Radhika Choudhary vs M/S Payal Visions Pvt. Ltd. on 14 March, 2011

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     RFA NO. 81 OF 2009

+                         Date of Decision: 14th March, 2011

#      RADHIKA CHOUDHARY                 .....Appellant
!                  Through: Mr. S.K. Rungta, Advocate

                           Versus


$      M/S PAYAL VISIONS PVT. LTD.          ....Respondent
^              Through: Mr. K. Datta, Mr. Sonam W. Sherpa
                        & Mr. Diwakar Sinha, Advocates



    CORAM:
*   HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
   judgment? (No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest? (Yes)


                      JUDGMENT

P.K.BHASIN, J

This appeal is directed against the judgment and decree

dated 24.10.2008 passed by the Additional District Judge,

Delhi in a suit for possession of suit property and mesne

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profits which had been filed by the respondent-plaintiff

(hereinafter to be referred to as „the plaintiff‟) against the

appellant-defendant(hereinafter to be referred to as „the

defendant‟). In the impugned judgment upon admission the

learned Additional District Judge by invoking the provisions

of Order XII Rule 6 of the Code of Civil Procedure („CPC‟ in

short) came to a finding that a case of ejectment was made out

against the defendant on the basis of admission of the case of

the plaintiff-landlord in the written statement filed by

defendant.

2. The material facts of the case are that the plaintiff,

claiming to be the landlord/owner of the premises bearing

khasra no. 857 min.(1-03) within the revenue estate of village

Ghitorni( Mehrauli) (hereinafter, `the suit property’) filed a

suit against the defendant for recovery of possession and

mesne profits. The suit was initially filed in the High Court but

later on it came to be transferred to District Court because of

enhancement in the pecuniary jurisdiction of the District

Courts. The case of the plaintiff-landlord in the plaint is that

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the defendant was inducted as a tenant in the suit property

alongwith superstructure including servant quarter and garage

vide lease agreement dated 10.10.2001 at a monthly rent of

Rs.50,000/- for a period of three years. The lease was for

residential purposes. According to the further case of the

plaintiff the defendant committed breach of some terms of the

lease and therefore its tenancy was terminated before the

expiration of the lease period vide notice dated 16/03/03 and

since the defendant failed to deliver back the possession of the

suit property to the plaintiff on the expiry of the notice period

its possession w.e.f. 01/05/03 became unauthorised. The

plaintiff then filed the suit for possession and mesne profits on

06/05/03.

3. The defendant contested the suit on various grounds set

out in its written statement filed in the trial Court. It was,

inter-alia, pleaded that the suit property in fact was vested in

Gram Sabha and that fact had been concealed by the plaintiff

and since the suit property vested in the Gram Sabha the

plaintiff had no right to claim possession of the suit property

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from the defendant and also that the alleged notice of

termination of tenancy dated 16/03/03 was not in accordance

with the mandatory requirements of Section 106 of the

Transfer of Property Act.

4. The plaintiff in its replication denied that the suit

property vested in the Gram Sabha and pleaded that the

defendant in any case was stopped from challenging the title

of the plaintiff having admittedly taken on rent the suit

property from the plaintiff. It was also pleaded that, in fact,

chakbandi was going in the village by the Revenue

Department, the whole of the properties are taken over by the

Revenue Authorities for the purpose of Chakbandi only and

the title of the plaintiff qua the suit property remains to be

the same i.e. the plaintiff is owner of the suit property.”

5. The pleadings of the parties had led to the framing of the

following issues by the learned Additional District Judge for

trial:

1. Whether the plaintiff has no locus standi to file the
present Suit?

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2. Whether the suit property has been vested with the
Gram Sabha, if so, its effect?

3. Whether the Lease Agreement dated 10.10.2001
executed between the plaintiff and the defendant is not
valid?

4. Whether the notice of termination of Lease
Agreement was not issued as per Provision of Section
106 of Transfer of Property Act?

5. Whether the Plaintiff is entitled to decree of
possession of the suit property against the defendant as
prayed for in para 1 of the prayer of the Plaint?

6. Relief.

Out of these six issues, issue nos. 1 and 2 were treated as

preliminary issues by the learned trial Judge and thereafter

the matter was posted for arguments on these two preliminary

issues.

6. Before arguments on the preliminary issues could be

heard the plaintiff moved an application under Order XII Rule

6 CPC alleging that since the defendant was admitting that it

had taken on rent the suit property from the plaintiff and also

that the rent was Rs.50,000/- p.m. and it had been served

with a notice of termination of its tenancy a decree for

possession could be passed straightaway. The defendant

opposed that application on the ground that since it was

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claiming that the plaintiff could not get a decree of possession

on many grounds taken in the written statement no decree

could be passed by the trial Court by resorting to Order XII

Rule 6 CPC. The learned trial Court came to the conclusion

that in view of Section 116 of the Evidence Act the defendant

could not challenge the title of the plaintiff having admitted

relationship of landlord and tenant with the plaintiff and

therefore the plaintiff was entitled to get a decree of

possession of the suit property. Holding so, the learned trial

Court decreed the suit as far as the relief of possession was

concerned.

7. Feeling aggrieved, the defendant has filed this appeal.

8. It was contended by Shri S.K.Rungta, learned counsel or

the appellant that the trial Court was not justified at all in

decreeing the suit for possession under Order XII Rule 6 CPC

since the defendant had raised certain legal points going to the

root of the matter and which required to be answered first by

the Court but without adverting at all to those pleas despite

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the fact that specific issues had been framed in respect of

those pleas and even two issues had been treated as

preliminary issues a decree for possession was passed without

giving any findings even on the preliminary issues. Learned

counsel for the appellant also drew my attention to the copy of

the appeal filed by the respondent herein against one order

dated 17th February, 1999 passed by the Revenue Authority

under the Delhi Land Reforms Act whereby it had been

ordered that the suit property shall automatically vest in the

Gaon Sabha if the appellant (respondent herein) would not

reconvert the land in question for agricultural purposes within

three months. That appeal came to be dismissed by the

Appellate Authority and copy of that order was also placed on

record by the appellant herein in the present appeal. Learned

counsel for the respondent had not disputed the genuineness

of those documents but he maintained his argument that these

questions were irrelevant in a suit for possession between a

landlord and tenant and in respect of which tenancy the

provisions of the Rent Act do not apply.

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9. On the other hand Shri Sudhir Nandrajog, learned senior

counsel for the respondent-plaintiff contended that no fault

could be found with the impugned judgment of the trial Court

since very rightly Order XII Rule 6 CPC was pressed into

service by the plaintiff to cut short the litigation as far as the

relief of possession was concerned. It was also submitted that

once the relationship of landlord and tenant and receipt of

notice of termination of its tenancy was admitted by the

defendant there remained nothing to be adjudicated by the

trial Court as far as the relief of possession sought for by the

plaintiff was concerned and so the trial Court was fully

justified in passing the decree for possession in favour of the

plaintiff. As far as the plea of the defendant that the suit was

barred under the Provisions of Delhi Land Reforms Act is

concerned the same being totally frivolous has been rightly

ignored by the trial Court. In support of these submissions

learned senior cited before me a bunch of judgments of this

Court wherein decrees for possession had been passed in

favour of the landlords in view of the admissions made by the

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tenants that they had taken the suit premises on lease and that

notice of termination of their tenancies had also been received

by them and the rent was more that Rs.3500/- p.m. In one of

those relied upon judgments a plea similar to the one taken by

the defendant in the present case viz. the suit property was

governed by the provisions of the Delhi Land Reforms Act was

also taken by the tenant but rejecting that plea this Court had

passed the decree of possession by invoking Order XII Rule 6

CPC. Those judgments are reported as 2002 (61) DRJ 676,

“Jasmer Singh Sarna and Ors Vs. Electronics Trade &

Technology Development Corporation Ltd.”; 79 (1999) DLT

750, “Durgeshwari Devi Vs. International Development

Research Centre”; 112 (2004) DLT82, “Bhartia Industries Ltd.

& Anr.Vs. Rajiv Saluja”; 104 (2003) DLT 151 (DB), “Delhi Jal

Board Vs. Surendra P. Malik”; 139 (2007) DLT 61, “Kamla

Rani & Ors. Vs. Texmaco Ltd.”; 130 (2006) DLT 667, “Vishal

Builders P. Ltd. Vs. DDA & Ors.”; 156 (2009) DLT 129,

“Nilima Gupta Vs. Yogesh Saroha & Ors.”; 65 (1997) DLT 533,

“Atma Ram Properties Pvt. Ltd. Vs. Air India”; 74 (1998) DLT

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476, “Abdul Hamid & Ors. Vs. Charanjit Lal Mehra & Ors.”.

Mr. Nandrajog also contended that these were not the only

instances where this Court had either itself passed decrees for

possession in while trying suits for possession in exercise of its

original civil jurisdiction or had confirmed the decrees passed

by the subordinate Courts by resorting to the provisions of

Order XII Rule 6 CPC but in fact there were many more such

like cases decided by this Court where decrees for possession

have been passed the moment any defendant admitted the

relationship of landlord and tenant with the plaintiff-landlord

as also the receipt of notice under Section 106 of the Transfer

of Property Act and the rent was more than Rs. 3500/- p.m.

10. There is no doubt that this Court has been passing

decrees for possession in suits between landlords and tenants

by resorting to Order XII Rule 6 CPC whenever the defendant-

tenant admitted relationship of landlord and tenant and the

receipt of notice of termination of contractual tenancy and

that too even when the validity of the notice was under

challenge. This Court has been while considering applications

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under Order XII Rule 6 CPC in such like suits considering

even the challenge to the validity of the notice of termination

of tenancy whenever raised by the tenants. There is also no

doubt that this Court in one of the decisions cited by Mr.

Nandrajog had even gone into the question of applicability of

the provisions of the Delhi Land Reforms Act in a suit between

a landlord and tenant. However, in a very recent judgment

rendered by the Hon‟ble Supreme Court the judgment given

by this Court under similar circumstances in favour of a

landlord under Order XII Rule 6 CPC has been reversed and

that judgment is sufficient to ignore all the judgments of this

Court cited by the learned senior counsel for the respondent-

plaintiff and to reverse the decree passed in the present case

by the learned trial Court by having resort to Order XII Rule 6

CPC. That judgment has been rendered in the case of “M/s

Jeevan Diesels & Electricals vs M/s Jasbir Singh

Chadha (HUF) & anr.”,(2010) 6 SCC 601. This was also

a case the suit for possession of some immovable property

filed by a landlord against its tenant was decreed on the basis

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of admissions made by the tenant in its written statement to

the effect that there was a relationship of landlord and tenant

and that it had been served with a notice of termination of its

tenancy by the landlord. The tenant had, however, taken the

plea that its tenancy had neither expired by efflux of time nor

had it been terminated. The Additional District Judge had

passed a decree for possession in favour of the landlord and

when the tenant challenged that judgment before this Court

the same was affirmed. However, the tenant took the matter

further to the Hon‟ble Supreme Court and succeeded there in

getting the trial Court‟s judgment as well as that of this Court

set aside. The relevant portions from the judgment of the

Hon‟ble Supreme Court are being reproduced below:-

6. Paragraphs 5 and 6 of the plaint on which the
respondents-plaintiffs rely are as follows:- “5. That
the tenancy has expired by efflux of time but for the
precautionary measure, the Plaintiffs vide notice
dated July 15, 2006 terminated the tenancy of the
Defendant, which was sent via Regd. Ad. & UPC.
The aforesaid notice dated July 15, 2006 was duly
served upon the defendant. The copy of said notice
is annexed herewith as Annexure A-3. The
registration receipt, UPC and acknowledgement
card are annexed herewith as Annexure A-4 to A-6
respectively.

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7. That the defendant, despite, the determination of
its tenancy of the said suit property has failed to
vacate the suit property and handover the
possession thereof to the Plaintiffs’.

8. In the written statement, which was filed by the
appellant, paragraphs 5 and 6 of the plaint have
been dealt with in paragraphs 5 and 6 of the
written statement respectively. Those two
paragraphs are set out below:-

“5. That the contents of para 5 of the plaint
are a matter of record. It is submitted that
tenancy has neither expired by efflux of
time nor it has been terminated.

6. That in reply to the contents of para 6 of
the plaint, it is submitted that defendant is
in possession of the premises. There has
been no determination of tenancy.

8. It is clear from a perusal of the aforesaid
averments in the written statement that the
appellant has disputed (a) the fact of expiry of
tenancy by efflux of time; (b) the appellant has also
disputed that there has been a determination of
tenancy. So far as receipt of notice referred to in
paragraph 5 of the plaint is concerned, there has
been no denial by the appellant.

9. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

10. It may be noted herein that to the written
statement filed by the appellant, the respondents-
plaintiffs did not file any rejoinder. They filed an
application under Order 12 Rule 6 of the Code of
Civil Procedure for passing a judgment on
admission. In the said petition in paragraph 4, the
respondents-plaintiffs also averred as follows:- “4.
That in view of the admission (i) On existence of
relationship of landlord and tenant and there after

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(ii) service of the termination notice, the only
question left for adjudication for the purpose of
possession is “whether the termination of the
tenancy has been validly terminated?”

11. To that application the appellant had given a
reply. In paragraph 2 of the reply it was again
denied by the appellant that there was any
admission by them about termination or
determination of tenancy. In the said reply it has
been stated that in the suit issues are still to be
framed and the case be tried in accordance with the
Civil Procedure Code as there is no admission by
the appellant and the respondents-plaintiffs have
to prove its case with legally admissible evidence.
As such prayer was made to dismiss the
application of the respondents-plaintiffs under
Order 12 Rule 6.

12. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

13. Whether or not there is a clear, unambiguous
admission by one party of the case of the other
party is essentially a question of fact and the
decision of this question depends on the facts of the
case. This question, namely, whether there is a
clear admission or not cannot be decided on the
basis of a judicial precedent. Therefore, even
though the principles in Karam Kapahi (supra)
may be unexceptionable they cannot be applied in
the instant case in view of totally different fact
situation.

14. In Uttam Singh Duggal & Co. Ltd. Vs. United
Bank of India and others reported in (2000) 7 SCC
120 the provision of Order 12 Rule 6 came up for
consideration before this Court. This Court on a
detailed consideration of the provisions of Order 12
Rule 6 made it clear “wherever there is a clear
admission of facts in the face of which it is
impossible for the party making such admission to

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succeed” the principle will apply. In the instant
case it cannot be said that there is a clear
admission of the case of the respondents-plaintiffs
about termination of tenancy by the appellant in its
written statement or in its reply to the petition of
the respondents-plaintiffs under Order 12 Rule 6.

15. It may be noted here that in this case parties
have confined their case of admission to their
pleading only. The learned counsel for the
respondents- plaintiffs fairly stated before this
Court that he is not invoking the case of admission
`otherwise than on pleading’. That being the
position this Court finds that in the pleadings of the
appellant there is no clear admission of the case of
respondents-plaintiffs. (emphasis laid)

11. In my view, this judgment of the Hon‟ble Supreme Court

applies on all fours to the facts of the present case and in fact

the present case, in my view, is on a stronger footing inasmuch

as the defendant-tenant here had taken some legal pleas also

as to the very maintainability of the suit for possession at the

instance of the plaintiff and preliminary issues had been

framed and the learned trial Court has not even taken any note

of those issues while passing the decree for possession in

favour of the plaintiff. In my view, this is also not a case, like

the one before the Hon‟ble Supreme Court in the case of

Jeevan Diesels (supra), where the defendant has made a clear

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admission of the case of the plaintiff. Therefore, the impugned

judgment and decree passed by the learned trial Court under

Order XII Rule 6 CPC cannot be sustained.

12. This appeal is accordingly allowed with costs and the

judgment and decree passed by the learned Additional District

Judge are set aside. The matter is remanded back to the trial

Court to proceed in the suit from the stage of arguments on

the preliminary issues which stand framed already.

13. The case shall now be taken up before the concerned

Additional District Judge on 31st March, 2011 at 2 p.m.

P.K. Bhasin, J

March 14, 2011/pg

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