Delhi High Court
Vinay Kumar Aggarwal vs Radha Rani Aggarwal on 9 January, 2018
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 9th January, 2018
+ RFA 218/2017
VINAY KUMAR AGGARWAL ..... Appellant
Through Mr. Ramesh Kumar and Ms. Anandi
Vaderaa, Advocates with Appellant in
person.
versus
RADHA RANI AGGARWAL ..... Respondent
Through Mr. M.L. Khan, Advocate, Mr. J.C.
Mahindro, Mr. Lovish Seth,
Advocates.
Mr. Jai Gopal Aggarwal, Husband of
the Respondent in person.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present appeal has been filed by the Appellant/Defendant (hereinafter, 'Defendant') impugning the judgement and decree dated 29th November, 2016 passed by the Trial court in Suit No. 15138/2016, whereby the suit for possession was decreed in favour of the Respondent/Plaintiff (hereinafter, 'Plaintiff') under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter, 'CPC').
2. The Plaintiff filed a suit for possession, damages/mesne profits and permanent injunction against the Defendant claiming to be the owner of the property bearing No.18/8, Shakti Nagar, Delhi - 110007 (hereinafter, 'suit property'). The Defendant, the elder son of the Plaintiff, was allowed to occupy one room of the suit property, with attached w/c, half balcony on the mezzanine floor and 1/3rd kitchen on the ground floor on a license without RFA 218/2017 Page 1 of 11 charge. It was alleged that the Defendant was misbehaving with the Plaintiff and her husband, on which ground the license granted to him was terminated orally on 1st May, 2013. Accordingly, the Defendant was asked to vacate the suit property by 16th May, 2013, failing which the suit was instituted against him on 27th May, 2013 in the Trial court.
3. The Plaintiff moved an application under Order XII, Rule 6 of the CPC, on the ground that the Defendant, in an earlier suit filed by him against the Plaintiff and M/s TATA Power Delhi Distribution Ltd being Suit No. 39/2013, admitted that the Plaintiff was the owner of the suit property. The Trial court, in its judgment held this to be a judicial admission under Order XII Rule 6 of the CPC, and rejected the submission of the Defendant that the suit property was purchased by the grandfather. Accordingly, on 29th November, 2016, the Trial court decreed the suit in favour of the Plaintiff and against the Defendant. Hence, the present appeal.
4. During the hearing of the appeal, the counsel for the Respondent/Plaintiff made submissions prior to the counsel for the Appellant/Defendant who was held up in another court. Submissions of the Respondent/Plaintiff
5. Mr. M.L. Khan, learned counsel for the Plaintiff submits that the Plaintiff is the mother of the Defendant. The Plaintiff is the owner of the property bearing No.18/8, Shakti Nagar, Delhi-110007. The Defendant is the son of the Plaintiff and he was permitted to reside in a portion of the suit property, in one room with attached w/c, half balcony on the mezzanine floor and 1/3rd portion of the kitchen on the ground floor as shown in red colour in the site plan (Ex.-PW1/2). It is the contention of the Plaintiff that the Defendant was creating nuisance and was misbehaving with the Plaintiff RFA 218/2017 Page 2 of 11 and her husband. The Plaintiff submits that in view of the misbehaviour of the Defendant, the Plaintiff got issued a publication notice in the newspaper 'The Statesman' dated 29th March, 2012 (Ex.-PW1/3) to the following effect:-
"PUBLIC NOTICE Under the instructions from and on behalf of my clients Shri Jai Gopal son of Late Shri Laxmi Narain, and Smt. Radha Rani, wife of Shri Jai Gopal, residents of 18/8, Shakti Nagar, Delhi - 110007, I hereby notify that my said clients had severed all their connections and relations with their son Shri Vinay Kumar and his wife Monika on account of their disobedient behaviour and disrespectful attitude towards them and they have debarred their said son and his wife from inheriting any of their movable and immovable properties and will not be responsible and liable for any of their acts, deeds, and dealings with any person whomsoever and any one dealing with their said son and his wife will do it at his own risk, cost and liability.
A. K. Thakur Advocate D-185(97)R 465, Lawyers Chambers, Delhi High Court New Delhi 45967"
6. The Plaintiff submits that in view of the misbehaviour and ill- treatment, the Plaintiff called upon the Defendant to vacate the property which he is occupying. However, the Defendant failed to vacate the property.
7. The Defendant pleaded that the property was purchased from the funds of the grandfather's business and thus the property is a family property. Learned counsel submits that this plea of the Defendant in the suit RFA 218/2017 Page 3 of 11 is completely farcical as the Defendant has admitted in a prior suit filed by him titled 'Vinay Kumar Aggarwal vs. Radha Rani' being Suit No.39/2013 that the Plaintiff/mother is the owner of the suit property.
8. He specifically relies upon paragraphs No. 2 and 6 of the said plaint which is on record. On the basis of the said averments contained the Plaint of C.S. No. 39/2013, the Plaintiff, in the instant case, prayed for a decree under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter, 'CPC') claiming that the same is an admission in pleadings before a Court.
Learned counsel relies upon the following judgments:
(i) Nagindas Ramdas v. Dalpatram Locharam alias Brijram and Ors. AIR 1974 SC 471 (hereinafter 'Nagindas Ramdas');
(ii) SM Asif v. Virender Kumar Bajaj AIR 2015 (SC) 3678;
(iii) Seema Thakur v. Union of India & Ors. 2016 (1) CLJ 92 Del.
(hereinafter, 'Seema Thakur SB');
(iv) Baljeet Kaur Kalra v. Surjeet Singh 2016(2) CLJ 459 Del (hereinafter Baljeet Kaur Kalra');
(v) Uttam Singh Dugal and Co. Ltd. v. Union Bank of India & Ors. AIR 2000 SC 2740;
(vi) Preeti Satija v. Raj Kumari & Anr. 2014 (141) DRJ 295 Submissions of the Appellant/Defendant
9. Mr. Ramesh Kumar, learned counsel for the Appellant has submitted that though there exists a sale deed in favour of the Plaintiff i.e. the Defendant's mother, the payment for the purchase of the said property was made by the grandfather of the Defendant. In support of his submission, he relies upon the typed copy of the Statement of Accounts of Union Bank of RFA 218/2017 Page 4 of 11 India. The defendant claims that this Statement of Accounts shows that the payment was made by the partnership firm run by the grandfather for the purchase of the property to the tune of Rs.53,560.80.
10. Learned counsel further submits that the suit was at an advanced stage and evidence by way of affidavit of the Plaintiff had been filed on record. In fact, the examination in chief had also concluded on 18th February, 2015 and the matter was at the stage of cross examination. At that stage, according to learned counsel, an application under Order XII Rule 6, moved on 14th July, 2016, ought not to have been entertained.
11. Learned counsel also points out the pleas taken by him in the written statement which support his submissions. He submits that the payment for the purchase of the property was made by the grandfather and is not barred by the provisions of the Benami Transactions Act. Even though the registration of the sale deed is in favour of the Defendant's mother, the Plaintiff, the property was purchased for the benefit of the entire family. He submits that the Defendant is being removed from the property at the behest of the second son and the Defendant's parents have come under the influence of the said son in order to non suit the Defendant. Rejoinder
12. In rejoinder, it is submitted that the Defendant has delayed the cross examination in the suit because of which, the cross examination did not take place. The Plaintiff never intended to evade the cross examination. It is further submitted that the sale deed, being a registered document, cannot be challenged in this manner, especially, after the Defendant himself, in an earlier suit, admitted that the Plaintiff is the owner of the suit property.
RFA 218/2017 Page 5 of 11Analysis and Findings
13. The background of the admission is that the Defendant had made an application on 7th March, 2013 to M/s Tata Power Delhi Distribution Ltd. (hereinafter, TPDDL') for installation of a separate electric connection in his name, but since he had neither proof ownership nor NOC from the owner, his request was denied by TPDDL on 10th April, 2013. Thus, he filed Suit No. 39/2013 against the Plaintiff and TPDDL for permanent injunction, praying that the Plaintiff and her representatives be restrained from creating any obstruction in installation of a separate electric connection in the portion of the property occupied by him, as also to direct TPDDL to install a new electric connection in the name of the Defendant in the suit premises. A perusal of the plaint filed by the Defendant in Suit No. 39/2013 reveals that the Defendant, has categorically admitted as under:
"2. That the property bearing No. 18/8 Shakti Nagar, Delhi -7 is owned by the defendant No. 1 who is the mother of the plaintiff. Defendant No. 1 along with her husband and family of plaintiff and another son Shri Ajay Aggarwal is residing in the said property. The entire family was residing on the ground floor and the first floor was previously in occupation of tenant. The plaintiff has been paying his share of electricity dues regularly to the defendant No. 1 ..............
6. That the plaintiff made an application for installation of independent electric connection in his name vide request No. 2004474695 dated 7-3-2013 but since the property is owned by his mother, he was having no proof of ownership nor N.O.C. of the owner and the defendant No.2 showed its inability to provide an electric connection."
(emphasis added) RFA 218/2017 Page 6 of 11 Thus, the categorical admission of the Defendant in the suit filed by him against the Plaintiff is a judicial admission made by him.
14. The sale deed dated 20th January, 1967 is not denied by the Defendant and in view of above two uncontroverted facts, it is clear that the Plaintiff is the owner of the suit property.
15. A perusal of the Trial court record further reveals that after the Plaintiff's examination in chief was recorded on 18th February, 2015, and repeated adjournments have been taken by the Defendant on 31st August, 2015, on 15th September, 2015. In fact, on 15th September, 2015, costs of Rs. 5000/- were imposed on the Defendant. On 19th November, 2015, the following order was passed.
"Plaintiff submits that he alongwith his counsel is present in the court for last 02 hours, but counsel for the defendant has not appeared despite having granted pass over in the matter. It is already 01.30 pm. Counsel for the plaintiff further pointed out that on 15.09.2015 last opportunity was given to the defendant for cross -examination of PW-1 subject to cost of Rs.5,000/- but despite that defendant has been adopting the dilatory tactics to prolong the trial of the case, notwithstanding the fact that the plaintiff is a senior citizen aged about 72 years and that she is not able to stand here for so long in the court.
Having heard the submissions and perused the record, I find that the submission of counsel for plaintiff is correct. In view of the same, right of the defendant to cross examine the plaintiff's witness is closed.
Counsel for plaintiff requests to close PE. In view of statement PE stands closed.
Now matter be listed for DE on 10.12.2015. Defendants are directed to file list of witnesses and supply advance copy of the affidavit to the opposite RFA 218/2017 Page 7 of 11 party at least 07 days before the NDOH."
16. This order was thereafter, recalled on an application moved by the Defendant under Order XVII Rule 18 which was again allowed subject to payments of costs. Mediation was attempted but failed.
17. At that stage, the Plaintiff moved an application under Order XII Rule 6 of the CPC, in view of the repeated delays by the Defendant and the admissions made by the Defendant. On this application, the learned Trial court passed the impugned order, decreeing possession in favour of the Plaintiff and against the Defendant, on 29th November, 2016. Even thereafter, mediation has been attempted, but the same has failed.
18. Due to the pendency of the present appeal, the Plaintiff has not executed the decree as yet.
19. The legal position on Order XII Rule 6 is well settled. Trial is not compulsory in every suit. If from the documents and pleadings, it is clear that there is no need for a trial and that the case of a party stands admitted, the court can pronounce judgement, as held by a Division Bench of this Court in Seema Thakur v. Union of India (dated 29th February 2016 in RFA(OS) 97/2015), where it was stated that:
"16. The Court - a facial reading of the provision show - has discretion, depending upon the facts of a case whether or not to decree a suit under Order XII Rule 6 CPC. If the admissions render a trial unnecessary, a Court is entitled to pass a decree without requiring further trial....."
This position was upheld by this Court in Baljit Kaur Kalra (supra).
20. Further it is also a settled position that the admission need not be in the pleadings of the same case but can be in any other form, including in RFA 218/2017 Page 8 of 11 unconnected proceedings. This is supported by the findings of the Supreme Court in Nagindas Ramdas (supra) wherein it was categorically held as under:
"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves not conclusive. The can be shown to be wrong."
21. There has also been a clear attempt to delay the proceedings before the Trial court. It is a settled position that Order XII Rule 6 can be invoked at any time, either on an application or suo moto by the Court. A Division Bench of this Court in Parivar Seva Sansthan v. Dr. (Mrs.) Veena Kalra AIR 2000 Del 349 has also upheld this position and held as under:
9. Bare perusal of the above rule shows, that it confers RFA 218/2017 Page 9 of 11 very wide powers on the court, to pronounce judgment on admission 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 admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying trial being barred by the section 91 and 92 of Evidence Act or other statutory provisions, can be ignored.
These principles are well settled by catena of decisions. Reference in this regard be made to the decisions in Dudh Nath Pandey (dead by L.R's) Vs. Suresh Chandra Bhattasali (dead by L.R's) AIR 1986 SC 1509; Atma Ram Properties Pvt. Ltd. vs Air India 65 (1997) DLT 533; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. 1997 2 AD (Del) 518;
Abdul Hamid Vs. Charanjit Lal & Ors. 1998 2 DLT 476 and Lakshmikant Shreekant Vs. M N Dastur & Co.
71 (1998) DLT 564.
10. The use of the expression "any stage" in the said rule itself shows that the legislature's intent is to give it widest possible meaning. Thus, merely because issues are framed cannot by itself deter the court to pass the judgment on admission under order 12 rule 6, CPC....."
22. In this case, the record does show that the Defendant has been continuously seeking adjournments and delaying final adjudication of the appeal. Thus, Order XII Rule 6 has been rightly invoked by the Trial court.
RFA 218/2017 Page 10 of 1123. The appeal is accordingly dismissed.
24. When the order was pronounced in Court, the Appellant/Defendant agreed to vacate the suit property by 31st December, 2019 on terms and conditions recorded separately. Parties shall be bound by the same. The Suit No. 15138/2016 pending before the Ld. ADJ, Tis Hazari, stands decreed in terms of the settlement and undertakings recorded.
25. In light of the dismissal of the appeal, the trial court record shall be duly remanded back after scanning the same.
PRATHIBA M. SINGH, J.
JANUARY 09, 2018 `ns'/ j RFA 218/2017 Page 11 of 11