Delhi District Court
Cs No. 506/13 vs Sh. Imran on 20 August, 2015
IN THE COURT OF SH. AMITABH RAWAT, JSCC/ASCJ/GJ
(SHAHDARA) KARKARDOOMA COURTS, DELHI.
CS No. 506/13
Sh. Haji Rafiuddin
S/o Late Sh. Mola Baksh
R/o H.No.-456, Street No.21,
Main Road, Jafrabad, Delhi. ... PLAINTIFF
Versus
1. Sh. Imran
2. Sh. Zeeshan
3. Sh. Irfan
4. Sh. Faizan
5. Sh. Salman
All S/o Late Abdul Khaliq
all R/o H.No. 285, Gali no.15,
Jafrabad, Delhi-11053.
Service also effected at "Madina Medicos" Private
Shop No.6, Premises No.-456, Gali no.21, Main Road Jafrabad,
Delhi.
6. Smt. Aiysha W/o Late Abdul Khaliq
7. Ms. Jaasia
D/o Late Abdul Khaliq
Both R/o H.No.-285,
Gali no.-15, Jafrabad, Delhi. ... DEFENDANTS
SUIT FOR RECOVERY OF POSSESSION, RECOVERY OF
ARREARS OF RENT, DAMAGES AND PERMANENT
INJUNCTION
1. Date of institution of Suit : 28.11.2013
2. Judgment reserved on : 20.08.2015
3. Date of Judgment : 20.08.2015
4. Decision : Application allowed and suit partly
decreed
Page no.1
ORDER ON THE APPLICATION UNDER
ORDER 12 RULE 6 CPC
1. Vide my separate order, I shall dispose off the application
under Order XII Rule 6 CPC moved on behalf of the plaintiff Sh.
Haji Rafiuddin.
2. This is a suit for recovery of possession, arrears of rent,
damages and permanent injunction against the defendants in
respect of shop No.6, ground floor of premises No.456 out of
khasra No.88, situated at Gali no.21, main Road Jafrabad,
Delhi-110053 (herein after referred to as suit/tenanted premises).
3. a) The plaintiff has pleaded that he is the owner and landlord
of suit property and has let out a suit property to Sh. Abdul Khaliq
S/o Sh. Abdul Wahid i.e. father of defendant no.1 to 5 and 7 and
husband of defendant no.6 in the year 1978 @ Rs.90/- excluding
electricity and water charges. The rent agreement was also
executed.
b) The rent was enhanced from time to time and current rate
of rent is Rs.660/- per month excluding other charges. After the
death of tenant Abdul Khaliq in the year 2004, the rent receipts
were issued by the plaintiff in the name of late Abdul Khaliq on the
insistence of defendant no.1 to 5. The rent of the tenanted
premises has been paid upto July, 2013 and rent receipts issued.
c) The three sons of the plaintiff are jobless and want to start
their private work from the tenanted premises and thus have
requested several times to the defendants to hand over the
possession of the tenanted premises but the same was not done.
Page no.2
d) The plaintiff sent a legal notice dated 04.09.2013 to the
defendants terminating the tenancy of the defendants and asking
for handing over the tenanted shop.
4. The defendants filed the written statement contending
therein that the present suit is not maintainable because tenanted
premises is covered by Delhi Rent Control Act. It is pleaded that
the lawful tenancy of the defendants has not been terminated in
accordance with law and the defendants still continue to hold a
legal tenancy of the suit shop. The rate of rent is Rs.660/- per
month including Rs.120/- per month as house tax. The tenanted
shop is not the only shop in the entire building possessed by the
plaintiff but has 22 more shops under his control and possession.
The requirement of the plaintiff is not bonafide and he has not
disclosed the details of intended business to be started by him or
his sons. The sons of the plaintiff are not dependent upon him and
earning gainfully. The rent has been paid upto December, 2013
with a request to issue the rent receipt in the name of defendants,
which he promised but did not issue. The defendants had rendered
financial assistance to the plaintiff and there is a charge of Rs.
1,30,000/- against the suit shop. The defendants are the lawful
tenants of the suit property and the alleged notice dated 08.09.2013
under Section 106 of T.P. Act does not satisfy the necessary
ingredients of law as commercial tenancy is not monthly but half
yearly.
5. The present application was moved by plaintiff contending
therein that the landlord tenant relationship has been admitted by
Page no.3
the defendants and in view of the judgment "Rafi Ahmed Khan Vs.
Jallaluddin RSA No.210/10 rendered by Hon'ble High Court of
Delhi", the suit premises in Jafrabad, Delhi is not covered by Delhi
Rent Control Act. The notice terminating the tenancy has been sent
and even otherwise filing of the suit is itself a notice of termination
of tenancy. The defendants have filed reply to the said notice
denying the ownership of the plaintiff over the tenanted premises.
The contentions as stated in the WS have been referred to.
6. Reply to the application under Order 12 Rule 6 CPC has not
been filed. I have heard the counsels of both the parties and my
findings are based on the record and submissions of the parties are
as under after adumbrating to the relevant provision of Order 12
Rule 6 CPC.
Order 12 Rule 6 CPC:-
"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."
7. In this regard, reference can be had to the judgment of the
hon'ble Supreme Court in the case of Usha Rani Jain Vs. Nirulas
Corner House Pvt. Ltd., 73(1998) DLT 124 para 18 of which reads
as follows:-
" The object of Order 12 Rule 6 CPC is to enable a party to
obtain a speedy judgment, as least, to the extent of the admissions
Page no.4
of the defendant to which relief the plaintiff is entitled to. The rule
permits the passing of the judgment at any stage without waiting
for determination of other questions. It is equally settled that before
a court can act under 12 Rule 6, the admission must be clear,
unambiguous, unconditional and unequivocal. Admission in
pleadings are either actual or constructive. Actual admission
consist of facts expressly admitted either in pleadings or in answer
to interrogatories. In a suit for ejectment, the factors which
deserves to be taken into consideration in order to enable the court
to pass a decree of possession favour of the plaintiff primarily are:-
(i) Existence of relationship of lesser and lessee or entry in
possession of the suit property by defendant as tenant.
(ii) Determination of such relation in any of the
contingencies as envisaged in Section 111 of Transfer of Property
Act."
8. In the factual matrix of the present case, following points can
be culled out:
a) The plaintiff has claimed to be the owner and landlord of
the defendants in respect of tenanted premises bearing no. shop
No.6, ground floor of premises No.456 out of khasra No.88,
situated at Gali no.21, main Road Jafrabad, Delhi-110053. The
plaintiff has filed a Sale Deed and Rent Agreement. It has been
contended that the father of the defendants Abdul Khaliq was the
original tenant and after his death in 2004, his sons and wife have
continued to be the tenants. The defendants have not denied the
landlord ship of the plaintiff in the tenanted premises. Infact the
Page no.5
contention of the defendants in point no.6 of the preliminary
objection that the lawful tenancy of the defendants has not been
terminated in accordance with law impliedly admits the landlord
tenant relationship. The defendants in their written statement have
stated that Rent Agreement has no legal sanctity but have not
denied the execution itself.
b) As per the plaintiff the rate of rent is Rs.660/- per month
excluding other charges whereas the defendants contend that rate
of rent is Rs.660/- per month including house tax of Rs.120/- per
month.
c) As per plaintiff the rent has been paid by the defendants
uptil July, 2013 whereas as per the defendants rent has been paid
uptil December, 2013. This is also an admission by the defendants
of landlord tenant relationship between the plaintiff and
defendants.
d) The plaintiff has alleged that he had sent a legal notice
dated 04.09.2013 to the defendants terminating the tenancy of the
defendants and asking for handing over the tenanted shop. The
defendants have not admitted it and contended that alleged legal
notice does not satisfy the ingredients of law as commercial
tenancy is not monthly. However, the said contention of the
defendants is untenable in view of the judgment in Nopany
Investment (P) Ltd Vs. Santokh Singh (HUF), 2008 (2) SSC 728,
wherein the Hon'ble Supreme Court held that filing of suit is itself
a notice to quit on the tenant and therefore, no notice to quit under
Section 106 of the Transfer of Property Act is necessary to enable
Page no.6
the landlord to get the decree of possession. The observations of
the Hon'ble Supreme Court are reproduced hereunder:-
"In any view of the matter, It is well settled that filing of an
eviction suit under the general law itself is a notice to quit on the
tenant. Therefore, we have not hesitation to hold that no notice to
quit was necessary under Section 106 of the Transfer of Property
Act in order to enable the respondent to get a decree of eviction
against the appellant."
e) The defendants have contested that the need of plaintiff or his sons over the suit property is not genuine as there is no bonafide requirement with the sons of the plaintiff being gainfully employed in other business. The said argument of the defendant is off the tangent in as much as bonafide requirement of the landlord or his defendants is required to be shown and proved in a petition under Section 14 (1) (e) of Delhi Rent Control Act and not in a Civil Suit for possession.
f) The defendants have contended the provisions of Delhi Rent Control Act are applicable to the tenanted premises in Jafrabad, Delhi. The scrutiny of Delhi Rent Control Act shows that for the applicability of the said Act, following ingredients are required:
i) The rate of rent should not exceed Rs.3500/- per month.
ii) There should be a notification of the tenanted premises regarding urbanization u/s.507 under the Delhi Municipal Corporation Act followed up by a Page no.7 notification u/s. 1 (2) of Delhi Rent Control Act.
In the present case, the rate of rent is Rs.660/- per month. The tenanted premises falls within the area of Jafrabad, which has to be a separate Revenue Estate.
The defendant has argued that the tenanted premises is covered by the DRC Act because it is urbanized area under the Delhi Municipal Corporation Act. The said contention is not tenable because as discussed above notification has to be under Delhi Municipal Corporation Act and also Delhi Rent Control Act, which is not the case in hand.
9. Thus, on the basis of the pleadings of the parties a clear cut case of allowing the application is made out. Accordingly the application under Order 12 Rule 6 CPC is allowed in favour of the plaintiff in respect of suit property i.e. shop No.6, ground floor of premises No.456 out of khasra No.88, situated at Gali no.21, main Road Jafrabad, Delhi-110053.
10. Preliminary decree-sheet be prepared accordingly.
(Announced in the (Amitabh Rawat)
Open Court on 20.08.2015 ) JSCC/ASCJ/GJ,
Shahdara,KKD,DELHI.
(This judgment contains 8 pages)
Page no.8