Delhi District Court
Also At vs Smt. Veena Rani Malik on 10 May, 2019
IN THE COURT OF ADDITIONAL DISTRICT JUDGE 03
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
RCA No. 08/2018
CNR No. DLNW010009302018
(1) Smt. Santosh Chhikara
w/o Sh. Satbir Chhikara
(2) Sh. Satbir Chhikara
s/o late Sh. Rai Singh
Both residents of:
253, 2nd Floor, Bharat Nagar,
New Ashok Vihar, Delhi52
Also at:
H. no. 616, 2nd Floor, Nimri Colony,
Ashok Vihar, PhIV, Delhi52 .......... Appellants
VERSUS
Smt. Veena Rani Malik
w/o late Sh. Kewal Kishan
r/o 20, 4th Floor, Tagore Road,
Kewal Park, Adarsh Nagar, Delhi33
(since deceased) through LRs
(1) Sh. Raj Kumar (son)
s/o late Sh. Kewal Kishan
late Smt. Veena Rani Malik
r/o 253, Bharat Nagar, near Ashok Vihar,
Delhi110052
RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 1 of 14
(2) Sh. Goldy (son)
s/o late Sh. Kewal Kishan
late Smt. Veena Rani Malik
r/o 253, Bharat Nagar, near Ashok Vihar,
Delhi110052
(3) Sh. Rinkal Verma (son)
s/o late Sh. Kewal Kishan
late Smt. Veena Rani Malik
r/o 253, Bharat Nagar, near Ashok Vihar,
Delhi110052
(4) Smt. Rekha (daughter)
w/o Sh. Vijender
s/o late Sh. Kewal Kishan
late Smt. Veena Rani Malik
r/o 253, Bharat Nagar, Delhi110052 ..........Respondent
Date of institution of appeal : 27012018
Date of arguments completed : 10052019
Date of judgment announced : 10052019
Appeal Against The Judgment and Decree Dated 04.01.2018
Passed by the Court of Ld. Additional Senior Civil Judge, District
North West, Rohini, Delhi in Suit No. 61708/16 titled Veena Rani
Vs. Santosh Chhikara & Anr
RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 2 of 14
ORDER
1. Briefly stated, the facts are that the respondent herein has filed a suit for possession of the Second Floor of house bearing No. 253, Bharat Nagar, near Ashok Vihar, Delhi (hereinafter referred as 'suit property') with the relief for damages and injunction against the appellants with the averments that they approached her for taking on rent the suit property and accordingly agreement was entered into, and that in the year 2009 previous rent agreement came to an end and thereafter their tenancy was extended on 01092009 at a monthly rent of Rs. 8,000 excluding electricity, water, maintenance and other charges for a fixed term of 11 months. The agreement expired by efflux of time on 31072010 and tenancy of the appellants became month to month basis. It is submitted that the appellants have been habitual defaulters in the matter of payment of rent and have not paid the rent since November 2009 and neither have cleared the electricity dues and water charges till date. It is submitted that after the expiry of the tenancy, it was not renewed thus, the appellants were liable to vacate the premises however, despite repeated requests they failed to do so. Thereafter, on 18112010 respondent by way of legal notice terminated their tenancy and asked them to vacate the premises by 31122010. The appellants did not comply the legal notice as such, the possession of the tenanted premises becomes unauthorized, illegal and unlawful. The respondent filed a suit for possession which was RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 3 of 14 dismissed vide order dated 23092011 on preliminary issue about the bar on the jurisdiction of the court to entertain the suit as per Section 5 of the Arbitration Act giving liberty to the plaintiff to serve fresh notice. It is submitted that accordingly the respondent/ plaintiff served a notice dated 13052016 which was attempted to be served upon the appellants but was returned back to the counsel as they intentionally and malafidely not took the service of the notice.
2. The appellants filed their written statement in the suit submitting that the appellant and her sons have taken a friendly loan from appellant no. 1 and they have become dishonest and they under the garb of the present suit, want to put pressure upon them so that they should not demand their hardearned money from them. The appellants claimed that as per terms of the rent agreement dated 01092009, the dispute, if any, between the parties was to be referred to the arbitrator and claimed that Arbitrator be appointed to decide the dispute between them. The appellants submitted that they are in occupation of the second floor of the disputed property and the rent agreement dated 01092009 was executed between the parties but the real story behind the agreement is somewhat otherwise. It is submitted that the plaintiff and her sons took a loan and it was agreed between the parties that the defendant will not charge the interest from them for the loan amount advanced and the plaintiff will not charge rent from them. It is claimed that the transaction is not a rent agreement but was 'usufruct mortgage' and the defendants were to RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 4 of 14 occupy the house in dispute till the repayment of the loan. It is submitted that as for the showing of rent of Rs. 8,000/ is concerned, the son of the plaintiff has taken loan from the bank and he asked them to execute the loan agreement in order to show an income to the bank so that the bank may assess his feasibility and entitlement for loan and its repayment. The appellants denied the service of the notice upon them and claimed that the plaintiff is not entitled for any damages, occupation charges and she is not entitled for the possession of the house till she and her sons repay the mortgage money received by them from appellant no. 1. It is claimed that even if the contract comes to an end, the arbitration clause survives and no civil suit is maintainable in a civil court.
3. The respondent filed application under Order 12 Rule 6 CPC with the submissions that in the written statement defendants, appellants before this court, have admitted the relationship of landlord and tenant and also admitted the execution of rent deed dated 01092009 for a fixed term of 11 months. It was averred that it is also admitted that the deed was neither renewed nor any fresh deed was executed between the parties. The respondent prayed for passing a decree in view of unconditional and unambiguous admissions made by the defendants about the existence of relationship of landlord and tenant, execution of agreement and expiration of tenancy.
RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 5 of 14
4. The Ld. Trial Court after hearing the parties on the application decreed the suit qua the relief of possession holding that the plaintiff is entitled for decree of possession in respect of suit property. The appellants have challenged the said order in the present appeal submitting that the alleged admission is not complete and conclusive because the appellants have denied the tenancy and that the relationship between plaintiff and the appellants is that of mortgagor and mortgagee and the Ld. Trial Court has not considered the same. It is submitted that the learned trial court has erred in taking into consideration that the alleged statement made by the appellant No. 2 on 18112016 and that no statement was made by appellant no. 1 and the court have presumed such statement made by her also. It is submitted that the statement of one party cannot bind the other party till the party admits the statement made by the coparty. It is submitted that the statement recorded under order 10 of the CPC is not an evidence against the maker of it and the adversary has to prove its case according to the law. It is alleged that the Ld. Trial Court has erred in decreeing the suit on the alleged admission of one of the appellants though the same is not an admission. It is alleged that the learned trial court has committed a grave legal error and factually has overlooked the whole case as the earlier civil suit filed by the respondent was dismissed and the said order was not challenged so, it has attained finality which cannot be reagitated and the present suit is barred by resjudicata. It is submitted that after long time the RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 6 of 14 respondent filed an application under section 8 of the Arbitration and Conciliation Act which was not pursued by her diligently and the same was dismissed by the court vide order dated 23072014 and the said order has also attained finality as has not been challenged. It is alleged that the said order of the court dated 23072014 dismissing the application is also contrary/against the provisions of the Act. It is alleged that the learned trial court has not considered the case law placed before it. It is alleged that the order passed by the court dated 21122016 holding that when the agreement has come to an end, the arbitration clause, if any, does not survive is also without jurisdiction and it can be challenged at any time and even in collateral proceedings. It is pleaded that the appeal may be accepted and the order dated 04012018 be set aside.
5. During the pendency of the appeal, respondent has expired and her legal representatives have been allowed to be substituted in the appeal. It is contended on behalf of respondent that the trial court has passed the order as per law and the present appeal is liable to be dismissed as the same is without any merits. It is contended that once the agreement has been admitted to be executed between the parties then, the appellants are not allowed to plead orally the facts contrary to the terms and conditions of the written rent agreement. It is submitted that period of the agreement has completed and has not been renewed thus, the tenancy of the appellants is month to month basis. It is submitted that the orders passed by the court in the suit RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 7 of 14 does not create bar to the present suit as the cause of action of the present suit is new as the tenancy has been terminated by issuing a fresh notice. It is prayed that the appeal be dismissed with exemplary cost as the purpose of filing the same is only to remain in possession of the suit property despite determination of tenancy.
6. The submissions of the learned counsels for both the parties have been heard and the case file as well as the file of learned trial court has been perused.
7. As per provisions of Order XII Rule 6 CPC, the Court may at any stage of a 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 give such judgment as it may think fit having regards to the admissions of fact made in the pleading or otherwise.
8. The Hon'ble Supreme Court in case of M/s Payal Vision Ltd. Vs. Radhika Chaudhary reported as JT 2012 (9) SC 214 has held that: "In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintifflandlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 8 of 14 Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the CPC."
9. Recently the Hon'ble High Court of Delhi has dealt with the question of power of the court under Order XII Rule 6 of CPC in case of A.N. Kaul vs Neerja Kaul and Another CRP 189 of 2017 decided on 03072018 reported at 2018 SCC OnLine Del 9597 and held that :
"10. The reasoning given in the impugned order, of the petitioner / plaintiff, in the absence of express admission, being not entitled to a decree on admissions is indeed faulty and without considering a series of judgments of this Court. In Ashoka Estate Pvt. Ltd. Vs. Dewan Chand Builders Pvt. Ltd. 159 (2009) DLT 233, reiterated in judgment dated 14th September, 2017 in C.R.P. No. 190 of 2015 titled Vireet Investments Pvt. Ltd. Vs. Vikramjit Singh Puri and again reiterated in Bhupinder Jit Singh Vs. Sonu Kumar 2017 SCC OnLine 11061, it was held (i) that the plaintiff, if otherwise found entitled to a decree on admission, cannot be deprived thereof by astute drafting of the written statement and/or by taking pleas therein which have no legs to stand upon; (ii) the Court is to read the pleadings of the parties meaningfully; (iii) issues are to be framed on 'material' and not on all propositions of law and fact; (iv) a plea, which on the face of it is found by the court to be untenable, does not require the framing of any issue. In Adarsh Kumar Puniyani Vs. Lajwanti RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 9 of 14 Piplani 2015 SCC OnLine Del 14022 it was held that material propositions of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved; if a plea is not valid and tenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. Reliance was inter alia placed on Abbot India Ltd. Vs. Rajinder Mohindra (2014) 208 DLT 201 holding that once it is found that there was no defence, merely because a bogey thereof is raised at the stage of framing of issues or upon the respondents/plaintiffs filing an application under Order XII Rule 6 of the CPC, would not call for framing of an issue. It was further held in Bhupinder Jit Singh supra that issues are to be framed only on material propositions of law or fact requiring trial and not on all propositions of fact or law which may be contained in the pleadings and which are not material i.e. on the outcome whereof the outcome of the suit does not depend. The Court is not obliged to, on finding pleas to have been raised in the written statement, mechanically frame issues thereon. If issues were to be framed in such manner, the same would be in disregard of the word 'material' in Order XIV Rule 1 of the RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 10 of 14 CPC. The enquiry thus to be made at the time of framing of issues is, whether the pleas raised in the written statement, purportedly in defence to the claim in the plaint, have any material bearing to the outcome of the suit and if it is found that irrespective of the findings thereon, the plaintiff would be entitled to the relief, the parties are not to be put to trial in the suit. Similarly in Zulfiquar Ali Khan Vs. Straw Products Ltd. 87 (2000) DLT 76, it was observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas, to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. Reference in this regard may also be made to Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine 1479 and to P.S. Jain Co. Ltd. Vs. Atma Ram Properties (P) Ltd. (2013) 205 DLT 302.
11. Not only so, Order XV of the CPC empowers the Court to, upon finding that the parties are not on an issue of any question of law or fact, pronounce judgment at once. Thus RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 11 of 14 even if there is no express admission in the written statement but an intelligent reading of the written statement shows the propositions or pleas taken to be not material and no issue to be arising therefrom, the Court is still entitled to pass a decree forthwith."
10. In the present case, the appellants have admitted the execution of rent agreement dated 01092009. The period of the tenancy was 11 months which has been expired by efflux of time. The parties have not executed a new rent agreement thus, the tenancy has become monthtomonth tenancy as per law. The appellants have claimed that the relationship between the parties is of mortgagor and mortgagee but the said claim is not tenable in view of the terms and conditions of the written rent agreement and that there is no registered mortgage deed in requirement of the law. The civil court have jurisdiction to entertain and try every civil suit unless and until its jurisdiction is expressly barred. The provisions of Arbitration and Conciliation Act, 1996 do not create bar on the jurisdiction of civil court to entertain a civil suit in regard to a dispute arose between two parties of an agreement which contains Arbitration clause. As per Section 8 of the Arbitration and Conciliation Act, the defendant is required to approach the court to file an application for referring the dispute to the arbitrator before filing the first statement of defence. It is not the case of the appellants that they filed application for referring the matter to the arbitrator in terms of the arbitration clause and the same has not been RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 12 of 14 considered by the Ld. Trial Court. The Ld. Trial Court has considered this contention also and has observed that in view of the case Himangi Enterprises versus Kamaljeet Singh Ahluwalia reported at 2017 (12) SCALE 565, the dispute in rent agreement is incapable of being referred to an arbitrator. Thus, the contention that the suit is not maintainable as barred by Arbitration and Conciliation Act is not tenable.
11. The objections of the appellants to the maintainability of the suit as barred by resjudicata are also not tenable as the cause of action of the present suit is the notice dated 13052016 by which the tenancy which is monthtomonth basis has been terminated.
12. The appellants are claiming the relationship between the parties of the mortgagor and mortgagee. The plaints have admitted the rent agreement thus, they cannot contradict its terms by pleading oral averments. The appellants have not disputed the rate of rent which is more than Rs. 3,500/ per month as such the tenancy is not protected under tenancy law. Thus, in the facts and circumstances of the case the status of the appellants is of tenants in the suit property and upon issuance of notice and filing of the suit, they cannot withheld the possession of the suit property and considering their submissions made in the written statement about the execution of the rent agreement which amounts unambiguous, unequivocal and clear admissions, the respondent is entitled for the decree of the possession RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 13 of 14 of the suit property in her favour. The order passed by the Ld. Trial Court is as per law. Thus, the appeal is dismissed being devoid of merits. The copy of the judgment be sent to the Ld. Trial Court and thereafter, appeal file be consigned to Record Room. Announced in the open court on 10th May 2019 SUNIL CHAUDHARY Digitally signed by SUNIL CHAUDHARY Date: 2019.05.10 14:59:25 +0530 (SUNIL CHAUDHARY) ADJ03 (N/W) ROHINI COURTS DELHI RCA No. 08/18 Santosh Chhikara & Anr. Vs. Smt. Veena Rani Malik (through LRs) Page No. 14 of 14