Delhi District Court
Om Prakash vs . Smt. Panchi Devi on 3 January, 2012
Om Prakash vs. Smt. Panchi Devi
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
RCA No. 28/2011
Om Prakash,
S/o Shri Babu Lal,
R/o H. No. 76, Pulprahladpur,
Badarpur, New Delhi44.
...... Appellant
Versus
Smt. Panchi Devi,
W/o Shri Amar Singh,
R/o B149, Sharma Market,
Purprahladpur, Badarpur,
New Delhi - 44.
...... Respondent
Appeal Presented on : 14.11.2011
Date of Institution : 15.11.2011
Decision Reserved on : 02.12.2011
Date of Decision : 03.01.2012
RCA No. 28/2011 Page 1 of 11
Om Prakash vs. Smt. Panchi Devi
JUDGMENT
1. Respondent Smt. Panchi Devi, as plaintiff, filed Civil Suit No. 168/2011 for Recovery of Possession, Rent, Electricity Charges and Damages against the present appellant Shri Om Prakash, being defendant, before the Court of Civil Judge, Saket, New Delhi and the respondent / plaintiff had filed an application under order XII Rule 6 CPC. The Court of Ms. Anu Aggarwal, Ld. Civil Judge by order dated 10.10.2011, allowed the application by holding that the appellant / defendant admitted facts, with regard to relationship of the tenant and landlord between the parties, non applicability of the Delhi Rent Control Act, 1958 on the property i.e. a shop on ground floor of property No. B149, Sharma Market, Pul Pehladpur, Badarpur, New Delhi (in brief the appeal property) visavis receipt of notice of termination. The suit for possession has been decreed. The appellant assails the impugned order / decree.
2.1 The case of respondent / plaintiff is that the appeal property was let out to the appellant / defendant on a monthly rent by agreement dated 01.02.2010 for a period of 11 months, w.e.f January 2010. The RCA No. 28/2011 Page 2 of 11 Om Prakash vs. Smt. Panchi Devi appellant did not pay the rent of January 2010 and February 2010, for which, legal notice for payment of rent was issued on 13.03.2010. The appellant is a quarrelsome person. Further, the appellant is also in arrears of rent from April 2010 to November 2010 and ultimately, legal notice dated 12.11.2010 by post and UPC was sent and served upon the appellant, who also replied it. The premises was built and constructed in the year 2008, that is why, provisions of the Delhi Rent Control Act, 1958 are not applicable. The appellant admits these aspects in the written statement (paragraphs 1, 10 and 2), that is why, an application under order XII Rule 6 CPC was filed by the respondent / plaintiff. There are clear admissions and accordingly Suit for Possession has been decreed. There is no flaw or illegality, it is a reasoned order.
2.2 The appellant / defendant pleads that so far relationship of the tenant and the landlord is concerned and that the premises was constructed about three years back, is not disputed, however, the Trial Court failed to take into account and considered other aspects, which dis entitle the respondent / plaintiff for decree of possession. The impugned order has been passed contrary to the facts, documents on record as well RCA No. 28/2011 Page 3 of 11 Om Prakash vs. Smt. Panchi Devi as contrary to the settled law of land. The appellant's plea taken in the appeal, is reiterated in paragraph 2.3, below.
2.3 The premises was let out without any written agreement but subsequently, respondent's grandson Virender Singh got signed some papers around December 2009 and again in February 2010; the copies given to the appellant are different from the copies placed on record by the respondent in the judicial file of Trial Court. Both the agreements are contradictory. The respondent had pleaded that the premises was required for bonafide need, however, the decree of possession was passed without recording any evidence or without establishing the fact of bonafide requirement, which have been protested not only in the written statement but also in the reply to notice. In order to give judgment on admissions, the same should be absolute admissions, clear admissions, whereas there is no such clear admissions by the appellant / defendant and judgment could not have been directed on admission of technical grounds of jurisdiction lying with the Civil Court. It is a preliminary decree, as the Court in itself recorded in the decree dated 10.10.2011, as if, suit came for final disposal, whereas the suit is still pending. The respondent has been violent for RCA No. 28/2011 Page 4 of 11 Om Prakash vs. Smt. Panchi Devi securing the possession of appeal property and suit has also been filed under such persuasions whereas it was appellant, who had filed a civil suit against the respondent, wherein respondent had given an undertaking that the appellant would not be dispossessed without due process of law. 2.4 During the course of arguments, Ld. Counsel for appellant argued on the lines of his case, compiled in paragraph 2.3, above. It is reiterated that triable issues are yet to be decided and impugned decree is liable to be set aside. The appellant relies upon State Bank of India vs. Midland Industries AIR 1988 Delhi 153, wherein it was held that it is not a matter of right to have judgment on admission but to have a matter on discretion of Court and there cannot be judgment under order XII Rule 6 CPC when the objections raised are going to the root of the case and also relied upon Dudh Nath Pandey (dead by LRs) vs. Suresh Chandra Bhattasali AIR 1986 SCC 1509, that admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the others. It is concluded to set aside the impugned order. 2.5 Whereas Ld. Counsel for respondent explains that the record RCA No. 28/2011 Page 5 of 11 Om Prakash vs. Smt. Panchi Devi available suffice to conclude that the impugned judgment / decree is based on the facts admitted by the appellant, inclusive of service of legal notice. Although, the respondent / plaintiff has mentioned that the appeal property was required for bonafide need, whereas the bonafide need is not to be established in the Suit for Possession, therefore, despite such plea being surplussed, would not desuit for possession, as the respondent is not required to prove the bonafide need. The tenancy has been determined by notice, which is an admitted fact. There is no reason to set aside the order. The appeal is liable to be dismissed.
(3) FINDINGS 3.1 The rival contentions are assessed in the light of material available, inclusive of record of Trial Court, and in the light of statutory provisions of law, particularly Order XII Rule 6 CPC, provisions of Sections 106 and 111 of the Transfer of the Property Act, 1882 and Section 3(d) of the Delhi Rent Control Act, 1958. In order to establish Suit for Possession, the following is the requirement of law, being governed by the Transfer of Property Act
(i) relationship of the landlord and the tenant between the parties; RCA No. 28/2011 Page 6 of 11 Om Prakash vs. Smt. Panchi Devi
(ii) nonapplicability of Delhi Rent Control Act, 1958 or such law does not extend to the premises; and
(iii) determination of tenancy by notice under section 106 of the Transfer of Property Act in the eventuality of month to month tenancy or determination of tenancy by efflux of time under section 111 of the Transfer of Property Act. 3.2 Either in the Trial Court or in the appeal record, the appellant does not dispute that the appeal property was let out under unregistered lease deed and the age of appeal property was less than 10 years at the time it was taken on rent, since it was constructed recently. To say, the relationship of the landlord and the tenant, respectively, between the respondent and the appellant is not disputed. Similarly, it is also not disputed that the provisions of Delhi Rent Control Act, 1958 are not applicable, being governed by Section 3(d) of the Act, 1958. The appellant was served with respondent's notice 12.11.2010, which has also been replied by the appellant by reply dated 24.11.2010. The notice dated 12.11.2010 determines the tenancy on expiry of a month from the date of receipt of notice. 3.3 When the parties are governed by the provisions of Delhi Rent Control Act, the eviction is governed by Section 14 of the Act, prescribing grounds of eviction as well as other specific provisions of Sections 14A, 14B, 14C and 14D of the Act, 1958. The provisions of Section 14A, 14B, 14C, 14D and 14(1)(e) of the Act are governed by summary trial. They also talk of bonafide need for eviction of tenant. The petitioner is required to prove bonafide need when a tenant is being requested to be evicted from RCA No. 28/2011 Page 7 of 11 Om Prakash vs. Smt. Panchi Devi the premises, on the ground of bonafide need, governed by the Act, 1958.
Whereas, when the parties are governed by the general provisions of law of Transfer of Property Act, they are not to be governed by the provisions of the Delhi Rent Control Act. The Delhi Rent Control Act is a specific piece of legislation, whereas the Transfer of Property Act contains general provisions with regard to transfer of property and transfer of rights in the property, inclusive of lease. To say, the grounds of eviction made available in the specific legislation, cannot be extended, when the parties are governed by provisions of the Transfer of Property Act. 3.4 The agreements / lease agreements between the respondent and the appellant were not only unregistered agreements but also for a period of 11 months. Therefore, it was month to month tenancy. Since Delhi Rent Control Act is not applicable to the appeal property, thus the provisions of Act, 1958 cannot be invoked when Section 106 of Transfer of Property Act applies for the purposes of determining the tenancy and on the same analogy, although the respondent had mentioned bonafide need of the appeal property but it is not the statutory requirement under the provisions of Transfer of Property Act, therefore, the appellant cannot derive RCA No. 28/2011 Page 8 of 11 Om Prakash vs. Smt. Panchi Devi any benefit from the waste words of bonafide need mentioned in the plaint. The respondent is not required nor it is her obligation to strictly prove bona fide need for securing the possession of appeal property. The appellant has admitted receipt of notice dated 12.11.2010, which was replied by him, it suffice the requirement of law. The purpose of notice under section 106 of Transfer of Property Act not only to convey the intention of landlord but also an information to the tenant that the tenancy stand determined and tenant is required to vacate and handover the possession.
3.5 There is an occasion to go through Uttam Singh Duggal vs. Union of India 2000 VI AD SC 389 that Order XII Rule 6 CPC is wide enough to include not only pleadings but also letter, agreement, notice or constructive notice and when such record leads to unambiguous and clear admissions, the Court may exercise power under order XII Rule 6 CPC, decree / judgment can be passed. From the analysis carried from the paragraphs 3.2 to 3.4, above, it is crystal clear that all the requirements of law, for a Suit for Possession, has been admitted by the appellant. There is no flaw in the impugned decree / order directing the appellant to vacate and handover peaceful possession of the appeal property to the respondent. RCA No. 28/2011 Page 9 of 11 Om Prakash vs. Smt. Panchi Devi The appellant cannot derive any benefit nor it can be interpreted that because of narrating the plea of bonafide need, the impugned order is required to be disturbed. The appeal carries no merit.
4. In the decree dated 10.10.2011, the Trial Court has given an expression for "final disposal" and "a preliminary decree is passed", whereas the suit was filed for possession, rent, electricity charges and damages, which also find mentioned in the title of decree. It is a settled law that more than one decree may be passed in the suit, however, order dated 10.10.2011 finally determined Suit for Possession, therefore, it cannot be termed a preliminary decree. The suit was also not came for final disposal before the Trial Court but for final disposal of application under order XII Rule 6 CPC. It appears that the draft of decree, appended with the Code of Civil Procedure, has been derived by the Trial Court but it has not been properly incorporated for the situation in hand. It is clarified and directed that the decree dated 10.10.2011 is to be read for final disposal of application under order XII Rule 6 CPC and the decree be read as first decree instead of preliminary decree. The Trial Court is also directed that for the purposes of avoidance of confusion, fresh decree may be drawn in RCA No. 28/2011 Page 10 of 11 Om Prakash vs. Smt. Panchi Devi terms of observations recorded in the present paragraph.
5. The appeal is dismissed accordingly and interim order dated 22.11.2011 is vacated. Copy of the judgment be certified to the Trial Court, along with record, also for compliance of directions given in paragraph 4, above.
Decree sheet be drawn accordingly.
File is consigned to record room.
Announced in the open Court (INDER JEET SINGH)
th
on 13 Pausa, Saka 1933 Additional District Judge 03,
South District, Saket Courts,
New Delhi / 03.01.2012
N
RCA No. 28/2011 Page 11 of 11
Om Prakash vs. Smt. Panchi Devi
RCA No. 28/2011
03.01.2012
Present : Appellant with counsel.
Respondent's son in person.
Vide separate judgment, announced today, the appeal is dismissed accordingly and interim order dated 22.11.2011 is vacated. Copy of the judgment be certified to the Trial Court, along with record, also for compliance of directions given in paragraph 4 of the judgment.
Decree sheet be drawn accordingly.
File is consigned to record room.
(INDER JEET SINGH)
Addl. District Judge03, South District,
N Saket/03.01.2012
RCA No. 28/2011 Page 12 of 11