Delhi District Court
Sh Madan Joshi vs Kuljit Singh Butalia 6 The on 5 May, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
RCA DJ ADJ No. 57/2018
CNR No.DLSW010126572018
IN THE MATTER OF:
1. Sh Madan Joshi
2. Sh.Kanhaiya Lal Joshi
3. Sh. Sat Narain Joshi
[All s/o Late Sh. Balu Ram]
R/o RZ/C - 195, Jeewan Park
Uttam Nagar, New Delhi - 110059 ... Appellants
v.
1. Rajiv Kumar Sharma
S/o Late Bhagwat Prasad Sharma
R/o RZ/B-112-113, Jeewan Park
Uttam Nagar, New Delhi - 110059 ... Respondent
Date of filing of appeal: 04.07.2018
Date of judgment reserved: 07.02.2020
Date of pronouncement of judgment: 05.05.2020
JUDGMENT
1. The appellants, namely, Madan Joshi (appellant No. 1), Kanhaiya Lal Joshi (appellant No. 2) and Sat Narain Joshi (appellant RCA DJ ADJ No. 57/2018 Page No. 1/33 No. 3) have preferred an appeal under Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (hereinafter "CPC"), wherein they have assailed an order dated 05.06.2018 (hereinafter "impugned order") passed by the Ld. Senior Civil Judge, South West, Dwarka Courts Complex, Delhi (hereinafter "trial Court") in a suit for possession, recovery of arrears of rent and mesne profits titled as Shri Bhagwat Prasad v. Shri Madan Joshi & Ors. - CS No. 25384/2016 (hereinafter "civil suit").
2. The appellants/defendants are aggrieved by the impugned order, wherein the trial Court has allowed the motion moved by the respondent/plaintiff seeking judgment on admission under Order XII, Rule 6, CPC. The trial Court held the respondent/plaintiff entitled for decree of possession of an immovable property i.e. a shop, constituting part of a property bearing No. 112-113, Jeevan Park, Uttam Nagar, New Delhi against the appellants/defendants. The trial Court by impugned order also held the respondent/plaintiff entitled for recovery of rent as arrears of rent at the rate of ₹1,500/- (Rupees One thousand and five hundred only) per month from the date of the filing of the suit i.e. 18.04.2015 till date along with pendente lite interest @ 9% p.a. The trial Court by the impugned order directed the appellants/ defendants to pay the future rent at the same rate of ₹1,500/- (Rupees One thousand and five hundred only) upto 10th day of every month of the English calendar until the disposal of the suit on merits.
3. For the sake of clarity and convenience, the parties are also referred by their rank and status before the trial Court.
RCA DJ ADJ No. 57/2018 Page No. 2/334. The appellants are aggrieved by the impugned judgment on the following grounds:
(i) the trial Court passed the impugned order granting the decree of possession contrary to the facts of the case and provisions of law.
(ii) The trial Court failed to appreciate that the counter-claim preferred by the defendants (appellants herein) would become infructuous, as the trial Court has directed them to handover the possession of the suit property and also pay rent to the plaintiff/respondent.
(iii) The trial Court failed to appreciate that the plaintiff/respondent did not file a written statement to the counter-claim preferred by the appellants herein and consequentially the counter-claim preferred by the defendants/appellants stand admitted.
(iv) The trial Court failed to appreciate that without leading any evidence, no proper adjudication of the dispute could be made and the case at hand was not a case of judgement on admission.
(v) The trial Court failed to appreciate that there was no admission on the part of the defendants/appellants and the provisions of Order XII, Rule 6, CPC were not attracted to the facts of the case.
(vi) The trial Court failed to appreciate that no opportunity was granted to the defendants/appellants to lead evidence to RCA DJ ADJ No. 57/2018 Page No. 3/33 prove their defence that they are the bona fide purchaser and not tenants of the suit property.
(vii) The trial Court did not appreciate that no title documents were filed by the plaintiff/respondent about the suit property.
The trial Court also failed to consider that the application under Order XXII, Rule 3, CPC was not as per law, as there was no supporting affidavit filed by the legal representatives of the plaintiff. The legal representatives of the plaintiff did not furnish their complete addresses. The trial Court failed to consider that no authority as alleged in favour of Rajiv was furnished to the defendants/appellants till date.
(viii) The trial Court failed to appreciate that the plaintiff/respondent preferred a suit after a gap of 12 (twelve) long years without any explanation to the said effect.
(ix) The trial Court failed to appreciate the well settled legal principle of law that the Court has to examine the case as a whole on the basis of pleadings, evidence led by the parties.
(x) The impugned order passed by the trial Court is wholly perverse and not in accordance with law.
5. Mr. K.R. Kaushik, learned counsel for the appellants and Mr. C.M. Goyal, learned counsel for the respondents advanced their arguments in favour and against the memorandum of appeal.
6. Mr. K.R. Kaushik, learned counsel for the appellants submitted that the impugned order passed by the trial Court reeks of perversity, as the trial Court failed to appreciate and consider that the RCA DJ ADJ No. 57/2018 Page No. 4/33 appellants/defendants had also preferred a counter-claim of a decree of specific performance against the respondents/plaintiffs.
7. The learned counsel for the appellants further submitted that the impugned order passed by the trial Court fails to consider and appropriately weigh that the defence urged by the defendants (appellants herein) did not cover under 'admission' and the allowing of the application under Order XII, Rule 6, CPC and passing of the impugned judgment on admission is wholly erroneous and bound to be set aside by this Court.
8. Mr. Kaushik, learned counsel for the appellants further submitted that the trial Court failed to consider that the appellants herein were always ready and willing to pay the balance sale consideration of the suit property to the respondent.
9. The learned counsel for the appellants submitted that on bare perusal of the plaint it can be clearly inferred that no case for judgment on admission is made out in favour of the plaintiff and thus the impugned order needs to be set aside.
10. The learned counsel for the appellants drew attention of this Court to the plaint and asserted that no title documents have been filed by the plaintiff and the plaintiff solely relied upon the assertion by harping the fact that defendant No. 1 was inducted as his tenant of the suit property. The learned counsel for the appellants further submitted that there is no mention of the date and month of the last paid rent by the defendant No. 1. The learned counsel for the appellants to buttress his above submissions read out the paragraph Nos. 2 - 4, 7, 10, 12, 14 and 18 of the plaint.
RCA DJ ADJ No. 57/2018 Page No. 5/3311. Mr. Kaushik, learned counsel for the appellants submitted that the appellants Nos. 2 and 3 had purchased the suit property from the plaintiff for a sum of ₹3,00,000/- (Rupees Three lakhs only) on the basis of an oral agreement entered on 15.09.2004 amongst the parties. The learned counsel for the appellants further submitted that the plaintiff preferred a suit after expiry of 12 years from the date of the agreement to sale entered amongst them seeking possession and arrears of rent.
12. The learned counsel for the appellants concluded his arguments on the note that there has been no admission on the part of the appellants/defendants and the impugned order is liable to be set aside, as the same is untenable in the eyes of law.
13. Mr. C.M. Goyal, learned counsel for the respondents contended the submissions advanced by the learned counsel for the appellants. The learned counsel for the respondents submitted that there is no perversity in the impugned order and the trial Court has rightly passed a judgment on admissions in favour of the respondents/plaintiffs and against the appellants/defendants.
14. The learned counsel for the respondents submitted that the factum of landlord-tenancy has been admitted by the defendants not only in their written statement but also in the reply dated 29.09.2014 to the legal notice dated 29.08.2014 and also in the legal notice dated 29.09.2014 issued at the behest of defendant Nos. 2 and 3. The learned counsel for the respondents submitted that there are clear and unequivocal admissions by the defendants in their written statement, RCA DJ ADJ No. 57/2018 Page No. 6/33 particularly, paragraph Nos. 2, 12, 13 under reply on merits to the written statement.
15. To buttress his arguments, the learned counsel for the respondents placed reliance upon the judicial pronouncements of Babita Joshi v. Dilip Rawat;1 Rajpal Singh v. Deen Dayal Kapil;2 Praveen Saini v. Reetu Kapur3and Sudhi Sabharwal v. Rajesh Prithi.4 The learned counsel for the respondents submitted that no case for interference with the impugned order is made out, as the trial Court has rightly passed a judgment on admission and decree of possession along with arrears of rent against the appellants/defendants. The learned counsel for the respondents concluded his arguments on the note that the appeal be dismissed with exemplary costs and the same be awarded to the respondents.
16. Mr. Kaushik, learned counsel for the appellants rejoined his arguments and submitted that no case for judgment on admissions is made out against the appellants and the trial Court has erred by passing the impugned order contrary to the provisions of law and settled legal principle. The learned counsel concluded that the appeal be allowed by setting aside the impugned order and the respondents/plaintiffs be directed to restore the possession of the suit property to the appellants.
17. Along with the memorandum of appeal, the appellants had also preferred an interim application under Order XLI, Rule 5, CPC 1 (2015) 219 DLT 697 2 (2014) 207 DLT 651 3 (2018) 246 DLT 709 4 (2015) 218 DLT 290 RCA DJ ADJ No. 57/2018 Page No. 7/33 seeking stay of the impugned order until the pendency of the present appeal.
18. During the pendency of the appeal, the plaintiff preferred an execution petition - Ex.Pet. No. 1318/2018 and the possession of the suit property was handed over to the decree-holder.
19. This Court by order dated 01.11.2018 stayed the impugned order on the condition that the defendants/appellants deposit a sum of ₹1,00,000/- (Rupees One lakh only) towards the recovery of rent at the rate of ₹1,500/- (Rupees One thousand and five hundred only) from the date of the filing of the suit i.e. 17.04.2015 along with pendente lite interest @9% p.a. by way of fixed deposit receipt before the trial Court within 21 days from the date of the said order.
20. This Court vide order dated 01.11.2018 clarified that the fixed deposit receipt deposited by the appellants herein shall be released subject to the outcome of the present appeal.
21. Before marching ahead, it is observed from the trial Court record, particularly, the application under Order XXII, Rule 3, CPC and order dated 12.10.2017 that the plaintiff, namely, Bhagwat Prasad Sharma died on 20.07.2017 and his legal representatives were brought on record.
22. From the perusal of the trial Court record, it is further observed that the defendant Nos. 2 and 3, namely, Kanhaiya Lal and Sat Narain Joshi preferred a counter-claim of decree of specific performance against the plaintiff with regard to the suit property and have averred that they are ready willing to perform their part of the obligation and have the balance payment of ₹77,774/- (Rupees Seventy seven RCA DJ ADJ No. 57/2018 Page No. 8/33 thousand seven hundred and seventy four only) at their disposal to be paid to the plaintiff.
23. This Court also observes from the trial Court record that the plaintiff along with the plaintiff filed the following documents:
(i) Office copy of notice dated 29.08.2014 issued on behalf of Bhagwat Prasad Sharma to Madan Joshi;
(ii) Copy of reply dated 29.09.2014 issued on behalf of Madan Joshi to the notice dated 29.08.2014, and
(iii) Legal notice dated 29.09.2014 issued on behalf of Kanhaiya Lal and Satya Narain Joshi to Bhagwat Prasad Sharma.
24. Whereas, the defendants along with their written statement filed the following documents:
(i) Photocopy of statement of account of grocery shop maintained by Kanhaiya Lal and Satya Narain Joshi during the course of business reflecting that Bhagwat Prasad Sharma purchased items worth ₹15,266/- (Rupees Fifteen thousand two hundred and sixty six) adjusted towards total sale consideration amount;
(ii) Photocopy of documents towards conversion charges for miscellaneous use/commercial use deposited by Kanhaiya Lal and Satya Narain Joshi for 2005-2006 to 2013-2014, and
(iii) Photocopy of non-judicial stamp papers purchased by defendants for sale of the suit property on 06.01.2006.
(iv) Postal receipts dated 11.08.2015.
25. Order XII, Rule 6, CPC, which reads as under:
"6. Judgment on admissions - (1) Where admissions of fact have been made either in the pleading or RCA DJ ADJ No. 57/2018 Page No. 9/33 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.
(2) 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."
26. Order XII, Rule 6, CPC, confers wide discretion on the court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any question arisen between the parties.
27. Since the Order XII, Rule 6, CPC, permits passing of judgment at any stage without waiting for determination of other questions, it follows that there can be more than one decree that may be passed at different stages of the same suit. The legal principles behind Order XII, Rule 6, CPC, is to give the plaintiff a right to speedy judgment, so that either party may get rid of the rival claims which are not in controversy. The object of Order XII, Rule 6, CPC, is to enable a party, to obtain speedy judgment, at least, to the extent of the admissions of facts by the defendant to which the relief, the plaintiff is entitled. Rule 6, of Order XII, CPC, permits 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 XII, Rule 6, CPC, the admission must be clear, unambiguous, unconditional, and unequivocal.
RCA DJ ADJ No. 57/2018 Page No. 10/3328. Admissions in pleadings are either actual or constructive. Actual admissions consist of facts expressly admitted either in pleading or in answer to interrogatories. It is settled principle of law that to be entitled to a decree on admission, the admission has to be unequivocal. Further, the admission need not necessarily be in the substantive pleading of the parties. The admission may be contained in pleadings pertaining to interim application. Additionally, the admission may be contained even in a document admitted by the defendant.
29. The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc. These can be oral or written. The admissions can even be constructive admission 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 and circumstances of the case.
30. No doubt, for this purpose, the Court has to scrutinize the pleadings in detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denial, as well as inconsistent pleas taken in written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored.
31. In the case of Delhi Jal Board v. Surender P.Malik,5 the Division Bench of Hon'ble High Court of Delhi dealing with the provisions of Order XII, Rule 6 CPC held that the test to determine 5 (2003) 111 AD (Delhi) 419 RCA DJ ADJ No. 57/2018 Page No. 11/33 whether an admission falls within the ambit of Order XII, Rule 6 CPC, as under:
(i) whether admissions of facts arise in the suit;
(ii)whether such admissions are plain, unambiguous and unequivocal;
(iii) whether the defence set up is such that it requires evidence for determination of issues, and
(iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of facts are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.
32. Thus, the fine points of Order XII, Rule 6, CPC are:
(i) the admissions of facts can be made either in the pleading or otherwise, whether orally or in writing;
(ii)the admission must be unequivocal, unqualified, and unambiguous;
(iii) the Court can exercise its power under Order XII Rule 6 CPC at any stage either on the application of any party or its own motion;
(iv) the Court need not wait to determine any other question between the parties and may pass an appropriate order or judgment having regard to such admissions, and Order XII RCA DJ ADJ No. 57/2018 Page No. 12/33 Rule 6 CPC is not a mandatory provision rather a discretionary.
33. In Earthtech Enterprises Ltd. Vs. Kuljit Singh Butalia 6 the High Court of Delhi held and observed as under:
"11. In P.P.A. Impex Pvt. Ltd. VS. Mangal Sain Mittal 166 (2010) DLT 84 (DB), the decree of possession passed by the Single Judge, on an application under Order 12 Rule 6 of the Code, has been upheld by the Division Bench of this Court. In the said case, defendant had claimed an independent right in the suit property pursuant to an agreement to sell. As per the defendant his defence could have been substantiated only during the trial and no decree on admission could have been passed. Division Bench found the defence of defendant to be moonshine. Division Bench observed thus "the courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial". In Om Wati (supra) also, a decree of possession was passed in favour of the landlord on admission of tenant in the written statement-cum-counter claim that she came in possession of the suit premise as a tenant, however, she set up a defence of agreement to sell. In this context, Division Bench of this Court held as under:-
The defence of possession being protected under Section 53A of the Transfer of Property Act, 1882 in the context of the alleged oral agreement was negated by the learned Single Judge holding that Section 53A of the Transfer of Property Act would come into play only when there was a written agreement to sell under which possession was handed over and sale consideration paid.
With respect of the defence taken, we must hold the same to be a sham and of a kind which no Court of 6 2013 (199) DLT 194 RCA DJ ADJ No. 57/2018 Page No. 13/33 justice or equity would countenance. If these kinds of defences are to be permitted to be set up, it would create havoc in the society. Every tenant would start claiming that some relative of his or hers of he himself rendered some services of effected delivery of certain goods which was to be re-compensated by way of sale consideration for the sale of the tenanted property."
34. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India & Ors.,7 the Supreme Court of India while dealing with the contention of the appellant that while dealing with the effect of admission, if any, can be considered only at the time of trial; that the admission even in pleadings will have to be read along with Order VII, Rule 5(1), CPC and the Court need not necessarily proceed to pass an order or a judgment on the basis of such admission but call upon the party relying upon such admission to prove its case independently, in paragraph No. 12 of the judgment held as under:
"12. As to the object of 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 the 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 face of which it is impossible for the party making such admission to succeed."7
(2000) 7 SCC 120 RCA DJ ADJ No. 57/2018 Page No. 14/33
35. Even without referring to the expression "otherwise" in Rule 6 of Order XII, CPC, the Court can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission.
36. Admission generally arise when a statement is made by a party in any of the modes provided under Section 18 to 23 of the Evidence Act, 1872. Admissions are of many kinds; they may be considered as being on the record as actual if they are either in the pleadings or in answer to interrogatories or implied from the pleadings by non- traversal. Secondly, as between parties by agreement or notice. Since it has been considered that admission for passing the judgment is based on pleadings itself it is unnecessary to examine as to what kind of admissions are covered by Order XII, Rule 6 CPC.
37. In Charanjit Lal Mehra and Others v. Kamal Saroj Mahajan (SMT) and Another8 a similar view has been expressed inasmuch as it has been held that any admission can be inferred from the facts and circumstances of the case without any dispute, then in such a case in order to expedite and dispose of the matter such admission can be acted upon.
38. In Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd. & Ors.9 it was held by the Division Bench of the High Court of Delhi has held that an admission need not be made expressly in the 8 (2005) 11 SCC 279 9 (1997) 66 DLT 54 (DB) RCA DJ ADJ No. 57/2018 Page No. 15/33 pleadings. Even on constructive admission, court can proceed to pass a decree in plaintiff's favour.
39. In Parivar Seva Sansthan v. Dr. (Mrs) Veena Kalra & Ors.,10 the Division Bench of the High Court of Delhi traversed the scope of power under Order XII, Rule 6, CPC and held that any plea raised against the contents of the documents barred by Section 91 & 92 of the Evidence Act, 1872 or against statutory provisions can be ignored while applying Order XII Rule 6 of the Code of Civil Procedure. The relevant extract of the said judgment is reproduce hereunder: -
"Bare perusal of the above rule shows, that it confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The Court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying trial being barred by the Sections 91 and 92 of Evidence Act or other statutory provisions, can be ignored. These principles are well settled by catena of decisions. Reference in this regard be made to the decisions in Dudh Nath Pandey (dead by L.R.'s) v. Suresh Chandra Bhattasali (dead by L.R's), AIR 1986 SC 1509; Atma Ram Properties Pvt. Ltd. v. Air India, 65 (1997) DLT 533; Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd., 1997 II AD (Delhi) 518; Abdul Hamid v. Charanjit Lal & Ors., 72 1998 DLT 10 2000 (54) DRJ 914 (DB) RCA DJ ADJ No. 57/2018 Page No. 16/33 476 and Lakshmikant Shreekant v. M.N. Dastur & Co., 71 1998 DLT 564.
The use of the expression "any stage" in the said rule itself shows that the legislature's intent is to give it widest possible meaning. Thus merely because issues are framed cannot by itself deter the Court to pass the judgment on admission under order 12 Rule 6, CPC."
40. On the aspect of admissions being binding, I would place reliance upon the judgment of the Apex Court in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram & Others 11 because in this judgment the Apex Court has laid down the ratio that evidentiary admissions are different than judicial admissions. The Supreme Court held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence, etc., and that judicial admissions can be a basis in themselves for deciding the claim. The relevant paragraph of the judgment is reproduced as under:
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or 11 (1974) 1 SCC 242 RCA DJ ADJ No. 57/2018 Page No. 17/33 before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong."
41. The facts of the case urged in the plaint are that one Bhagwat Prasad Sharma, an absolute owner of an immovable property i.e. a shop, constituting part of property bearing No. 112-113, Jeevan Park, Uttam Nagar, New Delhi (hereinafter "suit property") had let out the same on a monthly rent of ₹500/- (Rupees Five hundred only) exclusive of other charges to Madan Joshi for opening a grocery shop for a period of 11 (eleven) months in the year 1987. The suit property was let out to Madan Joshi on a monthly rent of ₹500/- (Rupees Five hundred only) with the understanding that after expiry of 1(one) year there shall be an enhancement in the rent with the understanding that the tenant shall handover the vacant possession of the suit property peacefully to the landlord on his asking. The last paid rent by the tenant to the landlord was ₹1,500/- (Rupees One thousand and five hundred only) excluding the electricity charges and other charges.
42. Bhagwat Prasad Sharma sometime in the year 2010 approached Madan Joshi seeking possession of the suit property, as not only the same was in a dilapidated condition but also, he needed the same for bona fide needs to settle one of his sons. Despite assurance, Madan Joshi failed to vacate the suit property and stopped paying rent and electricity charges to Bhagwat Prasad Sharma. A notice dated RCA DJ ADJ No. 57/2018 Page No. 18/33 29.08.2014 was issued by Bhagwat Prasad Sharma to Madan Joshi seeking handover of the possession of the suit property and payment of arrears of rent to the tune of ₹69,000/- (Rupees Sixty nine thousand only) for the period 01.09.2010 upto 31.07.2014 along with interest @15% p.a.
43. A reply dated 29.09.2014 was issued on behalf of Madan Joshi, wherein it was stated that Madan Joshi and Bhagwat Prasad Sharma did not have a landlord-tenant relationship. It was stated in the said reply that the brothers of Madan Joshi, namely, Kanhaiya Lal Joshi and Sat Narain Joshi were the tenants of Bhagwat Prasad Sharma with regard to the suit property. It was further stated in the said reply that the plaintiff had entered into an agreement to sale of the suit property with Kanhaiya Lal Joshi and Sat Narain Joshi on 15.09.2004. It was urged by Bhagwat Prasad Sharma in the plaint that he never sold the suit property to Kanhaiya Lal Joshi and Sat Narain Joshi.
44. On 29.09.2014 itself, a notice was issued to Bhagwat Prasad Sharma by Kanhaiya Lal Joshi and Sat Narain Joshi, wherein it was stated that Kanhaiya Lal Joshi and Sat Narain Joshi were the tenants of Bhagwat Prasad Sharma. It was also stated in the notice dated 29.09.2014 that Bhagwat Prasad Sharma had entered into an agreement to sale with them on 15.09.2004.
45. Bhagwat Prasad Sharma has averred in the plaint that neither Kanhaiya Lal Joshi and Sat Narain Joshi were inducted by him as tenants of the suit property nor he entered into any agreement of sale with them. With the tenancy being determined by notice dated 29.08.2014, the possession of the suit property not handed over by RCA DJ ADJ No. 57/2018 Page No. 19/33 Madan Joshi, Kanhaiya Lal Joshi and Sat Narain Joshi, Bhagwat Prasad Sharma (plaintiff), preferred a suit for possession of the suit property, recovery of arrears of rent for a period of 53 months computed @ ₹1,500/- (Rupees One thousand and five hundred only) per month to the figure of ₹79,500/- (Rupees Seventy nine thousand and five hundred only) and mesne profits @ ₹10,000/- (Rupees Ten thousand only) per month from the date of the filing of the suit and until delivery of possession and interest @ 15%p.a. on the arrears of rent and damages from the date of the filing of the suit until payment.
46. Madan Joshi (defendant No. 1), Kanhaiya Lal Joshi (defendant No. 2) and Sat Narain Joshi (defendant No. 3) preferred a joint written statement in their defence to the claim preferred by Bhagwat Kumar Sharma against them. The defendants urged in unison that Kanhaiya Lal Joshi and Sat Narain Joshi were initially inducted as tenants in July 1986 and they opened a grocery shop from the suit property from 16.01.1987. However, the plaintiff entered into an agreement to sale with the defendant on 15.09.2004 with regard to the suit property for a total sale consideration of ₹3,00,000/- (Rupees Three lakhs only). It is averred by the defendants that against the total sale consideration they paid a sum of ₹2,00,000/- (Rupees Two lakhs only) in cash to the plaintiff on 15.09.2004 itself and an amount of ₹15,266/- (Rupees Fifteen thousand two hundred and sixty six only) was adjusted towards purchase of goods, articles made by the plaintiff from the shop of the plaintiff and an adjustment of a sum of ₹7,000/- (Rupees Seven thousand only) paid in the month of July 1986 was made. It is urged by the defendants that against the total sale consideration of RCA DJ ADJ No. 57/2018 Page No. 20/33 ₹3,00,000/- (Rupees Three lakhs only), the defendants have paid a sum of ₹2,22,226/- (Rupees Two lakhs twenty two thousand two hundred and twenty six only) and only the balance amount of ₹77,774/- (Rupees Seventy seven thousand seven hundred and seventy four only) is to be paid by the defendants to the plaintiff for the purchase price of the suit property. It is averred by the defendants in their written statement that it was agreed that the sale deed, transfer papers of the suit property would be executed after building a pucca structure and raising the height of the shop to the adjoining shop.
47. The defendants have averred in the written statement that the relation amongst the plaintiff and the defendants were very old and cordial and it is for that reason no written agreement qua the sale purchase of the suit property was written amongst them.
48. The defendants have averred in their defence that the sale consideration of ₹3,00,000/- (Rupees Three lakhs only) agreed was genuine, rationale and bona fide consideration for the suit property, as the plaintiff's brother, namely, Dheeraj Dhawaj Sharma sold his nearby shop for a sum of ₹3,00,000/- (Rupees Three lakhs only).
49. The defendants have urged in the written statement that the plaintiff had become dishonest, as the land prices in Jeevan Park area have skyrocketed and despite the defendants' being ready and willing to pay the balance amount of ₹77,774/- (Rupees Seventy seven thousand seven hundred and seventy four only) to the plaintiff, provided the plaintiff executed a sale deed in favour of the defendant Nos. 2 and 3.
RCA DJ ADJ No. 57/2018 Page No. 21/3350. The defendants have also averred in the written statement that in case the defendant Nos. 2 and 3 are the tenants of the suit property then why the plaintiff did not file any suit seeking recovery of possession since 2004 and the plaintiff waited for a period of 12 years to file the present suit.
51. The defendants have also averred in their written statement that post 15.09.2004, they deposited conversion charges for miscellaneous use/commercial use for the year 2005 - 2006 at the rate of ₹2,112/- (Rupees Two thousand one hundred and twelve only). The defendants are in possession of the documents - application form, payment receipts for the conversion charges. It is also urged by the defendants that tenanted premises bear the property No. RZB-112 and not RZB-
113.
52. The defendants in their written statement have denied that the monthly rent of the suit property was enhanced to ₹1,500/- (Rupees One thousand and five hundred only). The defendants have also refuted the claim of the plaintiff for requiring the suit property for a bona fide need of settling his son. The defendants denied the claim of the plaintiff of the defendant running various other shops in Delhi.
53. In the replication to the written statement of the defendants, the plaintiff refuted the defence urged by the defendants and reiterated his claim made in the plaint.
54. In a landlord-tenant dispute, a landlord seeking possession of the suit property along with arrears of rent has to show that there exists a landlord-tenant relationship, the tenancy stands determined RCA DJ ADJ No. 57/2018 Page No. 22/33 and there is no statutory bar seeking eviction of the tenant by the landlord.
55. This Court observes and finds that not only the defendants in their written statement but also in their reply dated 29.09.2014 to the notice dated 29.08.2014 have admitted the fact of being inducted as tenant of the suit property by the plaintiff. The defendants have admitted that they were inducted as tenants in the suit property back in the year 1986 and have been paying a monthly rent of ₹500/- (Rupees Five hundred only). It is observed that the defendants have denied that the monthly rent over period of time stood enhanced to ₹1,500/- (Rupees One thousand and five hundred only).
56. From the trial Court record, this Court observes that the tenancy not only stands determined by the plaintiff through issuance of a notice dated 29.08.2014 but also by preferring a suit and service of summons qua the same upon the defendants is a well-recognised effective notice for determination of the tenancy under Section 106 of the Transfer of Property Act, 1881 - See Nopany Investments (P) Ltd. v. Santokh Singh.12
57. With regard to the defence urged by the defendants that the plaintiff during his lifetime in the year 2004 on 15.09.2004 itself sold the suit property to the defendant Nos. 2 and 3 for a sum of ₹3,00,000/- (Rupees Three lakhs only), towards which they have already paid ₹2,22,226/- (Rupees Two lakhs twenty two thousand two hundred and twenty six only) and only the balance amount of ₹77,774/- (Rupees Seventy seven thousand seven hundred and seventy 12 (2008) 2 SCC 728 RCA DJ ADJ No. 57/2018 Page No. 23/33 four only) remains unpaid, this Court observes that the counter-claim of the defendants herein seeking decree of specific performance had been preferred only after the plaintiff's suit for possession, arrears of rent and mesne profits along with interest. It is also observed that the contention of the defendants that the plaintiff has preferred a suit after 12 years from the date of agreement to sale entered amongst them does not set the admissions of tenancy and payment of monthly rent of ₹500/- (Rupees Five hundred only) by them at naught.
58. Further, the onus with regard to the agreement to sale amongst the parties is upon the defendants to prove the same in their counter- claim on the well settled legal principle, one who asserts must prove. It is observed that not only the agreement to sale asserted by the defendants is purported to be an oral agreement but also the counter- claim of decree of specific performance has been preferred by the defendants herein on 11.08.2015. Thus, the contention of the defendants that the plaintiff had preferred a suit from which the present appeal has arisen after lapse of 12 years does not upheaval the clear, unambiguous, and unequivocal admissions made by the defendants in their written statement and reply dated 29.09.2014 and legal notice dated 29.09.2014. It is not out of place to observe herein that assuming the defendants are vindicated in the counter-claim against the plaintiff (respondent herein), the possession of the suit property can be restored on the legal principle of doctrine of restitution - See Section 144 of the Code of Civil Procedure, 1908.
59. This Court also observes that it is nobody's case that the suit property and the tenants (defendants herein) are covered under the RCA DJ ADJ No. 57/2018 Page No. 24/33 protective umbrella of Delhi Rent Control Act, 1958 or any other statute.
60. Section 116 of the Indian Evidence Act, 1872 (hereinafter "Evidence Act") states that no tenant of an immovable property or person claiming through such tenant, shall during the continuance of tenancy, be permitted to deny that the landlord of such tenant, at the beginning of the tenancy, a title to such immovable property. Thus, the contention of the appellants that the respondent/plaintiff did not have lawful title of the suit property and non-filing of the title document flies in its face and is rejected.
61. So far, this Court finds that there is no perversity in the impugned order to the aspect of passing judgment on admission qua possession of the suit property. However, this Court observes that the finding and determination of the trial Court that the defendants are liable to pay the arrears of monthly rent at the rate of ₹1,500/- (Rupees One thousand and five hundred only) from the date of the filing of the suit i.e. 18.04.2015 along with pendente lite interest @9% p.a. and to pay future rent at the same rate until the final disposal of the suit on merits is untenable in the eyes of law.
62. I, deem appropriate to reproduce the relevant paragraphs of the impugned judgment are reproduced in verbatim, as under:
"9. During the oral arguments, it is submitted on behalf of the plaintiffs that the tenancy as well as rate of rent and service of legal notice has already been admitted by the defendants. The defendants have also alleged that they entered into an agreement with the plaintiffs with respect to sale of the shop in question meaning thereby that they are specifically admitting the ownership of the plaintiff. It is further submitted that para no. 12, 13 and 14 are being RCA DJ ADJ No. 57/2018 Page No. 25/33 simply admitted by the defendants in their written statement and in these specific paragraphs of the plaint, the plaintiffs have submitted that the defendants failed to vacate the premises despite service of legal notice and hence he is liable to handover the peaceful possession of the premises and also to pay arrears of rent of Rs. 69,000/from 01.09.2010 to 31.07.2014 alongwith interest @ 15 % per month and also the plaintiffs have specifically denied the execution of any alleged agreement dated 15.09.2014 in favour of the defendants with respect to sale of the suit shop and these very admissions are more than sufficient for decreetal of the suit under the present applications for possession as well as for payment of arrears of rent / damages. Ld counsel for the plaintiffs have also quoted a number of citation with respect to the application moved U/o 12 Rule 6 CPC.
1. Praveen Saini Vs. Reetu Kapur & Anr. of Hon'ble Delhi High Court as RFA No. 21/18, decided on 08.01.2018.
2. Babita Joshi (Through Her Duly Appointed Attorney) Vs. Dilip Rawat of Hon'ble Delhi Bhagwat Prasad & Ors. vs. Madan Joshi & Ors. High Court as CM (M) 393/2014 decided on 21.04.2015
3. Shri Sudhir Sabharwal Vs. Shri Rajesh Pruthi of Hon'ble Delhi High Court as CM (M0 1087/13 & CM No. 16069/13, decided on 07.08.2014.
4. Rajpal Singh Vs. Deen Dayal Kapil of Hon'ble Delhi High Court as RSA No. 129/13 & CM No.s 1022324/13, decided on 23.01.2014.
5. Mitter Sen Jain Vs. Shakuntala Devi of Hon'ble Delhi High Court as CA 6676/1999, decided on 19.04.2000.
6. Beant Singh Vs. Compack Enterprises India (P) Ltd. of Hon'ble Delhi High Court as CM (M) No. 193/2013, decided on 12.11.2014.RCA DJ ADJ No. 57/2018 Page No. 26/33
One more citation has been filed by the plaintiffs with respect to the application U/o 39 Rule 10 CPC i.e. Rabhubir Rai Vs. Prem Lata & Anr. of Hon'ble Delhi High Court as FAO (OS) 597/2013 & CM no. 2073/13 (for Stay) decided on 15.05.2014.
10. During the oral arguments, addressed on behalf of defendants, it is alleged that the plaintiffs are claiming to be the owner of the property in question even without filing a single document qua the title on record. It is also stated that the tenancy is there since 1986 and as per his own submissions, the plaintiffs approached defendants in the year 2010 without clarifying as to why he did not approach the defendants before said period when he was actually willing to take over the possession of the property in question. It is also stated that no document has been filed to prove the rate of rent to be Rs. 1500/. It is stated that the rent was not given since 2004 for the reason that the agreement with respect to the suit shop was already entered into by defendants with the father of the plaintiffs with respect to which the counter claim has already been filed against which, no reply has been filed by the plaintiffs till date. It is also argued that the suit is barred by limitation also as to when the rent was not paid since September 2010, why neither any legal notice was served earlier nor any suit was filed for the same and even the plaintiffs cannot claim the arrears of rent for more than 03 years time period, prior to date of filing the suit. It is alleged that a number of triable issue are being raised by defendants in their written statement as well as the counter claim which are required to be proved on the basis of evidence by the parties and hence both the applications under discussion are liable to be dismissed. Ld counsel for defendants have also quoted the following citations in support of his arguments :
M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr.
cited as civil appeal No. 4344 of 2010 of Hon'ble Supreme Court of India.RCA DJ ADJ No. 57/2018 Page No. 27/33
11. In the rebuttal arguments by the learned counsel for plaintiffs, it is stated that when the defendants have once admitted the relationship of landlord and tenant they are not entitled to dispute the title of the plaintiffs qua the suit property. So far as, the non filing of written statement with respect to the counter claim is concerned, copy of certain papers with respect to the counter claim is being supplied today only in compliance of the previous court orders and the fresh opportunity is also granted by the court for filing the reply to the plaintiffs(defendant in counter claim). It is also pointed out by ld counsel for the plaintiffs that even if both the applications are decided in favour of the plaintiff, then also the claim of the defendant as mentioned in the counter claim is not going to be affected in any manner.
12. In view of the whole facts and circumstances of the present matter, certain facts are important to be taken into account which are as follows:
i) Firstly, the tenancy as well as the rate of rent for a sum of Rs.500/ remains specifically admitted by the defendants. So far as the increased rate of rent @ Rs.
1,500/ is concerned, when agreement alleged by the defendant no. 2 & 3 still remains not proved and service of legal notice with respect to enhancement of rent is admitted, then presumption falls very much in favour of the plaintiff only.
ii) Secondly, defendant no.2 and 3 are claiming that they entered into an agreement to sell qua the suit shop with the plaintiff for total consideration of Rs. 3 lakhs out of which the amount of Rs. 2,22,226/ already stands paid and the counter claim has already been filed for payment of the rent of the amount that is Rs. 77,774/ and execution of sale deed by plaintiffs in favour of the defendants / counter claimants but no written agreement is there to establish the averments of the defendants.
iii) Thirdly, the service of legal notice is being admitted with respect to the termination of tenancy by the defendants, however, it is stated that when the oral agreement RCA DJ ADJ No. 57/2018 Page No. 28/33 to sell was already there, then there was no point in serving the said legal notice.
iv) Fourthly, on one hand the defendants are submitting that they have entered into an agreement to sell with respect to the suit shop and on the other hand, they are raising an objection that no title documents are being filed on record by the plaintiffs. In view of the same it is apparent that when the defendants are going to purchase the suit shop from the plaintiffs, they are actually admitting the ownership rights of the plaintiffs qua the suit shop and hence their objection with respect to the title of the plaintiffs remains to be not sustainable.
v) Lastly, the defendants are submitting that when they have already entered into the agreement to sell, there was no point in making the payment of rent to the plaintiffs by them but admittedly the said agreement is not being laid down in black and white and the same could not be worked out or allegedly complied with by the plaintiffs and the defendants have failed to clarify as to when neither the said agreement could be complied with for such a long period since 2004, nor the defendants are making payment of rent to the plaintiffs then in what capacity they are holding the possession of the suit shop. In this regard the pendency of counter claim is of no effect for the reason that the decision of the court with respect to the applications in hand is not going to affect the proceedings of counter claim at this stage.
13. In view of the above discussion, it is hereby concluded that there is no requirement for even recording the evidence of the parties and right of the plaintiffs for recovery of possession as well as for recovery of arrears of rent stand proved on the basis of pleadings of the parties as well as documents relied upon by the plaintiff.
14. Hence, both the present applications stand allowed and the suit is partly decreed in favour of the plaintiffs for possession whereby directing the defendants to handover the peaceful, vacant, physical possession of the shop, part of the property bearing no. B 112113, Jeevan Park, Uttam Nagar, RCA DJ ADJ No. 57/2018 Page No. 29/33 New Delhi to the plaintiffs within 60 days passing of the present order.
15. Decree sheet of part decree be prepared accordingly.
16. The plaintiffs are also held entitled for the recovery of rent, whereby defendants are directed to make the payment of the arrears of rent from the date of filing the present suit dated 18.04.2015 till date @ Rs. 1500/per month along with pendente lite interest @ 9 % per annum and also for making payment of future rent at the same rate upto 10th date of every month according to the English Calendar till final disposal of suit on merits. So far as the payment of rent with respect to the time period prior to filing of present suit is concerned, the same shall be considered after the conclusion of the trial. It is hereby clarified that if any previous payment is made by defendants to plaintiff with respect to arrears of rent or any payment to be made in compliance of the present order, same be liable to the adjusted against the judgment on merits."
63. This Court finds and holds that the clear and unambiguous admission by the defendants are with regard to their induction as tenant by the plaintiff. The defendants have also admitted their tenancy for a monthly rent of ₹500/- (Rupees Five hundred only) and have categorically denied that the monthly rent was enhanced to ₹1,500/- (Rupees One thousand and five hundred only). In short, the admission by the defendant is with regard to last rent paid by them being ₹500/- (Rupees Five hundred only).
64. Another aspect, which needs to be addressed is of the limitation period for the claim urged by the plaintiff against the defendants. Though no submissions and contentions have been advanced by the learned counsels for the parties on the aspect of limitation but I feel RCA DJ ADJ No. 57/2018 Page No. 30/33 that all claims are to always be tested on the anvil of limitation, maintainability whether the same is not ousted by any applicable law.
65. The Limitation Act, 1963 provides a prescribed period of 12 years of limitation for a suit for possession of an immovable property. With regard to claim of the arrears of rent, Article 52, Part II, First Division - Suits, The Schedule of the Limitation Act, 1963 provides a prescribed period of 3 years from the date when the arrears become due.
66. In the case at hand, the plaintiff has urged a claim of arrears of rent of ₹79,500/- (Rupees Seventy nine thousand and five hundred only) computed at the monthly rent of ₹1,500/- (Rupees One thousand and five hundred only) for a period of 53 months i.e. 01.10.2010 until 28.02.2015. It is plaintiff's case that the defendant No. 1 stopped paying rent since 30.09.2010. It is observed from the trial Court record that there is no written acknowledgement by the defendants which would have an effect of the limitation period being extended in seritam - See Section 18 of the Limitation Act, 1963. The plaintiff is at liberty to lead evidence to the above effect but at this stage, the claim of the plaintiff with regard to the arrears of rent can only be confined for a period of 3 years i.e. 36 months and not 53 months.
67. In view of the above observations and reasons, this Court is of the considered view and opinion that the impugned order has to be interfered by exercising the powers vested in this Court under Section 96, 107 and Order XLI, CPC and vary the impugned order.
68. Accordingly, this Court upholds the decree of possession passed by the trial Court on the judgment on admissions, however, this Court RCA DJ ADJ No. 57/2018 Page No. 31/33 does find that the impugned order is to be varied with regard to the decree of arrears of rent. This Court observes that as the exact date of handing over of the possession of the suit property by the defendants has not been divulged by the parties, the defendants would be liable to pay rent at the rate of ₹500/- (Rupees Five hundred only) to the plaintiff w.e.f. 18.04.2012 until the date of handing over of the possession of the suit property.
69. Accordingly, this Court rules and direct the defendants to pay monthly rent to the plaintiff at the rate of ₹500/- (Rupees Five hundred only) for the following period:
(i) 18.04.2012 upto 17.04.2015 i.e. date of filing of suit, and
(ii)18.04.2015 until the date of handing over of possession of the suit property before the executing Court/trial Court.
70. This Court rules that the plaintiff's claim of awarding interest on the arrears of rent and the claim of mesne profits at the rate of ₹10,000/- (Rupees Ten thousand only) per month can be adjudicated by the trial Court once the parties have led their evidence in a full- fledged trial.
71. The fixed deposit receipt for a sum of ₹1,00,000/- (Rupees One lakh only) deposited by the appellants/defendants with the trial Court in terms of order dated 01.11.2018 passed by this Court staying the impugned order shall be retained by the trial Court until final decision of the suit by the trial Court in accordance with law. The trial Court is at liberty to direct the release of the said fixed deposit receipt to the vindicating party as per the judgment passed in its wisdom and in accordance with law.
RCA DJ ADJ No. 57/2018 Page No. 32/3372. However, it is expedient to direct the trial Court to ensure that the concerned branch manager of the Bank of India is directed to ensure that the said fixed deposit receipt is renewed automatically until further orders of the trial Court so that no interest is lost on the said fixed deposit receipt.
73. The trial Court is also directed to ensure that the counter-claim preferred by the appellants/defendants is registered separately in terms of the directions and guidelines passed by the Hon'ble High Court of Delhi in M/s PSA Nitrogen Limited v. Maeda Corporation & Ors. - CM(M) No. 4/2019 date of decision 17.09.2019.
74. The appeal is partly allowed, as the impugned order stands varied and modified in above terms. Consequentially, all interim applications stand dismissed as infructuous. The parties are directed to appear before the trial Court on 06.06.2020. There shall be no order as to cost.
75. Let a decree sheet be drawn accordingly.
76. Ahalmad is directed to return the trial Court record (TCR) along with the certified copy of the judgment and decree, as per Order XLI, Rule 37, CPC and applicable Rules.
77. File be consigned to record room only after due compliance and necessary action, as per Rules.
HARGURVARIND Digitally signed by HARGURVARINDER SINGH JAGGI ER SINGH JAGGI Date: 2020.05.05 15:42:25 +05'30' Pronounced in the open Court (Hargurvarinder Singh Jaggi) on May 05, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi RCA DJ ADJ No. 57/2018 Page No. 33/33