Delhi District Court
Smt. Seema Sharma vs Sh. Yogesh Kumar Sharma on 8 November, 2013
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS
JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI
C.S. No.110/13
Unique Identification No. 02402C0175732013
Smt. Seema Sharma
W/o Sh. Suresh Chand Sharma,
R/o House No.110, Gali No.3,
Jawala Nagar, Shahdara,
Delhi.
.....Plaintiff
Versus
Sh. Yogesh Kumar Sharma
S/o Sh. Satyawan Sharma,
R/o 10/47, Patel Gali, Vishwas Nagar,
Shahdara, Delhi110032.
.....Defendant
Date of Institution : 05.06.2013
Arguments heard on : 31.10.2013
Date of decision : 08.11.2013
On Application u/o XII rule 6 CPC
Suit for Recovery of Possession, Mandatory Injunction, Recovery of
Rent, Mesne Profit and Damages.
JUDGEMENT :
1. This is a suit for recovery of possession, mandatory injunction, recovery of rent and mesne profits/damages against the defendant in Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 1 of 16 respect of ground, first and second floor of property bearing no. 7/44 A/1, Gali no.3, Jawala Nagar, Shahdara, Delhi110032 (new no. 318, Satyanarain Mandir Wali Gali No.6, Jwala Nagar, Shahdara, Delhi32). On 12.09.2013 the plaintiff has filed an application under Order XII Rule 6 CPC read with Section 151 CPC for direction to the defendant to hand over the peaceful and vacant possession of the said property as shown in the site plan in red colour. Reply to this application has been filed by the defendant contesting the same and seeking its dismissal.
2. The factual matrix of the case for the purpose for disposal of this application under Order XII Rule 6 CPC read with Section 151 CPC are that the plaintiff has rented out the ground, first and second floor of the said property to the defendant on 03.11.2012 on rent @ Rs. 25,000/ per month excluding all other charges vide registered rent deed dated 20.11.2012 for a period of nine months from 03.11.2012 to 03.08.2013. The defendant has paid rent only upto 02.02.2013 and as such the plaintiff got issued a legal notice dated 12.04.2013 to the defendant terminating his tenancy w.e.f. the midnight of 02.06.2013 and demanded peaceful and vacant possession on 03.06.2013. The plaintiff also demanded arrears of rent w.e.f. 03.02.2013 @ Rs. 25,000/ per month as well as penalty of Rs.500/ per day from Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 2 of 16 03.02.2013.
3. In his written statement, the defendant has not denied para no.2 of the plaint regarding the averments of the plaintiff that the ground, first and second floor of the said property was rented out to him on 03.11.2012 at a monthly rent of Rs.25,000/ vide registered rent deed dated 20.11.2012 and the defendant has merely pleaded that para no.2 of the plaint need no reply. However, in para no.3 of his written statement, the defendant pleaded that the tenancy was a period for 5 years. Receipt of notice dated 12.04.2013 has also been denied.
4. The plaintiff filed replication to the written statement denying all the allegations of the defendant and reaffirmed the averments made in the plaint.
5. The plaintiff has placed on record the photostat copy of rent agreement dated 20.11.2012 between the parties registered on 22.11.2012 with the Sub Registrar VIII, New Delhi vide registration no.24035 and the said portion of the property was rented out to the defendant for the period from 03.11.2012 to 02.08.2013 at a monthly rent of Rs.25,000/. The plaintiff has also filed a copy of notice dated 12.04.2013 which she got issued to the defendant through Sh. Anil Kumar Mehta, Advocate vide postal receipts of registered post as well as speed post at his both addresses.
Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 3 of 16
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 plaintiff that the relationship of landlord and tenant between the parties is admitted and rate of rent is more than Rs.3,500/ per month and the plaintiff has filed a copy of notice dated 12.04.2013 terminating the tenancy of defendant vide four postal receipts of registered post and speed post at both the addresses of the defendant and a decree of possession of suit property be passed in favour of the plaintiff and against the defendant under Order XII Rule 6 CPC.
8. Per contra, it is argued by ld. counsel for the defendant that the defendant has vacated the second floor of the suit property on 01.01.2013 and handed over its possession to the plaintiff who has let out the same to some other tenant and that subsequent tenant has vacated. He also argued that the rate of rent was proportionately reduced to Rs.19,000/ per month w.e.f. 01.01.2013. On these grounds, he prayed for dismissal of application. During arguments, ld. counsel submits that the registered rent agreement is not disputed. However, he referred a complaint filed under Section 138 of NI Act by husband of the plaintiff against the defendant where in para no.1 of the complaint, it is pleaded that the defendant was inducted as a tenant on ground and Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 4 of 16 first floor w.e.f. 03.11.2012 vide registered rent deed dated 20.11.2012 and in para no.5 & 6, it is mentioned that the defendant was in arrears of rent from February 2013 to April 2013 and the defendant gave a cheque of Rs.19,000/ on account of rent of February 2013 and another cheque of Rs.32,000/ dated 10.04.2013 and both were dishonoured.
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."
Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 5 of 16 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 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 Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 6 of 16 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."
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 Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 7 of 16 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."
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 Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 8 of 16 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 the parties."
15. In Smt. Sudesh Madhok & Anr. vs. M/s Lunar Diamonds Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 9 of 16 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.
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 Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 10 of 16 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, admittedly there was relationship of landlord and tenant between the parties and the suit property was rented out to the defendant vide rent agreement dated 20.11.2012 at a monthly rent of Rs.25,000/ for a period of 9 months w.e.f. 03.11.2012 to 03.08.2013. As the rent agreed between the parties is more than Rs.3,500/, the tenancy of the defendant is not Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 11 of 16 protected under the provisions of Delhi Rent Control Act, 1958. These facts pleaded in para no.2 of the plaint are not denied specifically by the defendant in his written statement and the defendant pleaded in corresponding para that these are matter of record and under Order VIII Rule 5 of Code of Civil Procedure, contents of para no.2 of the plaint are deemed to have been admitted. It has been held by Hon'ble Supreme Court in Anant Constructions (P) Ltd. vs. Ram Niwas (1994) 4 AD Delhi 185 that Rule 3 of Order VIII enjoins the defendant to deny specifically such of the averments of the plaint which he does not admit. An averment made in the plaint if not specifically denied or only evasively denied in the written statement would be deemed to have been admitted. Similarly Hon'ble Supreme Court in Seth Ramdayal Jat vs. Laxmi Prasad (2009) 11 SCC 545 para 24 held that if averments contained in a paragraph of the plaint are not traversed in the written statement, the same would be deemed to have been admitted in terms of order VIII Rule 5 of Code of Civil Procedure. Recently our own Hon'ble High Court in Minda HUF Limited vs. Union Bank of India 2011 (185) DLT 33 (DB) has held that allegation in pleadings must be specifically denied. Absence of specific denial can be construed as acceptance of Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 12 of 16 fact stated. Similarly the Hon'ble High Court in Ghanshyam Das Soni vs. Sundri Apparels (India) Ltd. 2013 (196) DLT 196 has held that it is a settled legal position that where denial is not specific or evasive, then allegations made in the plaint shall be deemed to have been admitted. This rule is known as doctrine of Non Traverse embodied in order VIII Rule 5 of Code of Civil Procedure, 1908 and is applicable where material averments made in the plaint is not specifically denied by the defendant in the written statement and as such all averments is taken to be admitted. The registered rent deed has been admitted specifically by the defendant in para 2 of reply to the application under Order XII Rule 6 CPC. During arguments, the defendant and his counsel admitted that there is no writing or receipt of handing over the possession of second floor to the plaintiff. So far as the complaint under Section 138 of NI Act is concerned, the plaintiff is not a party. Even otherwise, in para no.1 of the complaint, it is specifically mentioned that the defendant was inducted as a tenant on 03.11.2012 vide registered rent agreement dated 20.11.2012 and vide this agreement, admittedly the defendant was inducted as a tenant on ground, Ist and IInd floor and it appears to be clerical/typographical error/omission in para no.1 of the complaint where second floor is left out to be mentioned. In para no.5 & 6 of the Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 13 of 16 complaint, it is mentioned that the defendant was in arrears of rent from February 2013 to April 2013 and Rs.19,000/ was paid by cheque on account of rent of February 2013 and Rs.32,000/ by cheque dated 10.04.2013. These payments were made on account by the defendant and the defendant appears to be clever enough to take advantage of the clerical/typographical error/omission in para no.1 of complaint and made part payments on account by cheque which were dishonoured. The plaintiff has subsequently pleaded that he got served a legal notice dated 12.04.2013 upon the defendant and terminated his tenancy from midnight of 02.06.2013. The plaintiff has placed on record the copy of notice dated 12.04.2013 by which tenancy of the defendant was terminated and he was directed to handover the peaceful and vacant possession. The postal receipts of registered AD post and speed post addressed to the defendant at his both the addresses have also been placed on record. The receipt of the notice has been denied by the defendant in his written statement. But denial of receipt of notice does not affect the case of the plaintiff as 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 Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 14 of 16 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 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 05.06.2013 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 15.07.2013 and filed written statement on 19.08.2013.
20. In view of the above discussions, it has to be held that the defendant has made admission regarding relationship of landlord and Smt. Seema Sharma vs. Yogesh Kumar Sharma C.S. No.110/13 Decided on 08.11.2013 Page 15 of 16 tenant between the parties. Admittedly, the rate of rent is more than Rs.3,500/ per month. Thus admissions by the defendant are clear, unambiguous, unconditional and unequivocal and even otherwise the filing of the present suit on 05.06.2013 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 CPC. As such, a decree of possession of the ground, first and second floor of flat bearing no. 7/44A/1, Gali no.3, Jawala Nagar, Shahdara, Delhi110032 (new no. 318, Satyanarain Mandir Wali Gali No.6, Jwala Nagar, Shahdara, Delhi32) is hereby passed in favour of the plaintiff 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 penalty, use and occupation charges with interest and directions to the defendant to clear the electricity and water charges dues shall be adjudicated after adducing evidence by the parties.
Announced in open Court
on 8th November 2013 (Vinod Goel)
District & Sessions Judge
Shahdara, KKD Courts, Delhi.
Smt. Seema Sharma vs. Yogesh Kumar Sharma
C.S. No.110/13
Decided on 08.11.2013 Page 16 of 16