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Delhi District Court

C.S. No. 377/12 vs Sh. Parveen Kumar on 28 September, 2013

 IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS 
    JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI


C.S. No. 377/12
Smt. Billo Sagar
W/o late Sh. Kishan Singh,
R/o H.No.­1/5357, Gali No.14,
Balbir Nagar, Delhi­110032.                        .....Plaintiff

            Versus

1. Sh. Parveen Kumar
S/o late Sh. Balbir Singh,
R/o Flat No. M­23, C­1, 
Dilshad Garden, Delhi­110095.
2. Smt. Nisha 
W/o Sh. Parveen Kumar,
R/o Flat No. M­23, C­1, 
Dilshad Garden, Delhi­110095.                      .....Defendants 

Date of Institution        :      09.02.2012
Arguments heard on         :      20.09.2013
Date of decision           :      28.09.2013
On Application u/o XII rule 6 CPC


Suit for Recovery of Possession, Arrears of Rent, Permanent Injunction, 
Damages / Mesne Profits


JUDGEMENT :

1. This is a suit for recovery of possession, arrears of rent and for Smt. Billo Sagar vs. Parveen Kumar & Anr.

C.S. No.377/12 Decided on 28.09.2013 Page 1 of 15 a decree of permanent injunction and mesne profits against the defendants filed by the plaintiff against the defendants. During the pendency of the suit, the plaintiff has filed an application under Order XII Rule 6 CPC read with Section 151 CPC for passing a decree of possession in respect of the suit property against the defendants on their admissions. Reply to this application has been filed by the defendants contesting the said application and seeking its dismissal.

2. Shorn of unnecessary details, the brief facts for disposal of the application under Order XII Rule 6 CPC read with Section 151 CPC are that the plaintiff has rented out her flat consisting of two rooms set on the second floor of the property bearing no. M­23, C­1, Dilshad Garden, Delhi­110095 to the defendants for residential purpose on rent @ Rs.4000/­ per month excluding water and electricity charges w.e.f. 05.02.2009 for 11 months up to 05.01.2010 vide an agreement which was executed between the plaintiff and the defendant no.1. The plaintiff got issued a legal notice dated 03.12.2011 to the defendants no.1 & 2 by speed post calling upon them to handover the peaceful and vacant possession of the said property to the plaintiff along with mesne profits and this notice was served upon the defendants on 05.12.2011. Subsequently, the plaintiff also served a copy of this notice Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 2 of 15 upon the defendants through their counsel Sh. Mahesh Saxena, Advocate along with her written statement on 5.1.2012 in civil suit titled as "Parveen Kumar vs. Billo Sagar" filed by the defendants against the plaintiff herein.

3. In their written statement, the defendants, inter­alia, pleaded that they have never defaulted in making the payment of rent at any time and they have paid rent @ Rs.4000/­ per month up to date. While replying para no.4 of the plaint, it is admitted that the plaintiff gave them the suit premises on rent @ Rs.4000/­ per month and rent agreement was duly executed between the plaintiff and defendant no.1. However, the defendants have denied that any legal notice dated 03.12.2011 was sent to them or the same was served upon them. They have not specifically denied about the receipt of the notice alongwith the written statement on 5.1.2012 served upon them through their counsel Sh. Mahesh Saxena, Advocate in the civil suit titled as "Parveen Kumar vs. Billo Sagar".

4. The plaintiff has placed on record the Rent Agreement dated 25.02.2009 executed between the plaintiff and defendant no.1 by which the suit flat was rented out to the defendants at a monthly rent of Rs.4000/­ for a period of 11 months w.e.f. 05.02.2009. She has also Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 3 of 15 filed a copy of legal notice dated 03.12.2011 which was got sent by her through counsel Sh. S.S. Chaudhary, Advocate to both the defendants asking them, inter­alia, to handover the vacant peaceful possession of the suit flat to the plaintiff. She has also filed two postal receipts vide which the said legal notices were sent along with track report of both the articles sent by speed post showing the delivery.

5. I have heard the Ld. Counsels for the parties and very carefully perused the material available on record.

6. It is argued by ld. counsel for the plaintiff that there is no dispute about relationship of landlord and tenant between the parties and the rate of rent of the suit flat is more than Rs.3500/­ per month and the plaintiff has terminated the tenancy of the defendants vide legal notice dated 03.12.2011. He also argued that the plaintiff has filed the track report of the India Post regarding delivery of the notice sent by speed post to both the defendants. The Ld. Counsel prayed that the plaintiff be awarded a decree of possession on the basis of admission of the defendants forthwith.

7. On the other hand, it is argued by ld. counsel for the defendants that they have not received any copy of notice and all arrears of rent have been paid by them to the plaintiff during pendency of the suit and Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 4 of 15 it is a matter of trial whether the plaintiff has issued the said notice to the defendants terminating their tenancy. He prayed for dismissal of application.

8. I have given my thoughtful consideration to the rival contentions of the parties.

Statutory Provisions

9. 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."

Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 5 of 15

Object and scope

10. Order XII Rule 6 CPC is enacted for the purpose of expediting 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.

11. 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 Smt. Billo Sagar vs. Parveen Kumar & Anr.

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 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."

12. 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 Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 7 of 15 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. 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."

13. 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 Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 8 of 15 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 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 Smt. Billo Sagar vs. Parveen Kumar & Anr.

the parties."

14. 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 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.

15. 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 Smt. Billo Sagar vs. Parveen Kumar & Anr.

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."

Order XII Rule 6 CPC & suit for possession

16. 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.

17. Now coming to the facts of the present case, admittedly there is a relationship of landlord and tenant between the parties and the suit flat was rented out to the defendant no.1 vide rent agreement dated Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 11 of 15 25.02.2009 at a monthly rent of Rs.4,000/­ for a period of 11 months w.e.f. 5.2.2009. As the rent agreed between the parties is more than Rs.3,500/­, the tenancy of the defendants is not protected under the provisions of DRC Act. Though the tenancy of the defendant is terminated by lapse of time after expiry of 11 months from 05.02.2009 i.e. w.e.f. 06.01.2010 yet the plaintiff has served the defendants with a legal notice dated 03.12.2011 through her counsel Sh. S.S. Chaudhary, Advocate vide speed post receipts and as per the Track Report of the India Post, the said notice was served upon the defendants on 05.12.2011. Moreover, the plaintiff has pleaded in para no.10 of the plaint that she has also served a copy of this legal notice upon the defendants through their counsel Sh. Mahesh Saxena, Advocate along with the written statement on 5.1.20012 in the case titled as "Parveen Kumar vs. Billo Sagar" and this fact has not been specifically denied by the defendants. Under Order VIII Rule 5 of the CPC, it is provided that where a fact pleaded in the plaint is not specifically denied by the defendant, he is deemed to have admitted the said fact. Order VIII Rule 5 CPC reads as under:­ "(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 12 of 15

defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

On order VIII rule 5 CPC reference may be given to the judgment of Hon'ble Supreme Court in Badat and Company, Bombay vs. East India Trading Company AIR 1964 SC 538 and relevant para 9 of the judgment reads as under :

"Rules 3,4 & 5 of Order 8 of CPC form an integrated Code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequence flowing from its non­ compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."

18. Moreover, while relying upon its previous judgment in V. Dhanapal Chettiar vs. Yesodai Ammal AIR 1979 SC 1745, the Hon'ble Supreme Court has reiterated in Nopany Investments (P) Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 13 of 15 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 defendants.

19. Apart from this, keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Amendment 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 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 respondent/plaintiff on 09.02.2012 against the defendants itself is a notice of termination of the tenancy of the defendants. The defendants were served with the summons of suit on 27.3.2012 and filed written statement on 6.7.2012.

Smt. Billo Sagar vs. Parveen Kumar & Anr.

Decided on 28.09.2013 Page 14 of 15

20. In view of the above discussions, it has to be held that the defendants have made admission regarding relationship of landlord and tenant between the parties and there is implied admission by the defendants regarding receipt of copy of notice of termination of the tenancy which are clear, unambiguous, unconditional and unequivocal and even otherwise the filing of the present suit on 09.02.2012 is itself a notice of the termination of the tenancy to the defendants and hence a decree of possession of the suit flat shall follow under Order XII Rule 6 CPC. As such, a decree of possession of the suit flat bearing no. M­23, C­1, Dilshad Garden, Delhi­110095 (second floor) is hereby passed in favour of the plaintiff and against the defendants. 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 profit shall be adjudicated after adducing evidence by the parties.

Announced in open Court
on 28th September 2013                               (Vinod Goel)
                                             District & Sessions Judge
                                          Shahdara, KKD Courts, Delhi.




Smt. Billo Sagar vs. Parveen Kumar & Anr.
C.S. No.377/12
Decided on 28.09.2013                                                                 Page 15 of 15