learned Appellate Court and
the same is pending on the date of filing of the Written
Statement is a fact which ought not to have gone
unnoticed by the learned trial Court.
12. In the HRP Civil Suit No.2516 of 2006, the same
defence is raised by the tenant that he is in possession of
the property as tenant from 01.10.1998. The defence which
has been raised by the defendant in the Written Statement
requires a trial and therefore, no decree can be passed by
invoking the provisions of Rule 6 of Order XII in the facts
of the present case. Resultantly, present First Appeal
succeeds. Accordingly, judgment and decree dated
18.06.2022 is hereby quashed and set aside. The Civil Suit
No.112 of 2012, is restored to its original file. Learned
trial Court shall decide the suit on its own merit and
without being influenced by the observations made
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hereinabove.
13. Since the Civil Suit is of 2012 and plaintiff is
waiting for outcome of the suit, the learned trial Court
shall decide the present suit as early as possible preferably
within a period of 6 months from the date of receipt of
this order. Both the parties shall give full cooperation to
the learned trial Court in speedy disposal of the suit
without seeking unnecessary adjournments.
14. Record and proceedings, if any, received, be
sent back to the concerned Court forthwith.
15. In view of the disposal of the main matter, the
connected Civil Applications stand disposed of accordingly.
(D. M. DESAI,J)
MANOJ
