Delhi District Court
M/S Shreya Fund vs . Anil A. Biswas on 12 August, 2014
M/s Shreya Fund vs. Anil A. Biswas
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
Suit No. 206/14
Case ID No. 02406C0230732013
M/s Shreya Fund
A Trust Duly registered with
Subregistrar, New Delhi
Through its Trustee/Authorized Signatory
Having its office at
14B, Atmaram House,
1, Tolstoy Marg, New Delhi110001.
...............Plaintiff
Versus
Anil A. Biswas
S/o Late C. A. Biswas
R/o 11/9, Kalkaji Extension,
(Near Police Station)
New Delhi110019
Also at
1st Floor, Left Side,
N86, Panchsheel Park,
New Delhi110017.
..............Defendant
Date of Institution : 29.08.2013
Date of reserving the Judgment : 31.07.2014
Date of pronouncement : 12.08.2014
Decision : Decreed
SUIT FOR RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY
AND FOR FUTURE MESNE PROFITS/DAMAGES FOR
UNAUTHORIZED USE AND OCCUPATION OF THE suit premises AND
FOR RECOVERY OF DAMAGES CAUSED TO THE IMMOVABLE
PROPERTY BY THE DEFENDANT
Suit No.206/14 Page 1 of 22
M/s Shreya Fund vs. Anil A. Biswas
JUDGMENT (UNDER ORDER XII RULE 6 OF THE CODE OF CIVIL
PROCEDURE, 1906)
1. This order shall dispose off an application under Order XII Rule 6
of the Code of Civil Procedure, 1906 moved on behalf of plaintiff.
2. Following relief has been prayed in the application:
"In view of the aforesaid facts and
circumstances, it is, therefore, most
respectfully prayed that this Hon'ble
Court may kindly be pleased to pass a
decree for possession in favour of the
Plaintiff and against the Defendant,
thereby directing the defendant to hand
over the vacant and actual peaceful
possession of the property bearing No.
N86, First Floor, Right Side, Panchsheel
Park, New Delhi, as described in the
plaint, as well as the site plan annexed
with the plaint.
Any other or further relief, which
this Hon'ble Court deem fit and proper
in the facts of the present case be also
granted in favour of the Plaintiff and
against the defendant."
CASE OF PLAINTIFF
3. The brief relevant facts necessary for disposal of the application
are that the plaintiff filed a suit for recovery of possession of
property bearing Flat No.N86, First Floor, Right Side, Panchsheel
Park, New Delhi (hereinafter referred to as the suit premises)
shown red in site plan annexed with the plaint.
4. It is interalia alleged in the plaint that defendant approached
plaintiff for taking the said suit premises for residential purposes
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M/s Shreya Fund vs. Anil A. Biswas
on rent. A registered lease agreement dated 10.08.2011 was
executed between the parties for 2 years commencing w.e.f.
01.08.2011 and expiring on 31.07.2013. Rent reserved for first
year i.e. from 01.08.2011 to 31.07.2012 was Rs.1,30,000/
(Rupees One Lakh Thirty Thousand Only) per month excluding
electricity, water and other amenities and for second year i.e. from
01.08.2012 to 31.07.2013, the same was Rs.1,43,000/ (Rupees
One Lakh Forty Three Thousand Only) per month excluding
electricity, water and other charges. As per clause20 of the
registered lease agreement, the time was the essence of lease and
the lease agreement was to automatically come to an end by efflux
of time on 31.07.2013. However, the parties were at liberty to
mutually execute fresh lease agreement on or before 30.04.2013.
It was further stipulated that if no such lease agreement is
executed, the lease agreement had to come to an end on
31.07.2013. Till date no fresh lease agreement/deed has been
executed between the parties and the lease agreement dated
10.08.2013 came to an end by efflux of time. Meanwhile, plaintiff
sent an email dated 22.06.2013 to defendant informing him that
lease agreement is expiring on 31.07.2013 and defendant should
to vacate the suit premises and hand over its peaceful and vacant
possession to plaintiff on 31.07.2013. Defendant replied the said
email stating that he was travelling and would like to discuss the
matter personally on his return with a hope that the matter would
be resolved on mutual discussion. Again on 25.06.2013, plaintiff
sent another email to defendant requesting him to hand over the
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M/s Shreya Fund vs. Anil A. Biswas
peaceful and vacant possession of the suit premises to plaintiff on
31.07.2013. Thereafter, on 31.07.2013 plaintiff sent a letter by
speedpost and by email to defendant pointing out that in terms
of clause20 of lease agreement, the lease has automatically come
to an end on 31.07.2013 and since defendant has not vacated the
suit premises on 31.07.2013, the security deposit of Rs.3,90,000/
(Rupees Three Lakhs Ninety Thousand Only) has been forfeited in
terms of clause2 of the lease agreement and defendant is further
required to pay a sum of Rs.20,000/ (Rupees Twenty Thousand
Only) per day in addition to other charges towards the use of the
suit premises.
5. It is further stated in the plaint that instead of vacating or handing
over the peaceful possession of suit premises to plaintiff,
defendant sent a false reply and a legal notice dated 19.08.2013
to plaintiff through his advocate. Hence, the presnet suit filed on
29.08.2013.
CASE OF DEFENDANT
6. In his written statement, defendant, apart from other preliminary
objections, has stated that plaintiff has not complied with the
provisions of Section 106 of the Transfer of Property Act, 1882
and the suit is not maintainable before this court as the same
exceeds its pecuniary jurisdiction. It is stated that the suit had to
be valued at Rs.20,10,000/ (Rupees Twenty Lakhs Ten Thousand
Only), if the alleged damages of Rs.20,000/ (Rupees Twenty
Thousand Only) per day are added uptill the date of filing of suit.
Suit No.206/14 Page 4 of 22
M/s Shreya Fund vs. Anil A. Biswas
7. In reply on merits, the registered lease agreement between parties
is admitted and it is stated that previously a lease agreement
dated 04.08.2009 was entered between the parties for a period of
2 years commencing w.e.f. 01.08.2009 to 31.07.2011. Upon expiry
of abovesaid lease deed, the parties mutually extended the lease
and entered into second lease deed dated 10.08.2011 for further
period of 2 years w.e.f. 01.08.2011 to 31.07.2013. It is further
stated that when the second lease was on the verge of expiration,
keeping in view the long relationship between parties for the past
4 years from 2009 to 2013, it was mutually agreed between the
parties to extend the lease of the suit premises in favour of
defendant on the same rental for further period of 2 years and for
that purpose new lease deed was to be entered into shortly by
plaintiff in favour of defendant. It is further stated that defendant
had deposited a sum of Rs.7,80,000/ (Rupees Seven Lakhs Eighty
Thousand Only) as advance with plaintiff which includes
Rs3,90,000/ (Rupees Three Lakhs Ninety Thousand Only)
towards security and Rs.3,90,000/ (Rupees Three Lakhs Ninety
Thousand Only) as advance rent. It was agreed between the
parties that the aforesaid amount of Rs.7,80,000/ (Rupees Seven
Lakhs Eighty Thousand Only) would be treated and adjusted as
advance rent for the forthcoming extended period of new lease
that had to be executed and registered within a period of 7 days
from the date of expiration of second lease dated 10.08.2011. It is
further stated that to the utter shock of defendant, plaintiff issued
a letter dated 31.07.2013 whereby unilaterally terminating the
Suit No.206/14 Page 5 of 22
M/s Shreya Fund vs. Anil A. Biswas
abovesaid mutual understanding and agreement entered into
between the parties with the intention to defraud and cheat the
defendant.
8. It is further stated that defendant has invested into the suit
premises by renovating the interiors and repainting extensively
on the basis of mutual understanding and agreement for extension
of lease between the parties. The letter dated 31.07.2013 issued
by plaintiff was replied by defendant vide his letter dated
08.08.2013.
ADMITTED FACTS:
9. (1) A registered lease deed dated 10.08.2011 was executed
between the parties qua the suit premises with following main
stipulations:
(a) The tenancy of defendant shall commence w.e.f. 01.08.2011
and come to an end by efflux of time on 31.07.2013.
(b) Rent reserved to be paid by the Lessee to the Lessor shall be
Rs.1,30,000/ (Rupees One Lakh Thirty Thousand Only) per
month from 01.08.2011 to 31.07.2012 and after expiry of
first year it had to be Rs.1,43,000/ (Rupees One Lakh Forty
Three Thousand Only) per month i.e. from 01.08.2012 to
31.07.2013. Rent paid is apart from all outgoings like water,
electricity, lift maintenance charges and security guard
charges which shall be paid by the lessee.
(c) Tenancy shall start with the Ist day of August 2011 and will
end after two years on 31.07.2013.
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M/s Shreya Fund vs. Anil A. Biswas
(d) That time would be the essence of the Lease Deed and the
Lease Deed shall automatically come to an end by efflux of
time on 31.07.2013. However, a fresh lease could have been
executed for further period as may be mutually agreed
between the parties. As per registered lease deed the fresh
lease was to be executed on or before 30.04.2013. If no
such lease was executed, the lease would come to an end by
efflux of time on 31.07.2013.
(2) No written lease agreement/deed was executed between the
parties after the expiry of second registered lease deed dated
10.08.2011.
(3) A letter dated 31.07.2013 was sent by plaintiff, which was
duly received by defendant. Second and third paragraphs of said
letter are reproduced herein below:
"In terms of Clause 20 of the aforesaid
Agreement, the Lease Deed shall
automatically come to an end by efflux of
time on 31.07.2014. Since no fresh lease
has been executed between us, the lease has
come to an end on 31.07.2013.
Without any obligation on our part we had
informed you vide our email of 22.06.13 to
vacate the premises and hand over peaceful
vacant physical possession on 31.07.13."
SUBMISSIONS QUA APPLICATION UNDER ORDER XII RULE 6
OF THE CODE OF CIVIL PROCEDURE, 1906
10. Sh. Amit Punj, Learned counsel for plaintiff has submitted that in
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M/s Shreya Fund vs. Anil A. Biswas
order to succeed in the suit for possession, plaintiff was required
to prove following ingredients:
(a) That there exists a landlord and tenant relationship between
the parties.
(b) That defendant is not protected under the Rent Control
Laws i.e. the rate of rent is more than Rs.35,00/ (Rupees
Three Thousand Five Hundred Only) and the provisions of
Delhi Rent Control Act, 1958 are not applicable to the facts
of case.
(c) That the tenancy of defendant was validly terminated under
law.
11. It is submitted on behalf of plaintiff that on satisfying the
aforementioned requirements of law, the plaintiff is entitled to a
decree of possession in his favour.
12. Learned counsel for plaintiff submits that defendant has admitted
the relevant pleadings and documents in the plaint and no further
proof of the same is necessary. Hence, plaintiff is entitled for a
decree under Order XII Rule 6 of the Code of Civil Procedure,
1906.
REPLY OF DEFENDANT FOR SUBMISSIONS ON APPLICATION
UNDER ORDER XII RULE 6 OF THE CODE OF CIVIL
PROCEDURE, 1906
13. Learned Ms. Reena Kumari submits that the provisions of Order
XII Rule 6 of the Code of Civil Procedure, 1906 are not applicable
to the facts and circumstances of the case as there is no clear,
Suit No.206/14 Page 8 of 22
M/s Shreya Fund vs. Anil A. Biswas
unequivocal, categorical and specific admission by defendant in
respect of any of the ingredients required to be proved by plaintiff.
It is submitted by Learned Ms. Reena Kumari, counsel for
defendant that the defendant never admitted that the lease has
come to an end by efflux of time. It is submitted by her that rather
the defendant has taken a stand that the parties mutually agreed
to extend the lease for further period of 2 years. It is further
submitted by her that the defendant did not even receive any
notice of termination.
RELIANCE AND SUBMISSIONS
14. Learned Ms. Reena Kumari, counsel for defendant has relied upon
Jeevan Diesels And Electricals Ltd. vs. Jasbir Singh Chadha
(HUF) And Another (2010) 6 Supreme Court Casees 601 and
Uttam Singh Dugal & Co. Ltd vs. Union Bank of India & Ors.
MANU/SC/0485/2000.
15. Per contra, Learned Sh. Amit Punj, counsel for the plaintiff has
relied upon following judgments: Karan Madaan & Ors vs.
Nageshwar Pandey 209 (2014) DLT 241, Rajiv Saluja vs.
Bhartia Industries Limited 2002 (2) RCR (IA 255/2002 in Suit
No.2646 of 2000 D/d 7.5.2002), Vikas Theatres And Exhibitors
vs. Punjab And Sind Bank 71 (1998) DLT 526, Singer India Ltd
vs. Birender Singh And Another 164 (2009) DLT 397 & Canara
Bank vs. Shanti Vaish 1998 RLR 328.
Suit No.206/14 Page 9 of 22
M/s Shreya Fund vs. Anil A. Biswas
FINDINGS
16. The court has considered the rival contensions advanced by both
the parties and has carefully gone through the pleadings and
documents available on record.
17. The case of the parties revolves around the admitted lease deed
dated 10.08.2011 of the suit premises. The lease was executed for
2 years commencing w.e.f. 01.08.2011 and was to come to an end
by efflux of time on 31.07.2013.
18. The claim of the plaintiff is that the defendant was supposed to
vacate the suit premises after expiry of the said lease deed, which
was not done by him and therefore, the present suit.
19. The claim of the defendant is that when the said lease deed was
on the verge of expiration, both the parties mutually agreed to
further extend the lease of suit premises for next 2 years. The
parties further agreed that a new lease deed would be entered
shortly by plaintiff in favour of defendant.
20. Section 107 of the Transfer of Property Act, 1882 provides the
manner in which the lease of immovable property from year to
year can be made:
"107. Leases how made. A lease of
immovable property from year to year or
for any term exceeding one year or
reserving a yearly rent, can be made only
by a registered instrument.
(All other leases of immovable property
may be made either by a registered
instrument or by oral agreement
accompanied by delivery of possession.
(Where a lease of immovable property is
Suit No.206/14 Page 10 of 22
M/s Shreya Fund vs. Anil A. Biswas
made by a registered instrument, such
instrument or, where there are more
instruments than one, each such
instrument shall be executed by both the
lessor and the lessee:)
Provided that the State Government may
from time to time, by notification in the
Official Gazette, direct that leases of
immovable property, other than leases
from year to year, or for any term
exceeding one year, or reserving a yearly
rent, or any class of such leases, may be
made by unregistered instrument or by
oral agreement without delivery of
possession.)"
21. A bare reading of Section clarifies that lease of immovable
property for more than one year is not only requied to be
documented but the same has to be further registered. There
cannot be any unregistered lease deed of the immovable property
for any term exceeding one year. Hence, the stand of the
defendant that prior to the expiry of the lease deed dated
10.08.2011, it was orally agreed between the parties that the lease
agreement would be further extended for 2 years next after
31.07.2013, is not tenable because the said lease agreement or
lease deed was never executed between the parties, what to talk
about its registration.
22. Moreover, the court is in agreement with the submissions of
Learned counsel for plaintiff that acting upon such submissions of
defendant would be contrary to Section 91 & 92 of Indian
Evidence Act, 1872, which provide as follows:
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M/s Shreya Fund vs. Anil A. Biswas
"91. Evidence of terms of contracts,
grants and other dispositions of
property reduced to form of
documents. When the terms of a
contract, or of a grant, or of any other
dispostion of property, have been reduced
to the form of a document, and in all cases
in which any matter is required by law to
be reduced to the form of a document, no
evidence shall be given in proof of the
terms of such contract, grant or other
disposition of property, or of such matter,
except the document itself, or secondary
evidence of its contents in cases in which
secondary evidence is admissible under the
provisions hereinbefore contained.
92. Exclusion of evidence of oral
agreement. When the terms of any such
contract, grant or other disposition of
property, or any matter required by law to
be reduced to the form of a document,
have been proved according to the last
section, no evidence of any oral agreement
or statement shall be admitted, as between
the parties to any such instrument or their
representatives in interest, for the purpose
of contradicting, varying, adding to or
subtracting from, its terms:
Proviso (1). Any fact may be proved
which would invalidate any document, or
which would entitle any person to any
decree or order relating thereto; such as
fraud, intimidation, illegality, want of due
execution, want of capacity in any
contracting party, (want or failure) of
consideration, or mistake in fact or law:
Proviso (2). The existence of any separate
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M/s Shreya Fund vs. Anil A. Biswas
oral agreement as to any matter on which
a document is silent, and which is not
inconsistant with its terms, may be proved.
In considering whether or not this proviso
applies, the Court shall have regard to the
degree of formality of the document:
Proviso (3). The existence of any separate
oral agreement, constituting a condition
precedent to the attaching of any
obligation under any such contract, grant
or disposition of property, may be proved.
Proviso (4). The existence of any distinct
subsequent oral agreement to rescind or
modify any such contract, grant or
disposition of property, may be proved,
except in cases in which such contract,
grant or disposition of property is by law
required to be in writing, or has been
registered according to the law in force for
the time being as to the registration of
documents:
Provisio (5). Any usage or custom by
which incidents not expressly mentioned in
any contract are usually annexed to
contracts of that description, may be
proved:
Provided that the annexing of such
incident would not be repugnant to, or
inconsistent with, the express terms of the
contract:
Proviso (6). Any fact may be proved
which shows in what manner the
language of a document is related to
existing facts."
23. It is already seen that lease of immovable property from year to
year or any term exceeding one year is required by law to be
Suit No.206/14 Page 13 of 22
M/s Shreya Fund vs. Anil A. Biswas
reduced in the form of a document and registered. Therefore,
under Section 91 of the Indian Evidence Act, 1872, the defendant
is debarred from taking a stand that he is entitled to hold the
property for two years on the basis of some oral assurance.
24. Furthermore, the admitted lease deed dated 10.08.2011 for 2
years, was compulsarily registerable and has been proved by
admission of the parties. The parties cannot be allowed to lead
any evidence of any oral agreement or statement, which
contradicts, varies, add to or subtract from the terms of that lease.
The lease deed dated 10.08.2011, clearly stipulates that if the
parties intended to extend the lease after 31.07.2013, a fresh lease
agreement was to be executed on or before 30.04.2013. It is a
matter of fact that no such agreement was executed till date.
Neither party can now be allowed to take a stand that the lease
deed was orally extended because the same would be contrary to
the terms, conditions and contents stipulated in the lease
agreement.
25. The stand of the defendant is not covered in either of the
exceptions, provisios or illustractions of Secton 92 of the Indain
Evidence Act, 1872.
26. Learned counsel for plaintiff has rightly placed reliance in this
respect on Karan Madaan vs. Nageshwar Pandey (Supra)
wherein the Hon'ble High Court of Delhi held that when the terms
of conveyance of immovable property are set out in the admitted
document, in view of bar contained in Section 91 of the Indian
Evidence Act, 1872, it is not open to defendant to take pleadings,
Suit No.206/14 Page 14 of 22
M/s Shreya Fund vs. Anil A. Biswas
contrary to the terms of the document.
27. Hence, it can be safely said that court cannot act upon the
pleadings of the defendant that there was some oral agreement
between the parties to extend the lease for further period of 2
years after its expiry on 31.07.2013.
28. Now coming back to the dispute as to whether the tenancy has
been validly terminated or not. Section 111 of the Transfer of
Property Act, 1882 is reproduced hereinbelow:
"111. Determination of lease. A lease of
immovable property determines
(a) by efllux of time limited thereby;
(b) where such time is limited
conditionally on the happening of
some eventby the happening of such
event;
(c) where the interest of the lessor in
the property terminates o, or his
power to dispose of the same
extends only to, the happening of
any eventby the happening of such
event;
(d) in case the interests of the lessee and
the lessor in the whole of the
property become vested at the same
time in one person in the same right;
(e) by express surrender; that is to say,
in case the lessee yields up his
interest under the lessee to the
lessor, by mutual agreement between
them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in
case the lessee breaks an express
condition which provides that, on
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M/s Shreya Fund vs. Anil A. Biswas
breach thereof, the lessor may re
enter or (2) in case the lessee
renounces his character as such by
setting up a title in a third person or
by claiming title in himself; (or (3)
the lessee is adjudicated an insolvent
and the lease provides that the lessor
may reenter on the happening of
such event); and in (any of these
cases) the lessor or his transferee
(gives notice in writing to the lessee
of) his intention to determine the
lease;
(h) on the expiration of a notice to
determine the lease, or to quit, or of
intention to quit, the property
leased, duly given by one party to
the other."
29. Under clauseA of the abovementioned section, it is made
categorically clear that a lease of immovable property can be
determined by efflux of time limited under the said lease. In the
case in hand, the admited lease deed dated 10.08.2011 has
limited the period of tenancy uptill 31.07.2013 only. It is,
therefore, rightly submitted by Learned counsel for plaintiff that
on expiry of such period, the lease of the suit premises has come
to an end by efflux of time.
30. The bare reading of the lease deed/agreement dated 10.08.2011
amply clears the intention of the parties that time was considered
the essence of the lease agreement, otherwise there would have
been no reason to write so specifically and to further stipulate that
if the parties intend to extend the lease further, they had to enter
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M/s Shreya Fund vs. Anil A. Biswas
into a fresh agreement or or before 30.04.2013 failing which the
lease agreement would come to an end on 31.07.2013.
31. In Rajiv Saluja vs. Bhartia Industries Limited (Supra), Hon'ble
High Court of Delhi held as under:
"16. Though in the instant case the service
of notice under Section 106 of the Act was
not at all necessary because the tenancy
had expired by efflux time by virtue of
Section 111A of the T. P. Act but to be on
the safer side the plaintiff served notice
under Section 106. Mere denial of receipt
of such notice cannot come to the rescue of
defendant No.2. Denial is far outweighed
by not only postal receipts proving the
despatch at all the addresses of the
defendant but also through a certificate
from the postal authorities as to the receipt
of the notice by the defendants at the suit
premises.
17. I have taken a view in Rama Ghai v. UP
State Handloom Corporation, 2001 IV AD
(Delhi) 471:2001(2) RCR (Rent) 469
(Delhi) that in order to invoke the
provisions of Order 12 Rule 6 CPC the
Court has to scrutinise the pleadings in
their totality and ignore the evasive and
unspecific denials either as to the
relationship or as to the service of notice or
as to the nature of tenancy.
18. If the landlord either under the legal
advice or by way of abundant precaution
sends notice for termination of tenancy
under Section 106 of the T. P. Act after the
expiry of tenancy by way of efllux of time
his intention is not to terminate the
tenancy but to insist and impress upon the
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M/s Shreya Fund vs. Anil A. Biswas
tenant to hand over the possession after
the expiry of agreed period of tenancy."
32. Hence, it can be safely said that no notice of determination of
tenancy was required to be served upon the defendant and the
lease was determined on 31.07.2013 by efflux of time limited
under the written registered contract between the parties.
33. Even otherwise, prior to expiry of the lease agreement, the
plaintiff made his intentions ample clear to the defendant that he
is not interested to continue them as his tenant. Admitted letter
dated 31.07.2013 further clarifies the same.
34. From the aforesaid discussion, following facts can be safely
inferred:
1. There was a relationship of landlord and tenant between the
parties.
2. The lease of the defendant is determined on 31.07.2013.
3. No protection under rent control laws is available to
defendant.
4. The last paid rent was Rs.1,43,000/ (Rupees One Lakh
Forty Three Thousand Only) excluding electricity, water and
other charges.
5. The terms of grant/conveyance of the suit premises to the
defendant were compulsarily required to be documented
and in fact a comprehensive document dated 10.08.2011
was executed between the parties.
6. The defence taken by defendant is contrary to the terms and
conditions of the written agreement between the parties.
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M/s Shreya Fund vs. Anil A. Biswas
35. The judgment relied upon by Learned counsel for defendant , do
not support her case.
36. In Karan Madaan vs. Nageshwar Pandey (Supra), while
examining the scope of Order XII Rule 6 CPC in paragraphs 66 &
68, Hon'ble High Court of Delhi observed that:
"66. With the defence/case of the
defendant having been held to be not
tenable in law, the question that arises for
consideration is whether the present is a fit
case for passing of a decree in favour of the
plaintiffs under Order 12 Rule 6, CPC and,
whether the counter claim of the
defendant is liable to be rejected under
Order 7 Rule 11, CPC. In Parivar Seva
Sansthan (supra), a Division Bench of this
Court held as follows:
"9. Bare perusal of the above rule
shows, that it confers very wife
powers on the Court, to pronouce
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
Suit No.206/14 Page 19 of 22
M/s Shreya Fund vs. Anil A. Biswas
constructive admission firmly made
can be made the basis. Any plea
raised against the contents of the
documents only for delaying trial
being barred by Section 91 and 92
of Evidence Act or other statutory
provisions, can be ignored. These
principles are well settled by catena
of decisions. Reference in this regard
be made to the decisions in Dudh
Nath Pandey (dead by L.Rs') v.
Suresh Bhattasali (dead by L. Rs')
MANU/SC/0382/1986: AIR 1986
SC 1509; Atma Ram Properties Pvt.
Ltd. v. Air India,
MANU/DE/1151/1996: 65 (1997)
DLT 533; Surjit Sachdev v.
Kazakhastan Investment Services
Pvt. Ltd., 1997 2 AD(Del) 518;
Abdul Hamid v. Charanjit Lal & Ors.,
74(1998) DLT 476 and Lakshmikant
Shreekant v. M. N. Dastur & Co.,
MANU/DE/0524/1998: 71 (1998)
DLT 564."
.......
68. In Express Towers P. Ltd. & Another v. Mohan Singh & Others, 133 (2006) DLT 2602007 (97)DRJ 687 (DB), the Division Bench held that a decree can be passed by the Court under Order 12 Rule 6, CPC when admissions are clear and unambiguous and no other interpretation is possible. The power to pass a decree on admission is discretionary, and not mandatory under Order 12 Rule 6, CPC. The Court observed that it may not be safe and correct to pass a judgment under Order 12 Rule 6, CPC when a case involves disputed questions of fact and law which require adjudication and decision. Even Suit No.206/14 Page 20 of 22 M/s Shreya Fund vs. Anil A. Biswas when a party has made an admission, the Court need not act on the same. There can beno quarrel with the aforesaid proposition laid down in para 10 of Parivar Seva Sansthan (supra) and Express Towers P. Ltd. (supra). However, where the relief sought by the plaintiff is squarely made out in view of unstatable/untenable defence, it is equally wellsettled, that the Court shall not unnecessarily drag the action for a pointless trial. In the present case, the defendant is precluded, in law, from pleading, much less proving his defence."
37. In view of the aforesaid discussion, the court is in agreement with the submissions of Learned counsel for plaintiff that there is a clear, categorical, unambiguous admission on the part of the defendant which entitles the plaintiff for a decree under Order XII Rule 6 CPC.
38. No disputed question of fact or law is involved so far as the fulfilment of requirements for a decree of possession, on termination of tenancy is concerned. Therefore, in the opinion of court, the plaintiff is entitled for outright decree of possession of suit premises under Order XII Rule 6 CPC.
39. So far as the claim of plaintiff for damages @ Rs.20,000/ (Rupees Twenty Thousand Only) per day is concerned, plaintiff is required to prove the same by leading positive evidence.
40. Suit of the plaintiff is, accordingly, decreed against the defendant for possession of the suit premises bearing Flat No.N86, First Floor, Right Side, Panchsheel Park, New Delhi as shown red in the site plan. Suit of the plaintiff is further decreed for recovery of Suit No.206/14 Page 21 of 22 M/s Shreya Fund vs. Anil A. Biswas rent/user charges @ Rs.1,43,000/ (Rupees One Lakh Forty Three Thousand Only) per month apart from electricity, water and other charges till the actual vacant physical possession of the suit premises is handed over to the plaintiff.
41. Decree sheet be prepared accordingly. File be put up for further proceedings as per short order of even date.
Announced in the open (AJAY PANDEY)
Court on 12.08.2014 ADJ05 (SOUTH DISTRICT)
(Judgment contains 22 pages) SAKET COURTS, NEW DELHI
Suit No.206/14 Page 22 of 22