JUDGMENT
J.B. Goel, J.
(1) By this order I will dispose of I.A.12174/96 under Order 12 Rule 6 read with Section 151 Civil Procedure Code filed by the plaintiffs to grant a decree of possession of the suit premises on admission.
(2) This application has been filed in a suit for possession, and for arrears of rent, damages and mesne profits filed by the plaintiff against the defendants.
(3) It appears that plaintiffs 3 to 6 are the owners of property No. C-6/8, Safdarjung Development Area, New Delhi. Plaintiffs I and 2 are their parents and the property was purchased when one of the plaintiff was minor, her mother acting as her guardian and plaintiff No. 1 has been looking after/managing the properly.
(4) The property was given by plaintiff No. 1 on behalf of the owners to defendant No. 1, Trust for running a Nursing Home by means of an “Agreement of Collaboration” dated 5.1.1984 executed between the partics. It provided that this agreement will be for a period of 39 months commencing from 1.1.1983 and the defendants were to pay to the plaintiffs a share of 20% of the gross receipts earned by the Nursing Horne subject to a minimum of Rs. 20,000.00 per month but it was also agreed that for first three years only 50% of this minimum amount of Rs. 20,000.00 per month was payable by the defendants. Subsequently, this term was extended for a period of three years w.e.f. 1.4.1986 to 31.3.1989 and the amount payable was increased to Rs. 30,000.00 per month. Before the expiry of this term plaintiffs by means of notice dated 16.2.1989 terminated the collaboration agreement and required the defendants to vacate the premises on 31.3.1989 and failing which they will be liable to pay Rupees one lac per month as rent for use and occupation alongwith interest till the vacation of the premises.
(5) The defendants acknowledged this notice in their reply dated 26.4.1989 and denied that they were liable to vacate the premises. The plaintiffs have accordingly filed the present suit claiming rent for the month of March, 1989 and damages for the period from 1.4.1989 onward at the rate of Rs. 60,000.00 per month alongwith interest at the rate of 18% per annum and also for possession of the properly. The defendants have filed the written statement and have disputed and denied the suit claim of the plaintiff. It is not disputed that the plaintiffs had given the premises to the defendants under collaboration agreement dated 5.1.1984. It is also not denied that the monthly minimum charges were increased to Rs. 30,000.00 from 1.4.1986 to 31.3.1989 by mutual agreement. However, it is alleged that this period of 3 years was extended for the purpose of sharing of the money/minimum guarantee under the collaboration agreement and period was not extended by three years which was for an indefinite period so long as the defendants run the Nursing Home and the defendants are not liable to vacate the premises so long as they arc running the Nursing Home nor they are liable to pay damages or interest as claimed. Other legal picas have also been taken.
(6) On the pleadings of the parties the following issues were framed on July 30, 1996:- “1. Whether the suit is not properly valued for the purpose of court fee & jurisdiction?…….. (OPD) 2. Whether the termination of the Collaboration Agreement vide letter dated 16.2.1989 is illegal, void and of no consequence? …….. (OPD) 3. Whether the Collaboration Agreement was for an indefinite period? …….. (OPE)) 4. Whether the plaintiffs are entitled to the possession of building & premises No. C-6/8, Safdarjung Development Area, New Delhi? …….. (OPP) 5. Whether the plaintiffs are entitled to any rent, interest as well as damages & mesne profits from the defendants, if so, for which period and at what rate?…….. (OPP) 6. Relief.
(7) Before the case was fixed for trial plaintiffs have filed the present application. Reply has been filed on behalf of the defendants. It has been alleged that the application is not maintainable and in view of the objections taken by the defendants in their written statement evidence was required; that provisions of Order 12 Rule 6 Civil Procedure Code are no applicable and the plaintiffs are not entitled to the relief claimed by them.
(8) I have heard the learned counsel for the parties. Learned counsel for the plaintiffs has contended that though the agreement has been termed as collaboration agreement but it was a lease and the premises were let out at the monthly rent of Rs.20,000.00 which was subsequently increased to Rs. 30,000.00 per month. In any case even if it was a collaboration agreement, in that case the defendants arc licensees in occupation of the premises and the lease or licence whatever it may be treated has been terminated by means of notice dated 16.2.1989. The pleas of the defendants are not bonafide, are not borne out from the written agreement executed between the parties, no oral evidence can be led in view of this written agreement on record and as such no bonafide triable issue arises which need, investigation so far as the relief of-possession is concerned and the suit to that extent is entitled to be decreed. For this reliance has been placed on Mis. Sun Chandra & Co. Vs. Punjab & Sind Bank 1996 (5) Ad 323, Atma Ram Properties Pvt. Ltd. Vs. Air India and M/s. Liberty Sales Service Vs. Mis. Jakki Mull & Sons and Mr. Shanti Nath Jain 1996(39) Drj 673. Whereas learned counsel for the defendants has contended that there is no admission on the part of the defendants, triable issues arise; that on the basis of their pleas, the issues have been framed which can be decided after affording parties opportunity to lead evidence, especially unless Issue No. 3 to the effect whether the Collaboration Agreement is not for an indefinite period is decided in favour of the plaintiffs the question of passing the decree for possession would not arise. It is further contended that the defendants are not tenants in the premises and there is no admission on the part of the defendants to attract order 12 Rule 6 Civil Procedure Code .
(9) Order 12 Rule 6(1) Civil Procedure Code . reads as under: “6(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.”
(10) The object of this provision obviously is to enable a party to obtain speed judgment at least to the extent of the relief which according to the admission(s) of the opposite party he is entitled to. A plaintiff may move for judgment under this provision at any stage. This can be availed even after he has joined issues on the defense. The admission may be made “either in the pleadings or otherwise”, i.e., the rule is wide, enough to afford relief not only in case of admission mentioned in the pleadings but also de hors the pleading. Thus the admission contained in letters or other documents written or executed between the parties before the action is brought are also sufficient for the purpose of this rule.
(11) EX.P/1 is the agreement named as “Agreement of Collaboration” entered into between the parties”. The defendant No. 1 is described as Party No.1 and plaintiff No. 1 as Party No. 2. The purpose for which the premises were taken is to establish and run a Nursing Home and the premises are property No. C-6/68, Safdarjang Development Area, New Delhi. The salient terms agreed between the parties are: 1.That the party No. 1 has commenced the operation of the Nursing Home with effect from 1.1.83 initially for a period of 39 months, which is subject to renewal thereafter for such period and open such terms and conditions as may be mutually agreed upon. 2. That the Nursing Home shall be established at the premises but under no circumstances it shall be considered the premises having been taken on rent nor any right of tenancy shall be claimed by party No. 1 nor any rent shall be charged, by party No. 2 or paid by party No. 1. 3. That all the equipment, fixtures, furniture and fittings required for the establishment and running of Nursing Home shall be provided by party No. I at its own cost and the same shall remain the property of the party No. 1. 4. That the party No. 1 shall pay the charges by way of a share to party No. 2 at 20% of the gross receipts subject to the minimum of Rs. 2,40,000.00 per annum. However, this figure shall be reduced to 50%, i.e., Rs. l,20,000.00 per annum for the first 3 years, keeping in view the initial stage of the running of the Nursing Home. 5. Gross receipts are defined as under: (a) Total receipts by Nursing Home minus Doctors fees/Surgeon charges minus charges for drugs/medicines and food. xxxxxxxxxxxxxxx (g) That the party No. 1 shall maintain the regular account which shall be duly audited and party No. 2 shall have the right to inspect the accounts and the balance sheets.”
(12) Under clauses 5(b) and (c) of the agreement ground rent, municipal taxes, premium for insurance of the building, excepting any levy or tax on account of use of the premises for running the Nursing Home or for non residential use, are payable by th( owners while others by the defendants.
(13) The duration of the term initially agreed was 39 months from 1.1.1983 which came to an end on 3.1.3.1986. After its expiry, vide letter dated 3.5.1986 (Ex.P.2) sent by plaintiff No. 1 to defendant the plaintiffs confirmed that the minimum charges were increased to Rs. 30,000.00 per annum for the period first April, 1986 to 31st March, 1989 and the other terms and conditions of the agreement remaining unaltered and unaffected. This was confirmed on behalf of defendants on the same day on the letter itself. This clearly was renewal of the period mutually under clause I of the agreement EX.P.I.
(14) Before the expiry of this extended term the plaintiff sent to the defendants a notice dated 16.2.1989 (Ex.P.3) informing them that he agreement executed on 5.1.1984 shall stand terminated by the end of 31.3.1989 and called upon the latter to hand over the vacant possession of the premises on or before the said date. In this it was also notified that if the defendant claimed tenancy rights in the premises in that case tenancy was also terminated requiring them to vacate the premises on 31.3.1989. It was also pointed out that a sum of Rs. 30,000.00 was being tendered each month as rent alongwith the covering letter to that effect. Defendants sent reply dated 26.4.1989 (Ex.P.4) disputing this action and claimed that there was no clause for termination of the said Collaboration Agreement by cither parly and so long as the defendants will run a Nursing Home, the plaintiff had no power and authority to wind up the same.
(15) Neither in this reply nor in the written statement it is claimed by the defendants that the accounts of the defendants were ever gone into by the plaintiff or settled between the parties or even sent to the plaintiffs during the period of 6-1/4 years the agreement remained in force. Initially the agreed charges were Rs. 20,000.00 per month though only 50% of it were to be charged for first 3 years but for the period from 1.4.1986 to 31.3.1989 it was increased to Rs. 30,000.00 per month and this amount admittedly has actually been paid and accepted every month. The agreement nowhere slates that the possession of the premises will remain or remained with the plaintiffs or plaintiffs, had any right or control over the affairs of the Nursing Home set up by the defendants in the premises. Non of the terms and conditions agreed in Ex.P-1 are inconsistent to the relationship of Landlord and tenant. When this agreement was entered into the Delhi Rent Control Act, 1958, was applicable and obviously the intention was to create a tenancy but it was given the name of Collaboration agreement apparently to conceal the factum of tenancy to avoid of applicability of the said Act. Through in clause 2 it was mentioned that defendant No. 2 will not claim tenancy rights apparently that suited the interest of the owners at that time and now when that Act is not applicable to the premises where the rent is more than Rs. 3500.00 per month, it seems to be against the interest of the defendants as the plaintiffs are entitled to seek eviction by merely serving a notice of termination of tenancy and filing a Civil Suit without going under the Delhi Rent Control Act. Ex.P/3 is a notice of termination which has been admittedly served on the defendant. It is not disputed that in case it is a tenancy it is a valid notice of termination of tenancy and in that case the plaintiff is entitled to claim a decree of possession under Order 12 Rule 6 Civil Procedure Code . without any further proof. However, the defendants have taken the plea that the premises were given for an indefinite period. This is against the terms of the agreement EX.P.1 as in clause (1) thereof the period of 39 months from 1.1.1983 was agreed and this is subject to renewal thereafter. It is contrary to this term to say that it was for an indefinite period. There is no ambiguity in this agreement about the period for which the premises were given and vide letter Ex.P/2 it was mutually agreed that as per clause (4) of the agreement the minimum charges will be Rs. 30,000.00 per month for the period 1.4.1986 to 31.3.1989 but other terms and conditions remaining unaltered and unaffected. The term was obviously extended by another 3 years under the renewal clause 1 of this agreement itself by mutual consent and not unilaterally by the plaintiffs. Thus, it cannot be said that the agreement was for an indefinite period. The parties are bound by the terms and conditions of this agreement. This plea is clearly contrary to the agreement Ex.P/1.
(16) When the terms of a contract, grant, or other disposition of property have been reduced into writing Section 91 excludes production of any other oral or documentary evidence in proof of such terms. Under Section 92 of the Evidence Act, production of oral evidence for the purpose of contradicting varying, adding to or subtracting from such terms is not permissible. In T.N. Electricity Board Vs. N. Raju Reddiar it has been laid down as under: “AT the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore, the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of Section 91 of the Evidence Act it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead by oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract.
(17) The defendants arc thus debarred from and will not be entitled to lead any oral evidence against the terms in Ex.P/1. Nor the defendants will be entitled to or permitted to lead any evidence contrary to the terms agreed in agreement Ex.P-1. Issue No. 3 thus would not arise for determination in the case.
(18) No other illegality or invalidity about the notice of termination Ex.P/3 has been pleaded in the written statement or pointed out during arguments. Issue No. 2 is directly concerned with Issue No. 3 and this also docs not need any evidence to be led by the parties. Apart from express term of duration agreed which came to an end on the expiry of the extended period of duration of the agreement, license can be terminated by the Licensor by giving reasonable notice. Such a notice (Ex.P.3) has been given in this case which validly terminated this agreement on 31.3.1989.
(19) Issue No. 2 also thus docs not arise in the case.
(20) It is not disputed that this Court has pecuniary jurisdiction to try the suit. Matter of Court fee is not for the benefit of the defendants and this can be determined alongwith Issue No. 5 and it will not be a bar or hindrance in passing a decree under Order 12 Rule 6 Civil Procedure Code . if other conditions are fulfillled.
(21) In that view of the matter, there is no triable issue which needs investigation so far as the relief of possession is concerned. Suit to this extent thus can be decreed under Order 12 Rule 6 Civil Procedure Code .
(22) The defendant are cither tenants or a licensees. Such tenancy or licence has been validly terminated by means of notice Ex.P-3. The defendants arc liable to vacate the premises and the plaintiffs arc entitled to the decree of possession. They cannot he deprived of the justified to which they arc untitled on the basis of pleas or stand which in law is not tenable. This application (IA No. 12174/96) is allowed and a decree of possession is passed in favour of the plaintiffs and against the defendants No. 1 and 4 to 8. Names of defendants No. 2 & 3 have already been struck off the record vide order dated 21.8.1990. Plaintiffs will also be entitled to costs for this relief as may be determined in the suit. The defendants are given three months time to vacate the premises.
(23) Issues No. 2,3 and 4 are decided and disposed of accordingly.