Delhi District Court
Smt. Surjeet Kaur vs Shri Kanhiya Lal Kundani on 2 December, 2014
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS: DELHI
CS No. 396/13.
UID No. 02401C0382942013.
Smt. Surjeet Kaur
Widow of late Trilochan Singh Bindra
A-41 Amar Colony, Lajpat Nagar-IV
New Delhi-110 024
........... Plaintiff
Versus
Shri Kanhiya Lal Kundani
Son of Shri Moti Ram Kundnani
16/10196 Beadonpura
Karol Bagh
New Delhi-110 005
Service also to be effected at :
T-29, H-2A (1st floor)
Road No. 20, Baljeet Nagar
West Patel Nagar
New Delhi-110 008
Second address :
T-29/H-3/K-3 (First floor)
Road No. 20, Baljeet Nagar
New Delhi-110 008
......... Defendant
O R D E R (Under Order 12 Rule 6 of CPC)
02.12.2014
1. By this order I shall decide the prayer for decree for possession in CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 1 favour of the plaintiff and against the defendant under Order 12 Rule 6 of CPC in respect of shop situated on ground floor of property bearing no. 16/10196, Beadonpura, Karol Bagh, New Delhi- 110005, as prayed by the plaintiff in the present suit.
2. During arguments, ld counsel for the plaintiff has submitted that the defendant has made admissions in his written statement and therefore, in view of those admissions, the present suit is liable to be decreed. It is further submitted that in a suit for possession based on relationship of landlord and tenant, the court has to consider :
(i) Relationship of landlord and tenant between the parties hereto;
(ii) Rent of the premises in suit being more than Rs. 3500 p.m. and;
(iii) Determination/Termination of the contractual tenancy of the defendants either by way of efflux of time or by a valid notice of termination as required under section 106 of Transfer of Property Act.
3. It is further submitted by the plaintiff that since the defendant has admitted all material facts straightway in his pleadings as per the provisions of Order 12 Rule 6 of CPC, therefore, the court may pass decree for possession under Order 12 Rule 6 of CPC.
4. This is a suit filed by the plaintiff for recovery of possession, mesne profits and permanent injunction wherein it is stated that plaintiff is the owner/landlady of shop situated on ground floor of property bearing no. 16/10196, Beadonpura, Karol Bagh, New Delhi- 110005. The said shop was was let out to the defendant through registered lease deed dated 10/06/2010 for a fixed period of three years w.e.f. 10/06/2010 to 09/06/2013 at a monthly rent of Rs.
CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 2 11,000/- per month exclusive of electricity charges.
5. In written statement, the defendant has admitted that the plaintiff is the owner of the suit property. Execution of lease deed is also not a disputed fact. It is, however, stated by the defendant that his son had taken the shop on rent in the name of the defendant and the defendant had never paid any rent to the plaintiff. Service of notice by the plaintiff to the defendant is denied.
6. Thus, relationship of landlord and tenant is an admitted fact notwithstanding, it is stated by the defendant that the lease deed was in his name, however, his son was using the premises.
7. It is admitted case of the parties that the suit premises was let out to the defendant through a registered lease deed which was in the name of the defendant. The defendant has raised only one defence that though the lease deed was in his name, but his son was using the said premises. From this admission of the defendant it is clear that the son of the defendant has no locus standi and if it is assumed that his son is in possession of the suit premises then possession of the son is not independent but at the most as a permissive user of the defendant. Therefore, this defence is not tenable and is not in any manner going to help the defendant in this case.
8. At this stage, the court has to refer the law laid down by the Superior Courts regarding the judgment on admission as relied upon by the ld counsel for the plaintiff under order 12 Rule 6 of CPC for disposal of the present application :
In National Textile Corporation Ltd. & Anr Vs Ashval Vaderaa, 167 (2010) Delhi Law Times 602, Delhi High Court, wherein it was CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 3 observed in para 17 :
"17. It is settled law that admissions need not be made expressly in the pleadings. Even on the constructive admissions Court can proceed to pass a decree in plaintiff's favour. In order to invoke the revisions of Order 12 Rule 6 CPC, admissions de hors pleadings may also be considered as is evident from the use of the word "otherwise" in the said provision (see Shikharchand V Mst. Bari Bai, AIR 1974 MP 75; K. Kishore V. Allahabad Bank, 1997 (41) DRJ 698; Uttam Singh Dugal V UBI, VI (2000) SLT 87= (2000) 7 SCC 120; Rajiv Srivastava V. Sanjiv Duli, 119 (205) DLT 202; Rama Chei v. U.P. State Handlom Corpn., 91 (2001) DLT 386 and R.N. Sachdeva v. R.L. Mahajan Charitable Trust, 1997 (41) DRJ 698). Such admission may be contained in documents written or executed between the parties before the action is brought or even from the statements of parties recorded in the Court including statements recorded under Order 10 Rule 1, CPC. Admissions may also be gleaned from vague and unspecific denial made in th e pleading and documents, which on the face of it appear to have been deliberately made in order to mislead the Court, or gathered from the non-traversal of specific averments made in the pleadings and documents."
He further relied upon Satya Bhushan Kaura Vs Vijaya Myne, 142 (2007) Delhi Law Times 426, where in para 54, it was observed :
"54. The Legislature has enacted Rule 6 in Order 12 of the Code of Civil Procedure permitting the Court to pass a judgment in favour of a party based on admission by the other side. It is well settled that Order 12 Rule 6 of the Code of Civil Procedure enables the Court, at any stage of the suit to pronounce judgment on an admission made in the pleadings or otherwise, whether oral or in writing, by the other side. Reference in this regard can usefully be made to the pronouncement of this Court reported at ILR (2001) II Delhi 385, Jasmer Singh Sarna & Ors. V. Electronics Trade and Technology Development Corporation Limited."
He further relied upon Vijaya Myne Vs Satya Bhushan Kaura, 142 (2007) Delhi Law Times 483 (DB), wherein it was observed in para 12:
"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncent as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 4 served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6, CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the leadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."
He further relied upon Guru Nanak Vidya Bhandar Trust vs UOI etc., 2006, Rajdhani Law Reporter 371 (ABRIJ), where in it was held in para 43 :
"43. The plea would clearly run contrary to the plain language of the Section. This view is fortified by a later DB Judgment of the Court in Parivar Seva Sansthan vs Dr. Ms. Veena Kalra AIR 2000, Delhi 349 in which it was observed:
"Bare perusal of the above Rule shows that it confers very wide powers on the Court to pronounce judgment on admissions at any stage of the proceedings. The admission may have been made either in pleadings or otherwise. The admission may have been made orally or in writing. The Court can act on such admissions either on an application of any party or on its own motion without determining the other questions. Even constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying the trial being barred by Ss.91 and 92 of the Evidence Act or other statutory provisions can be ignored. These principles are well settled by catena of decisions in Dudh Natjh Pandey vs CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 5 Suresh Chandra AIR 1986 SC 1509 Atma Ram Properties vs Air India 1997.1.AD (Delhi) 641 Surjit s. Kazakhstan ISP Ltd. Vs Charanjit Lal 1998.2.DLT476; Laxmikand vs MN Dasrur 1998.4.AD (Delhi) 10. The use of the word any stage in the rule itself shows that the intention of legislature is to give widest possible meaning. Thus mere framing of issues cannot by itself deter the Corut to pass judgment on admissions under O.12 R.6 CPC. The case of Kartar Singh runs only 2 paras without any discussion. It does not reflect any proposition of law".
He further relied upon Laxmikant S (HUF) vs M.N. Dastur Co., 1998 Rajdhani Law Reporter 171, wherein it was observed in para 11:
"11. As noticed earlier the discretion has to be exercised reasonably and not arbitrarily. If a triable issue of fact or law arises bonafide which need investigation that will not entitle to a judgment under this Rule and discretion will necessarily be exercised against such claimant. However, if the plea is malafide or preposterous, or vexatious and can be disposed of without going into facts or is contrary to law or settled legal position will it be justified for the Court to keep its hand off and allow the game of the defendant to have its away? In my view the answer is No."
Ld. counsel for the plaintiff further relied upon Astra Netcom India Private Ltd Vs. Khoday India Ltd. & Anr. 2012 (128) DRJ 83, wherein it was held in para 10 and 11 :
"10. In the case of Roop Kumar V. Mohan Thedani, ( 2003) 6 SCC 595 wherein the scope and meaning of the Evidence Act has been discussed in great details, it was held as follows:
"13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to from of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 6 expressions of the thing are merged in the writing or displaced by it (See Thaver's Preliminary Law on Evidence p. 397 and p.398; Phipson Evidence 7th Edn.p. 546; Wigmore's Evidence p.2406). It has been best described by Wigmore stating that the rule is no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process-the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course( like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of providing it is merely the dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into pay when the counsel offers to "prove" it or " give evidence" of it' otherwise any rule of law whatever might reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects-sale, contract etc. there are specific requirements varying according to the subject."
11. Therefore, the application filed by the plaintiff under Order XII Rule 6 CPC is liable to be allowed and the Court is empowered to pronounce the judgment even in view of the provision of Order XV of CPC".
He further relied upon P.P.A. Impex Pvt. Ltd Vs. Mangal Sain Mittal, 166 (2010) Delhi Law Times 84 (DB), wherein it was observed in para 9 :
"9. It appears to us that the approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechala Engineers & Manufacturers Vs. Basic Equipment Corporation, 13 (1977) DLT 90 (SC)=(1976) 4 SCC 687, in the context of Order 37 of the CPC with regard to granting leave to defend a summary suit. This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 7 decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defence are needlessly permitted to go to trial."
This court further refers the judgments :
P.S. Batra vs. S. Anoop Singh & Anr. 155 (2008) DELHI LAW TIMES 431, where it was observed by our own Hon'ble High Court in para 7 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission-
Rule 6.(1) Where admissions of fact have been made either in the pleadings 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) Whether a judgment is pronounced under Sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment was pronounced."
The scope and ambit of Order 12 Rule 6 of CPC was discussed by the Hon'ble Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v. Union Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the Hon'ble Supreme Court observed as under :
"Para 12. 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 CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 8 set out while amending the said rule, it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the 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 fact of which, it is impossible for the party making such admission to succeed."
In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of the Hon'ble High Court interpreted the provisions of Order 12 Rule 6 of CPC by holding as below:
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
Another Division Bench of the Hon'ble High Court had the occasion to interpret the expression 'otherwise' as used under Order 12 Rule 6 of CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Anr., reported as 119 (2005) DLT 202 (DB). It was observed as below :
"Para 10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the 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 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matter in CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 9 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 the Court can proceed to pass judgment on the basis of the admission made therein............."
In another case No. : RFA (OS) No. 1/2005 titled as Mr. Prem Narain Misra Vs. Faire Brothers Export and Import Ltd. decided on July 12 2007, it was observed by our own Hon'ble High Court in para 17 :
"The very objective and purpose of enacting the provision like Order 12 Rule 6 CPC is to enable the Court o pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case".
In another case C.R.P. No. 119/2007 titled as Mr. P. L. Verma Versus State Bank of India and Anr. decided on September 10, 2008, it was observed by our own Hon'ble High Court in para 4 :
"4. In order to pass a decree of possession in respect of tenanted premises, the Court has only to ensure that the tenancy of the tenant stands terminated either by a valid notice or by efflux of time and there was relationship of landlord and tenant, nothing else is required to be proved."
Further in 168 (2010) Delhi Law Times 501 titled as Karam Kapahi & Ors. Vs. Lal Chand Public Charitable Trust & Anr., it was observed by our own Hon'ble High Court in paras 48 to 51 :
48. "In the 54 Law Commission Report, an CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 10 amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering Judges to use it 'ex debito justiciae a, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment."
49. "If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by 'pleading or otherwise in writing' but in Order 12 Rule 6 the expression 'or otherwise' is much wider in view of the words used therein namely:'admission of fact.......either in the pleading or otherwise, whether orally or in writing."
50. "Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan (Smt.) and Another,118 (2005) DLT 396 (SC)=III (2005) SLT 131=(2005) 11 SCC 279 at page 285 (para
8)]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas's Commentary on the Code, 16th Edition, Volume II, page 2177]."
51. " In the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India and Ors. VI (2000) SLT87=(2000) 7 SCC 120, this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment ".
He further relied upon Pooja Aggarwal Vs. Sakata Inx ( India) Ltd., 154 (2008) Delhi Law Times 237 wherein it was observed in para 7 :
"7. In the instant case, the admission regarding relationship of landlord and tenant is not in dispute. The rate of rent is above Rs. 3,500/-.The service of notice has been amply shown by the plaintiff by placing the documents on record and the denial by the defendant is a sham and false and the Court can always disregard such sham and false denials. All conditions of passing an order under Order 12 Rule 6 of CPC being satisfied, the trial Court wrongly dismissed the application under Order 12 CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 11 Rule 6 of the CPC."
9. Thus, the suit of the plaintiff with regard to possession has to be decreed in view of the admissions made by the defendant in the written statement as well as the law laid down by the Superior Courts. Thus, the plaintiff is entitled for the relief of eviction of the defendant.
10.Therefore, the suit of the plaintiff in respect of the relief for possession of shop situated on the ground floor portion of property bearing no. 16/10196, Beadonpura, Karol Bagh, New Deli-110005 is decreed under Order 12 Rule 6 of CPC with direction to the defendant to hand over the vacant and peaceful physical possession of the shop to the plaintiff. Decree sheet be prepared accordingly in terms of the order passed above.
11.So far as the prayer for mesne profits is concerned, there is no specific averment amount to admission in the written statement to this effect. Therefore, this court is of the considered opinion that the plaintiff has to prove her case by leading evidence for such relief.
12.Now to come up for framing of issues for the relief of mesne profits on 06/04/2015.
Announced in the open (Jitendra Kumar Mishra) court on 02.12.2014. Additional District Judge-09 Central District,Tis Hazari Courts Delhi CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 12 CS No. 396/13 02.12.2014 (At 4:50 pm) Present : Son of the plaintiff.
None for the defendant.
Vide separate order announced in the open court today, the suit of the plaintiff is decreed under Order 12 Rule 6 of CPC in respect of the relief for possession of shop situated on the ground floor portion of property bearing no. 16/10196, Beadonpura, Karol Bagh, New Deli-110005 with direction to the defendant to hand over the vacant and peaceful physical possession of the suit premises to the plaintiff. Decree sheet be prepared accordingly in terms of the order passed above.
Now to come up for framing of issues for the relief of mesne profits on 06/04/2015.
(JITENDRA KUMAR MISHRA) ADJ/CENTRAL-09/THC DELHI/02.12.2014 CS No. 396/13.
Smt. Surjeet Kaur Vs. Kanhiya Lal Kundani Page 13