Delhi District Court
Uma Shankar Tiwari vs Mobind on 29 August, 2011
IN THE COURT OF SH. RAKESH KUMAR :ADJ03(C): DELHI
Suit No. 647/08
Uma Shankar Tiwari ..... Plaintiff.
Versus
Mobind .....Defendant.
ORDER
29.08.2011 Present: Ld. counsels for parties.
1. Vide this order I shall dispose of an application U/o 12 R 6 r/w S 151 CPC filed by the plaintiff interalia making a prayer for passing a decree of possession with respect to three shops i.e the suit properties in favour of the plaintiff/applicant and against the defendant in the interest of justice.
2. The instant suit for possession, recovery of arrears of rent, damages, permanent injunction and for mandatory injunction has been filed by the plaintiff and against the defendant and the same is pending adjudication.
3. It is submitted in the application that before filing of the Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.1 of pages 14 aforesaid suit, the plaintiff served the defendant with a legal notice dated 18.08.2008 thereby terminating his tenancy and further requiring the defendant to handover the vacant and physical possession of the suit premises to the plaintiff within 15 days from the date of receipt of the said notice and also asked for other reliefs, as mentioned in the suit. The said notice was duly served upon the defendant through registered AD and UPC. Further the defendant in para No. 12 of his written statement has admitted the service of the legal notice sent by the plaintiff and further the defendant has also admitted clearly unequivocally, unconditionally and unambigously the relationship of landlord and tenant between the parties and also admitted that his tenancy was oral in respect of the suit premises.
Thus the notice of termination of tenancy of the defendant as mentioned hereinabove stands admitted by the defendant. The ownership of the suit by the defendant and also that the tenancy having expired with the affulx of time i.e after 15 days from the date of receipt of the legal notice. It is further submitted that in Order 12 R 6 CPC the only prerequisite for this is that there must be the admission of fact arising in the suit, be that in the pleadings or otherwise or orally or in writing. Such admission must be clear, unequivocally, unconditional and unambigious and may relate to the whole claim or Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.2 of pages 14 part of it. In view of the settled law, the provisions of Order 12 R 6 CPC are clearly applicable to the facts and circumstances of the present case. The application is supported by the affidavit of plaintiff.
4. Defendant has strongly contested the application by filing the reply wherein it is claimed that the application is not maintainable as the same has been filed by the plaintiff without any justified reason or cause of action and hence same deserves to be dismissed with exemplary cost. The application is further not maintainable as the provisions of Order XII R 6 CPC are not applicable in the present suit as the defendant has nowhere made any such admission which would entitle the plaintiff to get the decree under the provisions of Order XII R 6 CPC as the provisions of Order XII R 6 CPC comes into play only in the cases where there is an admission which is absolutely clear, unequivocal, unconditional and uambiguous while there is nothing in the present suit and therefore the plaintiff is not entitled to any decree under the provisions of Order XII R 6 CPC. The application is further not maintainable as the question of jurisdiction of this court to try the present suit is also under dispute and has also to be decided as there is a big controversy regarding the rate of rent as while on the one hand the plaintiff is falsely alleging the rent of the tenanted premises @ Rs. 8000/ per month, the defendant on the Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.3 of pages 14 other hand is claiming the same to be Rs. 3000/ per month and the jurisdiction of this court is therefore barred U/s 50 of DRC Act and therefore provisions of order XII R 6 CPC are not applicable in the present case. The application is nothing but a gross abuse of process of law and the same has been filed by the plaintiff simply to harass and humiliate the poor defendant and to waste the precious time of this court. The application is highly misconceived, absolutely unwarranted, totally uncalled for and ill advise and the same is made without property going through and understand the real spirit and purpose and the required ingredients of the provisions of order XII R 6 CPC.
5. I have carefully heard the rival submissions made by Ld. counsels for the parties. I have also carefully perused the entire relevant material placed on record.
6. Rule 6 of Order XII of Code of Civil Procedure reads as under: R.6. Judgment on admissions.-(1).
Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.4 of pages 14 waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2). Whenever a judgment is pronounced under subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the said judgment was pronounced.
The object of Order XII Rule 6 CPC is wide enough to afford relief dehors the pleadings.
In 1997 AIHC 3774 (Delhi), it was held, "the provisions of Order XII Rule 6 CPC has to be exercised very carefully and sparingly and only in exceptional circumstances."
In AIR 2000 SC 2740, it was held, "the object of the Rule 6 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. The Court 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 face of which, it is Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.5 of pages 14 impossible for the party making such admission to succeed."
In 2006 V AD (DELHI) 667 titled as Charanjit Singh Vs. Kehar Singh it was held in para no.8 as under: "8. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words 'May' and 'make such orders' or 'give such judgment' spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial cannons."
The Hon'ble High Court of Delhi in IA No. 5912/2004 in CS (OS) 1578 of 2002 titled as Express Towers Vs. Mohan Singh decided on 22.8.2006 (MANU/DE/8926/2006), has held as under: "19. It is no more res integra that before a court can act under order 12 rule 6, admission must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.6 of pages 14 serious preliminary pleas which are likely to nonsuit a party, a court in its discretion can refuse to pass a decree."
In RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/2006), it has been held by Hon'ble Delhi High Court that: "6. The powers under order 12 rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle stated by MANU/SC/0505/ Chanchal V. Jalaluddin. Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.7 of pages 14 need for passing a decree on admission under these provisions only in the cases of first category and normally decline in the cases of the later category."
After giving my thoughtful consideration to the rival submissions made by Ld. counsels for the parties and perusing the entire relevant material placed on record, I have come to the considered opinion that the discretion to be exercised on the basis of admissions, as sought by the plaintiff, can not be granted in the present circumstances, where the defendant has categorically stated that the suit of the plaintiff is barred U/s 50 of DRC Act. Further the question of the jurisdiction of this Court is also raised by the defendant as the rate of rent of the tenanted premises is Rs.3,000/ per month and not Rs.8,000/ per month as claimed by the plaintiff.
This is a question which require trial and evidence. So it would not be appropriate to exercise the discretion, as sought by the plaintiff in the present application. It is well settled principle of civil jurisprudence that the judgment on admission is not a matter of right, rather, is a matter of discretion of a Court and where the defendant has raised objections which will go to the very root of the case, this discretion can not be exercised. In view of the aforesaid, I do not find it a fit Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.8 of pages 14 case to exercise my discretion, as sought by the applicant in the application moved U/o 12 R 6 CPC. Accordingly, the same is hereby dismissed.
7. Now the case be put up on 08.11.2011 for framing of issues.
(Rakesh Kumar) ADJ(Central03) 29.08.2011 Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.9 of pages 14 IN THE COURT OF SH. RAKESH KUMAR :ADJ03(C): DELHI Suit No. 647/08 Uma Shankar Tiwari ..... Plaintiff.
Versus
Mobind .....Defendant.
ORDER
29.08.2011
Present: Ld. counsels for parties.
1. This order of mine shall dispose off an application filed by Ld. counsel for defendant U/s 151 CPC for restoration of electricity supply to the suit property.
2. The instant suit for possession, recovery of arrears of rent etc has been filed by the plaintiff against the aforesaid defendant and the same is pending adjudication.
3. It is stated in the application that relationship of landlord and tenant is not disputed at all between the parties to the present suit. The dispute is regarding the rate of rent only inasmuch as the landlord claims the rent of suit property to be Rs. 8000/ per month, while on the other hand the tenant claims the same to be Rs. 3000/ per month. It is further stated that the defendant has filed a petition U/s 45(2) of the DRC Act for Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.10 of pages 14 restoration of the electricity and water supply alongwith an application U/s 45(3) of the DRC Act for restoration of the electricity and water supply during the pendency of the main petition. However, the interim application was dismissed by the court of ARC, Karkardooma Courts, Delhi vide its order dated 12.03.10. On jurisdictional point and observing that the controversy would require appreciation of evidence which is to be led and the appeal preferred by the defendant in the court of Ld. ARCT, Karkardooma Courts, Delhi was also dismissed. The fact, however, remains that there is no dispute on the question that the defendant is in possession of the suit property as a tenant and it is yet to be decided whether he is a tenant at Rs. 3000/ per month or Rs. 8000/ per month. In the circumstances where the possession of the defendant is not a disputed fact and he has regularly depositing a sum of Rs. 3000/ per month in the court and is living in the suit property without any electricity and water, he is entitled for the electricity and water till the time he is residing in the suit property and any order of his eviction is passed. The restoration of electricity and water is necessary on the point of humanity also. In the application the applicant is praying for issuance of directions to the plaintiff to restore the electricity and water supply to the defendant or in the alternative to give no objection to the tune that the defendant may install his own electricity and water connection at the suit property in the Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.11 of pages 14 interest of justice.
4. The application is contested by filing the reply wherein it is claimed that the application is barred by the principle of res judicata U/s 11 CPC as the question of restoration of electricity supply has already been decided by the court of competent jurisdiction on 12.03.2010. Even the appeal preferred against the said order has also been dismissed by Ld. ARCT, Karkardooma Courts, Delhi. This court cannot entertain the present application afresh as this issue has already been finally decided by a competent court of law, competent to decide the issue involved herein. It is claimed that the electricity and water supply never provided to the defendant in the tenanted shop. The defendant was getting electricity by the use and heavy generator installed at the roof top. The defendant requested the plaintiff that he will remove the generator after applying for electricity connection but the defendant never applied for electricity connection till date and also has not removed the heavy generator due to which heavy damage has been caused to the roof of the premises. At no point of time the electricity was provided to the defendant by the plaintiff. The conduct of the defendant also does not entitle him to have electricity and water connection as he has made the life of the plaintiff a hell by creating one or the other problem for him and also by not paying the settled rent of Rs. 8000/ per Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.12 of pages 14 month since 01.10.07. The question of giving no objection for the installation of the electricity does not arise at all in view of the facts and circumstances of the case. The application deserves dismissal with heavy cost U/s 35 A of CPC
5. I have carefully heard the rival submissions of Ld. counsels for parties. I have also perused the entire relevant material placed on record and in my considered opinion there is a substance in the submissions of Ld. counsel for the plaintiff that the application as preferred is devoid of merits and the same is liable for dismissal. Firstly, the question of restoration of electricity supply has already been raised before the Ld. ARC and the then before Ld. ARCT, wherein the relief sought by the applicant was disallowed. Further in this case the question of very jurisdiction of this case has been raised and in case any finding in respect of the interim relief as sought by the applicant in the application is given it may prima facie by indicative of an adjudication upon the jurisdictional question of this very stage. Since the controversy requires appreciation of evidence which is yet to be led, so at this stage the application is liable for dismissal and same stands dismissed accordingly.
6. With this the application stands disposed off.
(Rakesh Kumar) ADJ(Central03) 29.08.2011 Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.13 of pages 14 Suit No. 647/08 29.08.2011 Present: Ld. counsels for parties.
Arguments on application U/o 12 R 6 r/w Sec.151 CPC and application U/s 151 CPC for restoration of electricity supply concluded.
Put up at 4.00 p.m for orders.
(Rakesh Kumar)
ADJ(Central03)
29.08.2011
29.08.2011 (at 4.00 p.m)
Present: Ld. counsels for parties.
Vide two separate order the following two applications stands disposed off:
(i).Application U/o 12 R 6 r/w S 151 CPC moved on behalf of plaintiff.
(ii).U/s 151 CPC for restoration of electricity supply to the suit property moved on behalf of defendant. Now the case be put up on 08.11.2011 for framing of issues.
(Rakesh Kumar) ADJ(Central03) 29.08.2011 Uma Shankar Tiwari Vs. Mobind (Suit No.647/08) Page No.14 of pages 14