Delhi District Court
Sh. Ombir Singh Yadav vs Ms. Rama Arora on 8 September, 2015
IN THE COURT OF ANURAG SAIN, ADJ02 (EAST),
KARKARDOOMA COURTS, DELHI
RCA No.: 30/14
Unique Case ID No.02402C0114072014
Sh. Ombir Singh Yadav,
S/o Late Sh. Mansa Ram Yadav,
R/o J57, gali no.4,
Laxmi Nagar, Delhi110092.
.......Appellant
Versus
1.Ms. Rama Arora,
R/o House No.133, Ist Floor,
Humayunpur, Safdarjung Enclave, Delhi29.
2. Ms. Ranjana Arora,
(Through Plaintiff no.1, her attorney)
R/o Apartment no.211, 10525,
British Columbia, Canada.
3. Ms. Sushma Arora,
R/o 1/77, G.F. Subhash Nagar,
Delhi110027.
........Respondents
Date of institution of appeal : 17.04.2014
Date of reserving judgment : 21.08.2015
Date of pronouncement : 08.09.2015
RCA No.: 30/14
JUDGMENT
1. The present appeal under 96 CPC is against the impugned judgment and decree dated 22.03.2014 in Civil Suit bearing no. 334/12 passed by the Ld. Senior Civil Judge whereby the Ld. Trial Court has decreed the suit of the respondent/plaintiff Order XII Rule 6 r/w Section 151 CPC against the appellant/defendant.
2. Brief facts of the case are that respondent/plaintiff's are the co owners with respect to a shop bearing no. 4, ground floor, Laxmi Nagar, Delhi92 (hereinafter referred as suit property) and respondent no.3 is their mother and asked her to let out the suit property and accordingly the suit property was let out to appellant/defendant on a monthly rent of Rs.5,000/ for a period of 11 months commencing on 03.9.2010 vide registered lease deed dt. 08.9.2010. As per the lease deed after expiry of lease period of 11 months, the lease could be renewed by a fresh lease deed only and on expiry of the lease deed, the tenant had to vacate the suit property and hand over the actual physical and quite possession thereof to the respondent/plaintiff. By efflux of time on termination of tenancy on 2.8.2011, the defendant did RCA No.: 30/14 not vacate the premises. Rather he filed a suit for specific performance of an Agreement to Sell qua the premises on false pleas against the respondent/defendant. It was averred by respondents/plaintiff that plaintiff no.3 is not the owner. Neither any earnest money was taken by the respondent/plaintiff nor at any point of time did she enter into any agreement to sell with the appellant/defendant. It was further averred that the said agreement to sell is a forged, fabricated and sham document as the same is unregistered and not duly stamped. On these premise, the respondent has filed the suit against the appellant before the Ld. Trial Court.
3. The appellant/defendant filed his written statement before the Ld. Trial Court wherein respondents/plaintiff no.1 & 2 being the coowners of the suit premises is not disputed; the relationship of landlord and tenant and rate of rent of Rs.5,000/ per month was not denied; However, the appellant has averred that the lease deed superseded by Agreement to Sell dt. 03.12.2010 between the respondent/plaintiff no.3 and appellant/defendant whereby suit property was agreed to be sold to him for a consideration of Rs.9.21 lac and out of which Rs. RCA No.: 30/14 4,00,000/ as earnest money were given by him to the respondent/plaintiff no.3 and last date of the deal was 20.7.2011; since the respondent/plaintiff no.3 refused to accept the balance consideration amount, he had filed a suit for specific performance against respondent/plaintiff no.3. It has been averred that appellant/defendant is in possession of the premises not by virtue of lease deed but by virtue of Agreement to Sell. He invokes section 10 CPC on the basis of same cause of action between the same parties and qua the same premises is sub judice and the suit is barred by Section 106 of Transfer of Property Act. He further averred that he is not liable to pay mesne profit. Rest of the contents of the plaint have been denied by the appellant.
4. Replication to the written statement was filed by the respondent reiterating and reaffirming the facts as mentioned in the plaint and denying the contents of written statement.
5. The respondent filed an application under Order XII Rule 6 r/w Section 151 CPC before the Ld. Trial Court submitting that they are entitled to a judgment and decree forthwith qua the relief of possession of the premises under defendant's occupation on the RCA No.: 30/14 basis of admissions made by the the appellant/defendant in his written statement. They also invoked Stamps Act and Registration Act and contended that since the agreement to sell is unregistered and not duly stamped and thus do not confer any right, title and interest qua the suit property upon the appellant/defendant
6. Being aggrieved by the impugned judgment and decree dated 22.03.2014, the appellant has challenged the impugned judgment and decree on various grounds viz. a viz. the impugned judgment and decree is based on conjectures and surmises; the Ld. Trial Court has not applied its judicious mind and not appreciated the fact and circumstances of the case; the Ld. Trial Court has not correctly appreciated the prevailing law; the Ld. Trial Court has failed to appreciate the fact that rent agreement dt. 8.9.2010 is not in existence after the execution of agreement to sale dt. 3.12.2010; the ld. Trial Court failed to appreciate that the appellant filed the suit for specific performance and the provisions of section X of CPC attract in this case as the suit is barred by principle to res subjudice; the Ld. Trial Court passed the order and decree in a routine and RCA No.: 30/14 casual manner; the value of the suit property is beyond the jurisdiction of Ld. Trial Court; Ld. Trial Court overlooked the triable issues involved in the suit as in the written statement; the Trial Court overlooked that the appellant has not admitted an unequivocal and unambiguous admission which is the basic ingredients of u/o XII rule 6 CPC; the Ld. Trial Court has failed to appreciate that respondent no.2 & 3 have not filed their supporting affidavits of the application u/o XII rule 6 CPC. On these premise, the appellant prays for setting aside the judgment and decree passed by the Trial Court dt. 22.03.2014 filed the present appeal.
7. The counsel for the appellant had argued almost on the lines of ground of appeal mentioned in his appeal. He had further argued that the Trial Court has misread the averments of the appellant. There is no unequivocal clear admission on the part of the appellant which warrants that the action of Order 12 rule 6 CPC. He further argued that he is in possession of the suit property on the basis of an agreement to sell dt. 03.12.2010 wherein it has been mentioned that the first party i.e. respondent is the absolute owner and is in possession of the suit RCA No.: 30/14 property. He further argues that original registered rent agreement dt. 08.9.2010 was superceded by the said agreement to sell and in fact he has already filed a suit for specific performance before the court of competent jurisdiction which is still pending. On these premise, appellant prayed for setting aside of judgment and decree dated 22.03.2014.
8. Ld. counsel for the respondent submitted that there is no illegality, perversity and impropriety in the judgment and decree. He prayed for the dismissal of the present appeal.
9. Trial Court record has been received.
10.I have heard ld. counsels for the parties and have carefully perused the record.
11. From the arguments and the records the point of consideration in the appeal before this court are:
(i) Whether the impugned judgment and decree are illegal and not sustainable in the eyes of law?
12. The present appeal is directed against the judgment and decree passed by the Ld. Trial Court whereby the Ld. Trial Court has decreed the suit of the respondent/plaintiff qua the relief possession against the appellant/defendant Order XII Rule 6 r/w RCA No.: 30/14 Section 151 CPC and directed the appellant/defendant to vacate the suit property i.e. shop bearing no. 4, ground floor, Laxmi Nagar, Delhi92.
13. From the arguments of the counsel for the parties and from the records what is being emerges out is as under. There is no dispute of the relationship of landlord and tenant between the respondent and the appellant; there is no dispute with respect to rate of rent i.e. Rs.5000/ p.m. for the suit property, the same being outside the purview of DRC; termination of tenancy is also not under dispute, the same being expired with the efflux of time as per the registered lease deed agreement dt. 08.9.2010. Registered lease Deed is also not disputed.
14. What is the point of consideration before the court is as per the case of the appellant that he is in the possession of the suit property on the basis of unregistered agreement to sell dt. 03.12.2010; the said alleged agreement to sell dt. 03.12.2010 has superseded the registered lease deed dt. 08.9.2010 and thus, the appellant is not occupying the possession of the suit property as tenant of the respondent but on the strength of agreement to sell dt. 03.12.2010. The respondent has vehemently denied the RCA No.: 30/14 execution of any such agreement to sell. The same being fabricated, forged and sham document. It is not under dispute that a suit for specific performance has been filed by the appellant which is pending before the court of Ld. ADJ, Karkardooma Courts.
15. I have gone through the judgment passed by Ld. Trial Court. Heard the arguments of the counsel for the parties and perused the record.
16.The law relating to the passing of decree on admissions under the provisions of Order XII Rule 6 CPC is well settled in the catena of judgments.
17. In a judgment 155 (2008) DELHI LAW TIMES 431 titled as P.S. Batra v. S. Anoop Singh & Anr., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission Rule 6.(1) Where admissions of fact have RCA No.: 30/14 been made either in the pleadings 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) Whether a judgment is pronounced under Subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment was pronounced."
18.The scope and ambit of Order XII Rule 6, CPC was discussed by the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the supreme Court observed as under :
"Para 12. As to the object of the order 12 Rule 6, we need not 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 RCA No.: 30/14 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 the 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 other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the fact of which, it is impossible for the party making such admission to succeed."
19.In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of this Court interpreted the provisions of Order 12 Rule 6, CPC by holding :
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without RCA No.: 30/14 determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
20. In the light of the same, let us examine the case of the appellant.
21. As already stated above that there is no dispute with respect to the relationship of landlord and tenant, there is also no dispute that the appellant was inducted as a tenant in the suit property vide registered lease deed agreement dt. 08.09.2010; there is no dispute with respect to rate of rent i.e. Rs.5000/ p.m. for the suit property, the same being outside the purview of DRC; termination of tenancy is also not under dispute.
22. What is being argued by ld. counsel for the appellant that after the execution of agreement to sell dt. 03.12.2010, the relationship of landlord and tenant ceases as the same is superseded by agreement to sell. He argued that in pursuance of the same he was into possession by the respondent and therefore, the Trial Court erred in passing the judgment u/o 12 rule 6 CPC.
RCA No.: 30/14
23. I have gone through the judgment passed by Ld. Trial Court who has rightly dealt with legal preposition in case where execution of agreement to sell qua the suit premises wherein the alleged unregistered other party is inducted as a tenant would alter his status. The Ld. Trial court as rightly dealt with the preposition and has answered the same which is reproduced as under:
"13.I shall first take note of a judgment reported as Sunil Kapoor vs. Himmat Singh & Ors., 167(2010) DLT 860= MANU/DE/0203/2010. This was a suit with similar facts as in the present one. The tenant sued the landlord for specific performance of an unregistered Agreement to Sell. The landlord thereafter filed a suit for his ejectment. The tenant's plea that he could not be ejected in view of the Agreement to Sell was negatived by observing, "10.A mere Agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement.Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as purchaser. This court in Jiwan Dass Rawal Vs. Narain Das AIR 1981 Delhi 291 has held that in fact no rights ensure to RCA No.: 30/14 the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereof is executed. Thus, in law the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour."
14.This was followed by Judgment dated 06th August, 2013 of Hon'ble Delhi High Court in RFA No. 324/2013 titled as Sanjiv Pathak vs. Somanth, the facts whereof were exactly similar to the instant case. The landlords sued the tenant for his eviction, but the defendanttenant on the strength of an Agreement to Sell pleaded that the landlords had agreed to sell the tenanted premises to him and his possession was thus as an agreement purchase. This contention was negatived. It was observed, "9. The only point addressed by the senior counsel for the appellant is that the respondents landlords had agreed to sell the tenanted premises to the appellant and the possession of RCA No.: 30/14 the appellant is thus as an agreement purchase.
10. It is as if the learned ADJ has not dealt with the said aspect. Relying on Section 17(1A) of the Registration Act, 1908 and several judgments of this Court, it has been held that since the Agreement of Sale is not registered, the benefit of Section 53A of the Transfer of Property Act, 1882 is not available to the appellant.
11. The senior counsel for the appellant has sought to carve out a distinction. He has contented that the possession of the premises has not been delivered by the respondents to the appellant in pursuance to the Agreement to Sell but the Agreement to Sell records that the appellant has been in possession of the premises as a tenant since the year 2000. He has thus contended that Section 17(1A) of the Registration Act would not apply.
12. I am unable to agree. The possession of the appellant of the premises can either be as a tenant or as an agreement purchaser. If the possession is as a tenant, then the tenancy has been determined and the appellant has to go out of the possession. On the contrary , if the possession is as the agreement purchaser, an agreement purchaser can protect such possession only under Section 53A of the Transfer of Property Act and not otherwise. The benefit of Section 53A is not available to the appellant for the reason of the Agreement to Sell under Section RCA No.: 30/14 17(1A) being required to be compulsorily registered and the agreement claimed by the appellant being not registered. This Court is Jiwan Dass Rawal Vs. Narain Das AIR 1981 Delhi 291 has held that an agreement purchaser has no right in the premises, not only till a decree for specific performance of the said agreement is passed out but also till the conveyance Deed in pursuance thereto is executed. Thus, the rights of the appellant if any, as an agreement purchaser without the benefit of Section 53A, cannot be intertwined with the ejectment of the appellant from the premises as a tenant and the appellant if the proceedings for specific performance of the Agreement of Sale is found to have a prima facie case, the appellant can obtain the relief therein of restraining the respondents from dealing with the premises."
15.The next judgment in this context is that of Sanjay Singh Vs. M/s. Corporate Warranties Pvt.Ltd.204(2013)DLT12: MANU/DE/3099/2013, it was observed therein, "17. Thus the status of the appellant/defendant even if the execution of Agreement to Sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. The only rights of an agreement purchaser (as discussed RCA No.: 30/14 by me in detail in recent judgment dated 06th August, 2013 in RFA No.324/2013 titled Sanjiv Pathak vs. Somnath and attention to which of the appellant/defendant was drawn during the hearing on 26.08.2013 and which the counsel for the appellant/defendant has failed to distinguish) are of specific performance of the said agreement........... I have enquired from the counsel for the appellant/defendant whether the appellant/defendant has taken any steps for specific performance. The counsel fairly admits that no steps have been taken. A tenant in the property, even if he enters into an agreement for purchase thereof, cannot avoid his/her ejectment therefrom as a tenant and only has a remedy of specific performance of the agreement to sell in his favour."
16. To similar effect is the decision reported as Dr. N.P Tripathi vs. Dayamanti Devi & Anr., AIR 1988 Pat 123, wherein it was observed:
"So far the suit for specific performance of the contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale. Merely filing a suit for specific performance of contract does not confer RCA No.: 30/14 or is founded upon a fact that a little has accrued in the property in question under the deed of agreement or contract for sale."
17. In the case of K. V. Narayanan Murti vs. Thankamma Sebastian, RC Rev No. 48 of 2005 (dt. Of decision19.05.2005) a Division Bench of Kerala High Court comprising Hon'ble Mr. Justice R. Bhaskaran and Hon'ble Mr. Justice K.T.Shankaran observed, " The further question is when the tenant raises a contention that there was an agreement between the landlord and the tenant to sell the building to the tenant, whether it would constitute denial of title of the landlord within the meaning of section 11(1) of Act. When the landlord tenant relationship is admitted or proved the question whether there was an agreement to sell the building to the tenant becomes irrelevant. An agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. The title would pass to the proposed transferee only on execution of the sale deed. The agreement to sell by itself would not terminate the landlord tenant relationship. Even if a suit for specific performance filed by the tenant transferee is pending, that by itself would not be a ground to oust the jurisdiction of the Rent RCA No.: 30/14 Control Court. So long as the tenant has not shed his character as a tenant, the cannot take shelter under the agreement for sale and contend that the Rent Control Court has no jurisdiction. Of course, in a case where Section 53A of the Transfer of Property Act applies, the position may be different.
18. Therefore, the legal position that emerges is that the status of defendant Ombir Singh Yadav, even if execution of Agreement to Sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. The question of an agreement to sell the property to the tenant becomes irrelevant in a suit for his ejectment. Agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. Consequently, defendant Ombir's contention that he is longer the tenant in view of agreement to Sell in his favour is liable to be RCA No.: 30/14 rejected outrightly."
24. The said preposition so dealt by the Trial Court, in the opinion of the court does not calls any interference.
25.The counsel for appellant also argued that he is in possession of suit property by virtue of agreement to sell dt. 3.12.2010. The appellant has stated that as per agreement to sell dt. 03.12.2010, the respondent is the owner and in lawful possession of the suit property. He argued that this means that on the date when the agreement to sell was entered into between him and the respondent, the possession of the suit property was with the respondent and after the execution of the same and in pursuance to the agreement to sell, he was put in possession by the respondent and thus the relationship of landlord and tenant ceased on the execution of agreement to sell dt. 03.12.2010.
26. At the outset the court is of the opinion that the arguments of the counsel for the appellant holds no water. Appellant has strongly relied on agreement to sell which is an unregistered document. The same is categorically denied by the respondent. What is lawful possession and what is actual possession. There is difference between the two. Lawful possession means as per RCA No.: 30/14 English Contemporary DictionaryLawful recognized ownership of property. As per MerriamWebster Dictionary Actual possession meansPhysical custody or control over the subject. Actual possession is sometimes called as possession infact. Actual possession meanshaving physical control over an object or real property. Actual possession meansdirect occupancy, use or control of real property. Moreover, nowhere in the alleged agreement to sell dt. 03.12.2010 it has been stated that the appellant was put in to possession of the suit property by the respondent in pursuance of the agreement to sell dt. 03.12.2010. Thus, it is clear that considering the arguments of the counsel for the appellant, still from the alleged agreement to sell dt. 3.12.2010 the appellant did not come into the possession of the suit property. It seems that the appellant is trying to confuse the facts by making the aforesaid averment.
27. Assuming for the sake of arguments that there is an agreement to sell dt. 03.12.2010. The same is of no help to the appellant in the facts of the present case for the reasons that appellant could not derives the benefit as per Section 53 (a) of Transfer of Property Act in as much as agreement to sell which is relied RCA No.: 30/14 upon is an unregistered document and the same is laid down under Section 17 (1A) which reads as under:
"The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A."
which is not the case here. So, looking from every corner the arguments of the appellant fails.
28.Judgment under Order XII Rule 6 CPC can be passed as requirements as stated above are satisfied. Order XII Rule 6 CPC enables the court to pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial.
29.I have already observed above that there is no dispute with respect to the relationship of landlord and tenant, rate of rent of Rs.5,000/ per month is also not disputed. Termination of RCA No.: 30/14 tenancy is not disputed being determined by efflux of time. The submissions of the ld. counsel for the appellant in para 7 & 22 are answered accordingly and dismissed being devoid of merits.
30.Our Own Hon'ble High Court in a case titled as Atma Ram Properties Pvt. Ltd. Vs. Pal Properties Pvt. Ltd. & Ors. 2002 (62) DRJ 623 held that in order to succeed in the suit for possession, the plaintiff has to prove the following ingredients:
1. That there is relationship of landlord and tenant between the parties.
2. Tenancy in respect of the premises has come to an end either by efflux of time or by a valid notice sent by the plaintiff to the defendant under Section 106 of the Transfer of Property Act and duly served on the defendant.
3. The rent of the premises in question is more than Rs. 3,500/ per month and therefore, there is no protection of the provisions of Delhi Rent Control Act available to the tenant.
31. The aforesaid judgment squarely applies in the facts of the present matter.
32.In view of the above discussion, I do not find any infirmity in the judgment and decreed dated 22.03.2015 passed by the Ld. Trial Court on the application under Order XII Rule 6 CPC. RCA No.: 30/14 Accordingly, the present appeal of the appellant is hereby dismissed.
33.Decree sheet be prepared accordingly.
34.Trial Court record be sent to the ld. Trial Court with copy of this order.
35. Appeal file be consigned to record room. Announced in the open court On 08.09.2015 ( Anurag Sain) Addl. District Judge02 (East) Karkardooma Courts, Delhi RCA No.: 30/14 RCA No.: 30/14 08.09.2015 Present: Ld. counsels for the parties.
Vide separate judgment announced in the open court today, the present appeal of the appellant is hereby dismissed. Decree sheet be prepared accordingly. Trial Court record be sent to the ld. Trial Court with copy of this order. Appeal file be consigned to record room.
(Anurag Sain) ADJ2, East, Karkardooma Court, Delhi/08.09.2015 RCA No.: 30/14