Delhi District Court
Smt. Sunita Gupta vs Sh. Suresh Kumar on 17 March, 2015
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL
JUDGE: SOUTH WEST DISTRICT: DWARKA COURT: NEW
DELHI
C.S No: 159/12
Unique case ID No: 02405C0151182012
IN THE MATTER OF
Smt. Sunita Gupta
W/o Sh. Pawan Gupta,
R/o RZ76, Gali no. 3,
Raghu Nagar, New Delhi 110045 ... Plaintiff
Versus
Sh. Suresh Kumar.
S/o Sh. Ram Kishan,
R/o RZ47B, Gali no. 3,
Raghu Nagar, New Delhi 110045 ... Defendant
ORDER
1. By this order I will dispose of the application of the plaintiff under Order 12 Rule 6 CPC.
2. Brief facts leading to the filing of the present application by the plaintiff are as follows: The plaintiff has filed the present suit CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 1 of 21 for ejectment, damages, mesne profits alongwith pendente lite and future interest against the defendant. It is the case of the plaintiff as per plaint that she is the owner of property bearing no. RZ47B, Gali no. 3, Raghu Nagar, New Delhi 110045 which was purchased by her from one Smt. Sanskrita Jain through registered sale deed dated 05.04.2010. It is further the case of the plaintiff that the defendant herein was inducted by the previous owner Smt. Sanskrita Jain as a tenant in respect of one room, kitchen, toilet and stairs built on ground floor without any rights of terrace, verandah and staircase shown in red colour in the site plan (hereinafter referred to as the 'suit property'). During the continuation of the tenancy of the defendant, suit property has been allegedly purchased by the plaintiff from the erstwhile landlord/ owner and subsequently the tenancy of the defendant has been terminated by the plaintiff herein by serving a legal notice dated 30.08.2011 on the defendant through registered AD. It is the case of the CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 2 of 21 plaintiff that despite termination of aforesaid tenancy by the plaintiff, the defendant has failed to handover the vacant possession of tenanted premises to the plaintiff and as such he is liable to pay the occupation charges @ Rs. 15,000/ per month together with interest @ 24 % per annum. The plaintiff has thus filed the present suit for ejectment of the defendant from the suit property and for mesne profits alongwith cost of the suit.
3. Defendant appeared in response to summons of the suit and filed his written statement. In his written statement, the defendant has denied that the plaintiff is either the owner or the landlord of the suit property. According to him, the documents relied upon by the plaintiff in support of her title over the suit property are forged and fabricated. Besides, according to him, the aforesaid documents do not confer any right, title or interest on the plaintiff over the suit property and as such the plaintiff has got no locus standi to file the present suit for ejectment and CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 3 of 21 mesne profits against the defendant. According to the defendant, Smt. Sanskrita Jain had earlier filed an eviction petition against the defendant herein which was subsequently dismissed by the court. According to the defendant, since Smt. Sankskrita Jain wants to throw the defendant out of the suit property by hook or crook, the present suit has been filed by the plaintiff against the defendant in collusion with her and due to such conduct of the plaintiff, the defendant herein was forced to file a suit for permanent injunction against the plaintiff herein which is pending adjudication before the court. The defendant has thus prayed for dismissal of the present suit of the plaintiff.
4. Replication to the written statement of defendant was filed by the plaintiff. In the aforesaid replication, the plaintiff has denied that the suit filed by erstwhile owner Smt. Sanskrita Jain was dismissed by the court. According to the plaintiff, since Smt. Sanskrita Jain had already sold the property to the plaintiff, she herself has withdrawn the suit against the CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 4 of 21 defendant on the aforesaid ground. The plaintiff has denied all the contrary averments made by the defendant in his written statement and once again reiterated the stand taken by her in her plaint.
5. Subsequently, on the basis of pleadings of the parties, the following issues were framed by Ld. Predecessor of this court vide order dated 18.12.2013:
(i) Whether the present suit is maintainable before this Civil Court in view of provisions of Delhi Rent Control Act?
OPP.
ii. Whether the present suit is barred by Order 2 Rule 2 CPC? OPD.
iii. Whether the plaintiff is entitled to relief of ejectment of the defendant from the suit property? OPP.
iv. Whether the plaintiff is entitled to mesne profits, if so, at
what rate? OPP
v. Relief.
CS No. 159/12
Sunita Gupta Vs. Suresh Kumar
Order dated 17.03.2015 Page no. 5 of 21
6. Considering the nature of Issue no. 1, the same was treated as preliminary issue by Ld. Predecessor of this court vide order dated 18.12.2013. The aforesaid issue has already been decided by this court vide order dated 24.05.2014 in favour of plaintiff and against the defendant. Subsequently the plaintiff moved an application under Order 39 Rule 10 read with Section 151 CPC alongwith an application under Section 151 CPC seeking leave of the court to place on record copies of documents i.e. Agreement to sale and purchase, GPA, affidavit, receipt and possession letter all dated 05.04.2010 executed by Smt. Sanskrita Jain in favour of the plaintiff herein.
7. Before the aforesaid application could have been disposed off by this court, another application under Section 151 CPC seeking leave of the court to place on record certain additional documents alongwith the present application under Order 12 Rule 6 CPC was filed on behalf of the plaintiff on 23.12.2014. It was submitted by counsel for plaintiff that the plaintiff was not CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 6 of 21 pressing for disposal of her application under Order 39 Rule 10 CPC at this stage and accordingly arguments were heard on applications of the plaintiff under Section 151 CPC filed by the plaintiff on 01.08.2014 and 23.12.2014 respectively and on the present application under Order 12 Rule 6 read with Section 151 CPC dated 23.12.2014. On 09.02.2015, after arguing at some length, it was submitted by the counsel for defendant that the defendant has no objection in case two applications under Section 151 CPC filed on behalf of the plaintiff on 01.08.2014 and 23.12.2014 respectively are allowed by the court and accordingly after considering the submissions made by counsel for defendant and the submissions made in the aforesaid applications, the same were allowed by this court vide order dated 09.02.2015, subject to cost of Rs. 2000/ to be paid by the plaintiff to the defendant. The aforesaid cost has already been paid by the plaintiff to the defendant. Hence, there is no impediment for this court in disposal of the present application CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 7 of 21 of plaintiff under Order 12 Rule 6 CPC.
8. It is submitted by the counsel for plaintiff that the plaintiff is entitled to a decree of ejectment of the defendant from the suit property in her favour in as much as the defendant has raised a false defence in his written statement that plaintiff has no locus to file the present suit as she is not the owner. According to the plaintiff, defendant has admitted in his written statement that he had filed a suit for permanent injunction CS No. 310/11 against erstwhile owner Smt. Sanskrita Jain and plaintiff and her husband. She submits that in the aforesaid suit the defendant herein has admitted/ acknowledged the locus of the plaintiff to deal with suit property in as much as he withdrew his above case on an undertaking given merely by plaintiff and her husband not to dispossess the defendant from the suit property despite categorical stand taken by plaintiff in her written statement in the said suit that suit property was transferred by erstwhile owner in her favour. It is further submitted by her that CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 8 of 21 plaintiff need not prove his absolute ownership as required under Transfer of Property Act and she is required only to show that his locus is more than the defendant/ tenant. She submits that erstwhile owner has executed a chain of title documents i.e. Agreement to sell, irrevocable GPA, possession letter, receipt, affidavit and registered Will all dated 05.04.2010 in favour of plaintiff and has admitted the execution of the same in her statement dated 07.07.2010 in E262/08 titled as 'Sanskrita Jain Vs. Suresh Kumar'. Thus, according to plaintiff, she is undisputably landlord and defendant is a tenant. It is further submitted by her that the aforesaid facts clearly reflect that admittedly the defendant himself has dealt plaintiff as his landlord and documents dated 05.04.2010 coupled with statement given by erstwhile owner Smt. Sanskrita Jain on 07.07.2010 in the court in E262/08 clearly reflects that plaintiff is duly authorized to deal with defendant and is in constructive possession of suit property. She has prayed for decree of CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 9 of 21 ejectment in her favour.
9. Learned counsel for plaintiff has relied upon the following judgments in support of his submissions: i. Rama Devi Vs. Punam Chand Aggarwal 151 (2008) DLT 230.
ii. Gian Chand Gupta (Through LRs) Vs. Coir Board, RFA no. 424.2011 14.09.2011 J. Valmiki Mehta. iii. Suresh Jain Vs. Orient Carpet Gallery Pvt. Ltd. 161 (2009) DLT 500.
iv. J.C. Mehra Vs. Kusum Gupta 117 (2005) DLT 506 v. Hardip Kaur Vs. Kailash & Anr. 193 (2012) DLT 168.
10. On the other hand, it is submitted by the learned counsel for the defendant that the plaintiff is not entitled to a decree of ejectment in as much as the defendant has categorically stated in his written statement that plaintiff is neither the owner nor the landlord of the suit property. Admittedly, the defendant has CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 10 of 21 never paid any rent of the suit property to the plaintiff. As such, according to him, there is no question of any admission on the part of the defendant that plaintiff has any locus to deal with the suit property. In the absence of any admission, according to him, no decree under Order 12 Rule 6 CPC can be passed in favour of the plaintiff. Even otherwise, according to him, the documents dated 05.04.2010 contradicts the case of plaintiff as per plaint.
11. I have heard the submissions made on behalf of the parties and have also perused the record. I have also carefully gone through the judgments sought to be relied upon by learned counsel for the plaintiff. It is settled legal position that Order 12 Rule 6 CPC being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances is to exercise its judicial discretion keeping in mind that a judgment on admission is a judgment without trial which permanently denies CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 11 of 21 any remedy to the defendant by way of 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 defendant to contest the claim. No doubt, 'admission' under the provisions of Order 12 Rule 6 CPC includes an admission that can be inferred from the facts and circumstances of the case but in order to qualify itself as an admission upon which a decree can be passed by the court under the provisions of Order 12 Rule 6 CPC such an admission should be one which can be inferred from the facts and circumstances of the case without any dispute. There is also no denial of settled legal position that the admission forming the basis of decree under Order 12 Rule 6 CPC need not essentially form part of the pleadings and it can be made by the defendant even otherwise also, however, as has already been observed hereinabove such an admission must be clear, unambiguous and unconditional.
CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 12 of 21
12. Now in the light of the aforesaid well settled legal position, I will deal with the submissions made on behalf of the parties. A bare perusal of the para no. 1 of the plaint would show that the plaintiff is claiming herself to be owner of suit property allegedly having purchased the same from Smt. Sanskrita Jain through registered sale deed dated 05.04.2010. The plaintiff has failed to annex the alleged registered sale deed alongwith the plaint. The defendant has categorically denied the aforesaid averments of the plaintiff in para no. 1 of para wise reply in his written statement. The plaintiff filed replication to the written statement of the defendant but even at that stage no sale deed much less any registered sale deed dated 05.04.2010 has been placed on record by the plaintiff. Subsequently, the matter was fixed for admission/ denial of the document and for framing of issues. However, the plaintiff even at that stage had failed to produce the documents in support of her title over the suit property. Accordingly the issues were framed by Ld. CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 13 of 21 Predecessor of this court vide order dated 18.12.2013 and the matter was fixed for plaintiff's evidence on preliminary issue no. 1. The aforesaid issue was decided by this court vide order dated 24.05.2014 in favour of the plaintiff and against the defendant and the matter was fixed for plaintiff's evidence on the remaining issues. It is at that stage that the plaintiff moved an application under Section 151 CPC seeking leave of the court to place on record copy of documents such as agreement to sale and purchase, GPA, affidavit, receipt and possession letter all dated 05.04.2010 on record. None of the aforesaid documents has been registered. Thus, even at this stage, the plaintiff has failed to place on record the registered sale deed dated 05.04.2010 which has been referred to by the plaintiff in para no. 1 of her plaint. The plaintiff has not filed any registered sale deed which has been referred to by her in her plaint till today. Under the aforesaid circumstances denial by the defendant of ownership as well as the landlordship of the CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 14 of 21 plaintiff in respect of the suit property gains significance.
13. The defendant has specifically alleged in the written statement that whatever documents have been relied upon by the plaintiff in support of her claim as to the ownership over the suit property are forged and fabricated and the said documents do not confer any right, title or interest on the plaintiff over the suit property. Under the aforesaid circumstances, in my considered opinion, before the plaintiff can allege that by virtue of the aforesaid documents dated 05.04.2010, the plaintiff has acquired a better right in the suit property than that of the defendant and as such is entitled to a decree of ejectment of the defendant from the suit property, the plaintiff is required to prove the aforesaid documents as per the provisions of Evidence Act. The plaintiff has submitted in her application under Order 12 Rule 6 CPC that a landlord is not supposed to prove absolute ownership as required under Transfer of Property Act and he is required only to show that his locus is more than a tenant. It is CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 15 of 21 further submitted by the plaintiff in the aforesaid application that the erstwhile owner Smt. Sanskrita Jain had executed the chain of documents dated 05.04.2010 in favour of the plaintiff authorizing the plaintiff to deal with the suit property alongwith tenancy which fact according to the plaintiff has also been admitted by Smt. Sanskrita Jain in her statement dated 07.07.2010 in Eviction Petition No. 262/08 titled as 'Smt. Sanskrita Jain Vs. Suresh Kumar'.
14. I have carefully gone through the certified copy of judicial record in Eviction Petition no. 262/08 which has been placed on record by the plaintiff alongwith her application under Section 151 CPC on 23.12.2014. A bare perusal of the aforesaid record would show that an application was moved by the petitioner in the aforesaid proceedings on 07.07.2010 under Order 23 Rule 1 read with Section 151 CPC seeking permission to withdraw the eviction petition on the ground that she has already sold the property in dispute to a third party and as such she does not CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 16 of 21 wish to pursue the eviction petition. Copy of the aforesaid application has not been placed on record by the plaintiff and in the ordersheet dated 07.07.2010, it has no where been mentioned by Ld. SCJRC that in the aforesaid application the petitioner had admitted having sold the property in dispute to the plaintiff herein. On the other hand, it is recorded in the ordersheet that the petitioner had alleged that she had already sold the property in dispute to some third party. Name of such third party has not been mentioned anywhere either in the order dated 07.07.2010 or in the statement given by counsel for Smt. Sanskrita Jain.
15. Under the aforesaid circumstances, in the absence of proof of documents dated 05.04.2010 as per the provisions of Indian Evidence Act, it is not possible to assume that Smt. Sanskrita Jain has acknowledged the execution of the aforesaid documents in favour of the plaintiff herein. As has already been observed, defendant has categorically stated in his written statement that CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 17 of 21 all the aforesaid documents dated 05.04.2010 are forged and fabricated. It is not the case of the plaintiff herein that the defendant has attorned to the plaintiff either expressly or impliedly by way of payment of rent. On the other hand, admittedly no rent till date has ever been paid by the defendant to the plaintiff.
16. I have carefully gone through the judgment of Hon'ble Delhi High Court in Rama Devi Vs. Punam Chand Aggarwal 151 (2008) DLT 230 which has been heavily relied upon by the learned counsel for the plaintiff in support of her submission that the facts in the present case are in pari materia with the facts of the aforesaid case and as such the suit of the plaintiff for ejectment of the defendant from the suit property is liable to be decreed under the provisions of Order 12 Rule 6 CPC. A bare perusal of the aforesaid judgment shows that in the case before Hon'ble Delhi High Court in a litigation between the erstwhile owner of the property in dispute and the CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 18 of 21 tenant, an application was moved under Section 151 CPC by the erstwhile owner stating that the owner had already sold the property in dispute to Sh. Poonam Chand Aggarwal i.e. the respondent in the aforesaid appeal before Hon'ble Delhi High Court. The relevant para of the aforesaid application was reproduced by the tenant himself in his appeal. On the basis of the aforesaid pleadings, the court had come to the conclusion that since it was expressly conveyed by the erstwhile owner to the appellant that the erstwhile owner was no more the owner of the premises in dispute and ownership rights stood transferred to the respondent, the appellant cannot now turn back to say that she was not attorned or was not aware of the fact that the aforesaid transfer of ownership had already occurred.
17. As has already been observed in the present case the plaintiff has neither pleaded the aforesaid facts in her plaint nor has she placed on record the application filed by the erstwhile owner Smt. Sanskrita Jain in Eviction Petition no. 262/08 under the CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 19 of 21 provisions of Order 23 Rule 1 CPC. In the absence of the same no knowledge of the aforesaid fact can be imputed to the defendant herein. Plaintiff is required to prove the aforesaid transfer of ownership by Smt. Sanskrita Jain in respect of the suit property in favour of the plaintiff. Reliance by learned counsel for the plaintiff on the cross examination of the defendant and his wife in another Civil Suit no. 310/11, in my considered opinion, is not permissible for raising an inference against the defendant that he has admitted that Smt. Sanskrita Jain had informed him of the sale of the suit property by her to the plaintiff herein in as much as no notice for admission of the aforesaid documents has ever been given by the plaintiff to the defendant herein despite the fact that the same have been placed on record by the plaintiff at a highly belated stage i.e. on 23.12.2014 when the matter was already fixed for plaintiff's evidence.
18. Thus, in view of the aforesaid discussion, in my considered CS No. 159/12 Sunita Gupta Vs. Suresh Kumar Order dated 17.03.2015 Page no. 20 of 21 opinion, no admission either expressed or implied can be inferred on the part of defendant of he being a tenant under the plaintiff herein on the basis of pleadings of the parties or otherwise. In the absence of any such admission, no decree for ejectment of the defendant can be passed in favour of the plaintiff at this stage. The application of the plaintiff under Order 12 Rule 6 CPC is accordingly dismissed.
19.Ordered accordingly.
Announced in the open court on this 17th day of March, 2015 This order consists of twenty one signed pages.
(Arun Kumar Garg)
Civil Judge(SW)/Dwarka Courts
New Delhi/17.03.2015 (akn)
CS No. 159/12
Sunita Gupta Vs. Suresh Kumar
Order dated 17.03.2015 Page no. 21 of 21