Delhi District Court
Shekhar Bajaj vs Smita Batla @ Smita Srivastava on 9 June, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT; TIS HAZARI COURTS : DELHI
CS NO. 618978/16 (Old No. 572/16)
In re :-
Shekhar Bajaj
S/o Late Sh. B.D. Bajaj
R/o D-156, Kamla Nagar,
Delhi-110 007
...... Plaintiff
Versus
Smita Batla @ Smita Srivastava
C/o Kolhapuri Chappal House
At D/160, (Ground Floor)
Kamla Nagar,
Delhi-110 007
Also at:
D-358, Vijay Nagar,
Single Storey
Delhi
D-121 (Second Floor).
Gali No.1, Mahendru Enclave
Delhi-110 033
...... Defendant
SUIT FOR RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY,
DAMAGES AND MESNE PROFITS PENDENTE LITE AND FUTURE
Date of institution of present suit : 02.07.2016
Date of reserving order : 20.05.2017
Date of Order : 09.06.2017
ORDER
By this order application under Order 12 Rule 6 r/w Section 151 CPC filed by the plaintiff seeking judgment on admission shall be disposed of.
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1. By way of present application it has been stated by the plaintiff that plaintiff had filed suit against defendant for recovery of possession and damages in respect of the suit premises shown red in the site plan on record. It has been further stated that defendant has filed written statement along with certain documents including copy of Partnership Deed dated 01.07.1976 and in the said written statement defendant has unequivocally admitted the following:-
(a) Having send handwritten letter dated 27.07.2013 and the cheque annexed thereto to the plaintiff, stated to be on account of rent for the suit premises on behalf of Sh. Madan Lal, tenant;
(b) Sh. Madan Lal having received the notice of attornment dated 09.05.2012, which the plaintiff got sent through his lawyer to him. It has further been admitted by the defendant that even prior to the sending of attornment notice, the rent was paid by Sh. Madan Lal to the plaintiff for the month of June 2011;
(c) After sending of attornment notice, the plaintiff refused to accept the rent;
(d) As per the defendant's document called Partnership Deed dated 01.07.1976 apparently executed between Sh. Madan Lal and Sh. Jagdish Lal for carrying on business in partnership in the suit premises, Clause 5 whereof clearly mentions that the tenancy of the premises No. D/160, Kamla Nagar, Delhi- 110 007 (suit premises) is in the name of partner no. 1 i.e. Sh. Madan Lal.
2. It has been further stated in the application that in view of the admission as noted above it stood established that Sh. Madan Lal was the sole tenant in the suit premises and defendant not being a tenant is not entitled to continue in Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 2 of 14 possession of the suit property and suit is liable to be decreed straightaway for the relief of possession. It has been further stated in the application that plea of defendant that Sh. Jagdish Lal was also tenant along with Sh. Madan Lal in the suit premises is absolutely sham plea which in any case stands falsified by her own documents and on the aforesaid fact plaintiff has pleaded for passing of judgment on admission qua the relief of possession in respect of the suit property.
3. Defendant filed reply raising preliminary objection that there is no admission in the written statement entitling the plaintiff to the judgment on admission. On merits, the facts which are matter of record has not been denied. It has been further stated that written statement should be read in its entirety and not in piecemeal manner. It has been stated that the contents of the written statement if read in its entirety no alleged admission could be inferred in the written statement. Hence, application is liable to be dismissed.
4. Brief fact of the case as set out in the plaint is that plaintiff purchased a shop measuring 13.6' x 12' (approximately) situated on the ground floor of property bearing no. D/160, Kamla Nagar, Delhi-110 007 (hereinafter referred to as suit premises) from its erstwhile owner Smt. Pushpa Belani vide registered Sale Deed dated 04.07.2011. The suit premises was in the tenancy and occupation of Sh. Madan Lal, who was carrying on business of Kolhapuri Chappals, Sandals, etc. under the name and style of Kolhapuri Chappal House. The plaintiff, on purchase of the suit premises, got sent a notice of attornment dated 09.05.2012 to Sh. Madan Lal. Sh. Madan Lal expired on 13.08.2013 without leaving any legal heir. His wife and only son had predeceased him. It is further averred that since the death of Sh. Madan Lal, the suit premise is lying closed and the defendant has put her lock on it and the same is under her illegal and unauthorized possession. The defendant for and on behalf of Sh. Madan Lal sent a cheque of Rs.3,120/- to the plaintiff along with a handwritten covering letter stating the same to be on account of rent for the suit Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 3 of 14 premises but the plaintiff did not encash the same.
5. It is further averred that plaintiff is entitled to recover and the defendant is liable to vacate and hand over the vacant peaceful possession of the suit premises to him. The plaintiff approached and requested the defendant to vacate the suit premises and hand over the vacant peaceful possession to him. Although the defendant assured that she will vacate the suit premises soon, but later, flatly declined/refused to vacate the same. The plaintiff got a legal notice dated 11.05.2016 sent to the defendant calling upon defendant to vacate and hand over the vacant peaceful possession of the suit premises and further calling upon to pay charges for use and occupation of the premises @ Rs. 50,000/- per month w.e.f. 14.08.2013 along with interest @ 15% per annum.
6. Upon being served, the defendant had filed written statement taking preliminary objection that the suit is barred by Section 50 of Delhi Rent Control Act as the defendant is lawful tenant and rate of rent is Rs.130/- per month, hence the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 CPC. The plaintiff has not valued the suit properly and is bad for non-joinder of parties. On merits, plaintiff denied the averments made in the plaint. It is stated that Sh. Madan Lal had expired in the year 2013 and thereafter, the defendant and Smt. Sunita w/o Jagdish Lal are in possession of the suit premises as lawful tenants and running business. It has been submitted that since the very start the tenancy is continuous and lawful tenants are in possession of the premises without any break and the tenancy is still continuing and last rent was paid to the owner i.e. the plaintiff @ Rs.130/- per month by Sh. Madan Lal.
7. Plaintiff filed replication thereby denying the averment of written statement and reiterated the contents of the plaint.
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8. Arguments on the application for judgment on admission have been addressed by the respective counsels for the parties.
9. It is no longer resintegra that Court can pass judgment on admission at any stage of the proceeding either on its own or on the application of either parties. The admission may be clear, unequivocal and explicit or it may be constructive i.e. need not be specific or expressive. The admission may be in the pleadings or otherwise namely in documents, correspondence etc and power to grant decree on admission is discretionary, however, discretion is to be exercised judiciously and not in arbitrary and irrational manner. Summing of the power, provision and objective of Order XII Rule 6 CPC Hon'ble Division Bench of Delhi High Court in Vijaye Myne v. Satya Bhushan Kaura, 142 (2007) DLT 483 (DB) held:-
"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 5 of 14 stand taken while arguing the matter would be required to be ignored"
10. It will also be useful to note the observation made by the Hon'ble high Court in Guru Nanak Vidya Bhandar Trust v. Union of India & Ors. 2006 IV AD (Delhi) 73 "The plea would clearly run contrary to the plain language of the Section. This view is fortified by a later DB Judgment of the Court in Parivar Seva Sansthan v. Dr. Ms. Veena Kalra AIR 2000, Delhi 349 in which it was observed:-
Bare perusal of the above Rule shows that it confers very wide powers on the Court to pronounce judgment on admissions 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 admissions either on an application of any party or on its own motion without determining the other questions. Even constructive admission firmly made can be made the basis. Any plea raised against the contents of the document only for delaying the trial being barred by Ss. 91 and 92 of the Evidence Act or other statutory provisions can be ignored. These principles are well settled by catena of decisions in Dudh Natjh Pandey Versus Suresh Chandra AIR 1986 SC 1509 Atma Ram Properties Versus Air India 1997.1.AD (Delhi) 641 Surjit S. Kazakhstan ISP Ltd. Versus Charanjit Lal 1998.2. DLT 476; Laxmik and Versus MN Dasrur 1998.4.AD (Delhi) 10. The use of the word any state in the rule itself shows that the intention of legislature is to give widest possible meaning. Thus mere framing of issues cannot be itself deter the court to pass judgment on admissions under Order 12 Rule 6 CPC. The case of Kartar Singh runs only 2 paras without any discussion. It does not reflect any proposition of law."
11. Thus, the above case laws are clear to the extent that constructive admission may also form the basis of judgment on admission. In other words if pleadings of defendant and documents relied upon by the defendant is taken as true but despite that it does not make out a case in favour of the defendant then court can enter upon judgment on admission if otherwise plaintiff is not disqualified for the Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 6 of 14 relief claimed.
12. Pith and substance of the argument of the counsel for the defendant is that if written statement is read as whole and in its entirety no case of admission is made out. Thus, it has got to be seen if contents of written statement coupled with documents relied upon by the defendant read in its entirety entitles the plaintiff to obtain the relief of possession pending trial on other relief.
13. The case of the plaintiff in nutshell is that plaintiff had purchased the suit premises from the previous owner by way of registered Sale Deed dated 04.07.2011 and upon having purchased the suit premises plaintiff issued notice of attornment dated 09.05.2012 to Sh. Madan Lal asking him to attorn the plaintiff as landlord/owner in respect of the tenanted premises. After the aforesaid notice defendant for and on behalf of Sh. Madan Lal sent rent for period of July 2011 to July 2013 along with written letter duly signed by Sh. Madan Lal and the defendant. The cheque annexed was drawn by the defendant in favour of the plaintiff. Sh. Madan Lal expired leaving behind no legal heir as his wife and only son predeceased him. Plaintiff issued notice to the defendant for her illegal and unauthorized occupation of the suit premises asking her to vacate the same. Since defendant did not vacate the suit premises, plaintiff filed the present suit for possession and damages.
14. The case of the defendant is that initially Sh. Ram Lal father of Sh. Madan Lal was the tenant in the suit premises and was running business with the help of his two sons namely Madan Lal and Jagdish Lal. Upon demise of Ram Lal, both Madan Lal and Jagdish Lal were doing business in partnership in the name of M/s Kolhapuri Chappal House from the suit premises as lawful tenants. Jagdish Lal expired in the year 1999 and after expiry of Jagdish Lal, Sanjay Batla son of Jagdish Lal and husband of defendant started doing business in partnership with Madan Lal Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 7 of 14 under the name and style of Kolhapuri Chappal House. Sanjay Batla expired in the year 2010 leaving behind defendant and children. After the death of Sanjay Batla, Smt. Smita Batla became partner and doing business jointly with Madan Lal. Smt. Sunita W/o Jagdish Lal and mother-in-law of defendant had also been helping the defendant. Madan Lal expired in the year 2013 and thereafter defendant and Smt. Sunita are in possession of the suit premises as lawful tenants and running business. In this background it has been the case of the defendant that suit of the plaintiff is barred under Section 50 of Delhi Rent Control Act as the rent is admittedly Rs.130/- per month and the suit is also bad for non joinder of Smt. Sunita and other LRs of Jagdish Lal.
15. Along with the reply defendant had placed on record 14 documents which are as under:-
1. copy of letter dated 27.11.1959
2. copy of Regional Settlement Commissioner Letter No. 11683/578A
3. copy of Death Certificate Late Sh. Ram Lal
4. English Translate copy of Bill
5. copy of Partnership Deed dated 01.07.1976
6. copy of Income Tax Return of Jagdish Lal, year 1989 and 1991-1992
7. copy of Declaration of registration dated 14.12.1992
8. copy of Income Tax assessment of Jagdish Lal
9. copy of Registration Certificate of the establishment dated 26.07.1973
10. copy of Electricity No. 32K300941/G36
11. copy of Partnership Deed, dated 03.06.2009
12. copy of Partnership Deed, dated 27.02.2010
13. copy of receipt of Municipal Corporation
14. Form No. 2D of Smt. Sunita, Assessment year 2002-2003
16. Since rent has been sent to the plaintiff by Sh. Madan Lal alongwith Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 8 of 14 covering letter duly signed by Madan Lal and defendant (and was not disputed even during the course of argument by the Counsel for defendant), therefore, there is no dispute to the effect that Sh. Madan Lal had attorned the plaintiff. Hence, defendant cannot question the relationship of plaintiff with the suit property. Even otherwise plaintiff had placed on record true copy of the registered Sale Deed dated 04.07.2011 executed by Smt. Pushpa Bilani admitted previous owner of the suit property. In the written statement defendant half heartedly denied the ownership of the plaintiff that is to say there is no specific denial about the ownership of the plaintiff. Therefore, in view of provisions of Order 8 Rule 5 of CPC when defendant is required to specifically deny a fact fails to do so then defendant can be taken to have admitted the fact averred by the plaintiff. Defendant has not pointed out if plaintiff is not the owner who else is the owner of the suit property. Therefore, plaintiff is undisputedly the owner/landlord of the suit premises.
17. Even otherwise plaintiff's landlordship qua the suit property has not been disputed as it is the case of the defendant that rent was sent to the plaintiff by defendant on behalf of Sh. Madan Lal which plaintiff had not accepted for malafide intention. Thus, plaintiff has been attorned as landlord is not in dispute.
18. Now the next question is whether defendant is tenant in the property as pleaded by the defendant or unauthorised occupant as pleaded by plaintiff. Plaintiff has claimed that Madan Lal was the tenant in the suit property and he expired without leaving any legal heirs and defendant has put lock on the premise. Defendant has claimed that Ram Lal, the grandfather of the husband of the defendant, was the tenant and in support of her contention she has placed on record letter dated 27.11.1959 of Ministry of Rehabilitation/Office of Settlement Commissioner which letter is addressed to Ram Lal C/o M/s Ram Beauty Store, D/160, Kamla Nagar, Sabzi Mandi, Delhi - 110 006. Perusal of the entire document does not reveal that Ram Lal was tenant in the suit premises. Using expression Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 9 of 14 "C/o" also shows that he was not represented to be the proprietor or partner of M/s Rama Beauty Store. Therefore, this document even if proved by the defendant does not help the defendant in proving that Ram Lal was the tenant in the suit property. The second document is the certificate of payment of compensation issued by the same office of Regional Settlement Commissioner and in the said document also Ram Lal has been described in the similar fashion as in the letter dated 27.11.1959. Therefore, even this document is also of no help to the defendant to prove that Ram Lal was the tenant in the suit property. Third document is certainly his death certificate which is also of no help.
19. The fourth document is the Will of Ram Lal. In the said Will he has declared himself to be co-sharer of thia i.e. place of business situated at D/160, Kamla Nagar, Delhi. This self serving document is not binding against the owner/landlord of the property. Moreover, the use of word "co-sharer" goes against the submission of the defendant that he was the tenant. If he was the tenant he should not have used the word "co-sharer". It appears that he was representing his interest in the business by use of word "co-sharer". So these documents even if proved by the defendant as per law will not help the defendant to prove that Ram Lal was the tenant in the property.
20. Next is the document namely Partnership Deed dated 01.07.1976. In this document Madan Lal and Jagdish Lal entered into partnership to carry on business under the name and style of M/s Madan Lal Jagdish Lal from the tenanted premises at D/160, Kamla Nagar. In the said partnership deed clause 5 is to the following effect:-
5. That the tenancy of premises No. D/160, Kamla Nagar, Delhi- 7 is the name of partner No. 1 Shri Madan Lal and at the dissolution of the firm it shall remain with the partner taking over the assets of the firm.
Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 10 of 14
21. The aforesaid clause specifically mentions that Sh. Madan Lal is the tenant in the suit premises and upon dissolution of the firm tenancy will devolve upon the partner taking over the assets of the firm. Sh. Jagdish Lal expired in the year 1999. It is the case of the defendant that Jagdish Lal continued his business with Madan Lal till his death which goes to show that firm was not dissolved during the lifetime of Jagdish Lal. Therefore, as per their own agreement the tenancy remained with Madan Lal as the occasion did not arise for Jagdish Lal to take over the assets of the firm. This proposition is being discussed irrespective of whether interse agreement between the partner without any consent of the landlord can transfer the tenancy or not. So as per the case of the defendant herself Madan Lal remained tenant if the contents of the Partnership Deed dated 01.07.1976 is read in the way it has been drafted. Jagdish Lal has signed these and no one signs documents voluntarily against his own interest and therefore, if at all Jagdish Lal too had become tenant he would not have signed the partnership deed dt 1.07.1976 showing Madan Lal as tenant in the property. Thus, this partnership deed goes against the substantial submission/defense of the defendant.
22. The next specific document mentioned at serial no. 6, 7, 8, and 9 relate to income tax or registration of the business firm. These documents are not of any help to the defendant to prove that the tenancy was in the name of both Madan Lal and Jagdish Lal. Both Madan Lal and Jagdish Lal might have been running business but mere running of business together does not make Jagdish Lal tenant in the suit property along with Madan Lal. The next document relied upon by the defendant relates to the electricity connection in the name of the firm in the suit property. This document also does not help the defendant in proving that Ram Lal or Jagdish Lal was ever tenant in the property.
23. The next document relied upon by the defendant is Partnership Deed between Madan Lal and Sanjay Batla, the husband of the defendant. In the said deed Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 11 of 14 there is declaration to the following effect:-
"Whereas the party of the First part, due to old age and poor health is unable to run his already established business of Footwear single handedly, which is being run by him, under the name and style of Kolhapuri Chappal House, from the tenanted premises, situated at D-160, Kamla Nagar, Delhi-110 007."
24. The aforesaid paragraph also makes it clear that Madan Lal was running business alone from the tenanted premises after the death of Jagdish Lal in the year 1999. After the demise of Sanjay Batla, defendant was taken as partner in the business being run from the suit premises as reflected from the next documents at serial No. 11 i.e. partnership deed dt 27.02.2010.
25. Mere running of business in partnership with tenant does not make the non-tenant partner tenant in the property, has long been settled in number of judgments by superior courts. Contract of tenancy is an independent contract with the landlord and till the time landlord is not involved, unilateral act of the tenant or other person in connection with the tenancy will not make the said other person tenant in the property till the time express or implied consent is given by the owner/landlord. Defendant has not placed on record any rent receipt showing that the tenancy was also in the name of Jagdish Lal or Ram Lal nor has it been the case that there are rent receipt in possession of the defendant showing Ram Lal or both Madan Lal and Jagdish Lal as tenant in the property.
26. The purpose of trial is to unearth truth and at the same time to afford opportunity to a party to prove his/her case. But even when pleading and documents relied upon by a party is taken as true or proved and then also case of the party does not stand on the touch stone of the law entitling him/her for any relief then no fruitful purpose would be served to put the matter on trial. Admittedly defendant is bound by the contents of the documents relied upon by her along with contents of Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 12 of 14 the written statement. If the contents of the written statement is not corroborated by the contents of the documents relied upon by the defendant, consequently, defendant would not be able to prove the averments of the written statement which is in contrast to contents of the documents relied upon by the defendant herself. In any case defendant if given chance to prove the documents would not be able to prove better case than the case got set up in the documents relied. The Partnership Deed dated 01.07.1976 clearly demolish the case of the defendant and hit at the root of the case set up in the written statement. Jagdish Lal had signed the Partnership Deed dated 01.07.1976 wherein it has been specifically stated that tenancy is in the name of the Madan Lal and therefore when Jagdish Lal has signed documents against his own alleged interest in the tenancy of the suit property, it can be safely held that he was not tenant in the suit property. Applying the principle of reverse engineering it can be held that Ram Lal was also not the tenant otherwise Jagdish Lal would not have signed the partnership Deed dt 01.07.1976 against his own interest.
27. Admittedly defendant is not first class or second class legal heir of Madan Lal to inherit the tenancy right of Madan Lal in the suit property. It is also not disputed that Madan Lal had not left behind any legal heir. In these circumstances, defendant did not have any right to retain the suit property and the facts pleaded by the defendant and the document relied upon by the defendant does not call for any evidence for the purpose of deciding the right of the defendant as the documents relied upon by the defendant speaks volume about the status of Madan La in the property and consequently speaks volume about the status of the defendant in the suit property.
28. Hence, there is the constructive admission about the status of the defendant and, therefore, plaintiff is entitled for judgment on admission as contemplated in the provision of Order 12 Rule 6 CPC. Accordingly, the application of the plaintiff under consideration is allowed and decree of recovery of possession Suit No. 618978/16 Shekhar Bajaj vs Smita Bajaj Page No. 13 of 14 in respect of suit premises i.e. a shop measuring 13.6' x 12' (approximately) situated on the ground floor of property bearing No. D-160, Kamla Nagar, Delhi -110007 as shown in red color in the site plan Ex. C1 (exhibited by the court for the purpose of identification) is hereby passed in favour of the plaintiff and against the defendant.
Decree sheet be drawn accordingly.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Order contains 14 pages) Delhi/09.06.2017
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