Delhi District Court
Sh. Mohit vs Smt. Archana Kochar on 10 May, 2022
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02 : NORTH
ROHINI COURT COMPLEX : DELHI
MCA DJ 07/2022
CNR No. DLNT01-002398-2022
IN THE MATTER OF:-
Sh. Mohit
S/o Sh. Shree Ram
R/o H.No. C-575, 3rd Floor,
Gali No. 8, Majlis Park,
Delhi-110033. ..............Appellant
VERSUS
Smt. Archana Kochar
W/o Sh. Ashwani Kumar
R/o B-255, 2nd Floor,
Gali No. 8, Majlis Park,
Delhi-110033. ............. Respondent
Date of Institution : 28.03.2022
Date of Arguments : 10.05.2022
Date of Judgement : 10.05.2022
APPEAL AGAINST THE IMPUGNED ORDER DATED 12.04.2021
PASSED ON APPLICATION UNDER ORDER XII RULE 6 CPC
JUDGMENT
1. The appellant, who was defendant No. 5 before the Trial Curt, being aggrieved with the impugned order dated 12.04.2021 whereby application of the respondent/plaintiff filed under Order XII Rule 6 CPC has been allowed, has preferred the present appeal.
2. Brief facts of the present case are that respondent/plaintiff filed a suit for possession/eviction, recovery of arrears of rent/damages and permanent injunction against the six defendants including appellant on MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 1/13 the ground that plaintiff/respondent being owner of the residential H.No. 575, 3rd Floor (with roof rights), Gali No. 8, Block-C, Majlis Park, Delhi-110033 had let the said floor (hereinafter suit property) to defendant No.1 Sh. Shree Ram @ Pappu, the father of the appellant at the rate of Rs. 13,500/- per month excluding electricity and water charges. The defendant No.1 was tenant of the plaintiff in respect of the suit property in question w.e.f. 01.11.2017 vide unregistered rent agreement dated 31.10.2017. Though the suit property was let out to defendant No.1 but other defendants i.e. defendant No.2 to 6 who are wife and children of defendant No.1, were also occupying the property and had refused to vacate the property hence, they had also been arrayed as defendants No. 2 to 6 in the suit.
3. The plaintiff/respondent averred that tenancy of the defendants was for a period of 11 months which came to an end on 30.09.2018 and thereafter tenancy was reviewed and extended orally thus making the tenancy month to month. It has been further averred that defendants stopped paying rent w.e.f. 01.03.2020 and plaintiff made numerous requests to the defendants to pay the outstanding rent but of no avail. The plaintiff further alleged that the defendant no. 1 had extended specific threat about not paying the rent and handing over the possession to some other person. The plaintiff further averred that tenancy of the defendant was terminated vide legal reply dated 14.08.2020 to the notice dt. 08.08.2020 of the defendant No.1 and defendants were asked to vacate the suit property and pay arrears of rent to the tune of Rs. 81,000/- the period w.e.f 01.03.2020 till 31.08.2020. The plaintiff thereafter filed the suit against the defendants for aforesaid reliefs.
4. The defendants no. 1 to 3 filed written statement through e-mail substantially stating therein that after the expiry of the rent agreement, MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 2/13 respondent/plaintiff did not renew the rent agreement and on the contrary husband of the plaintiff namely Ashwani Kochhar received Rs.20 lakhs as part payment towards the sale consideration of the property in question. The defendants were allowed to live in the house independently. The plaintiff also assured the defendants for execution of the documents and handing over of the documents to the defendants in the month of March/April 2019. The defendant no.1 asked the plaintiff either handover the papers or return the money that has been given to the husband of the plaintiff but the plaintiff was trying to get the house vacated from the defendants. Hence, legal notice dated 08.08.2020 was sent to the plaintiff for repayment of Rs. 20,00,000/- or give papers of the suit property. It has been further claimed that rent had been paid till the date i.e. till the of filing of the written statement.
5. Respondent/plaintiff moved application under Order XII Rule 6 CPC before the trial court for passing decree of possession on admission. Ld. Trial Court vide impugned order dated 12.04.2021 was pleased to pass judgement on admission thereby passing preliminary decree of possession in favour of respondent/plaintiff and against the defendants. Hence, aggrieved from the said order, appellant/defendant No. 5 filed the present appeal raising following question of Law:-
i. Whether the contents of the written statement filed by the defendants in its entirety do tantamount to clear, unambiguous, specific and unequivocal admission leading to passing of decree of possession under order XII Rule 6 of CPC?. ii. Whether the findings of the Ld. Trial Judge regarding "the defence taken by the defendant is without any support of documents" is sufficient and can lead to admission by the defendant warranting summary trial under order XII Rule 6 CPC?MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 3/13
iii.Whether after the judgement under order XII Rule 6 CPC, the defendants have been deprived of their valuable right of leading primary/secondary evidence to prove their case? iv. Whether after the judgment under order XII Rule 6 CPC, the defendants have been deprived of valuable right of cross examination of the plaintiff in relation to the vital and important questions of facts in order to prove their case? v. Whether the powers of discretionary relief under order XII Rule 6 CPC has been exercised in a judicious manner despite glaring inconsistencies made in the plaint and the plaintiff not being a truthful litigant?
vi.Whether the defendants have been deprived to prove their case by not allowing availing the benefits of section 63, 64 and 65(c) of the Indian Evidence Act?
vii.Whether the Ld. Trial Court, even in the worst case of alleged admission made by the defendants, ought to have exercised its discretion under section 58 of the Indian Evidence Act in the fact and circumstances of the case?
viii.Whether the reasoning given by the Ld. Trial Court that "the defence taken by the defendants is without any support of documents" is actually finding of facts/merits without there being any examination or cross examination of the parties and cannot be treated as admission under order XII Rule 6 CPC? ix.Whether the provision of order XII Rule 6 CPC and order XXXVII of CPC are identical/similar so as to consider the defence of the defendants is without any support of documents as moonshine or interpreting to be same as "admission" warranting summary disposal of the suit?
6. Raising above questions of law in the opinion of appellant, appellant MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 4/13 has filed present appeal on following grounds:-
i. That Ld. Trial Court placed reliance only on the selective portion of the pleadings in a piecemeal and isolated manner without appreciating the written statement in its entirely and the observations of the Ld. Trial Judge was also erroneous on the point that the defence taken by the defendant is without any support of the document.
ii. That the Ld. Trial Court ought to have considered the fact that the defendants have specifically stated about the part payment of Rs.20,00,000/- to the husband of the plaintiff in the presence and consent of plaintiff for the consideration amount of the suit property. The issue in this regard ought to have framed and the defendants would have been granted opportunity to prove their averment by way of leading primary/secondary evidence. iii. That Ld. Trial Court failed to appreciate that the plaintiff was not a bonafide and truthful litigant. The plaintiff filed the suit only when the defendant no. 1 sent legal notice calling upon her to return the money or execute the defendants of the suit property.
iv. That the Ld. Trial Court failed to appreciate the mandate of Order VII Rule 3 of CPC since the site plan attached with the plaint is vague.
v. That the Ld. Trial Court also overlooked and ignored the very vital submissions with regard to the denial of receipt of the alleged legal notice sent by the plaintiff terminating the tenancy (even if at all the averment of the plaintiff are believed to be true and correct).
vi. That the Ld. Trial Court lost sight of the fact that the defendants have raised vital points in the written statement MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 5/13 requiring framing of issues and granting an opportunity for leading evidence and has also overlooked the preliminary objections with regard to the valuation of the suit property made by the plaintiff and affixation of less court fee. vii.That the Ld. Trial Court has not applied in correct prospective the rationale and principal laid down in Order XII Rule 6. The discretionary powers vested in the court have not been exercised by the Ld. Trial Judge in a judicious and proper manner.
7. Ld. Counsel for the appellant Sh. Anil Sehgal and Ld. Counsel for respondent Sh. Shailender Dhaiya heard at length. Contention of the Ld. Counsel for the appellant is on the lines of grounds of appeal and question of law raised by him as noted above. In support of his contention Ld. Counsel for the appellant relied upon S. M. Asif v. Virender Kumar Bajaj (2015) 9 SCC287, Balraj Taneja & Anr. v. Sunil Madan & Anr. (1999)8 SCC 396, Indu Singh v. Surender Kamboj & Ors. 278 (2021) DLT 65 (DB), Amit Kumar Chopra v. Narain Cold Storage & Allied Industries Pvt. Ltd. & Ors. 208 (2014) DLT 509 and Manisha Commercial Ltd. v. N. R. Dongre & Anr. 2000 (52) DRJ 578. Ld. Counsel for respondent has supported the judgement on admission.
8. Trial court record impugned judgement perused. Respective arguments of parties and case laws relied upon by the appellant taken into consideration.
9. There is no dispute that Court in appropriate case has power to pass judgement on admission under Order XII Rule 6 CPC and that power under Order XII Rule 6 is discretionary which Court has to exercise in judicious manner, not arbitrarily or in whimsical manner. Such power has been conferred upon the court to save the parties from rigmarole of MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 6/13 protracted litigation qua the claim which is admitted by other party or not in dispute. Thus, it is an enabling provision for delivering a quick judgment on admission to the extent of the claim admitted by the opponent. It is also settled that although admission should be clear, unambiguous and unequivocal but it can also be inferred from pleading if couched in sweets words or camouflaged in bitter pleading.
10. Now coming to the present appeal the first objection which respondent/plaintiff has raised is about the non - impleadment of necessary parties. It has been contended that plaintiff/respondent has filed suit against six defendants stating clearly that defendant No.1 was tenant in the suit property and defendant No. 2 to 6 who were wife and children of defendant No.1 were also in possession of the suit property through defendant No.1, they were impleaded as parties to the suit but present appeal has neither been filed by defendant No.1 nor has he been joined as co-appellant or proforma respondent. Similarly, other defendants have also not been joined as co-appellant or proforma respondent.
11. Submission of Ld. Counsel for respondent/plaintiff has weight. Present appeal is bad for non-joinder of other defendants either as co-appellant or as proforma respondents. On this count only present appeal is liable to be dismissed.
12. Besides above, it is seen from the trial court record that present appellant has not filed any written statement before the Trial Court nor has adopted the written statement filed on behalf of defendants No.1 to
3. Non filling of written statement itself amounts to admission of the case of the plaintiff, hence, appellant should not have any grievance against the impugned order. Neither before the trial court nor before this court appellant is claiming any independent right in the suit property nor has he filed the present appeal for and on behalf of defendant No.1.
MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 7/13Hence, present appeal is liable to be dismissed.
13. Though not claimed but even if present appeal is considered on behalf of tenant/defendant No.1 question would arise whether there was no admission on the part of defendant No.1 which would not entitle the plaintiff/respondent to get decree on admission.
14. Plaintiff/respondent has claimed herself to be the owner/landlord of the suit property which fact has not been disputed in written statement of defendant No. 1 to 3. Plaintiff has claimed that she let out the suit property to defendant No.1 vide rent agreement dt. 31.10.2017 for a period of 11 months at the rate of Rs. 13,500/- per month excluding electricity and water charges. Defendant No.1 to 3 in their written statement had admitted that suit property was let out by plaintiff to defendant No.1 vide rent agreement dt. 31.10.2017 for a period of eleven months at the rate of Rs 13,500/- per month but rent included electricity and water charges. So there is an admission that defendant No.1 was tenant in the suit property.
15. Plaintiff has claimed that after the expiry of lease vide rent agreement dt. 31.10.2017 no rent agreement was executed and same was extended orally and thus, the tenancy of defendant became month to month. Defendant No. 1 to 3 in their written statement have claimed that after expiry of rent agreement plaintiff did not make fresh rent agreement and kept on postponing. Thus, there is admission on the part of defendant No. 1 to 3 that their tenancy is on month to month basis.
16. Plaintiff has claimed that neither defendant No.1 nor his family members defendant No. 1 to 5 made any payment of rent w.e.f March 2020 till August, 2020 and when plaintiff demanded arrears of rent but defendant No.1 in stead threatened plaintiff and defendant No.1 got issued served a legal notice dt. 08.08.2020 making false allegation of having paid Rs. 20,00,000/- to the husband of the plaintiff and plaintiff MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 8/13 got sent legal reply dt. 14.08.2020 denying the claim of the defendant No.1while calling upon him to vacate the suit property and pay arrears of rent. Defendant No.1 to 3 in their written statement has disputed having extend any threat or being in arrears of rent but did not specifically deny that reply dt. 14.08.2021 was received by defendant No.1. Thus, claimed by defendants No. 1 to 3 that they were not in arrears of rent and that they had paid the rent till the date of filling of written statement amounts to admission on the part of the defendants that despite the alleged oral agreement to sell status of defendant No.1 qua the suit property remained that of a tenant. Further, specific non denial of receipt of legal reply dt 14.08.2020 amounts to admission about the termination of tenancy vide reply dt. 14.08.2020.
17.One retains possession of an immovable property either as owner or as a tenant or as a licensee or as a trespasser/unauthorised occupant. A owner retains possession of property till he is owner, a tenant retains possession of a property till lease in his favour exist, a licensee retains possession till license is revoked and a trespasser/unauthorized occupant has no right to retain the possession of a property unless he has perfected his title by way of adverse possession. A person who enters in the property with permission will always remains in permissive possession till the time permission is revoked and thereafter his possession becomes unauthorised and becomes liable to be evicted. Admittedly, in the written statement defendant No.1 to 3 have claimed that suit property was let out to defendant No.1 by plaintiff vide rent agreement dt. 31.10.2017 for a period of eleven month which came to an end on 30.09.2018 whereafter his tenancy became month to month which was terminated vide reply dt. 14.08.2020. Service of reply is not specifically disputed. Even other wise service of summons of the suit for eviction amounts to termination of tenancy/license or permission MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 9/13 granted. In this Ld. Trial Court has rightly relied upon the rulings in Nopany Investments (P) Ltd. v. Santosh Singh (HUF) 2008 (2) SCC
278.
18. Hence, it has rightly been found that relationship of landlord and tenant has been admitted, rate of rent being above Rs. 3,500/- has also been also admitted which takes the tenancy out of purview of Delhi Rent Control Act, 1958, tenancy is month to month has also been admitted as admittedly there is no registered lease deed in favour of the tenant for the period under consideration and there is an admission regarding the service of reply dt. 14.08.2020 and thus there is admission about termination of tenancy as well. Even otherwise service of summons of the suit for possession upon the defendant No.1 also amounts to termination of tenancy/licensee as has been held by Hon'ble Supereme Court in Nopany (supra). What else is required to be proved by a owner/landlord in a suit for eviction/possession against tenant? Thus, defendant No. 1 to 3 in their written statement did not raise any dispute requiring trial qua the relief of possession of the suit property.
19. Defendant No. 1 to 3 in their written statement took the plea of having given Rs. 20 lacs to the husband of the respondent/plaintiff and respondent/plaintiff subsequently agreeing to sell the property to defendant No.1 against the said amount. Even if this plea is accepted as true it does not give any right to the defendants to retain possession of the suit property as admittedly defendants No. 1 to 3 had claimed that they had paid rent upto the date of filling of written statement which means despite the alleged oral agreement to sell, status of the defendants No.1 in the suit property was that of a tenant. Further protection of Section 53A of Transfer of Property Act after the year 2001 applies only when there is registered agreement/contract which is not available in the present case. The only remedy which defendant MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 10/13 No.1 has got qua his plea is to seek relief of specific performance of alleged oral agreement to sell or recovery of alleged amount but defendant No.1 or any of the defendants has admittedly not filed any counter claim or independent suit qua either of the reliefs or both reliefs in alternatively. Even if such suit or counter claimed had been filed, he would not have been entitled to retain the property during time defendants alleged would be adjudicated.
20. Further, defendant No.1 to 3 in their written statement has not pleaded when, how and in what manner the alleged amount was given to the husband of the plaintiff. Defendant No. 1 to 3 has not bothered to explain the source from where defendant No.1 or defendant No. 1 to 3 had paid the amount to the husband of the plaintiff. Ld Counsel for the appellant had argued that defendant No.1 to 3 would prove the same in evidence and that is possible only when matter is put to trial and defendants are given an opportunity to lead evidence.
21. "Unless you plead and you can not lead" is very basic rule in civil litigation. No one is permitted to lead evidence beyond pleading. Once there is no pleading to the above noted aspect about payment, how defendant would be permitted to lead evidence? A sum of Rs 20,00,000/- is huge amount and it cannot be said that at the time of drafting the written statement details of source from where same was arranged or in what manner same was paid, was not available to defendant. Apparently, it is a bald plea having been taken just to drag the litigation.
22.Case laws relied upon by the appellant is not applicable to the present case. Ld. Counsel for appellant heavily relied upon S. M. Asif (supra) contending that fact of the said case is similar to the present one but this Court does not agree with him as in the said case tenant had not only set up defence of an agreement to sell but had also filed suit for specific MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 11/13 performance against landlord.
23. In any case, defendant can get back the suit property or his alleged money by filling suit for specific performance of the alleged oral agreement to sell or by filling suit for recovery of aforesaid amount, as per law and subject to limitation. This Court must make it clear here that observation regarding filing of suit for specific performance or recovery of amount should not be taken as authorization about the maintainability of such suit, if such suit happens to be filed by defendants later.
24. So far as issue of valuation of court fees is concerned. Appellant has not been able to point out how the suit has not been properly valued for the purpose of jurisdiction and relief of possession. In a suit for eviction of tenant on month to month, landlord is required to value the suit at yealy rent of the suit property. In the present case respondent/plaintiff has valued the suit for aforesaid purpose at Rs. 1,62,000/- which is the yearly rate calculated at monthly rent of Rs 13,500/- per month and for the said relief respondent/plaintiff has paid court fees of Rs 3955/-. Thus, neither there is any under valuation nor affixation of less court fees.
25. In view of the above discussion and reasoning particularly in the factual back ground of the case of parties, the questions of law which appellant has framed do not arise and none of the grounds of appeal as noted above call for any interference by this Court as the impugned order dt. 12.04.2021 doesn't suffer from any illegality. Consequently, appeal is hereby dismissed.
26. Parties to bear their own respective cost of litigation.
27. After pronouncement of the verdict of the present appeal, Ld. Counsel for appellant requested for two months time to vacate the property to which respondent/plaintiff was in a mood to agree but only if all MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 12/13 defendants make statement/undertaking to this effect which was stated to be not possible as some of the defendants are stated to be in judicial custody in a criminal case.
28. Should such representation is made to Ld. Trial Court/Executing Court by the appellant/defendants, Ld. Trial Court/Executing Court may take independent call in this regard.
29. TCR be sent back with copy of this judgment placed on record.
30. Appeal file be consigned to record room after necessary compliance.
(Harish Kumar)
Additional District Judge-02, North
Announced in the open court Rohini Court Complex
(Judgment contains 13 pages) Delhi/10.05.2022
MCA DJ 07/2022 Mohit v. Archana Kochar DOJ 10.05.2022 Page No. 13/13