Delhi District Court
Sh. T.M. Jain vs Sh. Rashid Mohd on 12 September, 2014
IN THE COURT OF SHRI VINOD GOEL: DISTRICT & SESSIONS
JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI.
CS No. 75/13
Unique Identification No. 02402C0136032013
Sh. T.M. Jain
S/o late Sh. Basheshar Nath Jain,
R/o A55, Yojna Vihar,
Delhi110092.
.....Plaintiff
Versus
Sh. Rashid Mohd.
S/o Not Known
R/o A55, Top Floor,
Yojna Vihar, Delhi110092.
Also at :
Village Tanda Kothi,
Thana Asmoli, Tehsil Sambbal,
District Moradabad (U.P.)
.....Defendant
Date of Institution : 03.05.2013
Arguments heard on : 30.08.2014
Date of decision : 12.09.2014
On Application u/o XII rule 6 CPC
Suit for Possession, Recovery of Arrears of Rent
and Damages
T.M. Jain vs. Rashid Mohd.
CS No. 75/13
Decided on : 12.09.2014 Page 1 of 20
JUDGEMENT :
1. The plaintiff has preferred this Suit for Possession, Recovery of Arrears of Rent and Damages against the defendant in respect of second floor of the property bearing no. 55, Yojna Vihar, Delhi110092 on the premises that he has allowed the defendant to live in the said portion of the property as a tenant w.e.f. 01.12.2009 at a rent of Rs.10,000/ per month and do the work of Caretaker to take care of the property and do miscellaneous household work. The defendant has never paid any rent to the plaintiff despite demand. The defendant has started misusing the property by keeping various people of dubious character on payment of charges for use and occupation. Since April, 2011, the plaintiff has been calling the defendant to vacate the property. On 20.01.2013, the plaintiff got issued a legal notice to the defendant calling upon him to vacate and pay the entire arrears of rent as well as damages. The defendant sent a reply dated 29.01.2013 raising frivolous pleas. The plaintiff got issued a rejoinder notice dated 15.03.2013 to the counsel for the defendant.
2. In his written statement, it is, inter alia, pleaded by the defendant that relationship of landlord and tenant between the parties had never existed. The induction of the defendant on the top floor of T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 2 of 20 the suit property was lawful being concomitant of the defendant being deployed as an employee of the plaintiff to work for him and look after the suit property. It is also pleaded that the nephew of the plaintiff along with his family has also occupied ground and first floor of the suit property for whom the plaintiff telephonically from abroad employed the wife of the defendant to work as a cook and maid for remuneration. Neither the defendant nor his wife have been paid any amount against their services rendered. It is denied that the defendant was kept as a tenant w.e.f. 01.12.2009 on rent @ Rs.10,000/ per month. The accommodation was free and offered to the defendant by the plaintiff being concomitant of his employment as Caretaker of the house in question. The defendant requested the plaintiff to settle his accounts and allow him to leave the subject property.
3. The plaintiff filed replication to the written statement denying his allegations and reaffirming the averments made in the plaint. It is denied that the defendant has done any wooden work. It is also denied that the wife of the defendant has done any job of cooking and maid with the nephew of the plaintiff. It is denied that free accommodation was given to the defendant.
4. The plaintiff has filed an application under Order XII Rule 6 T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 3 of 20 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as the "Code") alleging therein that after going through the written statement, the defendant has no defence and it amounts to an admission by necessary implication and a decree of possession of the property in question be passed against the defendant.
5. Reply to this application has been filed by the defendant contesting the same and seeking its dismissal. It is pleaded that written statement is selfexplanatory which discloses a plausible defence to resist the false and fabricated case of the plaintiff.
6. I have heard ld. counsel for the parties and very carefully perused the material available on record.
7. It is argued by ld. counsel for the plaintiff that though the defendant has disputed the relationship of landlord and tenant between the parties yet he has admitted his occupation in the suit property in his capacity as a Caretaker of the property under employment of the plaintiff. The defendant has also not disputed the title of the plaintiff of the suit property. The defendant has admitted the receipt of notice dated 20.01.2013 by which his services as Caretaker were terminated by the plaintiff. Ld. counsel for the plaintiff prayed for passing of a decree of possession of suit property in his favour and against the T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 4 of 20 defendant.
8. Per contra, it is argued by ld. counsel for the defendant that there is no admission on part of the defendant and in fact, the possession of the second floor (top floor) of the house was given to the defendant without any payment of rent being concomitant of his deployment there as a Caretaker. The defendant has been continuously managing the suit property and the wife of the defendant has been working as a Maid to do the household job on the ground and first floor floor of the property on the request of the plaintiff where the nephew of the plaintiff has been residing with his family and nothing has been paid to them for their services. Ld. counsel for the defendant submitted that the defendant has requested the plaintiff to settle his account and allow him to leave the subject property. He lastly argued that the controversy between the parties can be decided only after adducing of evidence by the parties.
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 of T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 5 of 20 the "Code" 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 subrule (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 of the "Code" 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. T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 6 of 20
12. While dealing with the scope of order XII rule 6 of the "Code", 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. 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 of the "Code" has also recently been explained by our own Hon'ble High Court in Scj Plastics Ltd. T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 7 of 20 vs. Creative Wares Ltd., 2012 VII AD (Delhi) 447 and it has been held that object of Order XII rule 6 of the "Code" 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.
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 of the "Code" 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 of the "Code", 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 T.M. Jain vs. Rashid Mohd.CS No. 75/13 Decided on : 12.09.2014 Page 8 of 20
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 impossible for the party making such admission to succeed."
16. This is the case of the plaintiff that the defendant was inducted as a tenant on the second floor of the property in question w.e.f. 01.12.2009 at a rent of Rs.10,000/ per month and in addition to payment of rent, the defendant was to work as a Caretaker to manage/look after the property and do miscellaneous household work. The plaintiff got issued a legal notice dated 20.01.2013 to the defendant calling upon him to vacate the property as his services as a "Caretaker" are not required any more and pay the arrears of rent and interest. The receipt of this notice is admitted by the defendant as he has sent a reply dated 29.01.2013 through his counsel to the ld. counsel for the plaintiff. It is the defence of the defendant that there was no T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 9 of 20 relationship of landlord and tenant between the parties and that he was deployed as a Caretaker to look after the property of the plaintiff on remuneration with free accommodation of the top floor i.e. second floor of the property in question.
17. The plaintiff has placed on record the copy of legal notice dated 20.01.2013 which he got issued through his counsel Sh. S.P. Aggarwal, Advocate to the defendant. The plaintiff asked the defendant by said notice dated 20.01.2013 that he does not need his services any more as a Caretaker and para no.4 of the notice reads as under:
"4. That since April, 2011 you are being called upon by my client to vacate the property as his nephew and his children have started living in the property and my client do not need the services of a caretaker but you have failed to vacate for oblique motive."
18. The defendant claims his status as that of a Caretaker for remuneration under the employment of the plaintiff with facility of free accommodation on the second floor of the house in question. He has denied that he is also tenant on second floor on rent @ Rs.10,000/ per month. This status of the defendant as a Caretaker has been admittedly terminated by the plaintiff by notice dated 20.01.2013 by informing him that his services as Caretaker are no more required and T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 10 of 20 the defendant should vacate the house in question. However, the case of the plaintiff has been that the defendant was inducted as a tenant on the second floor of the house at a rent of Rs.10,000/ per month and to manage the property as a Caretaker. The question as to whether the defendant is also a tenant and is in arrears of rent is a matter of trial but certainly the defendant has no right to retain the possession of the house in question after his status as an employee/Caretaker of the plaintiff on the suit property has been terminated by the plaintiff by notice dated 20.01.2013. In this regard, a very recent judgment of the Hon'ble Supreme Court titled as A. Shanmugam vs. Ariya K.R.K.M.N.P. Sangam Tr. Press etc. 2012 (3) RCR (Civil) page 1 can be referred to and para no.42 of the judgment reads as under: "42. On the facts of the present case, following principles emerge :
1. It is the bounden duty of the Court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 11 of 20
4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wring doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by absuing the judicial process.
6. Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same.
7. The watchman, caretaker or agent holds that property of the principal only on behalf of the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession.
8. The protection of the Court can be granted or T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 12 of 20
extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour."
19. After service of notice dated 20.01.2013, the defendant has no right to retain the possession of the suit house any more to look after the same. In view of this discussion, it has to be held that the defendant has made admission regarding his status on the suit property as a Caretaker on the second floor of the suit house which has been terminated by the plaintiff vide notice dated 20.01.2013 informing him that his services as Caretaker are no more required and asking him to vacate and handover the possession within 15 days. The admissions of the defendant that he is in possession of the suit property as a Caretaker which has been terminated by the plaintiff by notice dated 20.01.2013, are clear, unambiguous,unconditional and unequivocal. In view of recent authoritative announcement of Hon'ble Supreme Court in A. Shanmugam's Case (Supra) that the watchman or Caretaker or servant employed to look after the property is obliged to handover the possession to the owner on demand. Therefore, a decree of possession of the second floor of the suit property shall follow under Order XII Rule 6 of the "Code". Hence, a decree of possession T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 13 of 20 of the second floor of the property bearing no. 55, Yojna Vihar, Delhi110092 is hereby passed in favour of the plaintiff with proportionate cost for suit for possession and against the defendant. Decree sheet be prepared accordingly. It is made clear that the controversy between the parties regarding the status of the defendant also as that of a tenant at a rent of Rs.10,000/ per month, recovery of arrears of rent and damages, if any, as claimed by the plaintiff shall be adjudicated upon after framing of issues and adducing of evidence. Announced in open Court on 12th September, 2014. (Vinod Goel) District & Sessions Judge Shahdara, KKD Courts, Delhi.
T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 14 of 20 IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI CS No. 75/13 Unique Identification No. 02402C0136032013 Sh. T.M. Jain Versus Sh. Rashied Mohd.
Order
1. Vide this order, I intend to decide an application under Order XXXVIII Rule 5 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code").
2. The plaintiff has filed this application under Order XXXVIII Rule 5 read with Section 151 of the "Code" for furnishing the security before the judgment for satisfying the decree. In his application, it is alleged by the plaintiff that there are chances that the defendant may vacate and leave the premises at any time without revealing his whereabouts and as such, the defendant may be directed to furnish security before judgment to satisfy the decree, if any, passed by this court or in the alternative, property belonging to the defendant may be attached before the judgment.
3. The defendant has filed reply to this application denying T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 15 of 20 allegations of the plaintiff and prayed for its dismissal.
4. I have heard ld. counsel for the parties and very carefully perused the material available on record.
5. Under Order XXXVIII Rule 5 read with Section 151 of the "Code" where at any stage of suit, the court is satisfied by affidavit or otherwise, that the defendant may, with intent to obstruct or delay the execution of any decree that may be passed against him, (a) is about to dispose of whole or any part of his property or (b) is about to remove the whole or any part of his property from the local limits of jurisdiction of the court, the court may direct the defendant to furnish the security as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish the security.
6. In his entire application, the plaintiff has nowhere pleaded that the defendant has any intention to obstruct or delay the execution of any decree that may be passed against him or that the defendant is about to dispose of the whole or any part of his property or remove it from the jurisdiction of this court. In the absence of any such averment, application under Order XXXVIII Rule 5 read with Section 151 of the "Code" is not maintainable. Hence, this application is hereby dismissed with cost of Rs.3,000/ payable to Delhi Legal T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 16 of 20 Service Authority within 15 days.
Announced in open Court (Vinod Goel)
th
on 12 September, 2014 District & Sessions Judge,
Shahdara, KKD Courts, Delhi.
T.M. Jain vs. Rashid Mohd.
CS No. 75/13
Decided on : 12.09.2014 Page 17 of 20
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI CS No. 75/13 Unique Identification No. 02402C0136032013 Sh. T.M. Jain Versus Sh. Rashid Mohd.
Order
1. Vide this order, I intend to decide an application under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code").
2. The plaintiff has filed this application under Order XXXIX Rule 1 & 2 read with Section 151 of the "Code" to restrain the defendant from bringing different persons to the property to misuse the same and create nuisance. It is alleged in the application that the defendant has been misusing the property by bringing various people of dubious character in the property. The plaintiff has also come to know that the defendant used to charge from the said persons for use and occupation.
3. The defendant has filed reply to this application denying allegations of the plaintiff and prayed for its dismissal. It is pleaded that the defendant is a poor carpenter and has never misused the portion of the property occupied by him and he has only requested the T.M. Jain vs. Rashid Mohd.
CS No. 75/13Decided on : 12.09.2014 Page 18 of 20 plaintiff to settle his accounts so that he would look for other place to live in peace.
4. I have heard ld. counsel for the parties and very carefully perused the material available on record.
5. The plaintiff has not made any specific allegation as to who were those persons of dubious character and brought by the defendant in the suit house. He has also not specified as to what nuisance those persons created in the house in question. The plaintiff has also not alleged if he had lodged any complaint in this regard with the police authorities. He has also not pleaded the dates, months and year when such people were brought and nuisance was created in the suit house. The plaintiff has not claimed such relief by way of permanent injunction in the suit. Therefore, I find that the plaintiff has no prima facie case in his favour and the balance of convenience of the case is also not in his favour. Hence, the plaintiff is not entitled for any injunction under Order XXXIX Rule 1 & 2 of the "Code". Accordingly, application under Order XXXIX Rule 1 & 2 read with Section 151 of the "Code" filed by the plaintiff is dismissed with cost of Rs.3,000/ payable to Delhi Legal Service Authority within 15 days.
Announced in open Court (Vinod Goel) T.M. Jain vs. Rashid Mohd. CS No. 75/13 Decided on : 12.09.2014 Page 19 of 20 on 12th September, 2014 District & Sessions Judge, Shahdara, KKD Courts, Delhi. T.M. Jain vs. Rashid Mohd. CS No. 75/13 Decided on : 12.09.2014 Page 20 of 20