Delhi District Court
Girdhari Lal Huf vs Cmc Ltd on 6 May, 2008
1
IN THE COURT OF SHRI NEERAJ KUMAR GUPTA
ADDL.DISTRICT JUDGE;DELHI
Suit NO.87/2007
Girdhari Lal HUF
through its Karta
Shri Girdhari Lal Rawal,
And Shri Rajesh Rawal
S/o Shri G.L.Rawal,
Both r/o J-143, Ashok Vihar Phase-I
Delhi. .....Plaintiff.
Versus
CMC Ltd.
Jeewan Vihar, Iind floor,
3, Sansad Marg
New Delhi. ......Defendant
O r d e r:
Thisorderwilldisposeof an application
underOrder12 Rule 6
CPC filed
by theplaintiff
against
thedefendant
forpassinga decreefor
possession
inrespect
ofthesuitpremiseson theavermentthatso faras
therelief
ofpossession
isconcerned,
thereisno dispute
left
whichcanbe
termedas a dispute
of factorinlawraisedinthewritten
statement
and
also by virtueof admissionmade in the writtenstatementduring
admission/denial
ofdocumentsand sincethereisadmission
offacts
so far
as relief
ofpossession
isconcerned,
a decreeforpossession
inrespect
of
2
suit property be passed.
2 The casesetup by theplaintiff
isthatpremisesinthetenancyof
thedefendant
was earlier
was owned by M/s.ShahpuriEstates
Pvt.Ltd,
fromwhom theplaintiff
purchasedthesame and thedefendant
attorned
theplaintiff
as landlady
and started
notonly payingtherentwithany
protest
butalsowroteletters
totheplaintiff
withregardtothechange in
the terms and conditions of tenancy.
3 Itisthecaseoftheplaintiff
thatthedefendant
is tenantinrespect
ofpremisesNo. 806,8th floor
inbuilding
ShahpuriTirath
SinghTower,
withitsnumber C-58,Community Centre,Janakpuri,
New Delhi at a
monthlyrentofRs.13,929/-permonth and thattherentbeingmore
than Rs.3500/-,
the premisesare not coveredunder the DelhiRent
Control
Act and thatthetenancywas frommonth to month whichwas
terminated
by the plaintiff
videnoticedated6.1.2007calling
upon the
defendanttohand overthevacant possession
of thepremisestothe
plaintiff
after
the expiry
of15 daysofthe service
ofnotice
and sincethe
notice
was servedon thedefendant
on 9.1.2007,
thedefendant
ceasedto
be a tenant w.e.f. 25.1.2007.
4 Intheplaint
itself
itismentionedthatthedefendantwithintent
to
3
misleadtheplaintiff
erroneously
withoutany basisby means of letter
dated8.1.2007senta cheque at the enhanced rentin termsof the
agreementarrived
at betweenM/s.ShahpuriEstatesPvt.Ltdand the
defendant
butthefactremainsthatsincethesaidagreementisneither
properly
stampednorregistered,
termsthereof
can notbe readand the
plaintiff
videletter
dated18.1.2007
made itclear
tothe defendant
thatthe
enhanced rentis not acceptable
as the tenancyhas alreadybeen
terminated
and subject
to allrulesand conditions
thecheque can be
depositedbuton accountof damages foruse and occupation and
adjustmentwill
be given as and when quantumofdamages isdecided
by thecourtand thefactremainsthatchequeswere neverdeposited
by
the plaintiff.
5 Inthewritten
statement
filed,
preliminary
objection
takenistothe
effect
thattheplaintiff
isnottheowner/landlady
ofthesuitpremisesand
no legalrights
vestsin the plaintiff
to seek eviction
of the plaintiff
in
asmuch as no title
deed evidencing
ownershipoftheplainiff
has been
placed on record and there is no relationship of lessor and lessee b
the plaintiff and the defendant.
6 Itisfurther
thecontention
made inthewritten
statement
thatM/s.
Shahpuri
Estates
Pvt.Ltd,who had inducted
the defendant
as a tenant
in
4
thesuit
premiseshad vestedintheplaintiff
onlya limited
right
torecover
leaserentfromthedefendant
and itisbecauseofsuchlimited
right,
the
defendant
has been payingand plaintiff
has been receivingmonthlyrent
fromthedefendant
and thattheright
was vestedowingtosome financial
transaction
between the plaintiff
and M/s.ShahpuriEstatesPvt.Ltd.
Whereby inlieuofoutstanding
payable by ShahpuriEstatesPvt.Ltdto
the plaintiff, the plaintiff was permitted to realize the rent from
7 Pleahas alsobeen takenthatthesuitisliable
tobe dismissed
for
non joinder
of M/s.ShahpuriEstatesPvt.Ltdwho isa necessaryparty
and with regard to attornment it is stated that the allegation is bald
one. Itisalso thestandtakeninthewritten
statement
thatthelease
grantedby M/s.ShapuriEstatesPvt.Ltdinfavourofthedefendantfora
periodofnineyearstobe renewablefora further
periodofnineyearsat
the option of the defendant and as such the defendant has a right t
thepremiseswithout
interruption
or hindrance 2nd January,2013.
till Such
an intention
ofthedefendant
tocontinue
inpossession
till
January,2013
was conveyedby thedefendant
totheplaintiff
videletter
dated 5.3.2007
to which the plaintiff did not raise any objection.
8 Itisalsomentioned thatthedefendanthas notattorned
to the
plaintiff
and sincetheplaintiff
isnottheownerthequestion
ofattornment
5
do notariseand thattheplaintiff
has no right
todeterminethetenancyof
the defendant.
9 The receipt
ofnotice
isnotdisputed.
However,itisstated
thatsince
plaintiff
has no right
toterminate
thetenancy,
thenoticeterminating
the
tenancyisuselessand sincethenotice
was misconceived
and baseless,
there was no need to file any reply thereto.
10 Replication
has been filed
by theplaintiff
refuting
theaverments
made inthewritten
statement
and reiterating
theavermentsmade inthe
plaint
and inthesame itisdulymentionedthatthecontention
of the
defendant
thatplaintiff
was onlya rentcollector
and ShahpuriEstates
Pvt.
Ltdcontinued
tobe theLandlord/landlady
and entitled
toreceive
therent
isconcernedisfalse
totheknowledgeofthedefendantas rentwas paid
totheplaintiff
after
thededuction
ofTDS and TDS certificate
was givento
theplaintiff
and inthebooksofaccount,
theliability
topay rentby the
defendant
isshown tobe totheplaintiff
and thattherewas relationship
of
landlord and tenant between the plaintiff and the defendant.
11 Ihaveheardthe learned
counselforparties
and haveperusedthe
record.
6
12 So faras thecontention
ofthedefendant
thattheleasewas not
extentable
for a further
periodofnineyearsas mentionedinthelease
deed betweenthedefendantand M/s.ShahpuriEstatesPvt.Ltd.,
the
same can not be appreciated
. A leaseotherthan foragricultural
purposesformore thana yearistobe inwriting
and has tobe registered
intermsofSection
107 Transfer
ofProperty
Actand admittedly
thelease
deed ofwhich clauseregarding
further
renewalisrelied
upon is nota
dulyregistered
one.Sincetheleasedeed isnota dulyregistered
deed,
termsthereof
can notbe readeven by seekingthe aidof Section
49 of
theRegistration
Act.Reliance
inthisregardisplacedupon in thecaseof
Amar Chand Talwar and others ...Vs... M/s. Export Promotion
Council for handicrafts, 77 (1999) Delhi Law Times 809, itwas held
that"wherein the lease deed is not registered in terms of section 17 and
49 of the Registration Act, the same will be in admissible in evidence
and the lease can be terminated by serving a notice of termination and no
lease can be created for a renewal term also and the plaintiff is entitled to
judgment on admission.
12 The factofunregistered
leasedeed when therelationship
isnot
disputed
will
be thatitwill
continue
tobe a leasefrommonth tomonth till
the time the lease is terminated.
7
13. So faras thecontention
ofthedefendant
thattheplaintiff
isnotthe
original
Landlord/landlady/landlady
and has failed
toproveher title,
the
plaintiff
can not maintain
a suitand Section116 EvidenceActwill
not
come intoplayas admittedly
theplaintiff
isnottheoriginal
landlady.
The
saidcontention Inthecase of Smt. Sugga Bai and
ishavingno force.
others...Vs.. Smt. Hiralal and others, AIR 1969 Madhya Pradesh 32,it
was heldthat"a tenant can not be permitted to deny the title of the
original lessor and similarly he can not be permitted to deny the derivative
title of a reversioner if he has attorned to him. However, if he has not
attorned to him or if he has not paid any rent to him, he can certainly deny
the derivative title of a reversioner. It was further held that if a tenant
denies the title of his Landlord outside the permissible limits, he should
forfeit his tenancy, as he can not be permitted to deny his Landlord's title
unless he has delivered back possession to the Landlord/landlady openly.
14. So itwas clearly
heldthateventhetenantcan notbe permitted
to
deny the title of the reversioner in terms of Section 116 Evidence
15. InthecaseofSmt. Satya Malhotra & ors...Vs.. Mohinder Singh
Arora, 81 (1999) Delhi Law Times 627 itwas heldthat:it is well settled
principle of law that a tenant can not challenge the title of the subsequent
purchaser and if at all the title was to be challenged, the same could be
8
challenged only by real owner.
16. Inthepresent
casecaseM/s.M/s.ShahpuriEstates
Pvt.
Ltd,was therealownerand thefactremainsthatM/s.ShahpuriEstates
Pvt. Ltd, has not come forward to challenge the title of the plainti
17. Inthecaseof National Spiritual Assembly of Bahais of
India and others ...Vs.. Maharashtra State Khadi and Village
Industries Board and another, 1994 Supp (2) Supreme Court Cases
704 itwas heldthat" longestablished
conductof payment of rent
would amount to be an attornment and as such title of a person who h
been attornedcan not be challenged
as per section116 of the
Evidence Act.
18. In thecase of Kesoram Poddar ....Vs.. Banamali Dey and
others, AIR 1927, Calcutta 941 itwas heldthata personattorning
the
lessor as a tenant can not question the title of the lessor.
19. Inthecaseof Parameshwarlal Agarwalla and another ...Vs..
Jay Naryan Jalan, AIR 1957 Assam 188 whilerelying
thedecision
of
theJudicial
CommitteeinthecaseofKrishnaPrasadLalVs.Baraboni
9
Coal Concern, Ltd. AIR 1937 PC 251, it was held
"Section
that
116 Evidence Act do not give a ground for the contention that when a
person already in possession of land, becomes tenant to another, there
is no estoppel against his denying his Landlord/landlady's title and that
it is, therefore, too much to contend that a tenant in possession, if he
has in fact attorned to a Landlord/landlady, would still be entitled to
challenge his derivative title, because at the beginning of the tenancy
he was not let into occupation by the Landlord/landlady in question and
it was held that the beginning of the tenancy in such a case would refer
to the beginning of the new tenancy between the tenant and the
Landlord/landlady by virtue of the attornment and the tenant's
occupation of the land thenceforward would be referable to that
attornment.
20. Anotherargumentadvancedthatsincerenthas been accepted
for some time at enhanced rate, it will amount to renewal and the t
isprotected
by virtue
ofSection53-A of Transfer
of Property
Act,is
unsustainable.
21. Inthecaseof Singer India Ltd.. Vs. Amita Gupta, 2000 VII AD
( Delhi) 1076 itwas heldthatwherethelease deed isunregistered,
it
isnotonlyunregistered,
itcan notbe saidthatitwas fora periodof9
10
yearsor 18 yearsinviewof Section
107 Transfer
ofProperty
Actand
has to be treated
as leasefrommonth to month.Even othersie
the
mandateofSection
107 TransferofProperty
Actwouldnotcome into
playsimplybecause enhancedrentwas sentand acceptedafterthe
initial
expiry
oftheleaseinas much as Section53A oftheTransfer
of
Property
Actcan notbe construed
ina manner whichwouldnegatethe
provisions
ofSection107 Transfer
ofProperty
Act.When a legislature
has intended
a particular
acttobe done ina particular
manner,ithas to
be done inthatmanner ornotatall.
Itwas further
heldthatsection
53A
and Section107 of the Transferof PropertyAct are to be read
harmoniouslyand the effectof offering
enhanced rent would
legitimatize
thepossession.
Itwas further
heldthat further
extension
of
unregistered
deed will
be hitby Registration
Actand Section49 ofthe
Registration
Act would of no help for readingsuch a clause for
collateral purpose.
22. Letus examinethefactual
and legal
veracity
ofthepleas
takenby thedefendant
inhiswritten
statement.
One ofthepleatakenis
thattheplaintiff
isnottheowner/landlady
ofthepremises.
Inpara(e)of
thepreliminary
objections
thecontention
is totheeffect
thatthelease
grantedby M/s.ShahpuriEstatesPvt.Ltdwas fornineyearsto be
renewableforthe further
periodof nineyearsat the optionof the
11
defendant.
However,in the same para itis mentionedthateven
otherwise
by letter
dated5.3.2007the defendanthad categorically
informedtheplaintiff thattheydesireto continueinpossessiontill
January,2013.
Ifas perthedefendant,
theplaintiff
was onlytocollect
the rentand has not become the landlady,
the occasionof the
defendant
towriteletter
totheplaintiff
forcontinuing
theleasedo not
ariseand by writing
sucha letter
totheplaintiff
by thedefendant
clearly
goes to show thatforthe purposeof,even extension
of lease,the
defendant
has been writing
letters
totheplaintiff.
Similar
averments
arethereinthereplytopara4 on merits,whereitisalsostatedthat
pertinently,
theplaintiff
hasnotraised
anyobjection
tothe saiddecision
ofthedefendant.
So as per thedefendant,
even decision
was tobe
takenby the plaintiff
and plaintiff
can takedecision
onlywhen the
plaintiff
actsinthecapacity
ofa Landlordtowhom thedefendant
has
attorned.
23. Duringadmission/denial
thedefendanthas admittedtheletters
dated October28,1998,July05,1999,August03,1999, November
04,1999,December 03,1999,January03,2000,February04,2000,
March 03,2000, April06,2000, May 05,2000, June 02,2000,July
06,2000,September01,2000,October03,2000,February05,2001,
March 05,2001,April04,2001,August02,2001,October03,2001,
12
November 05,2001, December 01,2001, March 04,2002, April
04,2002,May 04,2002,June06,2002,July04,2002,August03,2002,
September04,2002,October04,2002,December 04,2002,January
04,2003,February03,2003,
AgainFebruary03,2003,March 04,2003,
April
07,2003,May 06,2003,June 05,2003,July03,2003,August
04,2003,September05,2003,October06,2003,November 04,2003,
January06,2004,February06,2004,March 05,2004,April,
06,2004,
May 06,2004, June 05,2004, July 05,2004, August 05,2004,
September06,2004,
October05,2004,November 05,2004,
December
06,2004, January 05,2005, February07,2005, April06,2005,
November 06,2006and the same have been marked as Ex.P1 to
Ex.P58.A perusalof all theseletters
shows thatcontinuously
the
defendanthas been tendering
therentto theplaintiff
and even the
cheques are drawn in favourof the plaintiff.
So rent is being
continuously paid by the defendant to the plaintiff .
24. Further
more,fromEx.P17toEx.P58onwardsie April
4 2001
onwards TDS has been deductedby thedefendantinrespectofthe
rentpaid.
TDS canonlybe deductedincasewhen thepersontowhom
thepaymentismade isentitled
toreceive
thepaymentofrentand to
whom thetenantisliable
to pay rent.
Itprovestheliability
of payment
ofrentby thedefendanttotheplaintiff.
Incase itisonlya financial
13
arrangement,
whichotherwise
isnot thereas discussedabove,the
questionofdeduction
ofTDS fromtheaccountoftheplaintiff
wouldnot
arise.
Itprovesthatdefendant
has admitted
thathisliability
topay rent
was to the plaintiff.
25. The plaintiff
has placed on recordthe letter
dated
November 06,2003,whichhas been admitted
by thedefendant
during
admission/denial
and thesame was markedas Ex.P59.Intheletter
itis
statedthat we request you that the extension of lease deed for the
premises occupied by us for a further period of three years effective
02.01.2004and in view of the down trend in the rental market, we propose to increase the rent by 10% for a further period of three years.
However,othertermsand conditions will remainedunchanged.Inthis letter concurrence hasbeen soughtfromtheplaintiff so thatrevised rent can be sent to the plaintiff accordingly.
Admittedly, thereis no correspondence by thedefendant withM/s. ShahpuriEstates Pvt.Ltd.
Ifthe plaintiff was simplya rentcollector forand on behalfof M/s.
ShahpuriEstates Pvt.Ltd undersome financial arrangementwithM/s.
ShahpuriEstates Pvt.Ltd qua whichno documenthas been placedon recordby thedefendant, thedefendant wouldnothave written letter to theplaintiff forextension ofleasedeed orforhavinghisconcurrence.
Extension canbe soughtonlyfroma personwho iscompetenttogiveit 14 in the eyes of defendantand extensioncan be givenonlyby a Landlord.
So the defendanthas admittedthe plaintiff as a landlord.
Furthermore, the versionof the defendantwhich otherwise is not tenable thattheleasewas extendableforfurther nineyears, thelease beingunregistered one alsostandsdemolished as extension has been soughtonlyfora periodofthreeyears and notfor thetermofnine years and the factalso remainsthatat no pointof time,any correspondence has been made with M/s. Shahpuri Estates Pvt. Ltd .
26. The plaintiff has also placed on recordletter dated December 11,2003,whichhas been admitted by thedefendant during admission/denial and thesame was markedas Ex.P60.Notonlyinthe saidletter an extension has been soughtintermsoftheprevious letter Ex.P59,buttheplaintiff toas Landlord and as has alsobeen referred such itisan admission on thepartofthedefendant thatplaintiff isthe Landlord/landlady of the premises.
27. From theletters, itisalsoborneoutthatcopiesofsuch letters were neveraddressedtoorsenttoM/s.ShahpuriEstatesPvt.
Ltd,and extension was sought onlyfromtheplaintiff.
As suchitis further borne out thatso faras M/s.ShahpuriEstatesPvt.Ltd.Is concerned, who has createdinitial lease,saidpersonisoutofpicture 15 even as perthedefendant and forallpurposesregarding paymentof rentorextension oflease, he has been writing totheplaintiff onlyand has referred theplaintiff as theLandlord/landlady.
From letter Ex.P59 datedNovember 06,2003it isalsoevident thatleaseotherwise has come to an end and thatis why extension has been soughtand concurrence of the plaintiff is also sought.
28. The factalsoremainsthatthesaidletters werefiled by the plaintiff alongwiththeplaint and copiesthereof has been supplied and thereafter thewritten statement was filed.
The documentswereadmitted atthestageofadmission/denial ieafter thewritten statement has been filed.
The effect will be thatfirst ofallthedefendant has notchallenged orexplained thesedocumentsinhiswritten statement atallas tounder whatcircumstances theywere written norhad tried towriggle outfrom the contentions raisedin the letters.
The second aspectis that admission/denial was done afterthewritten statementwas filed and despite theobjections takenwithregardtothefactthattheplaintiff is nottheowner/Landlord/landlady orthattheleasewas extendable fora further periodofnineyears, thesaiddocumentshad been admitted by thedefendant and thisgainsignificance inasmuch as thedefendant has admitted thedocumentwithout any demur or protestand inits entirety after filing ofthewritten statement and discloses itsdefence.
16The letters clearly demolishes thedefencetakenand itisa casewhere thedefencetakenisbasically no defenceinviewofthefacts admitted in the written statement and the facts admitted by way of these letters
29. Inreply totheapplication underOrder12 Rule6 CPC an attempt has been made towriggle outfromtheadmission contained intheletter by stating thatextension soughtfromtheplaintiff was inadvertent but thefactremainsthatas already discussed, thedefendant can notbe permitted to wriggleout from his admissionmade in the written statement and inany casea partycannot be permitted towithdraw an admissioninsucha manner when especially no application hasbeen filed togetthewritten statement amended.The factalsoremainsthat thereply toapplication underOrder12 Rule6 CPC was filed on 18.8.07 and thedocumentshad been admittedwithout any explanationon 15.11.2007 ieeven after thefiling ofthereplytotheapplication under Order12 Rule6 CPC and still duringadmission/denial, reservation has been made, whileadmitting thecontents ofletter.
The circumstance of inadvertance, otherwise, has not been mentionedin the replyto application under Order 12 Rule 6 CPC.
30. The argumentadvancedby thecounselforthedefendant that plaintiff has not filed any document to show that he is the own 17 the agreementtosellfiled on recordand the tripartite agreement placedon recordwill not amount todocumentoftitle and as suchthe plaintiff can nottermedtobe theownerofthepremisesora landlord is misplaced.As already discussed, a suit forpossession canbe filed by a Landlord/landlady and it is not necessary that it has to be fil owner.By virtue of Section116 EvidenceAct,the tenantcan not disputethe title of the Landlord/landlady or even of subsequent Landlord/landlady to whom the defendanthas attorned,which attornment isthere by way ofcontinuous payment ofrentforyears together and alsoby referring theplaintiff as theLandlord/landlady and admitting theplaintiff as a Landlord/landlady by seekingextension ofthe lease and the concurrence of the plaintiff for extension.
31. In thecase of Dharmendera Nath and others ..Vs. Jagdish Prakash, AIR 1976 Allahabad 107 itwas heldthat"sincetheplaintiffs have been admittedto be theLandlord/landladys and tenantshave attorned totheplaintiff eventheeissome defect intheoriginal deed of sale,thesame will be inconsequence and thedefendantisestopped fromchallenging thetitle oftheplaintiff inrespect ofthepremisesand it isunnecessary todecidethequestion ofvalidity ofthesaledeed and in any case theversion offinancial arrangementisnegatedcompletely forwhichotherwise thereisno further particulars as thenatureofthe 18 transaction of financial arrangement.
Mere extension ofleaseafter the determination of tenancycan notbe a groundforsayingthatinany casethetenancystandrenewed.Therehas to be an intention ofthe plaintiff torenewthetenancywhichisabsolutely lacking inthepresent case and the factalsoremainsthatthe plaintiff has pleadedvide separate letter thattherenttenderedwas notacceptedas rentbut it was made clearthatthesame will be adjusted inthedamages and thereisno denial inthewritten statement regarding sucha pleading of theplaintiff.
As suchtheargumentthatplaintiff havingacceptedtherent will amount to renewal of lease is not sustainable.
32. Inthepresent casetheplaintiff haspleadedthatnotice dated 6.1.2007 terminating thetenancyand inthewritten statement thereplyof noticeis not disputedand only the averment is thatitis of no consequenceinlawand theplaintiff havingnottheowner has no right to determine thetenancy.
The receipt ofnotice has notbeen disputed . IN view of the above discussion, itis apparentthatthe tenancystood terminated vide aforesaid notice.
33. Order12 Rule6 CPC clearly laysdown thatthe admission offacts canbe inthepleadings orotherwise and can be oralorofwriting and itc an be either on theapplication orby theCourtofitsown motion.
19So forlooking intotheadmission, itisnotonlythepleadings whichhasto be seen butthedocumentfiled by thepartyand admitted by theparties.
The very purposeof admission/denial is to limit the scope of the controversy betweentheparties, ifany,and ifa contention ismade inthe written statement itistotally contrary toadmission made inthedocument thenthecontention raisedinthewritten statement istobe heldatvery stageitself tobe unfoundedand an allegation inair.
Inthepleadings only factshas tobe pleadedand nottheevidence.
Evidenceistobe ledto provethefacts.
The documentsareevidenceand ifthedocumentsare provedoradmitted, thenitwill reflect on thefacts pleadedas towhether the facts pleaded are genuine or not.
34. Inthecaseof Rajiv Saluja....Vs... M/s. Bhartia Industries Limited, 98 (2002) Delhi Law Times 720 itwas heldthatwhere the denial made inthewritten statementareunspecific and evasiveithas to intheeyesoflaw.InthecaseofRam Ghai Vs. be takenas no denial U.P. State Handloom Corporation, 91 ( 2001) DLT, 386 itwas heldthat inordertoinvoketheprovisions ofOrder12 Rule6 CPC theCourthas to scrutinise the pleadingsin itstotality and ignorethe evasiveand unspecific denials either as to the relationship or as to the servic or as to the nature of tenancy.
2035. InthecaseofDDA Vs. Durga Chand Kaushik, AIR 1973 SC 2609 itwas held thateventherenewalofleaserequire registration and ifthereisno registration ofrenewalofleasedeed,thesame isofno effect and will be termed as lease from month to month.
36 In the case of Union Bank of India...Vs... Sushila Goela & others, 125 (2005) Delhi Law Times, 161 itwas heldthat where the tenancyhas expiredby efflux oftimeeven no noticeisnecessaryand wherethedefendant has notdisputed receipt ofnotice and has admitted documentsduringadmission/denial, judgmentcanbe passedunderOrder 12 Rule 6 CPC whichbecome applicable and thereisno questionof holding over.
37 Inthecase of Rajiv Srivastava ..Vs.. Sanjiv Tuli and another, 119 (2005) Delhi Law Times, 202 itwas heldthatuse of theexpression "otherwise"
permits thecourttopassjudgmenton thebasisofstatement made by theparties butalsode hors thepleadings notonlyon pleadings ie either in any document or even in the statement recorded in the 38 Inthe caseof ITDC Ltd...Vs.. M/s. Chander Pal Sood & son , 84 (2000) DLT 337 itwas heldthatOrder12 Rule6 CPC givesa verywide 21 discretion totheCourt.
UnderthisruletheCourtmay atany stageofthe suit either on theapplication ofany partyorofitsown motionand without determination ofany otherquestion betweentheparties can make such ordergiving suchjudgmentas itmay think fit on thebasisofadmission of a fact made in the pleadings or otherwise .
39 Inthecaseof Charanjit Lal Mehra and others....Vs.. Smt. Kamal Saroj Mahajan and another, AIR 2005 Supreme Court,2765 itwas held thatforinvokingOrder12 Rule6 CPC even thedocumentcan be seen.
As the very purpose is to expedite the trial.
40 In the case of Surjit Sachdev ...Vs.. Kazakhstan Investment Services Pvt. Ltd. & others, 66 (1997) Delhi Law Times, 54 itwas held thatfiling of formalapplication under Order 12 Rule 6 CPC is not necessary.
41 Ld.counselforthedefendant upon State Bank has placedreliance of India Vs... Midland Industries and others, AIR 1988 Delhi 153.
However,thesame isnotapplicable tothefacts and circumstances ofthe caseas thepresentcaseisnot that theobjections raisedgoes tothe rootofthecase,and itisalsonot whereseriousquestions oflawareto be decided and is also not a case where admission is not unequivocal 22 Inviewof theabove discussion, theapplication underOrder12 Rule6 CPC isallowed and a preliminary decreeforpossession inrespect of flat on 8th floor No.806situated inbuilding known as ShahpuriTirath SinghTower,C-58,CommunityCentre, Janakpuri, New Delhiispassedin favourof the plaintiff and againstthe defendant.
Decree sheet be prepared accordingly.
Announced in open court. ( Neeraj Kumar Gupta) 6th May,2008 Addl. District Judge, Delhi 23