Delhi District Court
Sh. Kailash Chand Gupta vs Sh. Mangey Ram Sharma on 11 August, 2014
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS
JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI
C.S. No.07/14
Unique Identification No. 02402C0002742014
1. Sh. Kailash Chand Gupta
S/o Late Sh. Mangey Ram
2. Sh. Mohit Garg
S/o Sh. Kailash Chand Gupta
Both R/o House No.1/523637,
Street No.8, Balbir Nagar, Shahdara,
Delhi 110032.
.....Plaintiffs
Versus
Sh. Mangey Ram Sharma
S/o Sh. Latur Singh Sharma,
R/o 125/3, Karkardooma Village,
Karkardooma, Delhi110032.
st nd
Also at : 1/6722, 1 and 2 Floor,
East Rohtash Nagar, Shahdara,
Delhi110032.
.....Defendant
Date of Institution : 04.01.2014
Arguments heard on : 02.08.2014
Date of decision : 11.08.2014
On Application u/o XII rule 6 CPC
Suit for Possession, recovery of arrears of rent and Damages and decree
of permanent injunction
Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma
C.S. No.07/14
Decided on 11.08.2014 Page 1 of 17
JUDGEMENT :
st nd
1. Admittedly, the plaintiffs have rented out 1 and 2 floor without roof/terrace rights of their property bearing no.1/6722, East Rohtash Nagar, Shahdara, Delhi110032 to the defendant more, specifically shown with red colour in the site plan, at a monthly rent of Rs.11,000/ for a period of 11 months by registered lease deed dated 26.5.2010. After its expiry, the lease was further extended vide registered lease deed dated 14.6.2011 between the parties for the period from 27.5.2011 to 26.4.2012 @ Rs.12,500/ per month excluding water and electricity charges.
2. The plaintiff has alleged that the lease deed dated 14.6.2011 has expired due to efflux of time on 26.4.2012 and the defendant has been in arrears of rent of Rs.1,87,500/ w.e.f. 1.5.2012 till June, 2013 which the defendant has failed to pay to the plaintiffs despite several requests. The plaintiffs have also terminated the tenancy of the defendant by issuing him a notice dated 12.7.2013 by registered AD post as well as through courier calling upon the defendant to handover them peaceful and vacant possession of the suit property but of no avail and hence the present suit.
3. In the written statement, it is inter alia pleaded in preliminary Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 2 of 17 objection no.1 by the defendant that after expiry of lease period vide lease deed dated 14.6.2011, the plaintiffs have taken a sum of Rs. 45,000/ as further refundable security and a fresh lease deed for 3 years for the period from 27.5.2012 to 26.4.2015 was executed. However, in para no.2 of his written statement, it is pleaded by the defendant that after expiry of lease period vide lease deed dated 14.6.2011, plaintiffs have taken further refundable security of Rs. 45,000/ from him and the plaintiffs assured him to execute a fresh lease deed for 3 years from 27.5.2012 to 26.4.2015 and a lease deed was accordingly drafted and parties have put their respective signatures and the copy thereof was not supplied to him. He also pleaded that he has lastly paid the rent to the plaintiffs in the month of June, 2013.
4. The plaintiff filed replication to the written statement of the defendant denying the allegations of the defendant and reaffirming the averments made in the plaint. It is denied that after expiry of the lease period of Lease Deed dated 14.6.2011 they have taken a sum of Rs. 45,000/ in cash or that fresh lease for 3 years was executed.
5. The plaintiffs have filed an application under Order XII Rule 6 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as the Code) passing of a decree of possession of the Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 3 of 17 demised premises on 15.7.2014. Reply to this application has been filed by the defendant contesting the same and seeking its dismissal.
6. I have heard Ld. Counsel for the parties and and very carefully perused the material available on record.
7. It is argued by the Ld. Counsel for the plaintiffs that the relationship of landlord and tenant between the parties is not disputed and the last registered lease deed between the parties was executed on 14.6.2011 for 11 months w.e.f. 25.5.2011 at the rate of rent of Rs. 12,500/ per month and the tenancy stands determined by efflux of time on 26.4.2012 and no further lease deed was executed as claimed by the tenant/defendant. He further argued that though the tenancy stands determined by efflux of time by 26.4.2012, the plaintiffs have also got issued a legal notice dated 12.7.2013 to the defendant at his last known address terminating his tenancy and calling upon him to give them peaceful and vacant possession of the suit property by registered AD post as well as through speed post and as the rate of rent is more than Rs.3,500/ per month, a decree of possession in respect of the suit property may be passed on admission of the defendant u/o XII rule 6 of the Code in their favour and against the defendant.
8. Per contra, it is argued by Ld. Counsel for the defendant that after expiry of the lease period, the plaintiffs obtained Rs.45,000/ Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 4 of 17 from the tenant as additional security and a fresh lease deed for the period from 27.5.2012 to 26.4.2015 was executed and no decree of possession can be passed u/o XII rule 6 of the Code.
9. I have given my thoughtful consideration to the rival contentions of the parties.
Statutory Provisions
10. Before appreciating the rival contentions of the parties, it is necessary to refer to relevant provisions of law i.e. Order XII Rule 6 CPC which is reproduced as under :
"6. Judgment on admissions - (1) Where admissions of fact have been made either in the pleading 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) Whenever 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 on which the judgment was pronounced."
Object and scope
11. Order XII Rule 6 CPC is enacted for the purpose of expediting Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 5 of 17 the trial; if there is any admission on behalf of the defendant or an admission can be inferred from the facts and circumstances of the case without any dispute. The said rule is an enabling provision which confers discretion on the Court to deliver a speedy judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim. However, a judgment on admission is not a matter of right and rather is a matter of discretion of the Court and is neither mandatory nor it is peremptory. This rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it, to succeed.
12. The scope of Order XII rule 6 CPC has been elucidated by our own Hon'ble High Court of Delhi in State Bank of India Vs. M/s Midland Industries AIR 1988 Delhi 153 in the following words :
"There is no doubt that Rule 6 of Order XII has been couched in a very wide language. However, before a court can act under Rule 6, admission must be clear, unambiguous, unconditional and unequivocal. Furthermore a judgment on admission by the defendant under Order XII rule 6 Civil Procedure Code is not a matter of right and rather is a matter of discretion of the court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of or a motion under this rule the court is Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 6 of 17 free to refuse exercising discretion in favour of the party invoking it. It is not in each case where order XII rule 6 Civil Procedure Code is invoked that the court would be obliged to pass a decree which case would depend upon its own peculiar facts. Where the defendants have raised objections which to to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favour of the plaintiff. The purpose of Order XII rule 6 Civil Procedure Code is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission."
13. While dealing with the scope of order XII rule 6 CPC, it has been held by the Hon'ble Supreme Court in Himani Alloys Ltd. vs. Tata Steel Ltd. 2011 (7) Scales 566 that admission should be categorical and conscious and deliberate act of the party showing an intention to be bound by it and relevant Para (9) of the judgment reads as under :
"It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 7 of 17 But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order XII rule 6 CPC being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendants, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a Defendant to contest the claim. In short the discretion should be used only when there is clear 'admission' which can be acted upon."
14. The object of Order XII Rule 6 CPC has also recently been explained by our own Hon'ble High Court in Scj Plastics Ltd. vs. Creative Wares Ltd., 2012 VII AD (Delhi) 447 and it has been held that object of Order XII rule 6 CPC is that in appropriate cases litigations should not continue unnecessarily once it is found that there are categorical admissions and judicial process cannot be abused to delay the matter. Our Hon'ble High Court has relied upon judgment of the Hon'ble Supreme Court in Nagindas Ramdas vs. Dalpatram Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 8 of 17 Iccharam alias Brijram and Anr. MANU/SC/0417/1973 and relevant Para 27 reads as under :
"From a conspectus of the cases cited at the bar, the principle that emerges is, that if as 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 of either of evidence recorded or produced in the case, or, it may partly or wholly 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 u/s 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 admission. The former class of admissions are fully binding on the party that makes them and constitutes a waiver of proof. They by themselves can be made foundation of the rights of the parties."
15. In Smt. Sudesh Madhok & Anr. vs. M/s Lunar Diamonds Limited and Ors. (2012) X AD Delhi 99, it has been held by our own Hon'ble High Court that the object of Order XII Rule 6 CPC is to Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 9 of 17 ensure that there should not be prolongation of litigation once the main ingredients of cause of action with respect to passing of a decree are found to be admitted in pleadings or otherwise.
16. Further while dealing with the object and scope of Order XII Rule 6 CPC, the Hon'ble Supreme Court has observed in Uttam Singh Duggal vs. Union of India MANU/SC/0485/2000 : AIR 2000 SC 2740 in the following words :
"As to the object of Order XII Rule 6 CPC, 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 set out while amending the said rules, it is stated "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 relief to which according to the admission of the defendants, 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 face of which, it is impossible for the party making such admission to succeed."
Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 10 of 17 Order XII Rule 6 CPC & suit for possession
17. Recently in a judgment Payal Vision Ltd. vs. Radhika Choudhary, 2012 (9) Scales 105 decided on 20.9.2012, it has been held by the Hon'ble Supreme Court (Para 6) 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 plaintiff landlord 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 Act and so long as these two aspects are not in dispute, the court can pass a decree in terms of Order XII Rule 6 of Code of Civil Procedure.
18. Now while applying the provisions of Order XII Rule 6 CPC and the principles laid down by the Hon'ble Supreme Court and High Court to the facts of the present case, admittedly there was relation ship of landlord and tenant between the parties and the last paid rent of the suit property by the defendant was Rs.12,500/ per month and ad mittedly as per the registered lease deed period of the tenancy of the Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 11 of 17 defendant expired on 26.4.2012. The defendant has not filed any doc ument, lease deed or photostat copy thereof in support of his defence that fresh lease deed was executed on expiry of the period of lease deed dated 14.6.2011 for a period of 3 years w.e.f. 27.5.2012 to 26.4.2015 or he has paid Rs.45,000/ by cash to the plaintiffs as further refundable security. This defence of the defendant with regard to the purported extension of the lease is untenable in view of the specific provisions of Section 107 of Transfer of Property Act which provides that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. It is not the case of the defendant that upon ex piry of the earlier lease deed, an extension thereof, was made by a reg istered instrument. It appeares that the defence of the renewal of the lease deed for a period of 3 years has been taken by the defendant to prolong his stay in the premises. In view of the registered lease deed dated 14.6.2011, tenancy between the parties stood expired on 26.4.2012. Still the plaintiffs have terminated the tenancy of the de fendant by getting issued a notice dated 12.7.2013 through their coun sel Sh. Lokesh Kumar, Advocate vide 2 postal receipts of registered AD post and two postal receipts of speed post at both the addresses of the defendant. Under Section 114 illustration (f) of the Indian Evi Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 12 of 17 dence Act, 1872 when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particulare case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their rela tion to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in par ticular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. The presumption under Section 27 of General Clauses Act, 1897 is far stronger which gives rise to a presumption that service of notice has been effected when it is sent to the correct address by the registered post. Unless and until, the contrary is proved by the ad dressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. Moreover, the pleadings are the foundation of litigation and must setforth sufficient factual details. Experience has shown that all Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 13 of 17 kinds of pleadings are introduced and even false and fabricated docu ments are filed in civil cases because there is an inherent profit in con tinuation of possession. In a suit for ejectment, it is necessary for the defendant to plead specifically as to the basis on which he is claiming a right to continue in possession. A defendant has to show a subsist ing right to continue as a lessee. No issue arises on vague pleadings. A vague denial of the receipt of a notice, to quit is not sufficient to raise an issue. To rebut the presumption of service of a notice to quit, the defendant has to plead material particulars in the written statement such as where after receiving the plaint and the docu ments, the defendant has checkedup with the Post Office and has obtained a certificate that the postal receipt filed by the plaintiffs was forged and was not issued by the concerned Post Office. Ref erence can be given to a recent judgment of our own Hon'ble High Court of Delhi in Sky Land International Pvt. Ltd. vs. Kavita P. Lalwani 2012 (191) DLT 594. Such type of a self serving denial of the defendant and more so, in these type of cases, cannot hold back the court from exercising its jurisdiction to decree a suit u/O XII Rule 6 of the Code. In the present case, the defendant in his written statement has merely denied the receipt of the notice and has not pleaded that af Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 14 of 17 ter receiving the plaint and the documents, the defendant has checked up with the Post Office and has obtained a certificate that the postal receipt filed by the plaintiffs was forged and was not issued by the concerned Post Office. Be that it may, denial of the receipt does not affect the case of the plaintiffs as while relying upon its previous judg ment in V. Dhanapal Chettiar vs. Yesodai Ammal AIR 1979 SC 1745, the Hon'ble Supreme Court has reiterated in Nopany Invest ments (P) Ltd. vs. Santokh Singh (HUF) (2008) (2) SCC 781 that it is well settled that filing of an eviction suit under the general law itself is a notice to quit on a tenant and no notice to quit was necessary u/s 106 of the Transfer of Property Act in order to enable the plaintiff to get a decree of eviction against the defendant.
19. Apart from this, keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Amendment Act no. 3 of 2003 and as per which no objection with regard to termination of tenancy is permitted on the ground that legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month as long as a period of 15 days was otherwise given to the tenant to vacate the property and the intention of the legislature is, therefore, clear that the technical objections should not be permitted to defeat the substantial justice and the suit for possession of the tenanted Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 15 of 17 premises once the tenant has a period of 15 days to vacate the tenanted premises. Even otherwise the present suit having been filed by the plaintiffs on 4.1.2014 against the defendant itself is a notice of termination of the tenancy of the defendant. The defendant was served with the summons of suit on 25.1.2014 and filed written statement on 25.02.2014.
20. In view of the above discussions, it has to be held that the defendant has made admission regarding relationship of landlord and tenant between the parties. Admittedly, the rate of rent between the parties was Rs.12,500/ per month which is more than Rs.3,500/ per month. The period of registered lease deed between the parties dated 14.6.2011 for a period of 11 months w.e.f. 27.5.2011 has already expired on 26.4.2012 and on that day, the tenancy stood terminated by efflux of time. Thus the admissions made by the defendant are clear, unambiguous, unconditional and unequivocal and even otherwise the filing of the present suit is itself a notice of the termination of the tenancy to the defendant and hence a decree of possession of the suit property shall follow under Order XII Rule 6 of the Code. Hence, a decree of possession of first and second floor of property bearing no. 1/6722, East Rohtash Nagar, Shahdara, Delhi110032, as shown in rend colour in the site plan, is hereby passed in favour of the plaintiffs Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 16 of 17 and against the defendant. Decree sheet be prepared accordingly and it is made clear that the other issues between the parties regarding recovery of arrears of rent and mesne profits shall be adjudicated upon after adducing evidence by the parties.
Announced in open Court
th
on 11 August, 2014 (Vinod Goel)
District & Sessions Judge
Shahdara, KKD Courts, Delhi.
Kailash Chand Gupta & Anr. vs. Mangey Ram Sharma C.S. No.07/14 Decided on 11.08.2014 Page 17 of 17