Delhi High Court
Anil Khanna vs Geeta Khanna & Ors on 2 September, 2013
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No. 4730/2011 in CS(OS) 2320/2010
% Reserved on: 7th August, 2013
Decided on: 2nd September, 2013
ANIL KHANNA ..... Plaintiff
Through: Mr. Arun Khosla and Ms. Shreeanka
Kakkar, Advocates.
versus
GEETA KHANNA & ORS ..... Defendants
Through: Mr. Ashish Verma, Advocate for
Defendant Nos. 1& 3.
Mr. R.K. Sachdeva, Advocate for
Defendant No. 2
Mr. Gaurav Dua, Advocate for
Defendant No. 4.
Mr. P.K. Mittal, Advocate for
Defendant No. 6/DDA.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.By this application the Plaintiff seeks judgment against Defendant No. 4 in view of the admissions made in the written statement filed by the Defendant No. 4. According to the Plaintiff, the Defendant No. 4 has admitted the following facts:
i. The Plaintiff and Defendant Nos. 1 to 3 being co-owners of the suit property; and ii. Defendant No. 4 having been inducted into the suit property as tenant by the Defendant Nos. 1 to 3 at the back of the Plaintiff.I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 1 of 12
2. Learned counsel for the Plaintiff contends that by the present application the Plaintiff is not challenging the issues framed but seeks judgment on admission. A party has to plead the facts specifically and airy-
fairy defence is not permissible. If the facts are not specifically stated regarding tenancy then no issue could have been framed. Reliance is placed on D.M. Deshpande and others vs. Janardhan Kashinath Kadam (dead) by LRs and others, AIR 1999 SC 1464. It is further submitted that the Defendant No. 4 has admitted that the Plaintiff is a co-sharer with the Defendant Nos. 1 to 3 and thus no valid lease could have been executed by the Defendants 1 to 3. As there is no valid tenancy, the Defendant No. 4 is liable to vacate the suit premises. The right of tenancy cannot be raised on a vague plea of settlement or a contrary plea of being co-shares. Relying on Paam Antibiotics Ltd. vs. Sudesh Madhok, 186 2012 DLT 652 it is contended that laconic pleadings are insufficient for the purposes of raising an issue. In view of the rights of co-sharers, the common property cannot be alienated or put in tenancy without the consent of all the co-sharer. Reliance is placed on I. Gouri and others vs. Dr. C.H. Ibrahim and another, AIR 1980 Kerala 94; Sant Ram Nagina Ram vs. Daya Ram Nagina Ram and others, AIR 1961 I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 2 of 12 Punjab 528 and Chhedi Lal and another vs. Chhotey Lal, AIR (38) 1951 Allahabad 199.
3. Learned counsel for the Defendant No. 4 on the other hand contends that the admissions as alleged are not there in the written statement. Further the facts stated in the preliminary objections are without prejudice and do not constitute reply on merits. In the verification it is clearly stated that the averments in the preliminary objections are believed to be true on the basis of legal information received. The Defendant No. 2 in the written statement has stated that division of the properly took place. This being the disputed question cannot be decided at this stage as the Defendant No. 2 is yet to enter the witness box. Further the lessee is not required to go into the ownership as to whether there is a co-sharer or not or whether there is partition of property or not. Further the lease deed has already been placed by the Plaintiff.
4. I have heard learned counsel for the parties.
5. Learned counsel for the Plaintiff has taken me through the written statement of Defendant No. 4. In para-6 of the preliminary objections in the written statement filed by Defendant No. 4, it is stated "Thus the Plaintiff as a co-sharer in the estate of his father cannot disturb Defendant No. 1 to 3 and the Defendant No. 4 being their tenant. Hence the present case is liable to be I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 3 of 12 dismissed on this ground alone." This averment cannot be read in isolation. The preliminary objection No. 6 of the Defendant No. 4 in the written statement is that the Defendant Nos. 1 to 3 and the Plaintiff have been in exclusive, uninterrupted and settled possession of the suit property and the second floor respectively, since beginning, which are absolutely equal and same in size and area and as such none of them is in possession of any area in excess to his/her share. Moreover the Plaintiff never objected to or raised any claim against the suit property in any manner, prior to the present suit, as the record shows. Therefore, this amounts to division/ partition of the building. Though distribution of equal portion to each co-parcener and the same being in possession of each for a long time and having been accepted and enjoyed by them without any objection, hindrance, denial and obstruction amounts to division/partition, but otherwise also it is settled law that if a co-sharer is in exclusive possession of any portion of an undivided piece of land of property not exceeding his or her share, he or she cannot be disturbed in his/her possession until partition and his transferee would also have the rights and cannot be dispossessed by the other co-sharer until partition. In the instant case the Defendant Nos. 1 to 3 were in exclusive possession of the suit property, which as per the Will dated 6 th March, 1997 I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 4 of 12 fell to the share of Shri Ajay Khanna who was the husband of the Defendant No. 1 and late Shri Ajay Khanna vide his Will dated 27 th December, 1999 has bequeathed his share in the properties of his father in favour of his wife Smt. Geeta Khanna, the Defendant No. 1. Otherwise also, since the Property (entire) is ancestral, only Defendant Nos. 1 to 3 have rights in the suit property left behindby Shri Ajay Khanna even in the absence of a Will.
6. Further the preliminary objections are based on legal advice. The same are not reply on merits wherein the party is required to plead facts specifically. In preliminary objections parties can even take contrary pleas. The same would not amount to an admission.
7. It is well settled that an admission has to be categorical, in clear and unambiguous terms admitting the case of other side. In Sneh Vasih and another vs. Filatex India Ltd. and another, 95 (2002) DLT 373 this Court held:
"6. Perusal of the relevant extract of Order 12 Rule 6 reproduced above clearly show that there has to be an admission of fact made in pleadings or otherwise and if such admissions have been made the court at any stage may pronounce a judgment in that regard. This clearly reveals that firstly admissions have to be of facts. Admission must be clear and unambiguous. No admission are required obviously with respect to questions of law which can always be gone into. And second important aspect of Order 12 Rule 6 Code of Civil Procedure is that it is not mandatory for the court to act and I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 5 of 12 pass a judgment because facts and circumstances of each case have to be taken note of. These principles are well recognized and reference can well be made with advantage to the decision of this court in the case of Madhav leasing Finance (P) Ltd. v. Erose Educational Infotech Pvt. Ltd.68(1997) DLT 846 . In the cited case there was a registered lease agreement. After the expiry of the period of lease civil suit was filed against the tenant for handing over the possession. The defendant had taken the plea that the lease deed as well as the hire agreement were orally renewed for a further period of two years. The said fact was again controverter by the plaintiff in that case. This court held that under Order 12 Rule 6 a decree can only be passed where admissions are clear and unambiguous and once it was not so in the peculiar facts of that case this court did not deem it appropriate to pronounce the judgment qua the possession of the premises."
8. Further there is no admission by the Defendant No. 4 that he had been inducted into the suit property as tenant by the Defendant Nos. 1 to 3 at the back of the Plaintiff. Since Defendant No. 4 is a stranger to the purported oral partition between the Plaintiff and Defendant Nos. 1 to 3 who are the legal heirs of the deceased brother of the Plaintiff, his raising an inference from an exclusive, uninterrupted, peaceful possession cannot be faulted.
9. Learned counsel for the Plaintiff further states that the no particulars regarding the tenancy etc. have been pleaded and thus the pleas of Defendant No. 4 are vague. In D.M. Deshpande (supra) their Lordships were dealing with the case where the Appellant stated that he was a tenant however, no particulars regarding the alleged tenancy created in his favour were filed nor I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 6 of 12 it was mentioned who created the tenancy and how the said tenancy came into existence. In the present case the Plaintiff himself has filed the Lease Agreement between the Defendant No. 1 and Defendant No. 4 and thus it cannot be said that the averments in the written statement are vague resulting in passing of a decree in favour of the Plaintiff.
10. Consequently, the application is dismissed.
I.A. No. 6867/2012 (by Defendant Nos. 1 & 3 u/Order VI Rule 16 r/w Section 151 CPC)
1. By this application the Defendant Nos. 1 and 3 seek striking out the defamatory and irrelevant pleadings from the plaint.
2. Learned counsel for Plaintiff submits that the prayer of the Plaintiff in the suit is for declaration of lease deed dated 22nd September, 2010 executed by Defendant Nos. 1 to 3 in favour of Defendant No. 4 in respect of the First Floor of the property bearing No. D-837, New Friends Colony, New Delhi- 110065, as null and void ab-initio and therefore vests no right, title or interest in the Defendant No. 4; grant of mandatory and permanent injunction restraining defendant No.4 from alienating or parting with possession of the suit property during the pendency of the suit and to hand over peaceful vacant possession of the suit property to the plaintiff and I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 7 of 12 awarding of costs of the suit. Thus the averments with regard to the alleged relations between Defendant No. 1 and her husband are irrelevant and not necessary for the adjudication of the suit besides being false and baseless.
3. Learned counsel for the applicant/Defendant Nos. 1 and 3 submits that in the plaint the Plaintiff who is the brother-in-law of Defendant No. 1 and uncle of Defendant Nos. 2 and 3, has made defamatory and malicious averments with regard to the matrimonial relations between his deceased brother Shri Ajay Khanna and Defendant No. 1, the wife of late Shri Ajay Khanna. He has also casted aspersions on the paternity of Defendant Nos. 2 and 3. The averments made in the plaint have no relevant to the issue involved in the suit. Reliance is placed on Sathi Vijay Kumar, 2006 (13) SCC 353; Manjit K. Singh vs. S. Kanwarjit Singh, 58 (1995) DLT 208 and Mrs. Rekha Singal vs. Lavleen Singal, 96 (2002) DLT 289.
4. Learned counsel for the Plaintiff/non-applicant on the other hand contends that the averments which are sought to be deleted are based on the Will of his late brother/ husband of Defendant No. 1 and thus cannot be said to be scandalous, malicious, false, fabricated or irrelevant so as to direct expunging the same from the pleadings.
5. I have heard learned counsel for the parties.
I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 8 of 12
6. As mentioned above the present suit is for declaration, permanent and mandatory injunction and for possession of the suit property. Defendant No. 1, 2 and 3 are the wife and children of deceased brother of the Plaintiff. The case of the Plaintiff in the suit is that the father of the Plaintiff and father- in- law of Defendant No. 1 died on 8th June, 1997 leaving behind the Will dated 6th March, 1997 bequeathing therein all his movable and immovable assets to the Plaintiff and his late brother Shri Ajay Khanna, who also unfortunately died prematurely on 31st January, 2000.
7. Order VI Rule 16 CPC reads as under:-
"16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading--
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the court."
8. Thus this provision clearly empowers the Court to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice, embarrass or delay the fair trial of the suit or is otherwise an abuse of the process of Court. The underlying object of the Rule is to ensure that I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 9 of 12 every party to a suit presents his pleading in an intelligible form without causing embarrassment to his adversary. In Sathi Vijay Kumar (supra) the Hon'ble Supreme Court while dealing with the provisions of Order VI Rule 16 held-
"27. The above provision empowers a Court to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay fair trial of the suit or is otherwise an abuse of the process of the Court. The underlying object of the rule is to ensure that every party to a suit should present his pleading in an intelligible form without causing embarrassment to his adversary [vide Davy v. Garrett).
28. Bare reading of Rule 16 of Order 6 makes it clear that the Court may order striking off pleadings in the following circumstances;
(a) Where such pleading is unnecessary, scandalous, frivolous or vexatious; or
(b) Where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or
(c) Where such pleading is otherwise an abuse of the process of the Court.
29. ...
30. ...
31. ...
32. ...
33. At the same time, however, it cannot be overlooked that normally a Court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 10 of 12 the rules of pleadings by making averments or raising arguable issues, the Court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection [vide Roop Lal v. Nachhatar Singh Gill, K.K. v. K.N. Modi ; United Bank of India v. Naresh Kumar)
34. More than a century back, in Knowles v. Roberts Bowen, L.J. said:
"It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery."
9. The only ground on which the Plaintiff supports the pleadings is that these facts are so stated in the Will of his deceased brother. However, in the present case, the averments in the plaint though stated to be part of Will of Shri Ajay Khanna, relied upon by the Plaintiff, are neither relevant nor necessary for determination of the real issue between the parties besides being scandalous, mischievous and objectionable. Permitting such I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 11 of 12 allegations to be retained on the record would not only embarrass the fair trial of the proceeding but would also amount to permitting scandalous facts in the pleadings indirectly which cannot be permitted to be done directly. In view thereof the portions of Paragraph Nos. 9, 10, 15, 17, and 24 as detailed in Para-4 of I.A. No. 6867/2012 are directed to be struck out.
Application is disposed of. Amended plaint be filed expunging these paragraphs within four week.
(MUKTA GUPTA) JUDGE SEPTEMBER 02, 2013 'vn' I.A. Nos. 4730/2011 and 6867/2012 in CS (OS) No. 2320/2010 Page 12 of 12