Delhi District Court
Dr. Arun Nirula vs Sh. Shivraj Yadav on 8 November, 2021
In the Court of Ms. Gurmohina Kaur: Additional District Judge-03
(South District) Saket Court Complex, New Delhi.
CS No.: 453/19
In the matter of :
1. Dr. Arun Nirula
S/o Late Mr. R.S. Nirula
R/o A 15/3, S.F.S. Flats,
Saket, New Delhi-110017 ......Plaintiff
VERSUS
1. Sh. Shivraj Yadav
2. Smt. Sunita
W/o Sh. Shivraj Yadav
3. Km. Mithlesh
D/o Sh. Shivraj Yadav
4. Sh. Akhilesh Kumar
S/o Sh. Shivraj Yadav
All R/o A-1/63, Freedom Fighter Enclave
Post Office- Mehrauli,
Neb Sarai, Delhi-110068 .......Defendants
Date of institution : 31.07.2019
Reserved for Order : 08.10.2021
Date of decision : 08.11.2021
Suit for recovery of possession, recovery of arrears of rent,
damages/ mesne profit.
JUDGEMENT
1. The plaintiff has moved an application under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (in short 'the CPC') for passing judgment on admission.
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2. Brief facts for the disposal of present application are that the plaintiff has filed the present suit seeking possession of an immovable property bearing no. A-1/63, Freedom Fighter Enclave, Neb Sarai, New Delhi-110068, situated in Khasra no. 151 and 152, measuring 500 sq. yards (hereinafter referred to as the suit property) and for permanent injunction, damages and mesne profits against the defendants. It is averred in the plaint that plaintiff is actual and true owner of the suit property by virtue of Agreement to Sell and a registered General Power of Attorney executed between the plaintiff and Sh. Karan Singh, S/o Sh. Gurdayal dated 05.08.1996 and that the said fact has been recognized in a decree of Hon'ble High Court of Delhi in the matter of Brajesh Narula vs. Arun Narula dated 30.11.2010. It is stated that the suit property is in possession of the plaintiff except small portion of 25 sq. meter which is in occupation of the defendants. The license was granted to the defendants and their family members by the plaintiff to act as caretakers of the suit property. It is further stated that due to some construction work in the South-West corner of the suit property, the defendants were shifted to North-East corner of the suit property. It is stated that no right/tile was ever intended to be transferred in favour of the defendants.
2.1. It is averred that a Direct Theft Bill dated 13.12.2013 was received in name of defendant no. 2 for an amount of Rs.33,802/- from BSES whereby defendants were caught stealing the electricity and in order to avoid legal actions, the bill was paid by the plaintiff. It is stated that on 03.01.2014, Defendant no. 1 vide a hand written letter admitted that plaintiff in fact is the true owner of the suit property who has allowed the defendants to reside in the suit property. Also, defendant no. 3, who is daughter of defendant no. 1 has admitted vide another hand written letter that plaintiff is the owner of the suit property and that the defendants have no right over the suit property.
2.2. It is stated that plaintiff asked the defendants to vacate the suit property in order to carry out constructions however, the defendants refused to vacate the same and in order usurp the suit property had filed Civil Suit no. 755/2017 against the plaintiff seeking permanent injunction and directions to the plaintiff not to dispossess the defendants from the suit property. To the said suit, the plaintiff filed a counter- claim bearing Civil Suit no. 1003/2018 seeking peaceful and vacant possession of the CS No: 453/19 Page no. 2 of 9 suit property. The suit of the defendants was disposed off vide consent decree dated 02.02.2019. Interim injunction was granted in the counter-claim whereby defendants were restrained from creating any third party right in the suit property however, the plaintiff withdrew the said counter-claim on 22.07.2019 with liberty to file afresh on account of technical issues. On these grounds, it is alleged that the defendants are illegal occupants of the suit property and that the plaintiff is entitled to decree of possession, damages/ mesne profits and permanent injunction. Alongwith the suit, the Plaintiff has filed copy of Decree of Hon'ble High Court of Delhi dated 30.11.2010, copy of Bills of BSES, copy of letters signed by Defendant no. 1 and 3 to the Plaintiff alongwith copies of order dt. 22.11.2018 and copy of Consent Decree dated 02.02.2019.
3. Pursuant to notice issued, the Defendants appeared and filed written statement inter-alia raising various issues including that the Defendants are in continuous possession, use and occupation of the suit property for the past 20 years. The Defendants also denied that the Plaintiff was the actual owner of the suit property. Further, the Defendants denied that any license was granted by the Plaintiff to the Defendants and their family members and further stated that the Plaintiff without any title was trying to usurp the property of the Defendants.
4. Replication was filed on behalf of the plaintiffs wherein they denied each and every allegation made in the written statement of the defendants and have filed the copy of application filed by the Plaintiff under Section 151 CPC alongwith reply of the Defendants in suit no. 755/17, titled as Shivraj Yadav & ors vs. Dr. Arun Narula.
5. The plaintiff, during the course of proceedings, moved application under consideration under Order XII Rule 6 CPC stating that the defendants have taken contradictory stand in their previous suit i.e. Suit no. 755/2017, titled as Shivraj Yadav & ors vs. Dr. Arun Narula, where the Defendants have in their reply to an application admitted that the premises in question was handed over to them by the Plaintiffs to stay there without paying any charges / license fee. It is further stated that however, in their reply in para 3 and 4 of Written Statement, the Defendants have taken the stand that the Plaintiff had never inducted the Defendants in the suit CS No: 453/19 Page no. 3 of 9 property and further alleged that the plot was vacant and the Defendants have occupied the same on their own. It is further averred in the application that the Defendant has not brought on record even a single document to substantiate their right as to how they are occupying the suit property and are merely stressing ownership over long stay at the property whereas on the other hand, the Plaintiff has placed on record ownership documents of the suit premises which have been duly acknowledged by the Hon'ble High Court of Delhi. By way of the present application, the Plaintiff seeks a decree of possession in favour of the Plaintiff and against the Defendants alongwith Arrears of rent and use and occupation charges of Rs.1,05,000/- alongwith future and pendente lite interest. The Plaintiff further seeks damages @Rs.5,000/- per month from the date of filing of suit till the vacation of suit premises.
6. Per contra, the defendants resisted and opposed the present application of the plaintiffs and have filed a reply wherein they have urged the dismissal of the application. They have denied all the grounds made by the plaintiff in their present application and have stated that though the Plaintiff has stated that the Defendants were given suit premises on License but till date they have not terminated the License and therefore the suit is premature. It is further stated that the Defendant has never admitted that the Plaintiff is the owner of the suit property. It is further stated that the counter-claim filed by the Plaintiff in Suit no. 755/17 was rejected by the Hon'ble Court. Para 4 of the reply further states that if the Plaintiff has stated that he is the licensor of suit premises, then he has failed to show what was the nature and terms and conditions of the license. It is further submitted that the present suit is pre-mature as there is no termination of license by the Plaintiff and the present suit also involves a mixed question of fact and law and therefore, evidence would be required to decide the present suit as per the Indian Easement Act, 1882.
7. I have heard arguments advanced by learned counsel for the parties and perused the material available on record.
7.1. The judgment on admissions is incorporated under Order XII Rule 6 CPC. In case, there is admission of fact either in pleadings or otherwise whether oral or in CS No: 453/19 Page no. 4 of 9 writing, the Court in its discretion at any stage of the suit, either on an application or on its own motion, give such judgment as regards to such admissions. The scope of Order XII Rule 6 CPC has been discussed in detail in 2016 (2) TVT 518 Delhi titled as Tirath Ram Shah Charitable Trust & Ors. Vs. Mrs. Sughra BI @ Sughra Begum (DECD.), the relevant extracts is reproduced below for ready reference:-
"..11. The object of Order XII Rule 6 CPC is that once there are categorical admissions made by a party, then the litigation should not be permitted to linger on unnecessarily and in appropriate cases, on an application filed by a party under Order XII Rule 6 CPC, asking for a decree on the basis of the said admissions, the Court ought to exercise its discretion and bring an end to such litigation by passing appropriate orders. The other consideration, while passing a decree under Order XII Rule 6 CPC, is to ensure that the judicial process is not abused and a person entitled to relief, is granted such relief without delaying the passing of a decree in his/her favour, or making him/her go through the rigorous of a trial. Para 12. In the case of Charanjit Lal Mehra Vs. Smt. Kamal Saroj Mahajan, (2005) 11 SCC 279, the Supreme Court has held that an admission under Order XII Rule 6 CPC can be inferred from the facts and circumstances of the case and that order XII Rule 6 CPC has been enacted to expedite trial and where the Courts find that the suit can be disposed of on such admissions, it should not hesitate from doing so. It is also relevant to refer to the observations of a Division Bench of this Court in the case of Vijaya Myne Vs. Satya Bhusan Kaura 142 (2007) DLT 483, where in the light of innumerable authorities on Order XII Rule 6 CPC, it was held that admissions can be constructive admissions and need not be specific or expressive, which can be inferred from vague and evasive denial in the written statement while answering specific pleas in the plaint and further, that admissions can even be inferred from the facts and circumstances of a case."
7.2. Further, admissions can be constructive and need not be specific or expressive and can be even inferred from the facts and circumstances of the case. In the present case, the Defendant has denied the ownership of the Plaintiff in his Written Statement. However, he in his reply stated that the present suit is premature as the License, if any, was never terminated nor did the Plaintiff provide for any terms and conditions for the license. The Plaintiff per contra, has relied on the Orders of the Hon'ble High Court of Delhi dated 20.10.2010, in CS (OS) 1304/2010 in the case titled as Brijesh Narula vs. Arun Narula, where the Plaintiff as well as his brother entered into a settlement and in terms of the settlement, the Plaintiff herein became the owner of the property bearing no. 151, 152/1, Village Neb Sarai, New Delhi, admeasuring 500 sq. yards, which had been purchased in the name of the Plaintiff herein in the year 1988.
CS No: 453/19 Page no. 5 of 9 The Plaintiff also relied on the orders of the Ld. Civil Judge, in Civil Suit no. 755/17, wherein the Defendant herein had filed a suit seeking to restrain the Plaintiff herein to illegally dispossessing him and from interfering in his peaceful possession of the suit property without due process of law. In the aforementioned suit, the Defendants herein did not claim to be owners of the suit property but were claiming right of possession on account of long residence.
7.3. The Defendant has not only denied the ownership of the Plaintiff in his entire Written Statement but has further denied that the suit property was given on license basis by the Plaintiff and has averred that the Defendants are living in the suit property for the past 20 years. As already discussed above, in the reply to the application under Order XII Rule 6 CPC, the Defendant has taken the plea of the suit being premature on account of non-termination of license, if any. Therefore, it appears that the arguments regarding the claim of the Defendant qua the suit property is not sustainable in any manner. No document has been placed on record by the Defendant to show that the Plaintiff is not the owner of the property and has no interest therein. Further, perusal of the letters signed by Defendant no. 1 & 3 namely Shivraj and his daughter Mithlesh reflect that they have stated that the Plaintiff had allowed the Defendant to reside in the property and further there is an admission regarding theft of electricity carrying a penalty of Rs.33,802/- which was paid by the Plaintiff herein to BSES. Careful perusal of the entire pleadings and the documents annexed thereto reflect that the Defendants have taken contradictory stand in the present suit regarding their status qua the suit property. The factum that the Plaintiff is the owner of the suit property and the Defendants were allowed to occupy the suit premises, therefore, prima facie shows the existence of relationship of licensor and licensee between the Plaintiff and the Defendants.
7.4. Qua the issue of termination of license, admittedly, no notice seeking specific termination of license has been sent by the Plaintiff to the Defendants. Be that as it may, even assuming the notice of terminating license was not served upon the defendants, filing of eviction suit under law itself is notice to quit on the licensee. This Court places reliance to the decision of Hon'ble Supreme Court of India wherein it has been observed in Nopany Investment Pvt. Ltd. vs. Santokh Singh (HUF) CS No: 453/19 Page no. 6 of 9 (2008) 2 SCC 728 as under:-
"In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this court in V. Dhanapal Chettiar vs. Yesodai Ammal AIR 1979 SC 1745"
Also, it has been held by Hon'ble Delhi High Court in Nitin Jain vs. Geeta Raheja that:-
"However, even if, one were to assume that the legal notice dated 25.01.2011 was not served upon the appellant/defendant, the position as it obtains in law today, is that, once a suit is filed for possession, the mere fact that no notice to quit and/or to vacate a demised premises is given will not inhibit a court from passing a decree of possession if, there is no other impediment in law, as the institution of the suit is an expression of the intention to seek possession."
7.5. In view of the aforesaid discussions, filing of the present suit would amount to notice of termination of license qua the suit property against the Defendants. In the present case, all the essential requirements for passing a judgment on admissions are fulfilled in the present case. Reliance is placed on judgment passed by Hon'ble High Court of Delhi in order dated 19.07.2016 passed in CS (OS) 160/14 titled as S.C. Aggarwal vs. B.K. Goel & anr which reads as follows:-
"11. The Courts are empowered to exercise the powers under Order XII Rule 6 CPC to enable a party to obtain a speedy judgment at least in respect of the admissions made by the defendant, the object being to cut short unnecessary delays and bring a litigation to an end. The second object of the said provision is to ensure that a party does not abuse the judicial process and a person entitled to relief, is not made to go through the travails of trial.
12. While deciding an application under Order XII Rule 6 CPC, the court is expected to confine itself to examining the pleadings/ documents referred to by the applicant, as admission made by the other side. In the case of Charanjit Lal Mehra vs. Smt. Kamal Saroj Mahajan, Reported as (2005) 11 SCC 279, The Supreme Court has held that an admission under Order XII Rule 6 CPC can even be inferred from the facts and circumstances of the case and since Order XII Rule 6 CPC has been enacted to expedite trial, where the courts find that the suit CS No: 453/19 Page no. 7 of 9 can be disposed of on such admissions, it should not hesitate from doing so.
14. It is also relevant to refer to observations of a Division Bench of this Court in the case of Vijaya Myne vs. Satya Bhushan Kaura, reported as 142 (2007) DLT 483, where in the light of the suit no. 10522/16, innumerable authorities on Order XII Rule 6 CPC, it was held that admissions can be constructive admissions and need not be specific or expressive which can be inferred from vague and evasive denial in the written statement while answering specific pleas in the plaint and further, that admissions can even be inferred from the facts and circumstances of the case."
Further, it has been held by Hon'ble Supreme Court in para no. 18 of the judgment titled as "Usha Rani Jain vs. Nirulas Corner House Pvt. Ltd." 73 (1998) DLT 124, which reads as follows:-
"18. The object of Order 12 Rule 6 CPC is to enable a party to obtain a speedy judgment, as least, to the extent of the admissions of the defendant to which relief the plaintiff is entitled to. The rule permits the passing of the judgment at any stage without waiting for determination of other questions. It is equally settled that before a court can act under Order 12 Rule 6, the admission must be clear, unambiguous, unconditional and unequivocal. Admission in pleadings are either actual or constructive. Actual admission consists of facts expressly admitted either in pleadings or in answer to interrogatories."
8. Taking into consideration all the facts and circumstances, the plaintiff has proved all the necessary ingredients for passing the decree for possession based on admissions. The plea taken by the Defendants are without any basis and the same cannot be treated as denial at least for the purposes of passing decree of possession under Order XII Rule 6 CPC. The prayer of the plaintiff under such circumstances qua possession of the suit property bearing no. A-1/63, Freedom Fighter Enclave, Neb Sarai, New Delhi-110068, situated in Khasra no. 151 and 152, measuring 500 sq. yards becomes allowable. The plaintiffs are entitled to claim the relief of possession of suit property that they are owners of the suit property and the license of defendants stood terminated, and thus a decree is passed in favour of plaintiffs and against defendants in respect of suit property. The defendants would handover the vacant possession of the suit property bearing no. A-1/63, Freedom Fighter Enclave, Neb Sarai, New Delhi-110068, situated in Khasra no. 151 and 152, measuring 500 sq. CS No: 453/19 Page no. 8 of 9 yards, to the Plaintiff within two months from the date of passing of this judgment. With regard to the other claims of the Plaintiff as claimed in the suit the same shall be adjudicated upon during trial. The application is, accordingly, allowed. Decree sheet be prepared. Digitally signed by GURMOHINA GURMOHINA KAUR KAUR Pronounced in the Open Court Date: 2021.11.09 15:29:22 +0530 on 08.11.2021.
(Gurmohina Kaur)
Additional District Judge
South District: Saket: New Delhi
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