Delhi District Court
M/S. Smxl Klothings Pvt. Ltd vs Sh. Satyapal Gupta on 31 October, 2011
: 1:
IN THE COURT OF JITENDRA KUMAR MISHRA
ADDITIONAL DISTRICT JUDGE -III, ROHINI COURTS, DELHI.
MCA no. 18/11
Unique ID No. C0222502011
M/s. SMXL Klothings Pvt. Ltd.
At : 6/21, Roop Nagar, Delhi
Through its Director
Sh. Ashwani Kapoor
S/o. Late Shri Nand Lal Kapoor
R/o. 12/16, Third Floor
Shakti Nagar, Delhi-110007
.............Appellant
Versus
Sh. Satyapal Gupta
S/o. Late Sh. Bharat Singh Gupta
R/o. E-95, Kamla Nagar, Delhi-110007
.........Respondent
Date of institution of the appeal : 18.08.2011
Reserved for judgment on : 19.10.2011
Date of pronouncement of judgment : 31.10.2011
JUDGMENT :
1. This is first appeal filed under Section 96 of the Code of Civil Procedure against judgment/decree passed by the ld trial court on 13/07/2011 (herein after referred as impugned order) passed under Order 12 Rule 6 of CPC. The ld trial court while allowing the application under Order 12 Rule 6 of CPC passed the decree for recovery of possession against the respondent.
2. Before coming on grounds of the appeal, facts of the case as briefly stated are :
a) Respondent is the owner/landlord of the property bearing no. 62, situated at Harijan Colony, Sawan park, Ashok Vihar, Phase-III, MCA No. 18/11 : 2: Delhi-52. It is a four storey constructed building comprising of basement, ground floor, first floor and second floor (herein after referred as 'the suit property'). Appellant entered as a tenant in the suit property by virtue of registered lease agreement dated 26/03/2009.
The lease agreement was valid from 01/06/2008 to 31/05/2012. Initial rate of rent was Rs. 10,000/- per month exclusive of electricity, water and other charges. Appellant was carrying out his business at the suit property.
b) In or around December, 2009, appellant had started misusing the premises by creating new companies and had given the portions of the suit premises for use to outsiders without permission and consent of the respondent. It is also alleged that there was alteration in the original constructions as the appellant has raised new constructions in contraventions of the lease agreement. Notice under Section 106 of The Transfer of Property Act dated 05/02/2010 was issued whereby the tenancy was terminated w.e.f. 03/12/2009. The period of two months as per the notice was given to the appellant in accordance to lease agreement dated 26/03/2009, whereby if the lessor wants to get vacate the suit premises before the prescribed period of five years, then he was required to serve two months notice to the lessee. Notice was duly served and reply was sent on behalf of the appellant.
c) Written statement was filed by the appellant before the ld trial court wherein it is objected that the notice is illegal and not tenable; appellant is a tenant by holding over; the suit is pre-mature etc. Relationship as landlord and tenant admitted. Rate of rent is also admitted. Receipt of notice and reply thereof are also admitted fact.
d) An application under Order 12 Rule 6 of CPC was moved by the respondent before the ld trial court as it is claimed therein that in view of admission made by the appellant, judgment on admission may be passed. Reply was filed by the appellant to oppose the application.
MCA No. 18/11: 3:
3. In the present appeal, the appellant has raised various contentions inter alia notice dated 05/02/2010 is invalid; waiver of notice/holding over plea etc. It is further stated that after alleged termination by notice, rent was accepted by the respondent and ld trial court did not consider the plea of waiver of notice.
4. Trial court record is perused. This court also heard Sh. Kuljeet Rawal, counsel for the appellant and Ms. Jaya Goyal, counsel for the respondent at length.
5. Reading of facts of the present case shows that there is no dispute regarding the relationship of landlord and tenant and that the rate was more than Rs. 3,500/- per month, taking the premises outside the protection of Delhi Rent Control Act, 1958. Copy of lease agreement dated 26/03/2009 is perused. Parties referred following clauses of lease agreement during arguments :
"Clause 1. That the lessee shall pay initially monthly rent a sum of Rs. 10,000/- (Rupees Ten Thousand only) for the period of two years and after the expiry of two years the lessee shall pay monthly rent a sum of Rs. 11,000/- (Rs. Eleven thousand only) for the remaining period of this agreement to the lessor and the said charges shall be payable by the lessee to the lessor every month in advance.
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Clause 12. That if the lessee intends to vacate the premises under Lease Agreement before the prescribed period of five years, then the Lessee shall serve two months notice in advance to the lessor.
Clause 13. That in case the Lessor wants to get vacated the said premises before the prescribed period of five years then he will serve two months notice to the Lessee."
6. It is the contention raised by the ld counsel for the appellant that notice dated 05/02/2010 issued by the respondent to the appellant is not a valid notice in view of para 6 of the said notice. Para 6 of the notice reads as under :
"6. That as my client is not willing to keep you as a tenant and hence empowered by the provisions of MCA No. 18/11 : 4: Lease Deed your tenancy is terminated w.e.f. today i.e. 03.12.2009 and you are requested to handover the physical and vacant possession of the premises as mentioned above within 2 months from the date of receipt of this notice."
It is further submitted by ld counsel for the appellant that the notice issued to secure compliance in back date cannot be termed as a legal notice in view of Section 106 of Transfer of Property Act. On the other hand, ld counsel for the respondent submits that the suit was filed before the ld trial court on 03/07/2010 i.e. much after the date of issue of notice and in those circumstances, the period of notice had already expired and appellant had enough time to comply with the notice issued on behalf of the respondent irrespective of the wrong date mentioned in the notice, for the purpose of computing the period of two months for compliance. In support of his argument, ld counsel for the appellant relied upon Chimanlal Vs. Mishrilal (1985) 1 Supreme Court Cases 14 and submits that in view of the law laid down by the Hon'ble Supreme Court, a valid notice is an essential requirement for any proceedings recalling eviction. On the other hand, ld counsel for the respondent relied upon Rawat Hardeo Singh Vs. State of Rajasthan AIR 1981 Rajasthan 280, where in para 8, it was held:
"8. ............If there is a contract to the contrary and a different period of notice is contemplated by the parties, then the requirements of Section 106 of the Transfer of Property Act, relating to giving of 15 days' notice expiring with the end of the month of tenancy, have no application. A Division Bench of this Court in Suraj Mal v. Sita Ram, AIR 1955 Raj 1 took the same view. There was an agreement between the parties of giving one month's notice and it was held that the tenant could vacate at any time on giving one month's notice and there was no necessity of such a notice expiring with the end of the month of tenancy. Thus, the notice given in the present case, being for a period of three months', could not be held to be invalid on the ground that it did not end with the month of tenancy."
She has further relied upon Hira Lal and others Vs. State (Govt. of NCT), Delhi (2003) 8 Supreme Court Cases 80, it was held :
".............Further more, vide notice in question, the appellant-tenant was asked to hand over possession of the suit premises on the 1st May, 2004, but the suit in MCA No. 18/11 : 5: question was filed in Court only on the 25th May, 2004, i.e much after the expiry of the stipulated period of fifteen days, and as such no fault can be found with the notice in view of the provision of Section 106 (3) of the Transfer of Property Act, 1882, which reads as follows:
"A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section."
The notice to quit was dispatched on 29th April, 2004 and served on the appellant on 30th April, 2004. The suit for possession was instituted by landlord on 23rd May, 2004, after the expiry of fifteen days from service of said notice. In Sudershan Sinha and Anr. Vs. Kuldeep Singh reported as 2006 VIII AD (DELHI) 75, this Court has held that :
"It is now only relevant that the suit should be filed after the expiry of the period of fifteen days from the date of the receipt of the notice.......... "
She has further relied upon Madho Ram Budh Singh Vs. National Rifle Association, RFA 245/1997, Delhi High Court, where in para 9, it has been held :
"9. From the bare reading of the notice and the reply it is manifest that (i) the appellant in the notice that the tenancy in respect of the suit premises start from 1st of each English calender month and ends with the last day of each month, which fact was not denied by the respondents; (ii) it was alleged in the notice that the respondents were in arrears of rent from 1st July, 1989 and had not paid the arrears despite demand. This fact was disputed by respondent by saying that the rent for the month of July was already sent and the rent for the month of August was sent immediately on the receipt of the notice; (iii) it was stated in the notice that the appellant no longer wanted to keep the respondents under his tenancy and the tenancy was terminated by the end of 31st October, 1989. Respondent in reply challenged the right of the appellant to terminate the tenancy and claimed the tenancy to be valid and legal."
Recently Hon'ble Delhi High Court in M/s . Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & ANR decided on 02/09/2011 in RFA No. 179/2011 held :
(iv) ".............. Once the summons in the suit along with documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents MCA No. 18/11 : 6: in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of subsequent events of the expiry of 15 days after receipt of a copy of the notice along with documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court.
8. Therefore, looking at it from any point i.e the fact that legal notice terminating tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the appellant/tenant was back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over possession of the tenanted premises."
7. Ld counsel for the appellant raised another argument that the respondent after issue of notice to the appellant accepted the rent and thus by the doctrine of holding over, the tenancy has been renewed. Section 116 of the Transfer of Property Act states :
"116. Effect of holding over.- If a lessee or under- lessee of property remains in possession thereof after the determination of the lease granted tot he lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."
Ld counsel for the appellant further relies upon Bhawanji Lakhamshi and others Vs. Himatlal Jamnadas Dani and others (1972) 1 Supreme Court Cases 388, where in it was held :
9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term MCA No. 18/11 : 7: with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English. Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Another, the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J.
speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the tenancy might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations :
"Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy."
10. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory MCA No. 18/11 : 8: immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy........."
It was further held in para 13 of the said judgment as :
"13. Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Section 116. We are not inclined to accept this contention. We have already shown that the basis of the Section is a bilateral contract between the erstwhile landlord and the erstwhile tenant. If the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in Ganga Dutt Murarka v. Kartik Chandra Das (supra) regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession."
He further relied upon Bhuneshwar Prasad and another Vs. United Commercial Bank and others (2000) 7 Supreme Court Cases 232, wherein para 7 it was held :
"7. ........ The whole basis of Section 116 is that a landlord is entitled to file a suit for ejectment and obtain a decree for possession and, therefore, his acceptance of rent after expiry of lease is an unequivocal act referable to his desire to assent to the tenant continuing possession. It would be absent in cases where there are restrictions as contemplated by rent laws. In such cases, therefore, it is for the tenant where it is said that the landlord accepted the rent not as a statutory tenant but only as a legal tenant indicating his assent to the tenant's continuing possession, to establish it."MCA No. 18/11
: 9: The Hon'ble High Court in M/s. Jeevan Diesels & Electricals Ltd. (supra) held :
"9................I must also note that the Supreme Court in the case of Sarup Singh Vs. S. Jagdish, 2006 (4) SCC 205 has held that receipt of rent after termination of tenancy can be taken as charges towards use and occupation because after all a tenant is bound to pay charges till he vacates the tenanted premises. Finally, I must add that after all the appellant has not led any evidence in the trial Court and assuming the case was pleaded of creation of a fresh tenancy by acceptance of higher rent, the appellant had necessarily to lead evidence to prove this aspect and which it did not. I thus fail to understand as to how this argument can at all be raised."
Thus, the plea raised by the ld counsel for the appellant regarding holding over is not going to help in any manner to the appellant.
8. Another contentions raised by the ld Counsel for the appellant that the impugned order passed by the ld. Trial Court under the provisions of under Order 12 Rule 6 is illegal in as much as there are issues which have to be required trial and to be decided accordingly and cannot be decided during disposal of the application under Order 12 Rule 6 of CPC.
Ld. Counsel for the appellant in support of his arguments relied upon State Bank of India v. M/s Midland Industries & Ors. I.A No. 177 of 1987, wherein it was held :
"...............If a case involves questions which cannot be conveniently disposed of on 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 O.12 R.6 C.P.C 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 favour of the plaintiff. The purpose of O.12 R.6 C.P.C 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. Likewise, where specific issues MCA No. 18/11 : 10: 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 O.12 R.6 C.P.C without proving those issues."
He further relied upon "Baljit Kaur Vs. United Insurance Company Ltd." wherein the Hon'ble Delhi High Court held in para 6 :
"6. Although Rule 6 of Order 12, CPC is couched in wide terms but it can be acted upon only when admission(s) are clear, unambiguous and unequivocal. It is not intended to be put into operation where there are serious questions of fact or law to be determined, like in the instant case. It is well settled that a judgment on admission by the defendant under Order 12 Rule 6, CPC is a matter of discretion and not a matter of right and when a case involves questions which cannot be conveniently disposed of on a motion, under the rule, the Court may, in the exercise of discretion, refuse the motion".
He further relied upon "Trishul Enterprises and Ors Vs. Smt. Shobha Rani Mehra" wherein the Hon'ble Delhi High Court held in para 19 :
"19. This leaves me to discuss and give my orders on the revision petition filed by the plaintiff against the order dismissing the application filed under Order 12 rule 6 CPC. Needless to mention that it is settled position by now that such an application could be allowed only when there is clear unambiguous, unconditional and unequivocal admission in the written statement to the averments made in the plaint. In the decision of this court in State Bank of India Vs. M/s Midland Industries & Ors. reported in AIR 1988 DELHI 153 that before the court could act under Order 12 Rule 6 CPC the admission must be clear, unambiguous, unconditional and unequivocal. It was further held in the said decision that if a case involves questions which cannot be conveniently disposed of on a motion under this rule, the court is free to refuse to exercise discretion in favour of the party invoking it and the said rule is not intended to apply where there are serious questions of law to be examined and decided......."
On the other hand ld. counsel for the respondent relied upon Rajiv Srivastava v. Sanjiv Tuli & Anr. wherein the Hon'ble Delhi High Court held in para 10 :
"10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass MCA No. 18/11 : 11: judgment on the basis of the statement made by the parties not only on the pleadings but also dehors the pleadings i.e either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under O. 10, R1 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matters in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein. Even otherwise, without making any reference to the said statement a decree of the nature, in our opinion, could have been passed when the terms and conditions of the registered lease deed are referred to, which is a part of the pleadings of the parties. Even in the pleadings, no dispute is raised with regard to execution of the registered lease deed between the parties. The registered lease deed was executed between the parties on the specific terms and conditions mentioned therein. The trial Court has referred to the same terms and conditions and after scrutinising the same has held that the rate of rent of the premises was Rs. 12,000/- per month and that relationship of landlord and tenant is admitted and that the said registered lease deed had came to an end by efflux of time. The notice dated 25th March, 1999, terminating the tenancy, was also examined by the learned trial Court in depth and on scrutinising the same it was held that the said notice was served on the appellant and that the said notice is legal and valid. We find no infirmity in the aforesaid conclusions and findings of fact recorded by the learned trial Court.................."
He further relied upon "Mrs. Kamal Saroj Mahajan Vs. Mr. Charanjit Lal Mehra & Ors." wherein the Hon'ble Delhi High Court held in para 5 :
"5. A bare perusal of Order 12 Rule 6, 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. Reference in this connection may be made to some decisions of this Court..............."
It was further held in the same para in the same judgment :
".................It was observed that once the relevant facts are admitted, there is no need to defer passing of decree under Order 12 Rule 6, CPC if on proper interpretation of relevant documents the petitioner is entitled to the decree. As against this, learned Counsel for the respondent cited a decision of the High Court of Calcutta in the case of AIR 1920 Calcutta (163), In that case the application under Order 12 Rule 6, CPC was declined because one of the plea taken MCA No. 18/11 : 12: by the defendant in written statement was that the suit itself was pre-mature even though defendant had offered to pay part of amount claimed. In the present case following relevant facts are admitted :
(1) there exists relationship of land lord and tenant between the parties;
(2) notice of termination under Section 106 of TP Act has been duly served and notice for enhancement of rent from time to time under Section 6-A of the Act had also been served;
(3) the rate of rent exceeded Rs. 3,500/- p.m when the notice under Section 106 of TP Act was served; (4) rent was always tendered on behalf of all four brothers and not individually on behalf of any of them........".
He further relied upon "I.T.D.C. Ltd. Vs. M/s Chander Pal Sood & Son" wherein the Hon'ble Delhi High Court held in para 18 :
"18. It may be recalled that in the written statement filed by the appellant relationship of landlord and tenant was admitted; service of notice dated 3rd March, 1998 from the respondent terminating the tenancy of the appellant / tenant requiring it to vacate the premises by the end of the tenancy in the month of March, 1998 was also admitted. In the face of these admissions, and of the fact that the tenancy of the appellant was on month-to-month basis nothing else survived in the defence of the appellant as decree for possession could be passed on these admitted facts. Other pleas raised in the written statement are really not relevant and in our considered view clear and unequivocal admissions noticed above are enough to decree the suit for possession of the respondent / plaintiff in respect of the said property. Only a decree of Rs. 5,000/- for the month of April, 1998 with proportionate costs was passed by the learned Trial Court. Under the circumstances, finding recorded by the learned Trial Court are valid and in accordance with do not call for any interference."
In facts and circumstances of the present case, this court has to refer the law laid down by superior court such as :-
In 155 (2008) DELHI LAW TIMES 431 titled as P.S. Batra v. S. Anoop Singh & Anr., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission-
Rule 6.(1) Where admissions of fact have been made either in the pleadings 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 MCA No. 18/11 : 13: 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) Whether 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 of which the said judgment was pronounced."
The scope and ambit of Order 12 Rule 6 of CPC was discussed by the Hon'ble Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v. Union Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the Hon'ble Supreme Court observed as under :
"Para 12. As to the object of the order 12 Rule 6, 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 rule, it is stated that '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 the relief to which according to the admission of the defendant, 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 fact of which, it is impossible for the party making such admission to succeed."
In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of this Court interpreted the provisions of Order 12 Rule 6 of CPC by holding as below :
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
Another Division Bench of this Court had the occasion to interpret the expression 'otherwise' as used under Order 12 Rule 6 of CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Anr., reported as 119 (2005) DLT MCA No. 18/11 : 14: 202 (DB). It was observed as below :
"Para 10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e. either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under Order 10 Rules 1 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matter in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein............."
In another judgment 154 (2008) DELHI LAW TIMES 237 titled as Pooja Aggarwal v. Sakata Inx (India) Ltd., it was observed by our own Hon'ble High Court in para 7 :
"7. In the instant case, the admission regarding relation- ship of landlord and tenant is not in dispute. The rate of rent is above Rs. 3,500/-. The service of notice has been amply shown by the plaintiff by placing the documents on record and the denial by the defendant is a sham and false and the Court can always disregard such sham and false denials. All conditions of passing an order under Order 12 Rule 6 of CPC being satisfied, the trial Court wrongly dismissed the application under Order 12 Rule 6 of the CPC."
In another case No. : RFA (OS) No. 1/2005 titled as Mr. Prem Narain Misra Vs. Faire Brothers Export and Import Ltd. decided on July 12 2007, it was observed by our own Hon'ble High Court in para 17 :
"The very objective and purpose of enacting the provision like Order 12 Rule 6 CPC is to enable the Court o pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts MCA No. 18/11 : 15: and circumstances of the case".
In another case C.R.P. No. 119/2007 titled as Mr. P. L. Verma Versus State Bank of India and Anr. decided on September 10, 2008, it was observed by our own Hon'ble High Court in para 4 :
"4. In order to pass a decree of possession in respect of tenanted premises, the Court has only to ensure that the tenancy of the tenant stands terminated either by a valid notice or by efflux of time and there was relationship of landlord and tenant, nothing else is required to be proved."
Further in 168 (2010) Delhi Law Times 501 titled as Karam Kapahi & Ors. Vs. Lal Chand Public Charitable Trust & Anr., it was observed by our own Hon'ble High Court in paras 48 to 51 :
48. "In the 54 Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion.
It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering Judges to use it 'ex debito justiciae a, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment."
49. "If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by 'pleading or otherwise in writing' but in Order 12 Rule 6 the expression 'or otherwise' is much wider in view of the words used therein namely:'admission of fact.......either in the pleading or otherwise, whether orally or in writing."
50. "Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan (Smt.) and Another,118 (2005) DLT 396 (SC)=III (2005) SLT 131=(2005) 11 SCC 279 at page 285 (para
8)]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas's Commentary on the Code, 16th Edition, Volume II, page 2177]."
51. " In the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India and Ors. VI (2000) SLT87=(2000) 7 SCC 120, this Court, MCA No. 18/11 : 16: while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment ".
9. In view of the law discussed herein above, it is admitted case of the parties that there was existing landlord and tenant relationship between the parties and the rate of rent exceeded Rs. 3,500/- per month. The defendant in such circumstances is not entitled for the protection of Delhi Rent Control Act, 1958 as observed herein. It is also an admitted fact that notice for termination of tenancy was issued to the plaintiff on 05/02/2010, wherein the tenancy was terminated w.e.f. 03/12/2009. The notice was duly served upon the appellant. It is also an admitted fact. The contention raised by ld counsel for the appellant that the notice dated 05/02/2010 is bad in law; inasmuch as the tenancy was terminated from back date, does not hold any water in view of the judgment of Hon'ble High Court in M/s. Jeevan Diseals & Electricals Ltd. (supra). Another contention of the appellant that the appellant is a tenant by holding over does not hold any water in view of the same judgment i.e. M/s. Jeevan Diseals & Electricals Ltd. (supra). Another contention of the appellant that the tenancy period is still to be expired is also not tenable in the light of clause 12 of the Lease Agreement dated 26/03/2009 as the said lease agreement is not in dispute between the parties. This execution of the lease agreement dated 26/03/2009 is admitted in para 3 of the written statement by the appellant.
10. In view of such observations, there is no infirmity and illegality in the impugned judgment passed by the ld trial court and, therefore, this appeal has no merit. The appeal is dismissed. There is no order of cost. Trial court record be sent back along with copy of this judgment and order. Appeal file be consigned to record room.
Announced in the Open Court today on 31/10/2011.
(Jitendra Kumar Mishra) Additional District Judge-III, Rohini Courts, Delhi MCA No. 18/11 : 17: MCA No. 18/11 31.10.2011 Present: None.
Vide separate judgment announced in the open court today, appeal is dismissed. There is no order of cost. Trial court record be sent back along with copy of this judgment and order. Appeal file be consigned to record room.
(Jitendra Kumar Mishra) ADJ-III, Rohini Courts,Delhi 31.10.2011 MCA No. 18/11