Delhi District Court
A C Jose Son Of Late A I Chako vs Urmila Vikramjit Wife Of Shri Vikramjit on 5 February, 2016
IN THE COURT OF SH. SURINDER S. RATHI: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:
NEW DELHI DISTRICT
MCA No. 63/15
A C Jose son of Late A I Chako
R/o 72, Todar Mal Road, Bengali Market,
New Delhi. ......Plaintiff
VERSUS
1. Urmila Vikramjit wife of Shri Vikramjit
R/o 72, Todar Mal Road, Bengali Market,
New Delhi.
2. Vikramjit son of late Durga Das
R/o 72, Todar Mal Road, Bengali Market,
New Delhi. .....Defendants
Date of Institution: 04.12.2015
Date of Final Arguments: 05.02.2016
Date of decision: 05.02.2016
JUDGMENT
1. By this order I shall dispose of appeal preferred by appellant/defendant against the order and part decree under Order 12 Rule 6 CPC passed by Ld. Civil Judge on 29.10.2015 whereby decree of possession was passed in favour of respondents/plaintiffs. Appellant was directed to vacate the suit property, a one room set.
MCA No. 63/15 Page 1 of 8 Appearance
2. I have heard arguments of Ld. Counsel for appellant/defendant Shri Shakeel Ahmad and Ld. Counsel for respondent/plaintiff Shri Akshay Makhija and have perused the appeal file as well as trial Court record. Respondent/Plaintiff's Case before Trial Court
3. Case of the respondent/plaintiff as per plaint filed before Ld. Trial Court is that respondent No.1 is owner of ground floor of property No.72, Todar Mal Road, Bengali Market, New Delhi while respondent no.2 is her husband. Under a oral agreement, appellant/defendant was allowed to occupy one room on the ground floor with attached bathroom on licence basis at Rs.12,000/ per month licence fee which was later enhanced to Rs.16,000/ per month. When the appellant was asked to vacate the suit property, he gave an assurance that he would vacate it on 31.07.2014. Thereafter, he promised to vacate it on 15.08.2014. Appellant/defendant issued a letter by plaintiff on 22.07.2014 for vacation of the property as assured by 15.08.2014. However, vide his reply dated 29.08.2014, defendant/appellant expressed his unwillingness to vacate.
4. Thereafter a legal notice of termination of licence was issued to him on 01.09.2014 through Speed Post whereby occupation charges @ Rs.25,000/ per month were demanded with interest @ 18% per annum. It was replied by the defendant/appellant on 18.09.2014 submitting therein that there is an oral tenancy under the ownership of the property of plaintiff no.2. Finally, the suit for possession, recovery of licence fee and mesne profits was filed before the MCA No. 63/15 Page 2 of 8 Court of Ld. Civil Judge.
Appellant/defendant's case:
5. Upon being served by summons of the suit, detailed Written Statement was filed by the appellant/defendant claiming that he is in possession of suit property consisting of a single room set as a tenant for the last around ten years on the basis of oral tenancy between him and plaintiff no.2. He was paying a rent of Rs.10,000/ apart from Rs.2,000/ from using the air conditioner. The rent was increased to Rs.12,000/ and thereafter to Rs.
16,000/ and the payment was being made by way of cheque. He was assured by plaintiff no.2 that he would be allowed to occupy the property for another two years.
6. As per him a dispute arose between him and plaintiff no.1 when she removed the air conditioner. Thereafter health of defendant deteriorated. When he objected to the same he was threatened with eviction and was subjected to misbehaviour and torture. He admitted receipt of legal notice dated 01.09.2014 and the reply filed qua the same. He prayed for dismissal of the suit.
7. Upon completion of pleadings, according to the admission available in the pleadings Ld. Civil Judge heard the parties and passed the order under Order 12 Rule 6 of CPC on 29.10.2015 directed defendant to vacate the property while deferring the issue of mesne profit for evidence. Aggrieved by this order, defendant has preferred the appeal.
MCA No. 63/15 Page 3 of 8
8. While opening his submission, the only plea raised by ld. Counsel for appellant/defendant is that plaintiff no.1 is not the owner of the property and rather it is owned by her husband plaintiff no.2. I see no strength in this plea in so far as in such like suits there is no necessity to undertake an inquiry as to who is the actual owner of the property. Once it is admitted by the appellant/defendant that he is a tenant and he was inducted there in the property by the coplaintiff, he is estopped from further dwelling into the issue on the title of the property.
9. Ld. Trial Judge has rightly placed reliance on case tilted Atma Ram Properties Pvt. Ltd. Vs. Pal Properties Pvt. Ltd, 2002 (62) DRJ 623. I see no merits in the appeal on the pleas that an oral assurance was given to him that he will not be evicted for two years in so far as no locking period can be legally asserted under the oral tenancy pleas. At the most, oral tenancy can be a month to month tenancy.
10. At this juncture, considering the fact that appellant/defendant is a aged man of 76 years, respondent No.2 who is himself 83 years old has offered that in case the appellant gives him some undertaking to vacate the property he can give him three months time for doing the same. This offer was accepted by the appellant but he requested for five months time. Both the parties further agreed that a four months time would be given on appellant's undertaking for vacating the suit property.
MCA No. 63/15 Page 4 of 8
11. However, before the appellant has to sign an undertaking in this regard he made a request to the Court that he is not desirous of giving any undertaking and would like to prusue his appeal on merits.
12. While making further submissions on this appeal, ld. Counsel for appellant has relied on Jeevan Diesel & Electrical Ltd. Vs. Jasbir Singh Chadda HUF, AIR 2010 SC 1890 to stress that before passing an order judgment the admission sought to be relied must be clear and unambiguous. He has also relied on S M Asif Vs. V K Bajaj, 2015 SAR (Civil) 1069 to highlight that mere admission of landlord/tenant relationship does not tentamount to passing of decree under Order 12 Rule 6 CPC more so it is a discretion and not a right of a party to seek judgment on admission. He has also relied upon Radhika Choudhary Vs. M/s. Payal Visions Pvt. Ltd., RFA No. 81 of 2009 on landlord/tenant issue.
13. On the basis of above judgments, it is argued by Ld. Counsel for the appellant that in so far as the legal notice of termination of tenancy was issued only by plaintiff no.1 Smt. Urmilla Vikramjit and not by plaintiff no.2 Shri Vikramjit, the tenancy in question cannot be considered to be legally terminated. As per him he was inducted as a tenant by Shri Vikramjit. This plea of the appellant has been dealt with at length from para 16 onwards in the impugned order by Ld. Civil Judge. She has rightly relied on Nopany Investment Pvt. Ltd. Vs. Santosh Singh, (2008) SCC 728 wherein it was ruled by the Supreme Court that it is a well settled that filing of eviction suit MCA No. 63/15 Page 5 of 8 under general law itself is a notice to quit on the tenant. It was also ruled that there was no need to serve a separate notice of termination on tenancy U/s. 106 of Transfer Property Act in order to enable the landlord to seek a decree of eviction of tenant.
13. Similar views were expressed by Hon'ble Supreme Court in V Dhanapal Vs. Yesodai, AIR 1979 SC 1745.
14. As regards the plea of unambiguous admissions, respondent/landlord has relied on Ramadhai Vs. UP State Handlooms, 91 (2001) DLT 386, it has been ruled that in order to invoke Order 12 Rule 6 CPC Court has to scrutinize the pleadings in their totality and ignore the evasive and unspecific denials either as to relationship or as to service of notice or as to nature of tenancy.
15. Coming to the facts of case in hand, both in the pleadings and during the course of arguments, it is conceded by the appellant that he is the tenant in the property. The factum of receipt of summons of the suit has not been denied by him wherein he is required to evict the property. His plea that the notice dated 01.09.2014 was not issued by plaintiff no.2 stands nullifies in so far as his self claimed landlord Mr. Vikramjit is himself a coplaintiff in filing of the suit. As such even if, as directed by the Hon'ble Supreme Court the suit is treated as notice of termination in tenancy, still the facts available on record are sufficient to pass a decree under Order 12 Rule 6 CPC.
16. The manner in which the appellant is desirous of dragging this whole matter, including the his endevour to drag this appeal, shows that despite MCA No. 63/15 Page 6 of 8 having no merits he only intends to remain in the property as long as possible under the garb of pending litigations.
17. I also do not find any strength in the plea that in the absence of any application Ld. Civil Judge ought not have invoked Order 12 Rule 6 CPC.
Order 12 Rule 6 CPC "Judgment on admissions.(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(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"
18. In the facts and circumstances, the decision taken by the ld. Civil Judge to suo moto invoke Order 12 Rule 6 CPC rather deserves to be appreciated. The text of the statutory provision clearly indicates the intent of the Parliament that in deserving cases decrees shall be passed on admission not only because the facts of the case so demand but also in such cases there is factually no triable issue. The facts on the basis of which the decree is sought, are admitted and hence do not require leading of evidence on them. MCA No. 63/15 Page 7 of 8
19. In view of the above reasons, the appeal in hand, being devoid of merits is dismissed with cost of Rs.20,000/ to be paid by the appellant to the respondent/landlord.
Decree sheet be prepared accordingly.
TCR be sent back with the copy of the judgement.
File be consigned to record room.
Announced in an open Court On 5th day of February, 2016.
(Surinder S. Rathi) ADJ03/PHC/NEW DELHI 05.02.2016 MCA No. 63/15 Page 8 of 8