Ajit Kumar Chawla v. Vijay Khurana

1. By way of this petition, Petitioner assails the order dated 15.11.2018 passed by the Trial Court whereby the application filed by the Petitioner before the Trial Court under Order 12 Rule 6 CPC has been dismissed. Petitioner before this Court is the Plaintiff before the Trial Court and Respondent is the Defendant and parties hereinafter are referred to by their litigating status before the Trial Court.

2. Plaintiff has filed a suit before the Trial Court seeking possession of property bearing No.A-1/10, First Floor, Safdarjung Enclave, New Delhi-110029 with a servant quarter on the third floor (hereinafter referred to as ‘the suit property’). It is the case of the Plaintiff that Plaintiff and Defendant have been friends and since the Plaintiff underwent a heart surgery and was unable to move, he handed over the keys of the suit property to the Defendant, who had offered to help in renovation of the suit property.

3. It is further averred that when the Plaintiff visited the suit property on 06.12.2015, he was shocked to see that the Defendant was in possession and he refused to hand over the keys to the Plaintiff, despite several requests and instead threatened the Plaintiff. Plaintiff thereafter lodged a complaint against the Defendant and filed the present suit.

4. Upon being served with the summons, Defendant filed an application under Order 7 Rule 11 CPC after filing a written statement, seeking rejection of the plaint on the ground that suit property had been undervalued, amongst other objections. The application was dismissed by the Trial Court vide order dated 05.05.2017, which was unsuccessfully assailed by the Defendant in C.R.P. 153/2017, before this Court.

5. Plaintiff thereafter filed an application under Order 12 Rule 6 CPC premised on certain observations by this Court in the order dated 02.08.2017, dismissing C.R.P. 153/2017. In the said order, referring to certain judgments, wherein it has been held that an agreement purchaser has no right in the property, not even after the decree of specific performance is passed in his favour, till a conveyance deed is executed, this Court had observed that the Defendant, merely by reason of being an agreement purchaser and having filed a suit for specific performance cannot hold possession of the property and would be liable for mesne profits/damages for use and occupation for the past and future.

6. By impugned order dated 15.11.2018, Trial Court has dismissed the application filed by the Plaintiff under Order 12 Rule 6 CPC noting that the aforesaid observations relied upon by the Plaintiff were made by the Court in the order dated 02.08.2017, however, when the Revision Petition was finally dismissed on 03.08.2017, there was no reference to these observations. Trial Court also held that if the case of the Plaintiff is that Defendant is a licensee in the suit property and the Defendant claims to have spent Rs.80,00,000/- on renovation, the matter will require examination under Section 60 of The Indian Easements Act (hereinafter referred to as the ‘Act’) as to whether the licence has become irrevocable or not. This issue and the other allegations of concealment of facts, according the Trial Court, are disputed questions that require trial and the suit cannot be decreed under Order 12 Rule 6 CPC.

7. Learned counsel for the Respondent, at the outset, sought to defend the impugned order on the ground that the Defendant has not made any unequivocal admissions, entitling the Plaintiff to a decree on admission and the contentious issues raised in the written statement by the Defendant require a trial. However, on a pointed query as to whether the application filed by the Plaintiff has been examined on the first principles laid down for deciding an application under Order 12 Rule 6 CPC, the answer is in the negative. It is also conceded that the Trial Court has decided the application premised on provisions of the Act, which were neither relevant to the issues raised and nor was any such argument canvassed by the respective parties.

8. In my view, Trial Court has incorrectly premised the impugned order on the provisions of the Act, which, were wholly irrelevant to the issue under consideration and having treaded on a wrong path, the Trial Court has reached a wrong destination. It is equally evident that the Trial Court has not decided the application by posing to itself the only question which was required to be answered i.e. whether the Defendant has made unequivocal and unambiguous admissions, entitling the Plaintiff to a decree on admission, without trial. Therefore, in my view, this is a fit case where the matter needs to be remanded back to the Trial Court for reconsideration of the application filed by the Plaintiff under Order 12 Rule 6 CPC.

9. The Revision Petition is accordingly allowed to the aforesaid extent, directing the Trial Court to decide the application, in accordance with law and bereft of any observations in this order and/or independent of the observations, findings and conclusion in the impugned order.

10. It is made clear that this Court has not expressed any opinion on the merits of the case.

11. Revision Petition stands disposed of in the aforesaid terms.

FEBRUARY 21, 2023/kks/shivam JYOTI SINGH, J