Brij Lal v. Kuldeep Kaur

1. This is a regular second appeal filed by the appellant against the judgment dated 03.09.2014 passed by the learned ADJ upholding the judgment dated 07.08.2013 of the learned trial court passing a preliminary decree of possession in favour of the respondent/plaintiff and against the present appellant/defendant.

2. Briefly stated the facts of the present case are that the respondent/plaintiff filed a suit for possession on account of arrears of rent and mesne profit.

3. The case set up by the respondent/plaintiff was tha the present appellant was a tenant on the ground floor of the suit property i.e. 2151/6A, New Patel Nagar, Delhi with effect from 01.07.2006 on a 2015:DHC:658 monthly rent of Rs.4,500/- apart from water and electricity charges. It was alleged that later on the rent was increased to Rs.5,000/-. It had also been stated that the tenancy was on month to month basis and the appellant/defendant had not paid rent since August, 2009. Vide a legal notice dated 07.07.2012, his tenancy had been terminated and instead of complying with the notice and handing over of the possession of the suit property to the respondent/plaintiff in terms of the agreement, the appellant/defendant continued to occupy the suit property and hence the present suit was filed.

4. A reference was also made in the plaint that the appellant/defendant had filed a petition before the Additional Rent Controller under Section 45 of the Delhi Rent Control Act, which was dismissed and then he filed a suit which was disposed of with the directions to the respondent/plaintiff that she will not dispossess the appellant/defendant without due process of law.

5. The present suit was contested by the appellant/defendant. He admitted that the rent was Rs.5,000/- per month and that there was a relationship of landlord and tenant between the respondent/plaintiff and the appellant/defendant. However, he disputed that he had paid rent only up to August, 2009 and on the contrary in his written statement, he stated that he had paid the rent up to July, 2012. The receipt of legal notice terminating his tenancy was also disputed by the appellant/defendant. However, it had been contended by him that the appellant was assured of continuance of his tenancy by the respondent/plaintiff in case the appellant/defendant pays a sum of Rs.[4] lakhs to her. The appellant/defendant has stated that on 09.08.2012, he had paid a sum of Rs. 4 lakhs to the son of the respondent/plaintiff as suggested by the respondent/plaintiff and as a consequence of which, the respondent/plaintiff was to not claim rent from the appellant/defendant for a period of three years.

6. After completion of pleadings, the respondent/plaintiff filed an application under Order 12 Rule 6 CPC to which reply was called for and the learned Civil Judge passed a preliminary decree of possession in favour of respondent/plaintiff and against the appellant/defendant on 07.08.2013 by observing that the appellant/defendant had admitted that he was a tenant in the suit premises on a month to month basis. The rent of Rs.5,000/- being in excess of Rs.3,500/- was also not in dispute though the receipt of notice was denied by the appellant/defendant. However, the court observed that filing of the suit itself is a notice in terms of the judgment of the Apex Court in M/s Nopany Invetments (P) Ltd. V.Santokh Singh; AIR 2008 SC 673. With regard to payment of Rs.4,00,000/- by the appellant/defendant to the son of the respondent/plaintiff, the court observed that as no counter claim/set off has been pleaded, the said payment has no bearing on the claim of the respondent/plaintiff. Therefore, a preliminary decree of possession was passed in favour of the respondent/plaintiff and against the appellant/defendant.

7. The appellant/defendant, feeling aggrieved by the order of the learned trial court dated 07.08.2013, preferred a first appeal before the learned ADJ who upheld the judgment of the learned trial court by observing that so far as the payment of Rs.4,00,000/- by the appellant/defendant to the son of the respondent/plaintiff is concerned, that is not acceptable and as no counter claim has been filed for the same, the appellant/defendant can avail separate legal remedies in accordance with law against the said allegation.

8. Still feeling aggrieved, the appellant/defendant has preferred the present regular second appeal. The second appeal is admissible when there is a substantial question of law involved in the matter. It has been laid down by the apex court in a number of judgments that the perversity in the finding of fact in the light of the evidence or otherwise is a question of law. Reliance in this regard may be had to Kulwant Kaur v. Gurdial Singh Mann (dead) by L.Rs. and others; AIR 2001 SC 1273.

9. In the instant case, I feel that the finding of fact returned by the courts below with regard to the payment of Rs.4,00,000/- purported to have been made by the appellant/defendant to the son of the respondent/plaintiff suffers from perversity. One cannot lose sight of the fact that the preliminary decree for possession has been passed on the basis of admission purported to have been made by the appellant/defendant in his written statement.

10. However, before dealing with the facts to see as to whether there is an admission or not, it may be pertinent to refer to Order 12 Rule 6 CPC which reads as under: “ 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 part 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 subrule (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.”

11. The aforesaid provision has been a subject matter of judicial pronouncements in a number of cases and it has been repeatedly held by the said judicial pronouncements that before an admission in the pleadings or otherwise is read against a party, before passing a judgment under Order 12 Rule 6 CPC on the basis of an admission, the said admission must be unambiguous & unequivocal. Reliance in this regard may be had to Puran Chand Packaging Industrial P. Ltd. v. Sona Devi & Anr.; 154 (2008) DLT 111 (DB) and R.K.Markan v. Rajiv Kumar Marken & Anr.; 97 (2002) DLT 754.

12. It has also been held that while reading an admission in the written statement or in other pleading of the party, the document as a whole is to be read and not that one sentence or one paragraph is torn out of context.

13. In the light of the aforesaid facts, if we see the written statement filed by the appellant/defendant, it can by no stretch of imagination be said that the appellant/defendant has made an unambiguous and unequivocal admission, which would have warranted passing of a preliminary decree of possession against the present appellant/defendant.