Delhi District Court
Sh. Abhijit Basu & Others vs Smt. Zothanpari Hrashel Tuli on 1 September, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
In the matter of: -
Suit No. 21/2005.
Sh. Abhijit Basu & Others. ... Plaintiffs.
Vs.
Smt. Zothanpari Hrashel Tuli. ... Defendant.
- : ORDER : -
1.By this order, I propose to dispose of an application u/o 12 r 6 CPC of the plaintiffs wherein the plaintiffs have sought decree on the basis of admission.
2. In the application in hand, the plaintiffs have stated that the tenancy of the defendant qua suit property was terminated by serving a legal notice u/s 106 of the Transfer of Property Act; since the termination of the tenancy, the Contd... ... ...
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defendant is a trespasser in the tenanted premises; that the defendant in a suit for permanent injunction herself admitted to be a tenant in respect of the demised premises paying monthly rent of Rs. 13,200/- to the plaintiff no. 1; that the defendant has filed written statement in the present suit and on bare perusal of the written statement, it is clear and evident that no defence has been raised by the defendant and, in fact, the defendant has admitted the basic ingredients which are necessary and essential for passing a decree of possession of the tenanted property; that in view of Section 116 of the Indian Evidence Act, the defendant is estopped from challenging the ownership of the plaintiff qua the demised premises as she has admitted them to be her landlord; that the relationship of landlord and tenant between the parties to the suit has already been determined by this Court vide order on an application u/o 39 r 10 CPC of the plaintiffs. It is, therefore, stated that on the basis of the admission of the defendant, the suit of the plaintiffs for possession be decreed.
3. In reply, the defendant has opposed the present application and took the preliminary objections that the application is barred by res judicata because the plaintiffs in an earlier suit bearing no. 36/97 in the Court of Sh. D.K. Jangala, Ld. Civil Judge, Delhi have also moved an Contd... ... ...
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application u/o 12 r 6 CPC and the said application was dismissed by the Court of Sh. D.K. Jangala, Ld. Civil Judge, Delhi vide order dated 17.8.2004; the said order was never challenged by the plaintiffs in appeal and has attained finality. It is further stated that the plaintiffs have withdrawn the earlier suit before the Ld. Civil Judge, Delhi u/o 23 r 1 CPC without seeking any permission to file afresh suit and because of the provisions of order 23 r 1 CPC, the present suit is barred after the withdrawal of the suit no. 36/97. The defendant has put reliance in the preliminary objections on AIR 1990 Kerala 215. The defendant has also referred various citations of the Hon'ble Delhi High Court and the Hon'ble Rajasthan High Court stating that the defendant has raised such objections in the written statement which goes to the very root of the case and, as such, it would not be proper for this Court to exercise discretion u/o 12 r 6 CPC. It is further stated that there is no admission on record for consideration of the prayer u/o 12 r 6 CPC made by the plaintiffs in the present application.
4. I have heard the learned counsel for parties. The learned counsel for defendant stated that the suit itself is not maintainable as is stated in the written statement and, therefore, there is no question of decreeing the suit u/o 12 r 6 CPC. In support of his contentions, the learned counsel Contd... ... ...
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for defendant has referred and relied upon the following citations: -
1. AIR 1990 Kerala 215.
2. (1999) 8 SCC 396.
3. AIR 2000 Delhi 349.
4. AIR 2004 Orissa 152.
5. AIR 1988 Delhi 153.
5. After putting reliance upon the above citations, it was vehemently argued on behalf of the defendant that the defendant has raised certain preliminary pleas with regard to the maintainability of the suit and the said pleas need to be decided before the plaintiffs can be held entitled to any decree u/o 12 r 6 CPC. It is further argued that for the decree u/o 12 r 6 CPC, the admission must be unconditional, clear and unequivocal as is not the case in the present suit. It is further argued that the application itself is ambiguous because the plaintiffs/applicants have nowhere stated or detailed the so called admission on the basis of which the plaintiffs have sought decree on admission.
6. The learned counsel for plaintiff on the other hand argued Contd... ... ...
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that in reply to the averments in para no. 9 of the plaint wherein the plaintiffs have alleged that the tenancy of the defendant has been terminated vide legal demand notice dated 6.1.2005, the defendant has simply stated that the contents of para no. 9 of the plaint in so far as pertinent to the demand notice dated 6.1.2005 are a matter of record and that the demand notice under reference was bad in law and not a proper and valid notice. It is argued that the said reply of para no. 9 of the plaint is ambiguous and is not specific denial as is the requirement of the law. If the contents of the para no. 9 of the plaint are not specifically denied, it shall be deemed to be admitted. Meaning thereby, the defendant has admitted the termination of the tenancy. With regard to the relationship of the landlord and tenant between the parties, the learned counsel for plaintiff has argued that the said relation already stands adjudicated and the defendant is estopped from taking that stand because of her own admission in that regard in a previous suit instituted against the plaintiffs. With regard to the previous suit withdrawn by the plaintiffs, it is argued that withdrawal of the said suit does not create a bar to file the present suit because the present suit has been instituted on the basis of a fresh cause of action. In law there is no bar to a landlord to issue a fresh notice of termination of tenancy after disposal of earlier suit based on an earlier demand Contd... ... ...
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notice u/s 106 of the Transfer of Property Act. It is, therefore, argued that the plaintiff is entitled to the decree u/o 12 r 6 CPC.
7. I have considered the rival submissions made at bar and gone through the case file carefully. During the arguments, the learned counsel for defendant has also referred the order dated 29.8.2007 passed by the Hon'ble High Court of Delhi and a copy of which was placed on record by him. The copy of the said order has already been received by this Court through proper channel. It was argued that the Hon'ble High Court of Delhi in the said order restored the defence of the defendant on the condition of the deposit of amount ordered by this Court u/o 39 r 10 CPC. It is further argued that in the said order the Hon'ble High Court of Delhi has categorically stated that the application u/o 12 r 6 CPC would be decided by this Court without being influenced in any way by the observation of the Trial Court in the order on the application u/o 39 r 10 CPC because the consent order dated 29.8.2007 shall not be construed to have upheld the said order of the Trial Court. It was, therefore, argued that the Court is to consider the point on admission afresh without going on the earlier observation made by this Court in the previous orders.
Contd... ... ...
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8. The principle of law for passing an order u/o 12 r 6 CPC has been laid down by our own Hon'ble High Court in its latest pronouncement referred below: -
1. The case cited as 2006 V AD (DELHI) 667 titled as Charanjit Singh Vs. Kehar Singh is quite relevant wherein Hon'ble Double Bench Headed by Hon'ble Mr. Justice Swatanter Kumar was pleased to hold in para no. 8 as under: -
"8. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words 'May' and 'make such orders' or 'give such judgment' spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial cannons."
2. The Hon'ble High Court of Delhi in IA No. 5912/2004 in CS (OS) 1578 of 2002 titled as Express Towers Vs. Mohan Singh decided on 22.8.2006 (MANU/DE/8926/2006), it was held as under: -
Contd... ... ...
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"19. I have heard the learned counsels for the parties in detail and perused the pleadings and application and reply and the judgment relied by them. It is no more res integra that before a court can act under order 12 rule 6, admission must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise serious preliminary pleas which are likely to non-suit a party, a court in its discretion can refuse to pass a decree."
3. The Hon'ble High Court of Delhi in RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/2006), was pleased to hold as under: -
"6. The powers under order
12 rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle Contd... ... ...
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stated by MANU/SC/0505/1970 Chanchal V. Jalaluddin. Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally decline in the cases of the later category."
9. While keeping in view the above law laid down by our own Hon'ble High Court, the alleged admission on the basis of which the plaintiffs have sought decree u/o 12 r 6 CPC are found not to be unambiguous and unequivocal. Moreover, the defendant has also taken the preliminary objection with regard to the maintainability of the present suit and in that situation as per law laid down by our Hon'ble High Court in 2006 V AD (Delhi) 667 (supra), it would not be appropriate to exercise the discretion of the Court for passing a decree on admission. The application u/o 12 r 6 CPC is drafted in such a matter which does not give a clear picture of the admission on the basis of which the plaintiffs have claimed passing of the decree u/o 12 r 6 CPC. For the above reasons, I do not find any merit in the application in hand Contd... ... ...
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and the same is, accordingly, dismissed.
Announced in the open Court on 1.9.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI Contd... ... ...