Delhi District Court
Sh. Majid Khan Kerikatti vs Smt. Satwinder Gondal on 6 September, 2022
IN THE COURT OF ADDL. DISTRICT JUDGE-02
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar.
MCA No.13/22
Filing No.2039/2022
CNR No. DLST01-004050-2022
In the matter of:
Sh. Majid Khan Kerikatti
S/o Sh. Nazir Khan
R/o Flat No. C-6, A-10,
Sai Apartments, Duggal Colony
Khanpur, New Delhi-110062.
.......Appellant
Versus
Smt. Satwinder Gondal
W/o Late Sh. Rakesh Gondal
R/o 451, Delhi apartment
Dwarka Sector-22,
New Delhi - 110077
..........Respondent
Date of Institution : 07.05.2022
Date of reserving the judgment : 16.08.2022
Date of pronouncement : 06.09.2022
Decision : Appeal Dismissed
MCA No.13/22
Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal
Page 1 of 30
Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
ORDER
1. This is an appeal filed by the appellant herein, against the impugned Order dated 19.04.2022 passed by Ld. ACJ/CCJ/ARC, South, Saket Courts Complex, Saket, New Delhi, in the Civil Suit bearing no.743/2019 titled Mrs. Satwinder Gondal Vs. Mr. Majid Khan Kerikatti whereby the Ld. Trial Court had allowed an application of the plaintiff under Order 12 Rule 6 CPC and another application under Order XXXIX Rule 10 CPC. The appellant has filed the present appeal under Order XLIII Rule 1, the Code of Civil Procedure, 1908 (Act no. 5 of 1908), (hereinafter referred to as 'CPC'). However, the present appeal being against an order / judgment passed by Ld. Trial Court under Order 12 Rule 6 CPC, the present appeal should have been filed under Order 41 CPC. It is settled position of law that wrong mentioning of a provision of law is not a fault and it can always be corrected by the Court. Hence, it is hereby directed that the present appeal shall be considered as a regular civil appeal under Order 41 CPC. In the civil suit before the trial Court, the status of the appellant was that of the defendant and that of the respondent was of the plaintiff. Herein the appellant and the respondent shall also be referred to their original status before the trial Court.
MCA No.13/22Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 2 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
2. Before proceeding further, it would be relevant to discuss the facts of the case in nutshell. The brief facts of the case, necessary for deciding the appeal at hand, are that plaintiff Mrs. Satwinder Gondal had filed a suit for recovery of possession, recovery of arrears of rent, damages, mesne profits, interest and mandatory injunction against the defendant. The plaintiff claimed that she was the exclusive owner of the property situated at A-10, Flat No. C-6, Sai Apartment, Duggal Colony, Khanpur, New Delhi (hereinafter referred to as "the suit property"). The defendant was a tenant in the said property. A rent agreement dated 06.11.2018 was also executed. The defendant had to pay Rs.18,000/- per month as rent to the plaintiff. The defendant started defaulting in making payment of the rent. Therefore the plaintiff terminated the rent agreement through e-mail dated 17.06.2019. The defendant did not vacate the premises despite termination of the premises. Hence the suit was filed, seeking relief, inter alia, a decree of possession of the suit property and arrears of rent.
3. The defendant appeared and filed his Written Statement. The defendant would take the objections in the Written Statement, inter alia, that there was no cause of action in favour of the plaintiff. The defendant would state in the Written Statement that in the month of May 2015, the MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 3 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. defendant had taken property No. A-10, Flat No.10, Sai Apartments, Duggal Colony, Khanpur, New Delhi on rent through property dealer. In October, 2018 the plaintiff offered to sell the suit property to him as she wanted to shift to Canada. The defendant agreed to purchase the property for a total sum of Rs.50 lacs. On 04.11.2018 the defendant paid Rs.5 lacs in cash to the plaintiff as earnest money against a receipt issued by the plaintiff. It was agreed that till the defendant makes payment of Rs.25 lacs against the sale consideration of the suit property, he shall pay a rent of Rs.18,000/- per month to the plaintiff. On 06.11.2018 a rent agreement was executed. On 01.12.2018 the defendant shifted in the suit property. On 29.05.2019 the plaintiff informed him that she had sold the suit property to someone else and asked him to vacate the premises by 30.06.2019. When the defendant offered to hand over the remaining amount, she refused to accept the same. She also refused to return the earnest money. Hence, it has been prayed that the suit may be dismissed.
4. The plaintiff filed an application Under Order XII Rule 6 CPC and another application under Order XXXIX Rule 10 CPC. Vide the impugned Order dated 19.04.2022, Ld. Trial Court had allowed the application under Order XII Rule 6 CPC holding that the defendant had admitted in his Written MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 4 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. Statement that he was a tenant in the suit premises at monthly rent of Rs.18,000/-. Hence, a decree of possession was passed in favour of the plaintiff and against the defendant thereby directing the defendant to vacate the suit premises within 30 days from the date of the Order.
5. Against the said impugned Order the present appeal has been filed by the defendant challenging the order passed by Ld. Trial Court under Order XII Rule 6 CPC. It is noteworthy that the appellant has not challenged the Order of Ld. Trial Court on the application under Order XXXIX Rule 10 CPC.
6. Following points have arisen for consideration in the present appeal.
"1. Whether there were admissions sufficient to pass the impugned order under Order 12 Rule 6 CPC?
"2. Whether the impugned order could have been passed even though there were some triable issues in the matter?"
7. Ld. counsel for the appellant would argue that the Trial Court failed to appreciate that the alleged admission of tenancy by the appellant was not an admission in true sense but only narrative of facts leading to execution of agreement to sell in respect of the suit property. The rent agreement was only a conditional agreement till the payment of the agreed amount by MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 5 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. the appellant. There are various triable issues raised in the Written Statement which are required to be proved by leading evidence. It has been further argued that the Trial Court, while passing the impugned order, has given a finding that the receipt dated 04.11.2018 filed by the appellant in support of his defence appears to be a sham document. This finding is contrary to the established principles of natural justice and amount to adjudication on the veracity of the said documents even without going into evidence. Due to the order of the Trial Court, the appellant would be deprived from the right to prove his defence of execution of agreement to sell for the suit property on merits. Further, the Trial Court had failed to consider that the respondent, who claims to be the owner of the property, had mortgaged the same with the bank and concealed the said fact from the Court. The respondent is not entitled to receive any rent in respect of the suit property as she is no longer the owner of the property. Ld. Counsel has also filed Written Submissions. In the written submissions, he has relied upon two judgments i.e. 1. Hari Steel and General Industries Ltd. & Anr. v. Daljeet Singh & Ors. Civil Appeal No. 4265/2019, decided by Hon'ble Supreme Court on 24.04.2019; and 2. Ameer Minhaj V. Dierdre Elizabeth (Wright) Issar & MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 6 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. Ors. Civil Appeal no. 18377/2017 decided by Hon'ble Supreme Court on 04.07.2018.
8. Ld. Counsel for the respondent, on the other hand, would argue that the present appeal is not maintainable. The respondent is the rightful owner of the suit property. The appellant had categorically admitted the rent agreement and the fact that he was a tenant in the suit property paying rent @ Rs.18,000/- per month. The alleged receipt produced by the appellant is a forged document. In any case, the said document does not create any right in favour of the appellant in the suit property. Once the appellant admits that he was a tenant in the suit property, he was liable to vacate the property after receiving the notice of termination. He did not vacate the premises therefore the suit was filed. The Ld. Trial Court has rightly passed the order allowing the application Under order XII Rule 6 CPC. There is no error in passing of the said Order. Hence, it is prayed that the appeal may be dismissed. Ld. Counsel has filed written submission and he has relied upon the following judgments in support of his arguments:-
1. Sunil Kapoor Vs. Himmat Singh & Ors.:167 (2010) DLT 806;
2. Asha V. Wadhwani & Anr. Vs. Varun Jethmalani (Deceased) Through LRs & Ors.: CS(OS)113/2013 decided by Hon'ble High Court of Delhi on 19.02.2020;MCA No.13/22
Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 7 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
3. M/s Jwala Pershad Ashok Kumar Chopra H.U.F. and another Vs. M/s Nath Tubes Pvt. Ltd. And others: 1994 SCC OnLine Del 342;
4. Chandrakant Shankarrao Deshmukh Vs. Haribhau Tukaramji Kathane and Ors.: MANU/MH/0519/1982;
5. S.S. Puri Vs. R. Chander Shekar: 1994 IAD (Delhi) 98;
6. Mrs. Uma Hada Vs. Mr. Sunil Gupta: CS(OS) 339/2020 of Hon'ble High Court of Delhi, decided on 03.06.2021.
9. I have heard the rival submissions and perused the material available on record including the judgments relied upon by the parties.
10. A Court, under Order XII Rule 6 CPC, has power to pass a judgment on the basis of admissions of facts made in the pleadings or otherwise. Order XII Rule 6 CPC reads as under:-
"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 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 Rule was amended by Act 104 of 1976, by which several Amendments were made to the Code of Civil MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 8 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. Procedure, 1908. Prior to the amendment, judgment on admissions were confined only to an application in writing. By virtue of the Amendment, whether admissions are oral or in writing, Court is empowered, at any stage, of the suit, to give judgment on admission(s). In case of Himani Alloys Limited v. Tata Steel Limited (2011) 15 SCC 273 the scope of Order XII Rule 6 CPC was considered. It has been held as under:
"11. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000) 7 SCC 120] , Karam Kapahi v. Lal Chand Public Charitable Trust [(2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] and Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha [(2010) 6 SCC 601: (2010) 2 SCC (Civ) 745] .)...."MCA No.13/22
Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 9 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
12. In Karam Kapahi v. Lal Chand Public Charitable (2010) 4 SCC 753 Hon'ble Supreme Court has discussed the purpose of the law. It has observed as under:-
"37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy" (see the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth [(1876) 3 Ch D 637] in Chancery Division at p. 640).
"xxx "39. 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 the Judges to use it "ex debito justitiae", 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.
"40. 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 inasmuch as the provision of Order 12 Rule 1 is limited to admission 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".MCA No.13/22
Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 10 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
"41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan [(2005) 11 SCC 279] , SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas's Commentary on the Code, 16th Edn., Vol. II, p. 2177).
"42. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000) 7 SCC 120] this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment. "43. In Uttam Singh Duggal case [(2000) 7 SCC 120] it was contended on behalf of the appellant, Uttam Singh Duggal, that:
"a) Admissions under Order 12 Rule 6 should only be those which are made in the pleadings.
"(b) The admissions would in any case have to be read along with the first proviso to Order 8 Rule 5(1) of the Code and the court may call upon the party relying on such admission to prove its case independently. "(c) The expression "either in pleadings or otherwise"
should be interpreted ejusdem generis. (See para 11, p. 126-27 of the Report.) Almost similar contentions have been raised on behalf of the Club. In Uttam Singh [(2000) 7 SCC 120] those contentions were rejected and this Court opined no effort should be made to narrow down the ambit of Order 12 Rule 6.
"44. In Uttam Singh [(2000) 7 SCC 120] this Court made a distinction between a suit just between the parties and a suit relating to the Specific Relief Act, 1963 where a declaration of status is given which not MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 11 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. only binds the parties but also binds generations. The Court held that such a declaration may be given merely on admission (SCC para 16 at p. 128 of the Report). But in a situation like the present one where the controversy is between the parties on an admission of non-payment of rent, judgment can be rendered on admission by the court.
"45. Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of the Madhya Pradesh High Court in Shikharchand v. Bari Bai [AIR 1974 MP 75] . G.P. Singh, J. (as His Lordship then was) in a concurring judgment explained the aforesaid Rule, if we may say so, very authoritatively at p. 79 of the Report. His Lordship held : (AIR para 19) "... I will only add a few words of my own. Rule 6 of Order 12 of the Code of Civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now Rule 3 of Order 27, and is almost identically worded (see Annual Practice, 1965 Edn., Part I, p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen [(1914) 1 Ch 904 : (1911-13) All ER Rep 906] . In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against sub-letting. Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under Rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that Rule. Sargant, J. rejected the argument that the Rule is confined to admissions made in pleadings or under Rules 1 to 4 in the same order (same as ours) and said:MCA No.13/22
Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 12 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. "The Rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.' Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargant, J. The words 'either on the pleadings or otherwise' in Rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial."
"46. This Court expresses its approval of the aforesaid interpretation of Order 12 Rule 6 by G.P. Singh, J. (as His Lordship then was). Mulla in his commentary on the Code has also relied on the ratio in Shikharchand [AIR 1974 MP 75] for explaining these provisions."
13. It has been argued on behalf of the appellant that the Ld. Trial Court had passed the order under Order XII Rule 6 CPC despite the fact that there were triable issues in the matter. Hence, it is prayed that the order may be set aside.
14. I have considered the submission. However, I do not find any merits in the said submissions. I get strength from the judgment of the Hon'ble High Court of Delhi in Surjit Sachdev v. Kazakhstan Investment Services Private Limited, 66 (1997) DLT 54 (DB) wherein it has been held that a Court can pass judgment under Order 12 Rule 6, the CPC, without waiting for determination of any other question between the parties. It has been held as under:
MCA No.13/22Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 13 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
"16. A bare reading of Rule 6 would suggest that Court either on the application of any party or on its own motion and without waiting for determination of any other question between the parties proceed to give judgment as it may think fit having regard to the admission..."
"17. ...The factors which deserve to be taken into consideration in order to enable the Court to pass a decree in plaintiff's favor as regards possession in such like suit. are: (a) existence of relationship of Lesser and lessee or entry in possession of the suit property by defendant as a tenant; and (b) determination of such relation in any of the contingency, as envisaged in Section 111 of the Transfer of Property Act. One of the modes stated therein is by efflux of time limited by the lease. Only on unequivocal admission of the above two factors will entitle the plaintiff to a decree on admission. Admission need not be made expressly in the pleadings. Even on constructive admissions Court can proceed to pass a decree in plaintiff's favour."
15. Further, Hon'ble High Court of Delhi in Asha V Wadhwani & Anr vs Arun Jethmalani & Ors CS (OS) No. 113/2013, decided on 18 March, 2020 has held that a judgment under Order XII Rule 6 CPC can be passed even after settlement of issues and during the trial. The Hon'ble High Court has held as under:
"18. I have considered the aforesaid contentions and for the reasons following, am of the view that no trial is necessary in the present suit, notwithstanding issues MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 14 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. having been framed and the plaintiffs are entitled to a decree for possession forthwith:
"(A) The contention of the counsel for the defendants, that because issues have been framed, trial is necessary, and the Court, even if during the recording of evidence finds that, on the pleadings, there is no need for trial, cannot pass judgment, is no longer res integra. Reference may be made to Charanjit Lal Mehra Vs. Kamal Saroj Mahajan (2005) 11 SCC 279, Parivar Seva Sansthan Vs. Dr. Veena Kalra 2000 SCC OnLine Del 469 (DB) (SLP(C) Nos.18712-
18713/2000 preferred whereagainst was dismissed on 27th November, 2000), KR Impex Vs. Punj Lloyd Ltd. 2019 SCC OnLine Del 6667, State Trading Corporation of India Ltd. Vs. Nirmal Gupta 2012 SCC OnLine Del 3556 (DB), Meera Gupta Vs. Dinesh Chand 2001 SCC OnLine Del 830 (DB) and Sanjay Sharma Vs. Madan Mohan Sharma 2013 SCC OnLine Del 2434 where it has been unequivocally held that even after framing of issues, decree on admissions can be passed.
"(B) The counsel for the defendants has not even pressed the aspect of the plaintiffs being entitled to continue in possession under the protection of Section 53A of the Transfer of Property Act. The defendants have not pleaded any written Agreement to Sell and which is a sine qua non for invocation of Section 53A.
Reference in this regard may be made to Sardar Govindrao Mahadik Vs. Devi Sahai (1982) 1 SCC 237, Mool Chand Bakhru Vs. Rohan (2002) 2 SCC 612, Nanjegowda Vs. Gangamma (2011) 13 SCC 232, Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi (2002) 2 SCC 676 and Kaushal Aggarwal MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 15 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. Vs. Ashok Malhotra 2009 SCC OnLine Del 373. As far as the plea of the defendants, of oral Agreement to Sell is concerned, the defendants, notwithstanding the pendency of this suit since the year 2013, have till date not initiated any action for specific performance thereof and the claim, even if any of the defendants for specific performance, would now be barred by time."
16. It is settled position of law that in a matter related to landlord/tenant dispute, a Court is not required to decide the issue of ownership. Hon'ble Delhi High Court in Ashok Kumar Bagga vs Rajvinder Kaur, RFA 226/2020, decided on 7 April, 2021, has held as under:
"13. Coming now to the next issue, it is a settled law that in order to seek a decree of possession against a tenant, the landlord has to fulfill certain parameters which have been enumerated and carved out in several judgments from time to time and are as follows:-
"(i) Relationship of landlord and tenant. "(ii) Tenancy is not a protected tenancy under the Delhi Rent Control Act, 1958.
"(iii) There is no registered subsisting lease agreement.
"(iv) Tenancy has been terminated and the respondent tenant has failed to hand over possession.
"14. In this context, I may refer to the judgment of Supreme Court in Payal Vision (Supra), relevant para of which is as follows:-
"7. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff-landlord is the existence of MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 16 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the CPC. which reads as under:
"xxx "8. The above sufficiently empowers the Court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case where the plaintiff seeks to invoke the powers of the Court under Order XII Rule 6 of the CPC and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. (supra) relied upon by the High Court where this Court has observed: "Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 17 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation."
17. Perusal of the record in the present case would show that the plaintiff/respondent has claimed herself as the exclusive owner of the suit property i.e. A-10, Flat no. C-6, Sai Apartment, Duggal Colony, Khanpur, New Delhi. The defendant/appellant in his WS has admitted the said facts. However, the claim of the appellant / defendant is that he had entered into an agreement to purchase the suit property from the plaintiff/respondent for a total sale consideration Rs. 50 lakhs and paid Rs. 5 lakhs as earnest money on 04.11.2018 against a written receipt. As per the appellant/defendant, it was agreed between him and the plaintiff that he shall pay a rent of Rs.18000/- per month of the suit property to the plaintiff. A rent agreement was also admittedly executed on 06.11.2018. However, as per the appellant/defendant, it was agreed that the defendant shall pay the said amount of the rent per month until he makes payment of Rs. 25 lakhs against the sale consideration of the property.
MCA No.13/22Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 18 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
18. As the record would reveal, the defendant/appellant has admitted that he had taken the suit property on rent from the plaintiff. Thus, the landlord/tenant relationship is admitted between the plaintiff and defendant. It is settled position of law that once the landlord/tenant relationship is admitted between the parties, the tenant is under a duty to vacate the premises after receiving the notice of the termination of the tenancy.
19. It is also settled position of law that in such a case, the tenant can not dispute that there was no service of notice as service of the summons of the suit is considered to be service of notice under Section 106 Transfer of Property Act. I get strength from the judgment of Hon'ble Supreme Court of India in case titled Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728. Hon'ble Supreme Court has held as under:
"22. In the present case, after serving a notice under Section 6-A read with Section 8 of the Act, the protection of the tenant under the Act automatically ceased to exist as the rent of the tenanted premises exceeded Rs 3500 and the bar of Section 3(c) came into play. At the risk of repetition, since, in the present case, the increase of rent by 10% on the rent agreed upon between the appellant and the respondent brought the suit premises out of the purview of the Act in view of Section 3(c) of the Act, it was not necessary to take leave of the Rent Controller and the suit, as MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 19 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. noted hereinabove, could be filed by the landlord under the general law. The landlord was only required to serve a notice on the tenant expressing his intention to make such increase. When the eviction petition was pending before the Additional Rent Controller and the order passed by him under Section 15 of the Act directing the appellant to deposit rent at the rate of Rs 3500 was also subsisting, the notice dated 9-1-1992 was sent by the respondent to the appellant intimating him that he wished to increase the rent by 10 per cent. Subsequent to this notice, another notice dated 31-3- 1992 was sent by the respondent intimating the appellant that by virtue of the notice dated 9-1-1992 and in view of Section 6-A of the Act, the rent stood enhanced by 10 per cent i.e. from Rs 3500 to Rs 3850. It is an admitted position that the tenancy of the appellant was terminated by a further notice dated 16- 7-1992/17-7-1992. Subsequent to this, Eviction Petition No. 432 of 1984 was withdrawn by the respondent on 20-8-1992 and the suit for eviction, out of which the present appeal has arisen, was filed on 6- 2-1993. That being the factual position, it cannot at all be said that the suit could not be filed without the leave of the Additional Rent Controller when, admittedly, at the time of filing of the said suit, the eviction petition before the Additional Rent Controller had already been withdrawn nor can it be said that the notice of increase of rent and termination of tenancy could not be given simultaneously, when, in fact, the notice dated 16-7-1992/17-7-1992 was also a notice to quit and the notice intending increase of rent in terms of Section 6-A of the Act was earlier in date than the notice dated 16-7-1992/17-7-1992. In any view of the matter, it is well settled that filing of an eviction suit MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 20 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this Court in V. Dhanapal Chettiar v. Yesodai Ammal [(1979) 4 SCC 214 : AIR 1979 SC 1745]."
20. In the present case, Ld. Counsel for appellant/defendant, during course of the arguments, would further argue that the defendant had come in possession of the suit property in part performance of the agreement to sell entered into between the plaintiff/respondent and the defendant/ appellant. Hence, the plaintiff can not seek eviction of the appellant from the said property.
21. I have considered the submissions. However, I do not find any merits in the same. No such plea was taken in the Written Statement. Be that as it may, the law is well settled that is a party wants to take the defence of part performance of an agreement to sell, there are certain condition which should be fulfilled. It is settled position of law that a mere agreement to sell of immovable property does not create any right in the property. In the present case, it is for the defendant to prove that he had entered into an agreement to sell qua the suit MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 21 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. property with the plaintiff. Still, even if it is presumed, for the sake of arguments, that the plaintiff and the defendant had entered into an agreement to sell the suit property, it does not provide any rights to the appellant/defendant to occupy the suit property as an agreement purchaser. The appellant, therefore does not have any right to remain in possession of the premises merely because of the alleged agreement to sell in his favour. I get strength from the judgment passed by Hon'ble High Court of Delhi in case titled Sunil Kapoor Vs. Himmat Singh & Ors. 167(2010) DLT 806. The facts before the Hon'ble High Court in the said matter were somewhat similar to the present matter. Rather, in the said case, the defendant had also filed a suit for specific performance. The Hon'ble High Court in the said matter has held as under:
"12. Section 53 (A) of the Transfer of Property Act codifies the doctrine of part performance. A purchaser of immovable property, who in pursuance to an agreement to sell in writing has been put into possession of the property, is entitled to so remain in possession. However, in the present case, there is no agreement to sell in writing. The respondents/plaintiffs deny inter alia the averments of the petitioner/defendant of what transpired on 8th July, 2004. Be that as it may, in none of the receipts relied upon by the petitioner/defendant, is there any mention of delivery of possession/constructive possession to the petitioner/defendant of the premises in part MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 22 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. performance of the agreement to sell. The express plea of the petitioner/defendant in this regard is also of an oral agreement to that effect on 8th July, 2004. Even if the receipts relied upon by the petitioner/defendant are to be termed as an agreement in writing, the same as per the petitioner/defendant also are executed by the respondents 1 & 2 only. There is no agreement in writing with the respondent no.3. The property admittedly belongs to all three of them and the petitioner is claiming the agreement with all three of them. There is no authority in writing shown of the respondent no.3 in favour of respondent no.1 and/or respondent no.2. The agreement to sell with the respondent no.3 as per the plea of the petitioner/defendant is thus oral only. "xxxx "14. Even otherwise, the Stamp Act and the Registration Act as applicable to Delhi were amended w.e.f. 24th September, 2001. After the said amendment an agreement to sell of immovable property where- under the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90% of the total agreed sale consideration. Section 49 of the Registration Act was also amended. A plea of part performance in the absence of a registered document cannot thus be taken. The petitioner/defendant cannot thus protect his possession in part performance of the agreement to sell. "15. What follows is that even if the petitioner/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 23 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined.
"16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment. If that be so, there is no common question involved in the previously instituted suit for specific performance and the subsequently instituted suit for ejectment."
22. Further, Hon'ble High Court of Delhi in Uma Hada v. Sunil Gupta, (2021) 2 HCC (Del) 401, has also held as under:
"21. Regarding the reliance of the defendant on Section 53A CPC is concerned, reference may be had to Section 53A the Transfer of Property Act, 1882. The same reads as follows:-
"53A.Part Performance-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that , where there is an instrument of MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 24 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract, Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
"22. Reference may also be had to Section 17 (1A) of the Registration Act which reads as follows:- "17. Documents of which registration is compulsory.--
(1) .... (1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53-A."
"23. This court in the case of Arun Kumar Tandon vs. Akash Telecom Pvt. Ltd & Anr., (supra) held as follows:- "6. It is absolutely clear that in order to give benefits of Section 53A of Transfer of Property Act, the document relied upon must be a registered document. Any unregistered document cannot be looked into by the court and cannot be relied upon or taken into evidence in view of Sections 17(1A) read with Section MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 25 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. 49 of the Registration Act. Thus, benefit of Section 53A could have been given to the respondent if and only if the alleged Agreement to Sell cum receipt satisfied the provisions of Section 17(1)A of the Registration Act. Section 35 of the Indian Stamp Act gives a mandatory direction to the courts that no instrument chargeable with duty shall be admitted in evidence for any purpose or shall be acted upon by any public officer unless such instrument is duly stamped. Article 23 A provides that where contract is for transfer of immovable property in the nature of part performance in any Union Territory under Section 53A, it attracts 90 per cent of the duty as that of a conveyance deed. Thus, the alleged Agreement to Sell could not have been looked into by the court for any purpose, contrary to the mandate of the statute as given in Section 35 of the Indian Stamp Act. xxx 10. I, therefore, consider that the trial court could not have given benefit of Section 53A of Transfer of Property Act to respondent under any circumstances even if a suit for specific performance filed by respondent No. 2 was pending. Pendency of a suit for specific performance would not have debarred the court below from looking into the document relied upon by the respondent and the effect of the document as to whether such a document can even be looked into by the court for any purpose whatsoever. When the document itself could not be looked into, the question of giving benefit to respondent on the basis of this document would not arise. It was obligatory on the court below to be aware of the law and to apply the law as it stood. Section 17(1)A of the Registration Act and Section 35 of the Indian Stamp Act were very much there on the statute book. No plea can be taken MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 26 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. that these sections were not brought to the notice of the court. Like any other citizen of this country, Judges are also supposed to know the law and apply correct law. Benefit of Section 53A could not have been given to the respondents of a document which could not be looked into. If this document is not looked into, the respondents continue to be in possession unauthorisedly, after expiry of the lease agreement and the respondents were liable to pay the arrears of rent and monthly rent during pendency of the suit to the petitioner as reflected by the lease agreement."
"24. Hence to seek relief under Section 53A of the Transfer of Property Act, the documents relied upon to evidence an Agreement to Sell must be registered. The so called receipts which are relied upon by the defendant to claim an agreement to sell dated 08.09.2019 and 05.03.2020 are unregistered documents. The defendant cannot rely upon the same to take any advantage of Section 53A of the Transfer of Property Act. There is no merit in the said plea raised by the defendant."
23. In the present case, there is no registered agreement to sell shown to be executed between the respondent/plaintiff and the appellant/defendant. Therefore, the appellant/defendant can not take the defence of the part performance under section 53 A of the Transfer of Property Act.
24. During course of the argument, it was also argued that the Ld. Trial Court had not considered the copy of the receipt dated 04.11.2018 even though, the said receipt could have been MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 27 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. proved in evidence during trial. Therefore, the Trial Court has wrongly reached at a conclusion that receipt dated 04.11.2018 filed by the appellant in support of his defence appears to be a sham document.
25. I have considered the submissions. I do not find any findings of the Ld. Trial Court in the order dated 19.04.2022 holding that the receipt dated 04.11.2018 is a sham document. Therefore, this submission is contrary to the record. The Trial Court has only observed that the photocopy of the receipt was filed and the original was not filed. No doubt, a party can prove a photocopy of a document by leading secondary evidence during trial. Be that as it may, even if the said receipt is presumed to be true, for the sake of argument, the appellant/ defendant can not resist the present suit for the relief of possession because of the above-mentioned position of law.
26. During course of the argument, it has also been argued that the plaintiff has concealed a material fact that the property was mortgaged with a bank and therefore, the plaintiff is not entitled to receive any rent and possession of the suit property. I have considered the said submission, however, there are no merits in the same. As already discussed hereinabove, once the defendant has admitted that he was a tenant of the MCA No.13/22 Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 28 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022. plaintiff in the suit property, he can not raise any objection regarding the title of the plaintiff in the suit property. Further, the admissions by the defendant in the Written Statement are clear and unequivocal admissions which are sufficient to prove the landlord/tenant relationship between the parties. Therefore, the Trial Court has rightly passed a judgment and decree of the possession of the suit property in favour of the plaintiff/respondent and against the defendant/appellant under Order XII Rule 6 CPC.
27. I have studied the judgments relied upon by the Ld counsel for the appellant. In Hari Steel and General Industries Ltd. & Anr. v. Daljeet Singh & Ors. Civil Appeal No. 4265/2019, decided on 24.04.2019, Hon'ble Supreme Court has discussed the law related to the scope of judgment under Order XII Rule 6 CPC. However, the said judgment is distinguishable on facts. In the present case, there are unequivocal and clear admissions made by the appellant/defendant in the Written Statement. Similarly in the case titled Ameer Minhaj V. Dierdre Elizabeth (Wright) Issar & Ors. Civil Appeal no. 18377/2017 decided on 04.07.2018, the facts of the case were altogether different from the facts of the present case. Therefore, those two judgments are of no help to the appellant.
MCA No.13/22Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 29 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.
28. In the light of the discussion herein-above, I hold that there is no illegality in the impugned order dated 19.04.2022, passed by Ld. ACJ/CCJ/ARC(South, Saket Courts). The order is therefore, upheld. Consequently, the appeal is dismissed. In the circumstances of the case, the parties shall bear their own cost.
29. TCR be sent back to the concerned Court immediately alongwith copy of this order. The parties shall appear before the Ld. Trial Court on 06.09.2022.
Pronounced in the open Court on this 06th day of September 2022.
DINESH Digitally signed by DINESH
KUMAR
KUMAR Date: 2022.09.06 22:55:41
+05'30' (DINESH KUMAR)
ADDL. DISTRICT JUDGE-02
SOUTH, SAKET COURTS, NEW DELHI.
MCA No.13/22
Sh.Majid Khan Kerikatti Vs. Smt. Satwinder Gondal Page 30 of 30 Dinesh Kumar/ADJ-02/South/Saket/ND/06.09.2022.