Delhi District Court
Sh. Ibney Massood vs Sh. Saleem Ahmed @ Salimuddin on 4 May, 2013
1
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS
JUDGE: SHAHDARA: KARKARDOOMA COURTS, DELHI
RCA No. 14/13
Sh. Ibney Massood
S/o Sh. Sanobar Ali
R/o 1422, Gali no.50, Jafrabad,
Delhi110053.
.....Appellant/Defendant
Versus
Sh. Saleem Ahmed @ Salimuddin
S/o Sh. Badlu Khan
R/o H.No. 487, Main Market Road,
Jafrabad, Delhi110053.
.....Respondent/Plaintiff
Date of Institution : 16.03.2013
Arguments heard on : 25.04.2013
Date of decision : 04.05.2013
Appeal under Section 96 and Section 151 of the Civil Procedure Act,
1908 against the interim order and decree dated 19.02.2013 passed by
the Ld. Senior Civil Judge, North East District, Karkardooma Courts,
Delhi in Civil Suit no. 107 of 2012 pending adjudication in the same
court.
JUDGEMENT :
1. The appellant/defendant has invoked appellate jurisdiction of Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 1 of 16 2 this court u/s 96 of the CPC 1908 feeling aggrieved by the judgment and decree dated 19.2.2013 passed by the court of Ms. Ravinder Bedi, Sr. Civil Judge, NE, KKD Courts, Delhi vide which the Ld. Trial Court has allowed an application of the respondent/plaintiff u/o XII rule 6 CPC and passed a decree of possession against the appellant/defendant.
2. The brief facts for disposal of this appeal are that the plaintiff/respondent has filed a suit for possession, recovery of arrears of rent & damages and for permanent injunction against the appellant/defendant pleading therein that he has inducted the appellant/defendant as a tenant in a shop bearing no. 487/4 at Main Market, Jafrabad, Delhi110053 in the month of November 1994 at a rent of Rs.300/ per month excluding other charges for commercial use; that later on the rent was enhanced to Rs.400/ per month excluding other charges and the appellant/defendant has paid him rent upto 31.3.2012 for which rent receipts have been issued by him to the appellant/defendant; that the plaintiff/respondent asked the appellant/defendant to vacate the said shop and sent a notice on 26.12.2011 asking him to vacate the said shop and he also got issued a Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 2 of 16 3 legal notice to the appellant/defendant on 10.4.2012 through his advocate but of no avail and hence the suit.
3. In his written statement, the appellant/defendant, inter alia, pleaded that he is a protected tenant under the provisions of Delhi Rent Control Act, 1958 since the rent is less than 3,500/ per month; that the suit shop falls in the locality of Jafrabad which is covered under Delhi Rent Control Act, 1958 and a notification of the Government dated 16.12.1954 and the suit property was duly notified in 1956 itself; that the plaintiff/respondent enhanced the rent to Rs. 400/ per month without any notice and accepted the rent after 31.3.2012 whenever the same was tendered to him personally and by money order; that a legal notice dated 10.4.2012 was no doubt received by the appellant/defendant but same was of no consequence as the tenant did not commit any default whereby his tenancy could be terminated.
4. The plaintiff/respondent filed replication to the written statement of the appellant/defendant and denied the allegations made in the written statement and reaffirmed the averments made in the plaint.
Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 3 of 16 4
5. Vide his application u/o XII rule 6 CPC dated 28.9.2012, the plaintiff claimed judgment on the basis of admissions made by the defendant. In his reply to the application u/o XII Rule 6 CPC the appellant/defendant pleaded that this court has no jurisdiction to try this suit as admittedly the rent is less than Rs.3,500/ and the area of village Jafrabad, where suit shop is situated, was duly included within the urban limits vide notification dated 16.12.1954 and as such the application should be dismissed with cost.
6. Vide impugned judgdment and decree the Ld. Trial Court has held that provision of DRC Act, 1958 are not made applicable to the area of Jafrabad and on the basis of the admissions of appellant/defendant, the suit of the plaintiff/respondent was decreed for possession in respect of the suit shop.
7. I have heard the Ld. Counsels for the parties and very carefully perused the material available on record.
8. During the course of the arguments, Ld. Counsel for the appellant/defendant did not dispute the fact that the area of Jafrabad, where the suit shop is situated, is not notified to be 'Urban Area' and as such, provisions of DRC Act are not applicable. Even otherwise it Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 4 of 16 5 has been held by the Hon'ble High Court of Delhi in Rafiq Ahmed Khan vs. Jalaluddin in RSA No. 210/2010 decided on 1.4.2011 that the revenue estate of Jafrabad is not notified as an 'Urban Area' and as such the provisions of Delhi Rent Control Act, 1958 are not applicable to the premises in question.
9. Ld. Counsel for the appellant/defendant argued that the principles of Order XII rule 6 CPC can be followed only if there is clear and unequivocal admissions of the case of the plaintiff by the defendant. He argued that the appellant/defendant has not admitted that the tenancy of the appellant/defendant was terminated by the plaintiff/respondent and in fact there is a dispute with regard to the termination/determination of the tenancy. He also argued that appellant/defendant has been a tenant on the shop in question for more than 18 years and has paid the rent to the plaintiff/respondent regularly till March 2012. On these grounds Ld. Counsel for the appellant/defendant prayed for setting aside of the impugned judgment and decree.
Statutory Provisions
10. Before appreciating the rival contentions of the parties, it is Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 5 of 16 6 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 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 Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 6 of 16 7 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 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 Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 7 of 16 8 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. 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.
Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 8 of 16 9 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 Iccharam alias Brijram and Anr. MANU/SC/0417/1973 and Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 9 of 16 10 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 Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 10 of 16 11 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.
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 Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 11 of 16 12 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
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 coming to the facts of the present case, the appellant/defendant has admitted in para 3 of the his written statement when he pleaded that he was inducted as a tenant in the shop in Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 12 of 16 13 question at monthly rent of Rs.300/ excluding other charges for commercial purposes, and in para 4 he pleaded that rent was illegally and mischievously enhanced to Rs.400/ per month by the plaintiff without service of any notice and in para no. 12 he pleaded that he has been tendering the rent regularly and has paid the rent upto 31.3.2012. The defendant/appellant has also admitted in para 7 of the written statement that a legal notice dated 10.4.2012 was no doubt received by him but the same was of no consequences as he has not committed any default whereby his tenancy could be terminated.
19. In para 10 of this judgment, I have already held that the provisions of Delhi Rent Control Act, 1958 are not applicable to the shop in question as Village Jafrabad, where the suit shop is situated, is not notified to be an 'Urban Area' as held recently by our own Hon'ble High Court in Rafiq Ahmed Khan's case (supra); the defendant has admitted in the written statement that he has been in possession of the suit shop as a tenant and has regularly paid rent to the plaintiff upto 31.3.2012 and he has also received the notice dated 10.4.2012. Plaintiff has placed on record a copy of the notice dated 10.4.2012 sent by the plaintiff/respondent to the appellant/defendant through his Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 13 of 16 14 counsel Sh. Tanveer Khan, Adv. whereby the tenancy of the appellant/defendant on the shop in question was terminated and plaintiff/respondent requested him to hand over the peaceful possession of the said shop.
20. 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) 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 respondent to get a decree of eviction against the appellant.
21. Vide notice dated 10.4.2012, the plaintiff/respondent got terminated the tenancy of the appellant/defendant through his counsel Sh. Tanveer Khan, Adv. and 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 Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 14 of 16 15 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 7.5.2012 against the appellant/defendant itself is a notice of termination of the tenancy.
22. In view of the above discussion it is to be held that the appellant/tenant has made admissions regarding the relationship of landlord and tenant and receiving of the notice of termination of tenancy which are clear, unambiguous, unconditional and unequivocal and has admittedly the tenancy of the appellant/defendant has been validly terminated by the plaintiff/respondent, a decree for possession of the suit shop shall follow. This court is not persuaded with the contentions of the Ld. Counsel for the appellant/defendant. The appeal is devoid of any merit and the same is hereby dismissed with cost throughout. Decree Sheet be prepared accordingly. Trial Court record be sent back with an attested copy of this judgment. Appeal Ibney Masood vs. Saleem Ahmed RCA No. 14/13 Decided on 04.05.2013 page 15 of 16 16 file be consigned to record room.
Announced in open Court (Vinod Goel)
on 4th May 2013. District & Sessions Judge,
Shahdara, KKD Courts, Delhi.
Ibney Masood vs. Saleem Ahmed
RCA No. 14/13
Decided on 04.05.2013 page 16 of 16