Delhi District Court
Sh. V.N. Gujral vs Smt. Kavita Chhibber on 10 May, 2014
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IN THE COURT OF SH. SHAILENDER MALIK
LD.SCJ/RC,NW/DELHI
Suit No.555/13
Sh. V.N. Gujral vs Smt. Kavita Chhibber
Order
1.By this common order I will disposed of application of defendant moved under Order 7 rule 11 CPC read with Section 151 CPC seeking for rejection s of the plaint as well as application of plaintiff moved under Order 12 rule 6 CPC seeking decree of suit on the alleged admission of defendant.
2. Facts necessary of disposal of both the applications are that plaintiff has filed the present suit for relief of possession, recovery of rent, damages etc. Plaintiff stated to be practicing advocate and defendant is also stated to be an advocate working as junior/ assistant with another advocate Vinod Kumar. On the request of Vinod Kumar plaintiff stated to have let out to defendant, one room with common kitchen in property no.106, Chand Lok, Pitam Pura, Delhi, with monthly rent of Rs. 10,000/ per month since August 2012 for a short period as defendant stated to have represented to plaintiff that her house is under construction and will be completed by Feb / March 2013 and defendant stated to have assured the plaintiff to vacate the premises latest by June 2013. It is stated that thereafter, defendant filed the suit for injunction being suit no. 316/13, pending in the court of Ld. ACJ, Rohini Court wherein defendant claimed her tenancy to be of one bed room, one drawing room, kitchen and bathroom alongwith garage at 2 ground floor and one room, one bathroom including some cover area and open space at first floor. It is stated that in order to avoid any controversy regarding the extended of tenancy, plaintiff stated to have admitted the area of tenancy as claimed by defendant in that suit. It is alleged that since defendant has been irregular in making the payment of rent and stated to have paid rent only up to August 2013, plaintiff vide notice dated 04.10.2013 terminated the tenancy of the defendant in terms of Section 106 of TP Act. Notice was duly served to defendant but defendant did not vacate the premises nor made payment of arrear of rent. Plaintiff stated to have served another notice dated 13.11.2013 but when possession was not given, present suit was filed for recovery of possession of tenanted premises consisting of one room, drawing room, kitchen, bathroom alongwith garage at ground floor and one room, one bathroom including some cover area and open space at first floor, as shown red in the site plan being part of property no.106, Chander Lok, Pitam, Pura, Delhi. Plaintiff also sought decree of sum of Rs. 30,000/ on account of arrear of rent with interest. Plaintiff also sought decree of damages @ Rs. 50,000/ per month alongwith interest.
3. On behalf of the defendant WS was filed taking at least 115 preliminary objections in WS which is of 50 pages. Some of legal objections taken in the WS are that plaintiff has not filed any documentary evidence of ownership. Plaintiff has played fraud and has suppressed material facts and legal notice dated 04.10.2013 and 13.12.2013 sent by the plaintiff are not correct in law. Suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction and suit is infractuous as there is no arrear of rent. It is further pleaded that since plaintiff has admitted the area of 3 tenancy as claimed by defendant in her suit no.316/13 therefore, suit is not maintainable as legal notice to quit sent by plaintiff were contradictory to each other. Defendant has also taken a plea of adverse possession while referring to different case laws and international laws. In the pleadings it is stated that suit of the plaintiff is not maintainable. It is however, not disputed that defendant is tenant but according to defendant since tenanted premises was not hygienic and was not in condition for human dwelling therefore, defendant stated to have spent Rs. 6 lakhs on renovation and making it habital. While reiterating that tenancy is consisting of one drawing room, one bed room, kitchen and bathroom including garage at ground floor and one room, one bathroom including some space at first floor. However, rate of rent is stated to be Rs. 10,000/. But the plea is taken that suit is devoid of cause of action. It is further pleaded that plaintiff is charging only Rs. 7,000/ from another tenant for more than double of the premises then what is let out to defendant as defendant has been regularly making payment of rent.
4. While taking up first application of defendant moved under Order 7 rule 11 CPC. It stated that since suit is devoid of action. It is stated that since suit is devoid of cause of action, and is not maintainable in law. It is stated that defendant has given the tenanted premises to sub tenanted and parted one rented room to 3rd party. Moreover, two legal notices dated 04.10.2013 and 13.11.2013 sent by plaintiff are contradictory to the WS of plaintiff given in the suit of the defendant, as such relief of possession is devoid of cause of action. Since there is no arrear of rent and legal notices are not legal therefore, 4 suit is devoid of cause of action being abuse of process of law. Moreover, the court does not have pecuniary jurisdiction to entertain the present suit, as such it is prayed that plaint may be rejected under Order 7 rule 11 CPC.
5. Copy of the application was given to Ld. Counsel for the plaintiff who instead of filling of reply straight away argued that application is abuse of process of law and defendant has failed to raise any fact, warranting for rejection of plaint on any of the clauses under Order 7 rule 11 CPC. It is argued that when tenancy and rate of rent and legal notice are not disputed the other facts have no bearing and therefore, application of the defendant is not maintainable and thus may be dismissed.
8. Having heard the submissions at bar and having gone through the record carefully, it is needless to mention at the very outset that order 7 rule 11 CPC provides of rejection of plaint, provisions casts the duty upon court to reject the plaint with conditions indicated in Rule 11 (a) 2 (d) CPC are found existing. In order to application under Order 7 rule 11 CPC, it is the plaint and the plaint alone which is to be considered. The plaint can not be rejected on the basis of allegations made by the defendant in his WS or in any application for rejection of plaint. The court has to read the entire plaint as the whole, to find duty where in all the grounds for rejections as provided in clause 11
(a) 2 (d) CPC of rule 11 CPC made out or not. First of the ground taken in present application is that plaint is devoid of cause of action, however it is hard to understand how suit is devoid of cause of action. It is admitted position of fact that defendant is 5 tenant of plaintiff for monthly rent of Rs. 10000. No doubt there is dispute as to what is area of tenancy because on one hand plaintiff states that though he let out only one bed room with common kitchen to defendant but since defendant in her suit filed for injunction has claimed tenancy to be consisting of one bed room, drawing room,kitchen & bathroom with Garage at ground floor & one room, bath room including open & covered space at first floor, therefore in order to avoid any future controversy, plaintiff accepted this area to be consisting of tenancy of defendant. As stated above defense of defendant cannot be considered while deciding whether plain is liable to be rejected or not, essentially, whether the plaint discloses a cause of action is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that according to defendant suit is not sustainable in facts & the plaintiff may not succeed, cannot be a ground for rejection of the plaint. Maintainability of suit is different than sustainability of suit. Under Order 7 rule 11 CPC court has to confine its consideration as to whether suit not maintainable at all, taking all facts as stated in plaint to be correct & on face of it. In M. V. Sea Success I v. L and L. S. P. and Indemnity Assocn. Ltd. AIR 2002 Bom. 151 it was observed that the Court has to see while exercising its power for rejection of plaint, which it must whether the 6 allegations in the plaint as they stand, fail to prove the cause of action. While considering the question whether the plaint discloses any cause of action or not, the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether a bogus, wholly vexatious or frivolous litigation has been initiated by the plaintiff or that the claim made by the plaintiff is a legally recognizable claim. What is required to be disclosed by the plaintiff is a clear right to sue and failure to do so must necessarily entail in rejection of the plaint.
7. So in facts of present case I do not find that suit is devoid of cause of action. Defendant has also failed to point out as under which provision of law suit is not maintainable, so far as other plea that two notices sent by plaintiff are contradictory or that suit is not properly valued for the purpose of court fee & jurisdiction. These fact or pleas being question of fact & defense, cannot be basis for rejection of plaint hence application of defendant is dismissed.
8. Now I take up application of plaintiff moved under Order 12 rule 6 CPC seeking judgment on admission of defendant. Before I discuss the facts of present case for deciding this application, I deem it appropriate to just discuss legal proposition in this regard, Order 12, Rule 6, C.P.C deals with Judgment on Admission. Order 12, Rule 6. Reads as under:
"(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 7 regard to such admissions.
(2) whenever a judgment is pronounced under subrule (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."
Order XII, Rule 6, C.P.C. is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. Where 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. It was held in Parivar Seva Sansthan v. Veena Kalra AIR 2000 Del. 349 that Rule 6 of O. 12, Civil P.C. confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The Court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis.
9. Now coming to the facts of the present case, plaintiff in this application under Order 12 rule 6 CPC has stated that since defendant in her WS has admitted the 8 relationship of landlord /tenant, has also admitted the rate of rent to be Rs.10,000/ and plaintiff has already duly terminated the tenancy as per Section 106 of TP Act by legal notice dated 13.11.2013 and said legal notice has been admitted by defendant to have served as stated in her WS therefore, it is prayed that suit may be decreed on the admission of defendant.
10. Defendant has filed the reply taking the objection that since there is dispute as area of tenancy and defendant has also taken a plea that plaintiff committed fraud by not disclosing all the true facts and and has concocted story. Moreover, there being other legal objections taken by defendant as to the maintainability of the suit therefore, it can not be stated that suit of the plaintiff is liable to be decree on any admission of fact.
11. Keeping the above discussed legal proposition in mind if we analysis the facts and circumstances of the case, no doubt the landlord/ tenant relationship is not disputed and also there is no dispute regarding rate of rent however, if we go through the pleadings as a whole defendant has taken a plea that legal notice sent by plaintiff are contradictory and not correct according to the provisions of law. Moreover, there is dispute as to the exact area of tenancy. As observed above on one hand plaintiff states in para 3 of the plaint that only one room with common kitchen of property bearing no.106, Chander Lok, Pitam Pura, Delhi, was let out but since defendant in her suit for injunction claimed the tenancy to be consisting of one room, drawing room, kitchen, bathroom with garage on ground floor and one room, bathroom including cover and open space at first floor. 9 Therefore, plaintiff in order to avoid any contradictory admitted that portion be covered under tenancy. Since plaintiff himself has not come up with specific case as to how much is the area of tenancy that being a other disputed question also involved, in such circumstances discretionary relief of decreeing the suit on alleged admission under Order 12 rule 6 CPC can not be given to the plaintiff, primarily because plaintiff has not himself made clear as to how much is the area of tenancy. Moreover, tenancy as it may be has been properly terminated or not in terms of Section 106 of TP Act by alleged two legal notices dated 04.10.2013 and 13.11.2013. These are question of facts which can be determined only after taking evidence. So far as judgment relied upon by Ld. Counsel for the plaintiff one of the judgment reference of which must be made at this stage, is of judgment of Apex Court in Jeevan Diesels & Electricals Ltd vs Jasbir Singh Chawla IV (2010) SLT 306, in which it was observed by Apex Court as: 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 admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though of the principles in Karam Kapahi (Supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.
12. Thus, from that observation itself it is being made clear that question of decreeing the suit on alleged admission is to be determined only in the light of the pecuniary facts of that case. In this case when there is dispute of many facts between plaintiff and defendant and both are practicing advocate I do not find that discretionary relief under Order 12 rule 6 CPC can be given. So far as judgment reported in Payal Vision Ltd vs 10 Radhika Choudhary 2012 (7)(SC) SLT 303, Surjit Sachdev vs Kazakhstan Investment Services Pvt. Ltd 1997 II AD (Delhi) 518, Rajpal Singh vs Deen Dayal Kapil 2014 (207) DLT 651, K. Kishore & Construction (HUF) vs Allahabad bank 1998 (71) DLT 581, Ghanshyam Dass Soni & Anr. Vs Sundri Apparels (India) Pvt. Ltd , 196 (2013) DLT 196 and Deepak Thirwani And Anr. Vs Lachman Das Mansharmani 2013 VII AD Delhi 53, as relied upon by counsel, without disputing the ratio of law laid down in those judgment it can safely be stated that all these judgment are different on all factual background. Therefore, can not be relied upon in the facts of the present case. Thus, for the reasons discussed above, I find that application of the plaintiff is also to be dismissed.
Announced in opened court on (SHAILENDER MALIK)
10 May 2014 SCJ/RC,NW/DELHI/10.05.14
th
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