Delhi District Court
Sh. Shiv Mangal Singh vs Sh. Rameshwar Dass on 7 September, 2010
1/22
IN THE COURT OF SH. S. S. MALHOTRA, ADDL. DISTRICT
JUDGE, EAST, KARKARDOOMA COURTS, DELHI
APPEAL NO. 131/10
Date of filing of Appeal : 09.07.2010
Date of arguments : 25.08.2010
Date of order : 07.09.2010
Sh. Shiv Mangal Singh
S/o Late Sh. Rajender Singh
R/o H.No. IX/5552, Main Road,
Old Seelumpur, Gandhi Nagar,
Delhi110031 ..............................Appellant
versus
Sh. Rameshwar Dass
S/o Late Sh. Bant Lal
R/o 130, Gopal Park,
Delhi110051 ...........................Respondent
O R D E R :
1 By this order I shall dispose off the appeal of the appellant/defendant as filed by him against the order of Ld. Trial Court by which application of the plaintiff/respondent under order 12 rule 6 CPC has been allowed.
2 Before coming to the facts of the present appeal, brief facts as stated by the plaintiff in the plaint are, that the plaintiff/respondent filed a suit for recovery of possession, arrears of rent, mesne profit/damages and for permanent injunction against the defendant on 2/22 the ground that plaintiff is owner of property bearing no. X/34, Pratap Chowk, Shivaji Gali, Near Gurudwara, Gandhi Nagar, Delhi110031 which property he purchased from its previous owner and in which property, the defendant was already a tenant with respect to second and third floor of the property @ rate of rent Rs. 8,000/ per month and since the defendant was not making the payment to him, the plaintiff served a legal notice on 16.1.2010 upon the defendant thereby terminating his tenancy and asking him to vacate the tenanted premises but since the defendant did not vacate the premises, he filed the present suit seeking possession of the suit property stating therein that the rate of rent was Rs. 8,000/ per month and which fact was admitted by the present defendant in one of the previous suit filed by the defendant himself against the present plaintiff as well as against previous owner of the suit property. 3 The defendant filed the written statement in which he denied that rate of rent was ever Rs. 8,000/ per month, rather stated that the rate of rent was Rs. 3,000/ per month and therefore, he took the objection that suit of the plaintiff is barred under section 50 of DRC Act and the jurisdiction of the Ld. Trial Court was also challenged on the same ground and the explanation given by the defendant in the written statement was that in suit for permanent injunction as was filed by him against the present plaintiff, he had told his counsel that the rent of suit premises was Rs. 3,000/ per month but the landlord wanted to enhance the same from Rs. 3,000/ to Rs. 8,000/. 3/22 However, due to gross miscommunication/ misunderstanding, the previous counsel had stated in the suit that the rate of tenanted premises was Rs. 8,000/ per month instead of Rs. 3,000/ per month and being an illiterate person, the defendant could not come to know about such mentioning of rate of rent and as such the rate of rent of was Rs. 3,000/ and not Rs. 8,000/ per month. He also denied the service of notice upon him and prayed that the present suit is not maintainable before this court. He even submitted that plaintiff had never served any letter of attornment upon the defendant in this regard and the plaintiff/respondent had never conveyed that he has purchased the property in question to the defendant. In nut shell, the defendant has denied each and every facts of the plaint.
4 The plaintiff thereafter filed the replication as well as an application under order 12 rule 6 CPC which was allowed by Ld. Trial Court and against which the present appeal has been filed. In the application under order 12 rule 6 CPC, the plaintiff has stated that the defendant had already filed written statement and has altogether taken a contradictory stand to the stand taken by the defendant in his earlier suit bearing no. 468/09 titled as "Sh. Shiv Mangal Vs. Sh. Rameshwar Dass and another" which was disposed off by the court of Sh. N.K. Malhotra, Ld. ACJ (East), Karkardooma Courts, Delhi vide order dated 8.01.2010. It is stated that the present defendant had 4/22 filed a suit for permanent injunction against the present plaintiff as well as against Sh. Surinder Mohan Sharma, the previous owner and defendant categorically and specifically stated that the rate of rent of suit premises in question was Rs. 8,000/ per month and the defendant in the present suit by filing written statement has stated that the rate of rent was Rs. 3,000/ per month only with sole motive to take the present case out of the jurisdiction of the civil court whereas the law on the subject is well settled that the admissions once made cannot be withdrawn and the rate of rent has already been admitted by the defendant not only in the plaint by the defendant herein (the plaintiff in his previous suit) but he even had given a statement before Ld. Trial Court to the effect which was recorded by the court and since the defendant has already admitted himself as a tenant of the plaintiff @ rate of Rs. 8,000/ per month in the suit no. 468/09 on oath on 23.12.200, the present defence of the defendant is not maintainable and has been just cooked up to delay the proceedings which is otherwise contrary to the law and it was prayed that keeping in view the plaint and statement made by the present defendant in suit no. 468/09, the suit of the plaintiff in terms of his admission be decreed under order 12 rule 6 CPC. 5 The defendant in the reply to this application has taken the same stand as stated by him in the written statement and he has inter alia replied that the present application under order 12 rule 6 CPC is not maintainable. The same is nothing but gross abuse of the process 5/22 of law. The provision of order 12 rule 6 CPC are very clear about the admission. Defendant has not made any admission in the written statement rather he has denied each and every fact and he has already clarified in the written statement with respect to contents of his suit for permanent injunction as filed by him against the present plaintiff as well as against Sh. Surinder Mohan Sharma, the previous owner that his counsel had misunderstood the facts and he made such admission which the defendant never wanted to make and therefore, no decree can be passed on the present application/ suit against the defendant and therefore, he has prayed that application of the plaintiff be dismissed.
6 After hearing the arguments at length, the Ld. Trial Court vide order dated 4.09.2010 allowed the application of the plaintiff and now the defendant has filed the present appeal on various ground inter alia that the order dated 4.06.2010 passed by Ld. Trial Court is wrong and against the law and contrary to the facts, that the order is based on surmises and conjectures, that the order is suffering from gross irregularities and is contrary to the facts/ material on record, that the Ld. court below has failed to understand that the application filed by the respondent in the main suit was not maintainable as ingredients of the order 12 rule 6 CPC were not attracted and it is well settled law with regard to the provisions of order order 12 rule 6 CPC that admission must be such which is clear, specific and unambiguous whereas in the present case, the defendant had denied each and 6/22 every fact but Ld. Trial Court has failed to appreciate such facts. It is further stated that mentioning the rate of rent was Rs. 8,000/ per month in the previous suit was only a mistake as he had told his counsel that landlord wanted to enhance the rate of rent from Rs. 3,000/ to Rs. 8,000/ per month whereas the counsel because of miscommunication and misunderstanding stated that rate of rent was Rs. 8,000/ per month instead of Rs. 3000/ per month and appellant being an illiterate person could not understand such fact nor at the stage of signing the plaint nor at the time of making the statement in the court and Ld. Trial Court has not appreciated all such facts. It is further stated that Ld. Trial Court has not appreciated that relationship of landlord and tenant in between the plaintiff and the defendant as the plaintiff/respondent has failed to show any document or letter of attornment whereby he has informed the appellant that he has purchased the suit property and further that there was no occasion with the present appellant to move any application to make amendment in the previous suit to withdraw such facts pertaining to his admission which facts have been stated by his counsel incorrectly, as the said suit had already been disposed off after making the statement by the parties and Ld. Trial Court has not considered this fact. Apart from that he has taken the ground that no notice was served upon the defendant. In these circumstances, he has prayed that the order of Ld. Trial Court is liable to be set aside and therefore, appeal of the appellant be accepted and order of Ld. 7/22 Trial Court be set aside.
7 After filing the appeal, notice was issued to the respondents. Ld. counsel for respondent submitted that he is not likely to file any reply and he would argue straight away.
8 I have heard the arguments.
9 Ld. counsel for appellant has basically argued that the admission made by the plaintiff in the previous suit i.e. suit no. 468/09 in the court of Sh. N.K. Malhotra, Ld. ACJ, East, Karkardooma Courts, Delhi is not binding upon him and in the present case there is no admission at all made by the defendant and once there is no admission by the defendant, no order under order 12 rule 6 CPC can be passed and secondly, the admission, if any, was in the previous suit which was filed by the present defendant against the present plaintiff as well as the previous owner of the suit property and that was only a mistake committed by the previous counsel in understanding as to what the plaintiff intended to say and further the plaintiff in previous suit being an illiterate person could not understand the facts as mentioned in the suit or at the time when he made a statement in the court of Sh. N.K. Malhotra, Ld. ACJ, Karkardooma Courts, Delhi.
10 It is further argued that there was neither any occasion nor any opportunity with the defendant to understand the consequence of the statement/pleading made in the previous suit and if the matter would not have been disposed off on the basis of the statement, he would 8/22 have been having an opportunity to amend his pleading but even he could not do so as the suit was disposed off and therefore, his statement made in the previous suit may not be read as clear admission rather the same does not fall as an unambiguous admission and the Ld. Trial Court has failed to appreciate this fact and the appeal of the appellant is liable to be accepted and may kindly be accepted.
11 Ld. counsel for respondent on the other hand has argued that appellant has nowhere stated as to what action he has initiated against the previous counsel, if it was a mistake on the part of the counsel and what steps he had taken to withdraw that admission before the court where he made a statement and since the plaintiff in the previous suit had made a specific and categorical statement, now he can not be allowed to withdraw the admission particularly such admission which have conferred a right upon the appellant. It is further argued that because of such admission on behalf of defendant in his previous suit the right has accrued in favour of the plaintiff, and unless the defendant make out a case that he has made the statement under pressure and coercion, he cannot be allowed to withdraw such admission. It is further argued that the admission of the present defendant can not be allowed to be withdrawn and present appeal in such circumstance is contrary to the facts as stated by the plaintiff himself before the court in the previous suit. It is further argued that although there is no admission in the present suit yet the 9/22 admission made by the defendant, in previous suit is binding upon him, as the definition of order 12 rule 6 CPC is quite wide and the word 'statement' which is made not only in the present pleading amounts to admission but the statement made 'otherwise' is also covered under order 12 rule 6 CPC. It is further argued by ld. counsel for respondent that the falsity of the defence as taken by the respondent stands clear from the bare facts of his pleadings. It is not only that the defendant has denied the fact with regard to the rate of rent rather he has also denied the relationship of landlord and tenant as well as the statement made before the court with regard to the defendant no. 2 in that suit. He filed the plaint before Ld. Trial Court which was assigned to the court of Sh. N.K. Malhotra, Ld. ACJ, Karkardooma Courts, Delhi. The defendant had appeared and after the appearance a statement was also made by the present defendant in which he specifically admitted that he was earlier a tenant under defendant no. 2 (in that previous suit) and he had given the rent for two months i.e. Rs. 16000/ to the defendant no.1 (present plaintiff). The rate of rent was Rs. 8000/ per month and he further prayed that suit be disposed off. It is further argued that the admission was not only in the pleadings but even after the pleadings, statement of the defendant was recorded on 23.12.2009. Not only this, the matter was not disposed off on the same date rather Ld. Court had given time on 23.12.2009 after recording statement thereby directing the defendant no. 2 to place on record the copy of the sale deed and mater was 10/22 fixed for 8.01.2010 and there was ample opportunity with the defendant herein to make any amendment in the statement so made by him before the court of Sh. N.K. Malhotra, Ld. ACJ, Karkardooma Courts, Delhi or to withdraw that statement and as such, the assertion of the defendant that he was an illiterate person or he was not having any opportunity to withdraw the admission made by his counsel, due to misunderstanding, are not well found and in these circumstances, it has prayed that appeal of the appellant be dismissed. 12 I have heard the arguments and perused the record of Ld. Trial Court.
13 Ld. counsel for appellant has relied upon judgments:
i. Cosmo Ferrites Limited Vs. Universal Commercial Corpn. and Ors. I.A. No. 11612 of 2003 in C.S. (OS) No. 1525 of 1999 ii. Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 Supreme Court Cases 728 iii.Rakesh Vs. Jagdish AIR 2002 Supreme Court and the basic arguments of ld. counsel for appellant is that to pass a decree or admission under the order 12 rule 6 CPC, the admission should be unequivocal clear and positive and in any case passing a decree on the basis of admission made, is otherwise not a right of any party, rather it is a matter of discretion of the court and in case the court finds that the admission are unequivocal in the written statement, the court can reject the application under order 12 rule 6 11/22 CPC and may not appreciate the statement on such unambiguous admission.
14 Ld. counsel for respondent on the other hand has relied upon following judgments:
i. Bhopal Singh Vs. Chatter Singh and Ors. AIR 2000 Punjab and Haryana ii. Bhajan Lal Vs. Madan Lal & ors. AIR 1983 Delhi 555 iii.Bollepanda P. Poonacha Vs. K.M. Madapa & Ors. (2008) 13 Supreme Court Case 179 iv. Uttam Singh Duggal and Co. Ltd. v United Bank of India, VI (2000) SLT 87 v. P.S. Batra v Anoop Singh and Anr., 155 (2008) DLT 431 vi. Charanjit Lal Mehra and Ors. v Smt. Kamal Saroj Mahajan and Anr., 118, (2005)DLT 396 (SC)= III (2005) SLT 131=(2005) II SCC 279 vii. Rajiv Srivastava v. Sanjiv Tuli and Anr. 119 ( 2005) DLT 202 (DB) viii. Sharex Acting Thr. V.K. Chadha v Sudershan Suri RFA 30/2010 and CM Nos. 1149/2010 and 2489 of 2010
15 The interpretation of order 12 rule 6 CPC is quite wider. Order 12 rule 6 CPC is reads as under: ''Judgment on admissions (1) Where admissions of fact have been made either in 12/22 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''.
(2) ''Whenever a judgment is pronounced under subrule 91) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced''.
16 The scope of order 12 rule 6 CPC came before Hon'ble Supreme Court in Uttam Singh Duggal and Co. Ltd. V. United Bank of India, VI (2000) SLT 87, AIR 2000 SC 2740 and it reads as under: ''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 amending the said rule, it is stated that 'where a claim is 13/22 admitted, the Court has jurisdiction to enter a judgment for he 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 face of which, it is impossible for the party making such admission to succeed'' 17 It was again cited with approval in P.S. Batra V. S. Anoop Singh & Anr. 155 (2008) Delhi Law Times 431, where it was inter alia held that: ''Counsel for the plaintiff submits that the statement of the plaintiff as recorded on 19.08.2008 is itself not sufficient for passing a judgment on admissions under the provision of order 12 rule 6 CPC. In this 14/22 context, he refers to the certified copies of the documents filed by the defendants under an index dated 13.12.07 and states that the first Memorandum of Family Arrangement (hereinafter referred to as 'the Family Arrangement') dated 15.03.1978 and the second Memorandum of Family Arrangement dated 15.12.1979 were executed during the lifetime of the parents of the parties.
However, the affidavit of the date 11.12.1995, was executed by the plaintiff prior to the demise of the parents and can not be treated as a relinquishment deed in respect of the estate of the parents after their demise. He states that the original of the affidavit executed on 11.12.1995 has not been filed by the defendants on the record and hence no reliance can be placed on the same. He contends that the said document was fraudulently got executed from the plaintiff and even if the same is admitted, it does not have any legal and binding force, as it was executed without consideration. It is 15/22 canvassed that such a document amounts to transfer of title and thus mandatorily requires registration under the provision of the Registration Act, 1908 and in the absence of any registration, the same cannot be taken not of. He relies on a judgment in the case of Sher singh and Ors. v. Pirthi Singh and Ors.
reported as AIR 1975 Allahabad 259 to state that a statement made under order 10 rule 2 CPC cannot be taken into consideration, so as to pass a judgment on admissions and in these circumstances. The court has held that since the plaintiff is neither illiterate nor infirm nor mentally weak nor a disabled person nor unaware of his rights and such plaintiff can not be allowed to wriggle out of the affidavit by claiming it to be a fraudulent and ultimately the order 12 rule 6 CPC was passed.
18 I have gone through the judgments and perused the record. One fact is admitted that the defendant has made an admission in the previous suit filed by himself. This fact is also admitted that the previous suit was filed by the present defendant against the present 16/22 plaintiff as well as the previous owner of the property thereby admitting the rate of rent as Rs. 8000/ per month and also admitting the present plaintiff as his landlord/owner. Therefore the plea of the appellant that the defendant never attorned the plaintiff as his landlord or the plaintiff never wrote any letter to the defendant is not well found particularly in the circumstance that Ld. Trial Court did not dispose off the suit of the plaintiff merely on the pleadings or the statement of the defendant, rather the Ld. Trial Court directed the defendant no. 2 to file copy of sale deed on court record and only after filing the same by the defendant no. 2, the suit of the plaintiff was disposed off. Therefore, there is no merit in these arguments. 19 As far as the arguments with regard to the admissions are concerned, it is admitted fact that the defendant has admitted the rate of rent was Rs. 8000/ per month in the previous suit. The only defence which has raised by the appellant is that he wanted to convey his counsel the rate of rent was Rs. 3000/ per month and landlord wanted to enhance the same to Rs. 8000/ per month but the counsel inadvertently or due to miscommunication wrote in the previous plaint that rate of rent was Rs. 8000/ per month and now defendant wanted to withdraw that admission made in the previous suit by filing written statement/reply in the present suit. Arguments of ld. counsel for appellant that there is no estoppal against the defendant in the suit is not well found. It is well settled of law that admission once made can not be withdrawn.
17/2220 The court thereafter has raised specific query from the appellant to the effect as to whether he can show any law point on the facts that admission once made in previous suit can be denied/withdrawn on the basis of miscommunication or misunderstanding in a subsequently filed suit in between the same parties. Ld. counsel for appellant has failed to file any specific judgment on the same. On the other hand ld. counsel for respondent has relied upon judgment of the Supreme Court titled Bollepanda P. Poonacha Vs. K.M. Madapa & Ors. (2008) 13 Supreme Court Case 179, wherein it was inter alia held that: ''Ordinary, effect of an admission made in earlier pleadings shall not be permitted to be taken away. The court, must exercise its wide discretionary jurisdiction in a judicious manner. While considering that subservance of justice is the ultimate goal, the statutory limitation should not be overstepped''.
21 As far as the word 'otherwise' as has appeared in order 12 rule 6 is concerned, our own High Court has discussed in Rajiv Srivastava V. Sanjiv Tuli and Anr. reported as 119 (2005) DLT 202 (DB).
"The use of the expression 'otherwise' in the aforesaid context case to be interpreted by the 18/22 court. Considering the expression the court had interpreted the said word by stating that it permits the court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e. either in any document or even in the statement recorded in the court. If one of the parties' statement is recorded under order 10 rules 1 & 2 of the Code of Civil Procedure, the same is also a statement which elucidates matters in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and he court can proceed to pass judgment on the basis of the admission made therein.............."
22 Again it was discussed in Sharex Acting through V.K. Chadha v Sudershan Suri RFA 30/2010 and CM Nos. 11149/2010 and 2489 of 2010: 19/22 ''To conclude, in the instant case the execution of the lease deed has been unequivocally admitted by the appellant.
Once the execution of the document has been admitted, Section 91 and 92 of the Evidence Act, come into play. Section 91 lays down that when the terms of a contract or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract or other disposition of property, except the document itself. Section 92 further lays down that when the terms of any such contract or other disposition of property 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 for the purpose of contradicting, varying adding to or subtracting therefrom. Thus, quite obviously, the pleas raised by the appellant against the contents of the lease deed are barred by section 91 and 92 of the 20/22 evidence act and appear to have been made only for the purpose of delaying the trial of the case. Such pleas as ruled by this court in the Parivar Seva Sansthan case (supra) can be ignored by the court while adjudicating an application under order 12 rule 6 CPC, if otherwise the court finds, either on an application of any party or on its own motion, that the admissions made in the pleadings or otherwise taken as a whole justify the passing of a decree thereon. In fact, the court in the said case has gone so far as to say that even a constructive admission firmly made can be made the basis of the decree''.
23 I have also gone through the order of Ld. Trial Court. In para 6, 7, and 8, the Ld. Trial Court has discussed all the ingredients which are required to dispose off the application under order 12 rule 6 CPC. Ld. Trial court has also relied upon Bollepanda P. Poonacha Vs. K.M. Madapa & Ors. (2008) 13 Supreme Court Case 179, in which it was inter alia held that categorically admission once made by a party can not be withdrawn and admitted facts are not required to be proved.
24 As far as service of notice upon the appellant is concerned, the 21/22 reasons given by Ld. Trial court are in accordance with law and this court has also perused the notice as issued by the ld. counsel for appellant. There appears to be no infirmity in arriving to the conclusion that notice has been served upon the appellant. This becomes more relevant keeping in view the conduct of the appellant from the facts which have emerged on record and it appears that the defendant has denied each and every fact and he has gone to the extent of denying the fact which he himself has admitted while making the statement. What he has not denied is the fact, that his address is correct. He has not taken any plea that common course in dispatching the notice has not been followed. Therefore, the version of such person who is denying each and every fact including the facts which have come on record has to appreciated only with a great caution and in absence of anything and in absence of anything contrary on record and in view of the fact that notice has been posted and common course of business has been followed, it stands established that the notice has been received by the defendant. Section 114 (f) read with illustration (f) of Indian Evidence Act has also explained the law to that effect. Keeping in view the date of notice, registered AD receipt as well as receipt of courier, the service of notice upon the defendants stands established. 25 Ld. counsel for appellant has argued that Ld. Trial Court has relied upon judgment titled ''Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 Supreme Court Cases 728'' with 22/22 regard to notice and has argued that this judgment has no relevancy in the facts and circumstances of the present case. 26 I have perused the said judgment as well as the order of Ld. Trial Court. The Ld. Trial Court otherwise has given the finding that notice in this matter has been served and this court has also discussed the same herein before. Therefore, this contention of ld. counsel for appellant does not have any merit. 27 Accordingly, the court is of the opinion that there is no merit in the appeal nor there is any illegality or irregularities or legal infirmity in the order of Ld. Trial Court. In these circumstances, the appeal of the appellant is dismissed.
28 TCR be sent back with one copy of the order and file be consigned to record room.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 07.09.2010 ADD.DISTRICT JUDGE/
KKD COURTS/DELHI