Delhi District Court
Sh. Rajnish Aggarwal vs M/S Indraprastha Travels Pvt. Ltd on 23 February, 2008
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
In the matter of: -
Suit No. 18/2007.
Sh. Rajnish Aggarwal. ... Plaintiff.
Vs.
M/s Indraprastha Travels Pvt. Ltd. ... Defendant.
- : ORDER : -
1.By this order, I propose to dispose of an application u/o 12 r 6 CPC of the plaintiff wherein the plaintiff has stated that the defendant has filed the written statement to the plaint filed by the plaintiff wherein the defendant has made unequivocal, clear and unambiguous admissions with regard that the plaintiff
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being owner and landlord of the suit premises; the relationship of landlord and tenant existed between the plaintiff and the defendant; there was no registered lease deed between the parties in respect of the suit premises; the rate of rent of the suit premises is Rs. 20,000/- per month at the time of determination of the tenancy of the defendant i.e. more than Rs. 3,500/- per month; that the rent was to be paid every month on or before 5th of every calender month; the service and receipt of statutory legal notice dated 23.11.2006 u/s 106 of the Transfer of Property Act, 1882, terminating the tenancy of the defendant duly received by the defendant alongwith the reply dated 4.12.2006 to the legal notice dated 24.11.2006; that the defendant is in possession of the suit premises despite the termination of the tenancy.
2.It is further stated that in view of the admissions made
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by the defendant has admitted the factum of the non- registration of the lease deed dated 15.9.2003 and the receipt of the statutory legal notice dated 23.11.2006, the defendant is a month to month tenant whose tenancy was lawfully terminated by the said legal notice. The plaintiff was, therefore, entitled to a decree of possession on the basis of said admissions without waiting for the determination of the issues for recovery of arrears, damages/mesne profits and mandatory injunction. The above mentioned admissions are express, clear and unequivocal and, as such, the plaintiff is entitled to judgment u/o 12 r 6 CPC.
3.In reply the defendant has taken the preliminary objections that the application was not maintainable because the entitlement to restoration of the possession is a subject matter of final adjudication; that the matter of possession cannot be decided u/o 12
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r 6 CPC because by the operation of the such provisions the admission may be concerning facts. The plaintiff himself relied on the lease deed/agreement dated 15.9.2003 in which it is categorically stated that the defendant will be entitled to stay in the suit property for 9 years w.e.f. 15.9.2003. It is further stated that the tenancy has not been legally terminated. Once the plaintiff himself relied the lease deed dated 15.9.2003 by filing the same, hence, the subject matter of the application u/o 12 r 6 CPC becomes a triable issue and requires determination during the trial by the Court after leading evidence by the parties. The lease deed was not got registered because of the fault and contributory mistake of the parties and the plaintiff cannot take advantage of his own wrong by not getting the lease deed registered. No prejudice is going to be caused to the plaintiff if the possession of the suit property is not restored to him
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because the defendant is regularly making payment as per the lease deed after enhancement of the rent by 20% after every 3 years. The defendant is already paying the enhanced rent since it became due in August 2006. On merits, it is stated that the contents of para no. 1 and 2 need no reply as the same requires no formal reply. It is further stated that the tenancy was not month to month tenancy and has not been legally terminated. The defendant has not made any factual admission on the basis of which the plaintiff can seek decree.
4.I have heard the learned counsel for parties and gone through the pleadings of the parties. The learned counsel for plaintiff has pointed out that in para no. 8 of the preliminary objections the defendant has admitted that the lease deed was unregistered and because of that technical difficulties of non-registration
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of the said lease deed, the plaintiff was taking benefit. It is further pointed out that in para no. 10, the fact of unregistered lease deed has also been admitted. The learned counsel for plaintiff further pointed out that after the preliminary objections the defendant has made parawise reply and with regard to para no. 1 and 2 of the plaint it is stated : "That the Contents of Paras 1 to 2 of the Plaint need no formal reply the same being a matter of record." It is further pointed out that reply in Para no. 4 states "That the Contents of the Para no. 5 of the Plaint need no formal reply as the said legal notice dated 24.11.2006 and the reply thereto dated 4.12.2006 are all a matter of record." The learned counsel for plaintiff particularly pointed out that the legal notice dated 24.11.2006 was sent by the defendant to which the plaintiff sent reply dated 4.12.2006 alongwith copy of the notice of the termination of tenancy sent by the plaintiff to the
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defendant on 23.11.2006. It is, therefore, stated that the sending of the copy of the notice of the plaintiff is admitted by the defendant in para no. 4 on merits of the written statement. The learned counsel for plaintiff further referred the para no. 6 of the written statement on merits wherein the defendant has admitted "... ... ... It is submitted that the Defendant has regularly been tendering the cheque towards the monthly rent to the Plaintiff after deduction of TDS, ... ... ...". It is argued that the defendant, thus, himself admitted that he was paying monthly rent meaning thereby the tenancy was month to month basis as is stated in the plaint by the plaintiff. It is, therefore, argued that all these admissions are unequivocal, clear and unambiguous and the plaintiff is untitled to decree of possession u/o 12 r 6 CPC.
5.The learned counsel for defendant on the other hand
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argued that the admissions are misconceived as the same are not clear and unambiguous as claimed by the plaintiff. The learned counsel for defendant pointed out para no. 3 reply on merits stating that it has categorically stated that the contents of para no. 4 of the plaint are illconceived, misconceived, baseless, wrong and are therefore denied. The defendant has categorically denied that the tenancy of the suit property was on month to month basis and the tenancy in question was for 9 years w.e.f. 15.9.2003. It is further stated that issuance of the alleged legal notice does not create any right in favour of the plaintiff and against the defendant. The learned counsel for defendant vehemently argued that the defendant has sufficiently denied the averments made in the plaint in para no. 4 of the written statement and has not admitted month to month tenancy and its termination by legal notice dated 23.11.2006 as is being claimed by
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the plaintiff.
6.I have considered the rival submissions made at bar and also search the law on the point. Let us discuss the law on Order 12 r 6 CPC pronounced by our own Hon'ble High Court.
7.The latest pronouncement of our own Hon'ble High Court in case cited as 2006 V AD (DELHI) 667 titled as Charanjit Singh Vs. Kehar Singh is quite relevant wherein Hon'ble D.B. Headed by Hon'ble Mr. Justice Swatanter Kumar was pleased to hold 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
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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."
8.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), it was held as under: -
"19. I have heard the learned counsels for the parties in detail and perused the pleadings and application and reply and the judgment relied by them. 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 serious preliminary pleas which are likely to non-suit a party, a court in its discretion can refuse to pass a decree."
9.The Hon'ble High Court of Delhi in RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on
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11.5.2006 (MANU/DE/8646/2006), it was pleased to hold as under: -
"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/ 1970 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 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."
10.I have considered the material on record and the
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alleged admissions of the defendant in the light of the law referred (Supra). As is clear from the arguments of the learned counsel for plaintiff some of the admissions on behalf of the defendant are because of implications of the fact that the defendant has stated in para no. 1 and 2 on merits of the written statement that the contents of para no. 1 and 2 of the plaint are a matter of record. The learned counsel for plaintiff has also relied upon para no. 1 and 2 of reply of the application in which again the defendant has stated that the same is a matter of record. It was, therefore, argued that this implication proves that that defendant has admitted the contents of the para no. 1 and 2 of the plaint meaning thereby he has admitted that the tenancy was month to month. The written statement is to be read as a whole to find out whether there are unambiguous and unequivocal admissions on behalf of the defendant which may entitle the plaintiff to decree u/o 12 r 6
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CPC. The para no. 3 on merits of the written statement cannot be excluded from the written statement of the defendant wherein the defendant has categorically denied the fact of month to month tenancy as well as its termination by the plaintiff. The defendant has also made pleadings in his written statement which raises serious preliminary pleas and if proved in evidence are likely to non-suit the plaintiff. The reply to para no. 1 and 2 of the plaint in the written statement by saying that it is a matter of record, the defendant can be stated to have made vague averments of the fact which if proved may tantamount to admission on the part of the defendant. If the admissions are of such a nature, in view of the law laid down by our Hon'ble High Court in RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/2006) the Court may normally decline to pass decree on such admissions. Moreover,
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before the issuance of the notice dated 23.11.2006 terminating the tenancy of the defendant, the plaintiff has also written a letter dated 25.10.2006 for termination the tenancy in respect of the suit property. In the said letter placed on record by the plaintiff it is mentioned that the defendant was tenant for a period of 3 years w.e.f. 15.9.2003 and the tenancy came to an end by efflux of time by 14.9.2006. Thus, this fact mentioned in the abovesaid letter is contrary to the contents of the legal notice u/s 106 of the Transfer of Property dated 23.11.2006 by which the plaintiff has claimed termination of tenancy of the defendant. All these pleas raised in the said letter as well as the averments made in the legal notice needs adjudication by the Court. For these reasons and because of the law referred (supra), I am of the considered opinion that the admissions on the basis of which the decree for possession is sought in the present application are not
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clear, unambiguous and unequivocal and for that reasons, the plaintiff is not entitled to the relief claimed in the present application. The application u/o 12 r 6 CPC of the plaintiff is, accordingly, dismissed. Announced in the open Court on 23.2.2008.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI