Delhi High Court
Krishna Kumari vs Sunil Kumar Goel And Anr. on 9 September, 2014
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 21st August, 2014
% Judgment pronounced on: 9th September, 2014
+ I.A. No. 21109/2013 in CS (OS) No.560/2012
KRISHNA KUMARI ..... Plaintiff
Through Ms. Kajal Chandra, Adv. with Ms.
Swati Sinha, Ms. Prerna Chopra
and Ms. Vandana Khurana, Advs.
versus
SUNIL KUMAR GOEL AND ANR ..... Defendants
Through Mr. Kirti Uppal, Sr. Adv with Manish
Gandhi, Mr. M.K. Singh and Mr.
Ravi Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order I propose to decide application being I.A. No. 21109/ 2013 under Order 12 Rule 6 read with Section 151 CPC filed by the plaintiff who has filed the suit for possession, mesne profits and permanent injunction against the defendants in respect of the leased portion in the property bearing No. 32, F.I.E., Patparganj Industrial Area, Delhi - 110092 (hereinafter referred to as the "suit property").
2. The parties entered into a Lease Deed dated 24th October, 2008 in respect of the basement, ground floor and part of first floor of the suit property by virtue of which the defendants have been in CS(OS) No.560/2012 Page 1 of 12 possession, occupation and control thereof. The Lease Deed was executed for a period of three years for a monthly rent of Rs.1,47,000/-. The defendants have been using the leased portion of the suit property for services of two wheelers. The front portion alongwith toilet and complete second floor has been stated to be in possession of the plaintiff.
3. It is the case of the plaintiff that ever since the inception of the lease, the defendant has been using the leased portion of the suit property contrary to the terms of the lease deed. Defendants have been defaulting in making payments towards rent and on number of occasions their cheques towards rent have bounced. It is stated that defendants have trespassed into the portions in possession of the plaintiff and without seeking consent or permission of the plaintiff the defendants have installed a generator set at the 2nd floor of the suit property. The defendants and their workers use the toilet near the office room at the first floor without the permission of the plaintiff. In the front portion of the first floor, the defendants have installed two fibre sheet cabins for denting and painting of scooter parts and other activities thus disturbing plaintiff's work. The defendants, against the terms of the lease deed are storing highly inflammable material such as mobile oil, diesel etc. in bulk quantity in barrels/containers which is unsafe for building as well as its inhabitants. The plaintiff has informed defendants about the disturbances and interferences caused by them but defendants did not stop.
4. Vide legal notice 2nd June, 2011, the plaintiff terminated the lease of the defendants giving them two months notice. Defendants in response, sent a reply dated 17th June, 2011 refuting the CS(OS) No.560/2012 Page 2 of 12 contentions made by the plaintiff and seeking renewal/extension of further period of six years. However it is stated by the plaintiff that in terms of clause 1.1 of the lease deed, the lease stood expired by efflux of time on 31st October, 2011. The said clause reads as under:
"(i) the lease duration shall be for an initial period of 3 years and total period of 9 years beginning on the effective dated i.e., 01.11.2008.
(ii) One year will be the lock-in period from both the parties;
(iii) after the expiry of one year from the effective date, both parties shall have an option to terminate the Lease by giving two months notice in advance;
(iv) after the expiry of the first 3 years of the Lease deed, fresh Lease deed will be renewed for a further period of 3 years."
5. It is the case of the plaintiff that since the lease has not been renewed or extended, the defendants reside in the suit property as illegal occupants and are liable to handover peaceful and vacant physical possession of the leased portion of the suit property to the plaintiff. Thus, the plaintiff filed the suit for possession against the defendants.
6. It is stated by the plaintiff that the defendants in their pleadings including in the various paras of the written statement have admitted the execution of the registered lease deed dated 24th October, 2008, the landlord-tenant relationship and also that the possession of the leased portion of the suit property is still in their occupation. Despite the legal notice being duly served on the defendants, they have failed to comply with the said notice. As there is admission on the part of the defendants as to relationship between the parties, rate of rent, CS(OS) No.560/2012 Page 3 of 12 termination of tenancy and legal notice under Section 106 of the Transfer of Property Act, this Court may pass a decree of possession under Order 12 Rule 6 CPC in favour of the plaintiff. In view of all the requisite requirements being satisfied, the suit is liable to be decreed.
7. In reply to the said application, the defendants have stated that the issues in the matter have already been framed and the case requires a full-fledged trial. The plaintiff has filed an exhaustive list of witnesses that reveals that numerous facts/issues are liable to be proved by the plaintiff. In addition to denying the averments of the plaintiff, it is denied that lease expired by efflux of time on 31 st October, 2011 since the lease deed was executed for 9 years. The defendants have already exercised their right of option for renewal, regarding which a separate suit for specific performance/declaration has been filed by the defendant before the District Court.
8. I have heard learned counsel for the parties and perused the record. Order 12 Rule 6 CPC reads as under:
"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.
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."CS(OS) No.560/2012 Page 4 of 12
9. A bare perusal of Order 12 Rule 6 CPC re-produced above makes it clear that the emphasis is on admission of relevant facts. If the relevant facts have been admitted, the mere fact that the defendants have tried to put their own interpretation to those facts with a view to defeat the claim of the plaintiff would not be a sufficient ground to decline relief under Order 12 Rule 6, CPC.
10. As far the period of execution of lease is concerned, it was executed and registered for three years w.e.f. 1st November, 2008. The total duration of the lease was for nine years subject to renewal. There was an understanding between both sides for the lock-in period of one year and that after the expiry of said lock-in period both parties shall have an option to terminate the lease by giving two months notice in advance.
11. In the present suit, it is an undisputed fact that by exercising its option under clause 1.1, the plaintiff by legal notice dated 2nd June, 2011 terminated the tenancy on the grounds of various breaches i.e. before expiry of three years. The said notice was received by defendants who in the reply dated 17th June, 2011 have not only denied all the allegations of the plaintiff but also exercised their option to renew the same for remaining period. The content of relevant portion of the reply are reproduced below:
"Before coping with the allegations in the above-referred notice, I wish to call upon your client through you to furnish the true copy of the Schedule/site-plan, as annexed with the Lease Deed, inasmuch as my clients were never furnished with the same and needless to mention that in the absence thereof, my clients are not able to cope up with the allegations in the above-referred notice.CS(OS) No.560/2012 Page 5 of 12
In order to obviate any future objection, my clients wish to deny each and every allegation in the above-referred notice inasmuch as my clients have never violated any term and condition settled at the time of the execution of the lease deed and the above-referred notice has been got issued by your client to thwart the rights of my clients and further to coerce my clients from exercising the said rights and more so when, the initial period of the lease is yet to expire. The above-referred notice has seemingly been got issued by your client to wriggle out of the contractual obligations and by virtue of the present letter, my clients wish to seek the renewal/extension of the lease for another period of 6 years while calling upon your client to execute the same. It is pointed out that the said lease deed was in fact executed for lease tenure of 9 years and your client vowed the due execution of further lease for another period of 6 years in continuation to the covenant of lease deed (supra) but now seemingly trying to wriggle out of the same.
The above-referred notice in any case, has got waived off subsequent to the issue of the same after due acceptance of the advance rent for the month of June, 2011 and in any case, the conduct of your client is hit by acquiescence in repeatedly accepting the month-to-month rent after the alleged breaches."
12. The case of the defendants is that despite of request, the plaintiff did not come forward to renew the lease by execution of lease-deed. Left with no option, the defendants filed a suit for specific performance, declaration and perpetual injunction in the District Court. The prayer clause as per the amended plaint of that suit is reproduced below:
"a. Specific performance in favour of the plaintiffs, their representatives and assignees etc. and against the defendant, her family members, heirs, representatives etc. thereby directing the defendant, her family members, heirs, CS(OS) No.560/2012 Page 6 of 12 representatives etc. to execute a renewed lease for a term of 6 years;
b. Pass a decree for the relief for declaration thereby declaring the impugned clauses No.1.1 and 4 of the lease deed dated 24/10/2008 to be null and void besides being against public policy and thus, liable to be struck off except as mentioned in the draft deed (which is in consonance with the negotiations and understanding between the parties); c. Pass a decree for the relief for declaration thereby declaring the lease deed dated 28/10/2008 to be still in operation at-least till the expiry of 9 years and further that in any case, the lease stands renewed especially on the exercise of the option there-for by the plaintiffs; d. Pass a decree for perpetual injunction thereby restraining the defendant, her family members, heirs, representatives etc. from interfering in the enjoyment of the plaintiffs with regard to the common portion as shown Red in the site plan as well as exclusive portion i.e. the Green portion, shown in site plan besides that the defendant, her family members, heirs, representatives etc. may further be restrained to from removing the generator & water tank of the plaintiffs on the terrace floor;
e. Award the costs of the litigation."
13. Ms. Kajal Chandra, the learned counsel for the plaintiff has also relied upon the position of the report of the Local Commissioner in order to demonstrate that there are breaches committed by the defendants during the lease period. Therefore, in view of clauses 1.1, the plaintiff is otherwise entitled for the relief claimed as the registered lease deed dated 24th October, 2008 between the parties was terminated vide legal notice dated 2nd June, 2011 and it also stood expired by efflux of time. It has been stated that the decree of CS(OS) No.560/2012 Page 7 of 12 ejectment is to be passed in favour of the plaintiff and against the defendants in view of the admitted position.
14. Mr. Kirti Uppal, learned Senior counsel appearing on behalf of the defendants on the other hand has argued with regard to the first ground that as the defendants have already exercised their option well within advance period of 2 months from date of expiry by communication dated 17th June, 2011, therefore the plaintiff on this reason cannot get the relief as claimed because the plaintiff was not inclined to get the lease deed registered for remaining period. The suit for declaration and specific performance is pending. The same was filed within the period of three years from the date of refusal made in the rejoinder notice issued by the plaintiff. With regard to other breaches, the same are denied by the defendants. Counsel for the defendants states that in view of denial, the decree is not liable to be passed. At least at this stage, no case under Order 12 Rule 6 CPC is made out by the plaintiff.
15. Mainly the plaintiff has heavily relied upon the following judgments in support of his contentions:
DLF Limited Vs. Emirates, (2010) ILR 4 Delhi 345. Hardesh Ores Pvt. Ltd. Vs. Hede and Company, (2007) 5 SCC 614.
i) As far as the first case of DLF Limited (Supra) referred by the counsel for the plaintiff is concerned, the same does not help the case of the plaintiff since the facts of the present case are different. In DLF Limited (Supra) merely the Annexure provided the rate of rent for nine years, the period of lease could not ought to be assumed to be for the same CS(OS) No.560/2012 Page 8 of 12 period despite the condition of renewal subject to the condition of six months notice of renewal of lease deed by the defendant and non-compliance of the same on the part of the defendant. The defendant in that case had the option to renew the lease for second term when the renovation was allowed and the plaintiff could not refuse as at that time the occupancy of the defendant was as per valid period of lease.
However, the defendant expressed its desire to extend the lease deed for another period of 54 months after the expiry of the first term of the lease period. The request of the defendant for renewal of the lease was not accepted by the plaintiff since the renewal of the lease deed for a further term of 54 months. There was non-compliance on the part of the defendant in availing of the option to renew the lease. The stipulated clause mentioned in the agreement, the defendant was required to give a notice of six months prior to the date of expiry of the first term of 54 months. The defendant did not exercise its option to give the six months notice as per the stipulated clause of the lease deed. Thus, it was held that in view thereof on the expiry of the first term of 54 months i.e. by efflux of time it amounts to deeming surrender of tenancy.
ii) With regard to the second case i.e. Hardesh Ores (Supra), the same does not help the case of the plaintiff in the facts of the present case. In Hardesh Ores (Supra) the appellant exercised its right under the agreement to claim a renewal of the term of the lease and the respondent refuted denied the same. This was held to be the sufficient proof of fact that CS(OS) No.560/2012 Page 9 of 12 agreement had been acted upon by Appellant. However, the claim was barred by limitation since more than 3 years had elapsed after a categorical denial of their right claiming renewal or automatic renewal by Respondents. It was observed by the court that a right accrued to the appellant to sue the respondent and to get a declaration that the agreement stood automatically renewed for a further period of 5 years. However, the appellant did not pursue the matter further and never sought relief from any court of law of competent jurisdiction for a declaration that the lease stood renewed automatically upon the appellant exercising its option under the agreement. The suit appeared from the statements in the plaint to be barred by the law of limitation. The basis for claiming the relief of injunction, namely, a subsisting renewed agreement did not exist in fact. Therefore, no relief was granted to the defendant. However, in the present case, the defendants have not only exercised their option in time as per clause 1.1 but also filed the suit within period of three years after the refusal by the plaintiff. The facts of both the cases are materially different.
16. It is settled law that a judgment on admission by the defendant under Order 12 Rule 6 CPC is not a matter of right and rather is a matter of discretion of the Court. 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 favor of the party invoking it.
CS(OS) No.560/2012 Page 10 of 1217. It is not in each case where Order 12 Rule 6 CPC 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 go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the plaintiff.
18. The purpose of Order 12 Rule 6 CPC 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. But the rule is not intended to apply where there are serious questions of law to be asked and determined.
19. Likewise where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of Order 12 rule 6 CPC without proving those issues. The case of State Bank of India vs. Midland Industries and Ors. AIR 1988 Delhi 153 is relevant in this regard.
20. In Manisha Commercial Ltd. vs. Shri N.R. Dongre & Anr. 85 (2000) DLT 211 it was observed that "Where facts are not in dispute, and the legal contentions can easily be decided, a judgment under Order XII can be appropriately delivered."
CS(OS) No.560/2012 Page 11 of 1221. As far as breaches as alleged by the plaintiff are concerned, the same are denied by the defendant. The same has become a disputed fact. Thus, it requires trial in the matter.
22. Having considered the above, facts and in view of my foregoing discussion, I find no force in the application.
23. The application is dismissed.
(MANMOHAN SINGH) JUDGE SEPTEMBER 09, 2014 CS(OS) No.560/2012 Page 12 of 12