Calcutta High Court
Karnani Properties Limited vs Rajesh Mitra & Anr on 29 June, 2022
1
OD-6
CS/154/2021
IA NO. GA/1/2021
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
KARNANI PROPERTIES LIMITED
Vs.
RAJESH MITRA & ANR.
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Date: 29th June, 2022
Appearance:
Mr. Sabyasachi Choudhury, Adv.
Mr. Biswanath Chatterjee, Adv.
Mr. N. Choudhury, Adv.
Ms. A. Poddar, Adv.
...For the petitioner
Mr. Dilip Kumar Mukherjee, Adv.
Mr. P.K. Nandi, Adv.
Mr. L. Chatterjee, Adv.
Ms. Gargi Roy Chowdhury, Adv.
...For the defendants
ORDER
The plaintiff had filed an instant application under Order XII Rule 6 of the Code of Civil Procedure, 1908 praying for passing of Judgment and Decree upon admission against the defendants for eviction and recovery of khas possession of the suit property.
2
The plaintiff has filed this suit praying for the following reliefs:-
"a) Decree for eviction and recovery of khas possession of the suit property more fully described in the Schedule being Annexure 'A' hereto against the defendants;
b) Decree for mesne profits for Rs. 15,60,000/- against the defendants in terms of paragraph 12 hereof along with an interim interest and interest upon judgment at the rate of 10 % per annum and further mesne profits from August, 2021 onwards;
c) In the alternative to,
(b) an enquiry into mesne profits and a decree for such sum as may be found due to payable upon such enquiry against the defendants;
d) Judgment upon admission;
e) Injunction;
f) Attachment;
g) Receiver;
h) Costs;
i) Further or other reliefs."
The Counsel for the plaintiff submits that since 20.08.1970, Usha Mitra who was the mother of the defendants herein was a tenant under the plaintiff for a monthly rent of Rs. 200/- in relation to a single Room Flat bearing No. 208 on the 2nd floor at premises No. 25A, Park Street, Kolkata. The mother of the defendants was irregular in making payment of rent and was a defaulter by not paying the rent for several years and the defendants are in occupation of the suit property since lifetime of their mother.
The plaintiff has relied upon the statement made by the defendant no. 1 in CS 162 of 2016 on 11.04.2021 wherein during the cross examination the defendant no. 1 has stated as follows:-
"33. Flat No. 208 in respect whereof you are an occupant - is it a tenancy? Yes, it is in my mother's name.
34. Your mother is UshaMitra - am I right?
Yes, Late UshaMitra.3
35. When did UshaMitra expire?
On 3 Novermber, 2009.
rd [Witness volunteers:- My mother was a member of the Association.]"
By referring the said portion of the evidence of the defendant no. 1 in CS 162 of 2016, the counsel for the plaintiff submits that by operation of law upon the death of the mother of the defendants on 03.11.2009, the defendants being the legal heirs of the original tenants who survived her upon her demise after the expiry of a period of five years on and from 03.11.20144 became trespassers.
The Counsel for the plaintiff relied upon Section 2 (g) of the West Bengal Premises Tenancy Act, 1997 which reads as follows:-
"(g) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and [in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him or a person authorised by the tenant who is in possession of such premises,] but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction :
Provided that the time limit of five years shall not apply to the spouse of the tenant who was a ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises :4
Provided further that the son, daughter, parent or the window of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises [on condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose."
The Counsel for the plaintiff submits that as the defendants have admitted that the mother of the defendants was the tenant and mother expired on 03.11.2009 and as such after the period of 5 years, the defendants have no right over the suit property and as such they are the trespassers and are in wrongful occupation of the suit property.
The Counsel for the plaintiff further submits that as there is an admission of the defendants thus no trial is required in the suit and the nature of admission is such that it is impossible for the defendants to succeed in the suit.
The Counsel for the plaintiff further submits that on 20.08.1970, the mother of the defendants has admitted that she has become a tenant under the plaintiff with respect of the suit property as per the terms and conditions contained in the letter dt. 20.08.1970. The mother of the defendants has also affirmed an affidavit on 14.08.1970 stating the fact that her husband Late Sudhir Kumar Mitra died on 06.07.1970 and after the death of her husband she has become the sole tenant of the flat and her husband left no other heirs except her.
The Counsel for the plaintiff further relied upon the monthly tenancy receipts which were issued in the name of the mother of the defendants. 5
The Counsel for the plaintiff further submits that after filing of the instant application, the defendants have filed the written statement by making an untrue and incorrect statement and have not disclosed any defense to the claim of the plaintiffs. The Counsel for the plaintiff submits that as the defendants have no right over the suit property and it is impossible for the defendants to succeed in the suit as per the admission made by the defendants before the Court on oath and prayed for passing a decree on admission.
The Counsel for the plaintiff relied upon the judgment reported in (2000) 7 SCC 120 and submits that in the cross examination the defendant no.1 in CS No.162 of 2016 categorically admitted the facts that their mother expired on 3 rd November, 2009 and mother was the tenant of the suit property and the defendants have got opportunity to explain the said admission but the defendants have not given any explanation.
The Counsel for the plaintiff has also relied upon Section 18 and section 33 of the Evidence Act.
Per contra, the Ld. Counsel for the defendants submits that the father of the defendants Mr. Sudhir Kumar Mitra was the original tenant and after his death in the year 1970, the defendants along with their mother became joint tenants of the suit property. The Counsel for the defendants has denied the tenancy agreement and the affidavit executed by the mother of the defendants as relied by the plaintiff.
6
The Counsel for the defendants submits that the plaintiffs cannot take away the rights of the defendants inherited in the year 1970 as per Section 2(h) of the West Bengal Premises Tenancy Act, 1956.
The Counsel for the defendants further submits that during the lifetime of the mother of the defendants, the plaintiff lost right to collect rent from the mother of the defendants and thus many of the tenants approached this Court and in terms of the order passed by this Court, the defendants have been paying the rent to the Advocate/Special Officer appointed by this Court.
The Counsel for the defendants further submits that neither the defendants nor their mother were having any relationship with the plaintiffs since 1970 till date as landlord and tenant. He further submits that with regard to the Karnani Properties Limited, a suit is pending before the City Civil Court being T.S. 887 of 2021 and T.S. 972 of 2021 wherein purported ownership of the property in question is in dispute.
The Counsel for the defendants further submits that Usha Mitra being the 2nd wife of the original tenant was not legally entitled to opt tenancy in her name alone without disclosing about the defendants who were minors at the relevant point of time as they were the son and daughter of the first wife namely Rekha Mitra.
The Counsel for the defendants further submits that Order XII Rule 6 is not applicable in the instant case as the alleged admission relied by the plaintiff is made by the defendant no.1 and not by the defendant no.2. 7
The Counsel for the defendants further submits that the plaintiff has brought the suit against the defendant is totally false and perjury and the defendants have never admitted the claim of the plaintiff.
The Counsel for the defendants relied upon the judgment reported in (1988) AIR (Delhi) 153, (2006) AIR (Delhi) 266, (2007) 97 DRJ 687, (2003) AIR (Bombay) 369 and (2011) 15 SCC 273 and submits that the application filed by the plaintiff under Order XII Rule 6 is not applicable in the instant case.
The Counsel for the defendants submits that Section 18 of the Evidence Act is applicable in the instant case and not Section 18 of the Evidence Act.
The Counsel for the defendants prays for dismissal of the application filed by the plaintiff.
Heard, the Ld. Counsel for the respective parties perused the materials on record and the judgments relied by the parties.
Order XII Rule 6 reads as follows:-
"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."
The plaintiff has filed the application for passing decree on admission on the basis of the statement made by the defendant no. 1 in another suit being C.S. No. 162 of 2016 wherein the defendant no. 1 has admitted that the 8 defendant no. 1 is in occupation of the suit premises as tenant and the said tenancy is in the name of his mother and it has also admitted that his mother Usha Mitra died on 03.11.2009.
The said statement of the defendant no. 1 corroborates the letter dt. 20.08.1970 wherein the mother of the defendants had agreed that she has taken possession of the premises on 14.08.1970 and in the affidavit she stated that she has become the tenant after the death of her husband, the rent receipts also proves that since the year 1970, the rent receipts are in the name of Usha Mitra.
As per the order passed by this Court in other suit, an Advocate/ Special Officer was appointed for collection of rents and in the receipts it is categorically mentioned that he has received the amount as an occupation charges and in the said receipt, it is also made a note that the payment shall not confirmed any right to claim any tenancy or other rights.
Section 2 (h) of the West Bengal Premises Tenancy Act, 1956 which reads as follows:-
"(h) "tenant" [means] any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and [(includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death) but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.]"
Section 18 of the Evidence Act which reads as follows:-
"18. Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived.- Statements made by a party 9 to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions.
Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by-
1. persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested or
2.
3. persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,
4. are admissions, if they are made during the continuance of the interest of the persons making the statements."
The Counsel for the plaintiff relied upon the judgment reported in(2000) 7 SCC 120 (Uttam Singh Dugal and Company Limited vs. Union of India and Ors.) paragraph 12reads as follows:-
"12. As to the object of Order 12, Rule 6, we need not to say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is clear admission of facts in the face of which it is impossible for the party making such admission to succeed."10
The Counsel for the defendants relied upon the judgment reported in (1989) AIR (SC) 1470 (H.C. Pandey Vs. G.C. Paul) and relied upon paragraph 4 of the said judgment which reads as follows:-
"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice u/s 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed."
The Counsel for the defendants relied upon the judgment reported in 35 IndCas 563 (Shaik Sahed Vs. Krishna Mohan Basak) in paragraph 1 which reads as follows:-
"1. The plaintiff, a co-sharer landlord, brought a suit for arrears of rent against defendants Nos. 1, 2 and 3, the heirs of his original tenant. Defendant No. 1 did not appear, but defendants Nos. 2 and 3 appeared and filed a written statement denying the rate of rent alleged by the plaintiff and pleading want of parties and dispossession of a part of the holding. The Court of first instance dismissed the suit for want of parties and dispossession of a part of the holding and expressed an opinion that the plaintiff had failed to prove the rate alleged by him. On appeal by the plaintiff the learned Subordinate Judge has given a money-decree against defendant No. 1 only for the entire claim. The defendent No. 1.appeals and it is contended on his behalf that the learned Subordinate Judge is wrong. The learned Subordinate Judge has held that defendant No. 1 used to pay the rent as the representative of the old tenant and is, therefore, liable to pay the whole rent, although there is no evidence that defendant No. 2 or No. 3 ever authorised him to pay rent. Now the defendant No. 1 was the 11 eldest son of his father, defendant No. 2 being a minor and defendant No. 3 a female, and he might be taken as representing the family in their relations with the landlord and if the landlord had brought a suit against him alone as his recorded tenant, there would perhaps have been no difficulty in his obtaining a decree for the rent claimed against him alone but the landlord has chosen to sue him as one of three tenants who stand in the place of one deceased tenant. Having brought his suit against all the heirs, he has recosrnised them all as his tenants and they must all be taken as one body of registered tenants holding one single holding. There is no case of a joint contract which might be enforced against any of the joint contractors, because the defendants have not made any joint contract. Section 43 of the Contract Act speaks of two or more persons making a joint promise and can have no application where parties become jointly interested by operation of law in a contract made by a single person. Reliance has been placed on the case of Sir Rameswar Singh v. JaidebJha 6 Ind. Cas. 387 : 12 C.L.J. 591. That was not a case in which the contract of one person was inherited by more than one; at least the report does not show that it was such a case. The observation there that it was competent to the plaintiff to bring his suit against any numbei of several joint tenants" must be read as applying to the facts of that case and for all that we know, that case may have been one in which the contract of tenancy was entered into jointly by the several tenants. The same remarks may also be made as to the case of Jogendra Nath Roy v. Nagendra Narain Nandi 11 C.W.N. 1026. The later case of Kashi Kinkar Sen v. Satyendra Nath Bhadro 7 Ind. Cas.840 : 15 C.W.N. 191 : 12 C.L.J. 642 is more in point, as the case was one of an inherited contract and supports the contention of the appellant. We think it was not open to the learned Judge to make for the plaintiff a case that he did not make for himself. The decree of the lower Appellate Court must, therefore, be set aside and the case sent back for a decision in accordance with law as a case against all the defendants. Costs to abide the result."
The Counsel for the defendants relied upon the judgment reported in 44 IndCas 80 (Calcutta High Court) (Krishna Das Roy & Ors. Vs. Kali Tara Chowdhurani & Ors.) Paragraph 6 which reads as follows:-
"6. I think the principle upon which the actual decision in the above case was partly based, viz., that the heirs of the original tenant constitute one body, and that in such a case there is only a joint liability, cannot be disputed. In such a case there is no promise by two or more persons. The contract is with a single person as tenant, and when he dies the liability of his heirs is a joint liability. The principle was followed in Shaik Sahed v. Krishna Mohan Basak 35 Ind. Cas. 563 : 24 C.L.J. 371."12
The Counsel for the defendants further relied upon the judgment reported in (1978) AIR (Allahabad) 88 (Budh Sen -Vs- Sheel Chandra Agarwal & Ors.) paragraph 10 and 11 which read as follows:-
"10. It is well-settled that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the demised premises or not. The mere fact that some of the heirs are not in actual occupation of the leased premises cannot operate to put an end to tenancy rights to which they have succeeded as a result of the demise of their predecessor-in-interest. In the instant case, there is a clear finding recorded by the court below that there was nothing on record to indicate that defendants Nos. 2 to 5 had at any stage surrendered their tenancy rights. Thus the mere fact that defendants Nos. 2 to 5 had no interest or took no part in the business of their father carried on by Sheel Chandra Agrawal, defendant No. 1, (the suit premises) could not operate to put an end to the tenancy rights succeeded to by defendants Nos. 2 to 5 as the heirs of the erstwhile sub-tenant who had died.
11. We shall now consider the basic question as to whether the notice u/s 106 of the Transfer of Property Act which was served on Sheel Chandra Agrawal alone and purported to terminate his tenancy could be relied upon as against the other heirs of the deceased sub-tenant. On this question, as noticed by the learned single Judge who has referred these second appeals to a larger Bench, there does appear to be divergence of opinion between H. N. Seth, J. who decided Smt Shafiqa v. Maqsood Ahmad Khan (1969 All LJ 1116) and Gursaran Lal, J. who rendered judgment in Smt. Vishnawati Vs. Bhagwat Vithu Chowdhry,_. Both the decisions primarily are based on conflicting interpretation of the Supreme Court decision in Kanji Manji Vs. The Trustees of The Port of Bombay,_. In our judgment, the interpretation of the Supreme Court decision by H. N. Seth, J. is preferable to that of Gursaran Lal, J. It has not been disputed, and rightly so, that on the death of a tenant, his heirs succeed to his rights not as joint tenants but as tenants in common. Mulla in his Transfer of Property Act, Sixth Edition at page 222 clearly brings out the distinction between 'joint tenants' and 'tenants in common' in the following words:--
"A joint tenancy connotes unity of title, possession interest and commencement of title; in a tenancy in common, there may be unity of possession and commencement of title, but the other two features would be absent." Similarly at page 639 of the Fifth Edition occurs a passage which runs as follows:--13
"Leases may be granted to any person who is competent to contract at the date of execution. A lease may be granted to several persons who may take as tenants in common or as joint tenants. In the case of joint tenants the interest of each person passes upon death to the survivors. In the case of tenants in common the interest of a deceased lessee passes at his death to his representatives."
The basic distinction thus between 'joint tenant' and 'tenants in common' is that in the case of joint tenant there is unity of title and possession while in the case of tenants in common though there is unity of possession there is no unity of title. The view, therefore, appears to be reasonable that while a notice served u/s 106 of the T. P. Act only on one of the joint tenants is effective to terminate the tenancy of all the joint tenants who have unity of title, no such result follows where a notice is served only on one of the tenants in common since there is no unity of title as between them in contra-distinction to the joint tenants. H. N. Seth, J. in Smt. Shafiqa v. Maqsood Ahmed Khan (supra) has, in our opinion, rightly observed that, "It is obvious, that the principle on which, notice given to one of the joint tenants may be considered to be notice to the entire body of joint tenants, cannot apply to a case of co-tenants. Co-tenants have no unity of title. Each one of the co-tenants is the owner of specific interest in the property and, therefore notice given to one of them cannot have the effect of determining the interest of other interest holder." The Counsel for the defendants further relied upon the judgment reported in (1988) AIR (Delhi) 153 (State Bank of India Vs. Midland Industries &Ors.) paragraphs 6, 7, 8 & 9 which read as follows:-
"(6) Having noted these facts of this case it would be appropriate to refer to Order 12 rule 6 Civil Procedure Code. which lays down as under :-
"6(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".14
There is no doubt that Rule 6 of Order 12 has been couched in a very wide language. However, before a court can act under Rule 6, admission must be clear, unambiguous, unconditional and unequivocal. Furthermore a judgment on admission by the defendant under Order 12 rule 6 CPC is not a matter of right and rather is a matter of discretion of the court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of or a motion under this rule the court is free to refuse exercising discretion in favor of the party invoking it. It is not in each case where Order 12 rule 6 CPC is invoked that the court 528 would be obliged to pass a decree which case would depend upon its own peculiar facts. Where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the plaintiff. The purpose of Order 12 rule 6 CPC is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of Order 12 rule 6 CPC without proving those issues.
(7) It was held by a Division Bench of the Calcutta High Court in Premsuk Das Assaram vs. Udairam Gunga bux, Air 1918 Calcutta 467 that :-
"A judgment on admission by the defendant under Order 12 rule 6, is not a matter of right ; it is in the discretion of the Court ; so that if a case involves question which cannot be conveniently disposed of on a motion under the rule, the Court may, in the exercise of its discretion, refuse the motion. The discretion is judicial and an erroneous exercise thereof may be open to correction by a court of appeal which, however, on well established principles, will be slow to interfere, unless either of the parties has been manifestly and unfairly prejudiced."
(8) It was similarly held by a Division Bench of Jammu & Kashmir High Court in Union of India vs. M/s. Feroze and Co., Air 1962 J&K 66 that :-
"A judgment on admission under Order 12 rule 6 is a matter of discretion and not a matter of right and the court would not entertain an application for such judgment when the case involves questions which cannot be conveniently dealt with in a motion under the rule. In order that a 15 judgment may be obtained under Order 12 rule 6 the admission must be unconditional, clear and unequivocal".
(9) In the case in hand not only admission is not unequivocal but further also the defendants have raised certain preliminary pleas which must be decided before the plaintiff can be held to be entitled to a decree. The preliminary objections raised by the defendants in this case go to the very root of the suit and are likely to non-suit the plaintiff if these were found against the plaintiff. Keeping in view of all these facts, I do not think that a case has been made out under Order 12 rule 6CPC. for passing a decree in favor of the plaintiff for the sum of Rs. 5,98,000.00 and as such I find no merit in this application and this application is liable to be dismissed and is dismissed."
The Counsel for the defendants further relied upon the judgment reported in (2006) 6 AD (Delhi) 166 (Raj Kumar Chawla -Vs- Lucas Indian Services) paragraphs 5 and 6 which reads as follows:-
"5. The provisions of Order XII are intended to provide expeditious grant of decree in favor of a plaintiff in a suit or proceedings where the defendant has made any admission in the pleadings or otherwise, orally or in writing of any amount due. The plaintiff would be entitled to a decree on the basis of such admission without waiting for completion of the trial. The provisions of Order XII Rule 6 were incorporated by way of amendment. The legislative object of these provisions is to curtail the period for determination of disputes between the parties to a suit and ensure that a decree on admission is passed without any unnecessary hindrance. The expression 'Admission' has been given a wider meaning and connotation so as to take within its ambit admissions made by a party in pleadings or otherwise, orally or in writing. These provisions thus are capable of liberal construction and without imposition of any unreasonable restriction, must be permitted to operate but the Courts have to be careful while passing a decree on admission. The Court essentially should look into the fact that all essential ingredients of an admission are satisfied before such a decree is passed in favor of any of the parties to the suit. Admission has to be unambiguous, clear and unconditional and the law would not permit admission by inference as it is a matter of fact. Admission of a fact has to be clear from the record itself and cannot be left to the interpretative determination by the Court, unless there was a complete trial and such finding could be on the basis of cogent and appropriate evidence on record. Rule 6 of Order XII certainly enables a party to obtain a speedy judgment fully or partially to which according to the admission of the defendant the 16 plaintiff is entitled to. In the case of the Uttam Singh Dugal& Co. Ltd. Vs. Union Bank of India and Others,_the Court while explaining the scope and ambit of these provisions held as under:
6. The powers under Order XII Rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle stated by Bai Chanchal and Others Vs. Syed Jalauddin and Others,-Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally should decline in the cases of the later category."
The Counsel for the defendants further relied upon the judgment reported in (2007) 97 DRJ 687 Delhi High Court (Express Towers P. LTD. & Anr. -Versus- Mohan Singh &Ors.) paragraphs 14 & 17 which reads as follows:-
"14. Under Order XII, Rule 6 of the Code, a decree can be passed or a suit can be dismissed when admissions are clear and unambiguous and no other interpretation is possible. The Court also is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. Right to pass a judgment or order under Order XII, Rule 6 of the Code is discretionary and not mandatory. It may not be safe and correct to pass a judgment under Order XII, Rule 6 of the Code when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an admission, the Court need not dismiss or allow the suit. Judgment on the basis of admissions is not a matter of right but a matter of discretion for the Court. Similarly relief of specific performance is a discretionary relief. The discretion, whether or not a decree for specific performance of an immovable property should be passed, is to be exercised or rejected by taking into account several factors and circumstances. Conduct of the parties is also to be examined. In this regard it may be stated that the appellants have taken possession of the property from the Income Tax Department and the respondent nos.1 and 2 had not given possession of 17 the property to the appellants. Section 20 of the Specific Relief Act reads as under:
17. In view of the facts and circumstances stated above and the defense raised by the respondent nos. 1 and 2, we do not think that in the present case a decree on the basis of admissions under Order XII, Rule 6 of the Code should be passed. Various issues and contentions are raised and involved. We feel the present case requires adjudication of contentions which should be decided after regular trial. The respondent nos. 1 and 2 will suffer injustice and denied fair trail in case the suit is decreed at this stage. Keeping in view the facts mentioned above, we feel that the appellants should be asked to prove and establish their case in trial by leading evidence."
The Counsel for the defendants further relied upon the judgment reported in (2003) AIR (Bombay) 369 (Western Coalfields Ltd. -Vs- Swati Industries) paragraphs 4 and 5 which reads as follows:-
"4. In the matter of judgment on admission, general rule is that the pleadings are to be read as a whole; admissions in pleadings cannot be dissected. The Court is vested with jurisdiction to pass a decree on admission on the strength of the principle laid down u/s 58 of the Evidence Act that admitted facts need not be proved and as such admissions can be considered as substantive evidence on which a decree can be passed.
5. If one examines the pleadings particularly para 9 of the written statement which is in reply to para 6-D of the plaint, and paras 20 and 21 of the specific pleadings, the admissions given by the defendant is not absolute, but it is conditional and it has been specifically stated that in terms of another contract, the said amount is already appropriated. Therefore, in these facts and circumstances, it cannot be said that there is an unqualified admission on the part of the defendant which would invite a decree against it for the said amount. The nature of admission made by the defendant cannot be held to be conclusive so as to invite an order under Rule 6 of Order 12, C.P.C. The nature of admission is such that it is only a statement of the case upon which the defendant intended to rely and would not operate as an estoppel against him as understood u/s 115 of the Evidence Act. As this admission made by the defendant is qualified, it is to be read as a whole while considering whether a decree can be passed against the defendant on such admission. As the admission is qualified and it is specifically pleaded that the said amount has been appropriated against another claim under contract between the parties, the Court should not have proceeded to pass the impugned order which would 18 be discretionary. DudhNathPandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali, (Dead) by Lrs,_. Therefore, in the facts and circumstances, the Court ought not to have passed the impugned order in the manner it has directed the defendant to deposit the amount in Court with a condition that on failure to deposit, the defendant will be liable to pay the interest on the said amount which was to be determined."
The Counsel for the defendants further relied upon the judgment reported in (2012) AIR (SCW) 567 (Himani Alloys Ltd. Vs. Tata Steel Ltd.) paragraphs 5 and 9 which reads as follows:-
"5. The specific case of the Respondent-Plaintiff in the application was that at a meeting held on 9.12.2000 for reconciling the accounts as on 31.3.1999, the Appellant admitted that a sum of Rs.74,57,074/50 was outstanding to the Respondent and therefore it was entitled to a judgment on admission for that amount. The learned single Judge found that there was No. such admission in regard to Rs.74,57,074/50 in the minutes of the meeting dated 9.12.2000. He however held that the minutes of the meeting dated 9.12.2000 recorded an admission by the Appellant in respect of a sum of Rs.47,06,775/70 and consequently made a judgment on admission in regard to Rs.47,06,775/70 against the Appellant. The question is whether such judgment on admission was justified.
9. 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 Dugal and Co. Ltd. Vs. United Bank of India and Others, Karam Kapahi and Others Vs. Lal Chand Public Charitable Trust and Another, and Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha (Huf) and Another,_ There is no such admission in this case."19
Now the consideration is whether the statement made by the defendant no. 1 in CS 162 of 2016 in the case of Karnani Properties Limited -Vs- Naseem Ahmed Khan as witness can be treated as admission and the on the basis of the said admission , judgment on admission can be passed in the instant case.
As per the plaint case of the plaintiff the suit scheduled property is Flat No. 208 of 2 nd Floor at the premises No. 25A, Park Street, Kolkata and the description of the property is admitted by both the parties. The defendant no. 1 during his evidence in CS 162 of 2016 dt. 11.04.2001 has admitted that the tenancy is in the name of his mother namely Usha Mitra and the mother expired on 03.11.2009.
As per Section 2 (g) of the West Bengal Premises Tenancy Act, 1997 in the event of death of any tenant, also includes, for a period not exceeding 5 years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death as the member of his family and were depended upon him and who do not own or occupancy of any residential premises, and in respect of the premises let out for non-residential premises purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as member of his family and were dependent on him or a person authorized by the tenant who is in possession of such premises but shall not 20 include any person against him any decree or order for eviction has been made by a Court of competent jurisdiction.
In the instant case, as per the case of the plaintiff after the death of father in the year 1970, the mother has become tenant and the mother has given an affidavit she is the only legal heir and her husband left no other heirs except her. As per the document i.e. rent receipts also reveals that the rent is only in the name of Usha Mitra i.e. the mother of the defendants. The documents relied by the defendants reveal that only after the death of the mother, the defendants are paying the monthly rent/occupation charges to the Ld. Special Officer.
The defendants in their affidavit in opposition have taken the plea that the defendants have acquired their tenancy right on 6 th July 1970 upon the death of their father who was the original tenant under the Act of 1956.
The defendants have further stated that ownership of the suit property in question as claimed by the plaintiff is not admitted and the same is the subject matter of the suit pending before the City Civil Court at Calcutta being Title Suit No. 887 of 2021 and Title Suit No. 972 of 2021.The said contention of the defendants are also not correct as the order passed by the Coordinate bench of this Court in CS No. 8 of 2016 ( Karnani Properties Ltd.- versus- Karnani Mansion Resident's Association & Ors) dt.18 th January 2016 Annexure "C" to the Affidavit in Opposition in the very first line the Coordinate Bench held that 21 "The Plaintiff in the suit is the owner of the properties collectively known as Karnani Mansion."
As per the evidence of the defendant no. 1, the mother expired on 03.11.2009. Five year from 03.11.2009 completed on 02.11.2014 and as per Section 2 (g), the defendants have no right to be in occupation of the premises after 02.11.2014.
The Counsel for the defendants relied upon Section 2 (h) of the West Bengal Premises Tenancy Act, 1956 but there is no document to show that the defendants are continuous in occupation of the tenanted premises along with the father since prior to 1970 or prior to 2009. The defendants have filed written statements only after filing of the application under Order XII Rule 6 of the CPC and to defeat the application filed by the plaintiff under Order XII Rule 6, the defendants have set up another defense then the statement made by the defendant no. 1 on oath before the Hon'ble Court in CS 162 of 2016.
As per Section 18 of the Evidence Act, statements made by a party to the proceeding or by any agent to any such party, the court records, under the circumstances of the case as expressly or impliedly authorized by him to make them an admission. In the instant case, the defendant no. 1 had made a statement in the proceeding and admitted that the mother was tenant and mother expired on 03.11.2009. The defendant no. 1 and defendant no. 2 have jointly filed their written statement but the defendant no. 1 has not made any 22 statement that the statement made by the defendant no. 1 in CS 162 of 2016 is not correct.
The plaintiff has filed an application under Order XII Rule 6 of the Code of Civil Procedure relying upon the statement made by the defendant no. 1 in CS 162 of 2016 and the said document was also annexed with the said application. The defendants were given an opportunity to controvert to the application filed by the plaintiff. In reply to the statement made by the plaintiff in paragraph 6 of the application under Order XII Rule 6 of CPC only the defendants have taken a defense that the statement during such cross- examination has been wrongly interpreted by the plaintiff to fulfill their evil desire but the defendants have not taken any steps before the Ld. Court in CS 162 of 2016 for correction of his evidence on the ground that the statement of the defendants was wrongly recorded.
Facts of all the cases relied by the defendants is different from the facts of the instant case. The instant case is totally based upon the West Bengal Tenancy Premises Act, 1997 and the defendants relied upon Section 2 (h) of the West Bengal Tenancy Premises Act, 1956 but as per the evidence of the defendant no. 1 in CS 162 of 2016, Section 2 (h) of 1956 Act is not applicable and as such none of the judgment relied by the defendants is not applicable in the instant case. The judgment relied by the plaintiff in the case reported in (2000) 7 SCC 120, the Hon'ble Supreme Court has held that admission generally arise when a statement is made by party in any of the modes provide 23 under Section 18 to 23 of the Evidence Act, 1872. The admissions are of many kinds they may be considered as being on the record as actual if i.e. either in the pleading or in the answer to the interrogatories or implied from the pleadings by none of traverse. Secondly as between the parties by agreement on notice.
In the instant case, the defendant no. 1 had admitted in evidence on oath before the Court and the same cannot be changed and thus this Court is of the view that the admission made by the defendant no. 1 can be treated as an admission and on the basis of said statement judgment on admission can be passed.
In view of the above, the plaintiff is entitled to get judgment and decree upon admission against the defendants for eviction and recovery of khas possession of the suit property.
The defendants are directed to vacate and hand over the possession suit property to plaintiff within sixty days from date.
Decree be drawn accordingly.
As regard other prayers of the plaint, the plaintiff is entitled to proceed with the suit in accordance with law.
G.A 1 of 2021 is thus disposed of.
(KRISHNA RAO, J.)