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Poonam Kakkar vs Vaishali & Anr on 6 December, 2022

                            $~1
                            *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                            +     RFA 582/2022
                                  POONAM KAKKAR                               ..... Appellant
                                             Through:              Mr. Aakanksha Kaul,
                                                                   Mr. Aman Sahani, Mr. Manek
                                                                   Singh and Mr. Harsh Ojha,
                                                                   Advocates.
                                                      versus

                                  VAISHALI & ANR.                              ..... Respondents
                                               Through:            Mr. Ajay Dabas, Ms. Priyanka
                                                                   Dagar and Mr. Ravi Dagar
                                                                   Advocates for respondents.

                                  CORAM:
                                  HON'BLE MS. JUSTICE MINI PUSHKARNA
                                                      ORDER

% 06.12.2022 [Physical Hearing/ Hybrid Hearing] RFA 582/2022 and CM APPL. 49586/2022

1. The present appeal has been filed under Section 96 read with Order 41 CPC against the impugned judgment and decree dated 04.08.2022 passed by the learned Additional District Judge - 05, South-West District, Dwarka Courts Complex, Delhi in Civil Suit No. 287/2020.

2. By way of impugned judgment and decree, the suit as filed on behalf of the respondent/ defendant in the suit, has been decreed on the basis of the application under Order 12 Rule 6 CPC on the ground that there was admission on the part of appellant/ defendant in the suit.

Thus, by way of impugned judgment, it has been held that there were clear, unambiguous and unequivocal admissions on the part of the defendant in the suit/ appellant herein, regarding existence of relationship of landlord and tenant between the parties. It was held that since monthly rent of property was above Rs.3500/- and termination of tenancy vide legal notice dated 16.06.2020 had been proved, there was no triable issue left to be adjudicated upon. Thus, the suit was decreed upon the application on behalf of the plaintiffs in the suit/ respondent herein under Order 12 Rule 6 CPC. Decree of possession was passed in favour of the plaintiffs and against the defendant in the suit/ appellant herein, in respect of the property i.e. Flat No. 2654, Second Floor, Janta Flat, Group-1, Hastsal, Uttam Nagar, New Delhi.

3. It is the case on behalf of the appellant that there has been no admission as such on behalf of the appellant before the trial Court. Attention of this Court has been drawn to Para 21 of the impugned judgment, wherein it has been stated by the learned trial Court that defendant has admitted the rate of rent as Rs.9000/- per month. It is submitted that there is no such admission on behalf of the appellant before the trial Court. Attention of this Court has also been drawn to the written statement filed on behalf of the appellant herein before the learned trial Court, wherein the appellant herein being the defendant in the suit has categorically denied signing any Rent Agreement dated 09.08.2018.

4. Rather, the appellant herein has referred to Lease and Security Agreement dated 07.04.2018, which was entered between the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.12.2022 15:28:56 appellant and respondent No. 1. Attention of this Court has been drawn to Clauses 1, 14 and 15 of the Lease and Security Agreement dated 07.04.2018, which are reproduced as below:

"NOW THIS AGREEMENT WITNESSTH AS UNDER:-

1. That the Second .Party will deposit Security Total amount of RS.4,00,000/- (RUPEES FOUR LACS ONLY) PAID IN CASH, on 07.04.2018 to the Owner/ first party as a security deposit for use of above said SECOND FLOOR for his Residential purpose use for next 22 Months the above said security amount will be refunded by the first party to the second party at the time of expiry of fixed period or its earlier vacation without interest.

.....

14. That the Second party will not demand for any interest .on his/her amount with the First Party and the First Party will not demand for any rent from the Second Party.

15. That in case the first Party fails to repay the above said security amount of does not pay the above security amount at the time of expiry of this agreement, then the second party has fully rights to take legal action against the first party."

5. Thus, on the basis of the aforesaid Lease and Security Agreement dated 07.04.2018, it is contended on behalf of the appellant that the appellant was not required to pay any rent to the respondent herein. It is submitted that it is an admitted position that no rent is being paid by the appellant to the respondent. No rent was being paid on the basis of Clause 14 of the Lease and Security Agreement dated 07.04.2018.

6. It is also the case of the appellant that the Rent Agreement dated 09.08.2018 relied upon by the respondent has been denied Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.12.2022 15:28:56 categorically by the appellant. It is further contended that the appellant has also produced transcript of the telephonic conversation of respondent No. 2 and telephonic conversation with deceased wife of respondent No. 2, in order to prove the case as regards the Lease and Security Agreement dated 07.04.2018 entered between the parties.

7. It is also submitted on behalf of the appellant that there is no unequivocal admission on part of the appellant/ defendant in the suit before the learned trial Court. Learned counsel for the appellant has relied upon the following judgments:

(a) S.M. Asif vs. Virender Kumar Bajaj, (2015) 9 SCC 287

(b) Karan Kapoor vs. Madhuri Kumar, 2022 SCC OnLine SC 791

(c) Himani Alloys Limited vs. Tata Steel Limited, (2011) 15 SCC 273

8. On the other hand, learned counsel appearing for the respondent has pleaded that the appellant has come up with altogether new pleas before this Court. According to learned counsel for the respondent, the pleas which have been raised before this Court were never pleaded before the learned trial Court. Attention of this Court has been drawn to the written statement filed on behalf of the appellant before the learned trial Court, especially paragraphs 4, 6 and 7 of the preliminary objection and paragraphs 4 and 7 of the reply on merits.

9. Learned counsel for the respondent submits that for deciding an application under Order 12 Rule 6 CPC only two things have to be seen viz. admission of relationship of tenancy and termination of the said tenancy. It is contended that since both the conditions have been fulfilled, the application filed on behalf of the respondent before Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.12.2022 15:28:56 learned trial Court under Order 12 Rule 6 CPC has rightly been allowed by the learned trial Court.

10. He further relies upon Clause 4 of Lease and Security Agreement dated 07.04.2018 filed on behalf of the appellant before the learned trial Court to state that Clause 4 of the said Agreement categorically states that the respondent herein can inspect the suit premises. Thus, it is contended that the possession of the suit premises always remained with the respondent.

11. Learned counsel for the respondent has further relied upon judgments in the case of Rajpal Singh vs. Deen Dayal Kapil in RSA No. 129/2013 (decision dated 23.01.2014) and Bachhaj Nahar vs. Nilima Mandal and Another, (2008) 17 SCC 491 in order to contend that a decree can be passed in terms of Order 12 Rule 6 CPC in case the jural relationship of landlord and tenant between the parties and the termination of the tenancy by either lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act, is established. Thus, it is submitted that appeal is without any merit.

12. I have heard the learned counsels for the parties and have also considered the documents on record.

13. Considering the documents on record and especially the fact that the Lease and Security Agreement dated 07.04.2018 has been placed on record before the learned trial Court by the appellant herein and the rent agreement dated 09.08.2018 has been specifically denied by the appellants, it is held that the present matter needs consideration.

14. In view thereof, issue notice to the respondents.

15. Let the reply be filed within four weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.

16. Though a short reply has already been filed on behalf of the respondents at pre-notice stage, the respondents are granted liberty to file a detailed reply in view of the notice having been issued today.

17. In the meanwhile, the operation of the impugned judgement dated 04.08.2022 passed by the learned Additional District Judge - 05, South-West District, Dwarka Courts Complex, Delhi in Civil Suit No. 287/2020 shall remain stayed.

18. List on 15.03.2023.

MINI PUSHKARNA, J DECEMBER 6, 2022 PB Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:08.12.2022 15:28:56