JUDGMENT
RFA No.833/2003 and CM 2088/2003.
1. This is an appeal filed by the appellant against the order passed on an application under Order 12 Rule 6 filed by the appellant.
2. Briefly stating the facts of the case are that the respondent filed a suit for possession with the prayer for a decree of possession in favor of the plaintiff and against the defendants as well as a decree for recovery of arrears of rents and decree for recovery of damages/mesne profits. The appellant filed written statement. Thereafter in view of the written statement filed by the appellants, it seems that the respondent herein filed an application under Order 12 Rule 6 of the CPC praying for decree of recovery of possession on the basis of admissions made by defendants No.1 and 2.
3. Mr. Lonial, learned counsel appearing for the appellant, has contended that the trial court erred in not appreciating that the rent of the premises was Rs. 3,217/- and was not more than Rs. 3,500/- and, therefore, it was Rent Controller who had the jurisdiction to adjudicate upon the matter and learned trial court did not have any jurisdiction. In support of his submissions, Mr. Lonial contended that taking into consideration the plea taken by the appellants in the written statement as well as in the reply to the application under order 12 Rule 6 CPC, the presumption on the part of the trial court that the rent stood increased to Rs. 3,538.70 was based on surmises and conjectures and there was no admission on the part of the appellants. It was argued before us that rent was increased to Rs. 3,217/- from August, 2000 only and not from 1.9.1999. It was further contended by Mr. Lonial that under Section 6A of Delhi Rent Control Act, an increase of 10% in the rent is prospective in nature and not retrospective. It was contended before us that the notice sent by the appellants dated 4th December, 2002, therefore, was not a valid notice. Mr.Lonial also contended that as the rent was less than Rs. 3,500/- the issuance of notice under Section 106 of transfer of Property Act by the respondent was illegal and no cognizance of the same could have been taken by the trial court.
4. On the other hand, Mr. Gupta, counsel appearing for the respondent, has stated that the appellants came into the tenancy premises on 1.3.1987 and initially the rent was Rs. 2,200/- per month. Thereafter the rent had been increased after every three years from 1.3.1990, thereafter on 1.3.1993, 1.3.1996, 1.3.1999 and 1.3.2002. Mr. Gupta contended that from 1.3.1999 the rate of rent was Rs. 3,217/- and from 1.3.2002 the same was Rs. 3,538/-. It was further contended by Mr. Gupta that nowhere in the written statement plea was taken by the appellants that 10% of the increase over Rs. 3,217/- would be from August, 2002. Learned counsel for the respondent vehemently contended that apart from absence of such plea in the written statement, no such plea was taken by the appellants in support of reply filed to the application under Order 12 Rule 6 and, no such defense was taken in response to the reply to the notice issued in terms of Section 6A read with Section 8 of the Rent Control Act. It was contended that pursuant to notice which was sent on 14th February, 2003 by the respondent no such plea was raised by the appellants. The reply of the appellants was vague and evasive.
5. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. The trial court while taking into consideration the pleadings, reply to the application made under Order 12 Rule 6 CPC and in view of the notice served by the respondent under Section 106 of the Transfer of Property Act, framed following three questions :-
1. Pecuniary and territorial jurisdiction of the trial court.
2. Determination of rent between the plaintiff and the defendants; and
3. Service of valid notice terminating the tenancy of the defendants.
6. After having recorded that there was no dispute with regard to the notice of service under Section 106 of the Transfer of Property Act and there was no dispute with regard to the relationship between landlord-plaintiff and tenants-defendants as the appellants themselves have been paying rent directly to the respondent since November, 1990, and the trial court having mentioned in paragraph of 10 of the impugned judgment that when the intimation of such status of the landlord was conveyed to the appellant the appellants wrote a letter and the father of the respondent sent a reply to this communication and such communications have been pleaded in para 3 of the plaint. Corresponding para 3 of the written statement has not disputed the exchange of these communications. Relying on the pleadings trial court made reference of last communication in this series i.e. reply dated 22.1.1991, which the appellants’ counsel sent to the respondent counsel to the following effect which has been recorded in the impugned judgment :-
”My clients accept the contents of para 1 of the notice and treat your client as the sole owner of the property bearing Municipal No.S16, Green Park Extension, New Delhi 110 016, which is more specifically shown and described in the plan attached to the lease deed dated 9.3.1987 executed between Shri Mukat Behari Gupta, Smt. Lalita Gupta, and Shri. Rajiv Gupta on one hand and Shri Rajiv Sharma and Ajay Sharma on the other hand”.
7. On the basis of the aforesaid communication, the trial court came to the opinion that there is an unequivocal admission on the part of the appellant that there existed the relationship of landlord and tenants between the appellants and the respondent.
8. As stated earlier the service of notice under Section 106 of Transfer of Property Act was not disputed, though, it was contended that the notice was illegal. The only requirement of Section 106 is the service of 15 days’ clear notice. The notice dated 14.2.2003 was sent to the defendants thereby requiring the defendants to vacate the tenancy premises on or before 31.3.2003 and, therefore, 15 days’ clear notice was given to the appellants for vacating the handing over the vacant and peaceful possession.
9. From the perusal of the pleadings, we find that no such plea has been taken by the appellants in the written statement or in the reply to the application under Order 12 Rule 6 or reply to the notice of the respondent dated 4th December, 2002 that the rent of Rs.3,217/- would be applicable from August, 2002. It is interesting to note some of the paragraphs on which Mr.Lonial placed reliance to buttress his arguments. In paragraph No.4, of the written statement a vague reply has been given by the appellants. Appellants had not specifically mentioned from which date 10% increase was to be made operational. Paragraph No.4 of the written statement is as follows:-
”para no.4 of the plaint is wrong and denied. It is wrong and denied that the last paid rent was Rs. 3217/- made effective from 1.3.1999. Increase in rent could not be made with retrospective effect. Such retrospective effect made the notice under Section 6A and Section 8 of the Delhi Rent Control Act, 1958 as amended, totally wrong, illegal, irreffective, invalid and incorrect. The remaining allegations are wrong and denied”.
10. In sum and substance case of the appellants and in subsequent paragraphs in the written statement i.e. paragraphs No.7,9,10 and 11, on which reference has been made by learned counsel appearing for the appellants, main emphasis of the defense of the appellants was that the trial court had no jurisdiction and it was the Rent Controller which would have the jurisdiction to adjudicate upon the matter.
11. Paragraph 4 of the notice given by the respondent dated 4th December, 2002, which is at page 209 of the trial court record, is relevant.
”That in the present facts and circumstances, you are duly notified by the present legal notice, to increase the monthly rent by ten per cent i.e. from Rs. 3,218/- per month it will be increased to Rs. 3,539.80/- per month. You are further notified that the increased in the monthly rents shall be made effective from March 2002 and you shall be liable to pay the different amounting to Rs. 2,896.20/- for the period March 2002 up to November 2002. Under any circumstances you are notified that the rents shall stand increased to Rs. 3,539,80/- per month from the expirty of 30 days from the date of notice i.e. from 4.1.2003. Accordingly you are duly notified and called upon to pay to our client the monthly rent at the increased rate of Rs. 3,539.80/- per month.”
12. This notice was replied by the appellant on 24.12.2002. In the said reply there is no mention that the increase was to be effective from August, 2002 or it could not have been effective from March, 1999. The appellants have taken absolutely a different stand. Paragraph No. 2 of the aforesaid reply is reproduced below :-
”That the tenancy of the premises in question was created by means of a registered Lease Deed. Clause No.2 of the said deed reads as under:-
”2. That the Lessees will pay rent of Rs. 2200/- (Rupees two thousand two hundred only) per month which shall be payable by them to the Lessers in advance on or before 9th of each English calendar month by cheque in the name of Mr. Mukat Behari Gupta.”
For the purpose of Section 6A of the Delhi Rent Control Act, 1958 as amended, the aforesaid rate of rent (Rs. 2200/- per month) can alone be taken into account as this is the only rate of rent stipulated in the registered Lease Deed.
3. That under the circumstances, my clients are at the most liable to increase the rate of rent by Rs. 220/- (Rupees two hundred twenty only) per month and not to Rs. 3539.80 paise per month as wrongfully and illegally demanded by you in the notice under reply”.
13. From the plain reading of the reply in the notice nowhere it was mentioned that the rent was not to be revised from March, 1999 or was to be revised from August, 2000, the reply is totally vague and inconsistent to what has been argued today in the court by the learned counsel for the appellants. Same is also inconsistent with the defense taken that rent was increased to Rs. 3,218/- from August, 2000. Appellants are blowing hot and cold in the same breath.
14. During the course of arguments, learned counsel for the appellants wanted to take us to some material which was not placed before the trial court. In support of his contention that the rent of the tenanted premises till 17.7.2000 was Rs. 2,925/- and only from 31.8.2000 this was increased to Rs. 3,217/-, in this regard an application has also been filed by the appellants. These documents were not filed in the trial court. However, Mr. Lonial contended that these documents were on the trial court record it page 37 of the paper book. While hearing an appeal, what is required to be one through are the pleadings and the evidence of the parties. Until and unless, the court permit a party to bring some material, which may be relevant to adjudicate upon an decide the controversy between the parties, the appellate court would be reluctant to take into consideration such material which is not placed before the trial court. Mr. Lonial has tried to argue that the rent was increased from August, 2000 and in support thereof he has placed reliance on these documents, at pages 37 and 38 of the paper book, but in the application it was mentioned by the appellants that the documents were not on record. During the course of the arguments he has argued that these documents were on record. When we have compared these document, at page 37, we find that this is a photo copy of banker’s cheque dated 17.7.2000 whereas the document which has been shown to us filed by the appellants in the trial court which was filed along with list of documents in July, 2003, is a photo copy of banker’s cheque dated 26.12.2002. Similarly, at page 38 of the paper book, there is a photocopy of a banker’s cheque dated 31.8.2000 in the sum of Rs. 3217/- whereas on the trial court record it is dated 27.1.2003 for a sum of Rs. 3217/-, we do not want to take into consideration these documents as no such plea of rent having been increased only from August, 2000 was taken by the appellants at any time either at the time of filing of the written statement or filing of the reply or reply to the notice dated 4.12.2002 and 14.2.2003.
15. The purport of Rule 6 Order 12 of the Code of Civil Procedure is to enable the party to obtain speedy justice to the extent of the relevant admission which, according to the admission of the other party, he is entitled for. Admission on which judgment can be claimed must be clear and unequivocal one and such admission must be either of the entire claim made in the suit or even for a party of the claim for which decree can be passed separately. The requirement, prior to Code of the Civil Procedure Amendment Act,1977, for filing an application under Order 12 Rule 6 CPC stands waived and under the amended provisions of Order 12 Rule 6 of the Code of Civil Procedure, the Court on its motion and without an application by a party can proceed to pass a decree on an admission.
16. In view of the aforesaid facts we are of the opinion that by taking vague and inconsistent pleas in the written statement and reply to the application under Order 12 Rule 6 and totally contradictory stand while arguing the matter, appellants miserably failed to raise any dispute to the claim of respondent. As there existed no friable issue the trial court was justified in allowing the application of the respondent and decreeing the suit.
17. We do not find any merit in this appeal.
Dismissed.