Full Text
HIGH COURT OF DELHI
Date of Decision: 08th December, 2022
RIMI KHANUJA ..... Appellant
Through: Mr. A.K. Mishra, Advocate.
Through: Mr. Ashwani Kumar and Mr. Sheetesh Khanna, Advocates.
JUDGMENT
1. Since learned counsel for the Caveator has entered appearance, caveat stands discharged. C.M. APPL. 53169/2022 (Exemption)
2. Allowed, subject to all just exceptions.
3. Application stands disposed of. RFA 631/2022 & C.M. APPL. 53168/2022 (Stay)
4. Present Regular First Appeal is preferred by the Appellant assailing the partial decree dated 14.10.2022, passed by the Trial Court in Civil Suit being CS DJ 170/2021, whereby the suit has been decreed in favour of the Plaintiffs before the Trial Court with respect to possession, on an application filed by the Plaintiffs under Order 12 Rule 6 CPC. Appellant herein was the Defendant before the Trial Court and Respondents were the Plaintiffs and are being referred to by their litigating status before this Court for the sake of convenience.
5. Facts of the present case are in a narrow compass and as encapsulated in the plaint are as under: a. Respondent No. 1 filed a suit for termination, possession, eviction, arrears of rent, etc. before the Trial Court claiming to be the absolute owner of entire Third Floor with complete terrace rights of the suit property bearing no. D-20, Greater Kailash Enclave-I, New Delhi. b. The suit was premised on a landlord-tenant relationship between the parties. The case of Respondent No. 1 was that Appellant had approached him in the year 2018 for taking on lease the suit premises for residential purposes on the terms and conditions of payment of rent @ Rs. 49,500/- per month with maintenance charges and hire charges for Fittings and Fixtures as per the Registered Lease Deed drawn up between the parties. c. Lease Deed was executed on 20.06.2018 and the suit premises was leased to the Appellant. It was agreed under Article 1.[1] of the Lease Deed that the period of the Lease Deed shall be three years commencing from 15.06.2018 and ending on 14.06.2021, extendable by one year, if mutually agreed between the parties. Under Article 2.[1] a monthly rent of Rs. 49,500/- was fixed, payable on or before 15th day of every month. Interest @ 18% per annum was payable for delay in paying the rent under the Lease Deed. A sum of Rs. 1,48,500/was to be paid by the Appellant to Respondent No. 1 as interest free security deposit, refundable on the Appellant handing over peaceful and vacant possession of the suit premises. d. Appellant complied with the agreed payments under the Agreement till 16.08.2019 albeit certain cheques even for this period were dishonored by the bank on account of ‘insufficient funds.’ Respondents, therefore, served upon the Appellant legal notice dated 20.12.2019, seeking payment of outstanding rental dues, however, Appellant neither paid the outstanding rent nor replied to the notice. This was followed by a reminder notice dated 23.06.2020, seeking the payment of the dues and/or handing over the possession of the suit premises. Vide notice dated 23.06.2020, Respondent No. 1 also terminated the Lease Deed with effect from 16.09.2019 as the conduct of the Appellant was contrary to the terms of the Lease Deed. e. For the first time a reply was sent by the Appellant on 11.11.2020 raising false contentions, which were duly rebutted by the Respondents. When the Appellant failed to give the peaceful possession of the suit premises, Respondents filed the suit, from which the present appeal arises.
6. Upon service of summons, learned counsel for the Appellant appeared before the Trial Court and sought time to file the memo of appearance, but failed to do so. An application was filed under Order VIII Rule 1 CPC by the Respondents to strike out the defence of the Appellant. Vide order dated 07.01.2022, the Trial Court noting that more than 6 months had elapsed from the date of appearance on behalf of the Appellant, struck off the defence under Order VIII Rule 2(1) CPC. Respondents filed the evidence by way of affidavit and since the Appellant did not appear on 05.03.2022, the Trial Court proceeded exparte. An application was filed by the Appellant under Order 9 Rule 7 CPC for setting aside the orders dated 07.01.2022 and 05.03.2022, which was dismissed on 15.07.2022.
7. The order was challenged before this Court in CM(M) 853/2022. Vide order dated 24.08.2022, this Court relying on the judgment of the Supreme Court in Suo Motu W.P. (C) 3/2020 titled as In re. Cognizance for Extension of Limitation granted the benefit of condonation of delay and permitted the Appellant to file a written statement within a period of two weeks from the date of the order.
8. Appellant filed the written statement and Respondents filed replication and an application under Order 12 Rule 6 CPC. Reply was filed by the Appellant to the application under Order 12 Rule 6 CPC and vide the impugned order dated 14.10.2022 the Trial Court allowed the application and passed a partial decree of possession in favour of the Respondents and against the Appellant directing the Appellant to vacate the suit premises within 45 days.
9. Challenging the impugned partial decree dated 14.10.2022, learned counsel for the Appellant argues that there are no clear, unequivocal or unambiguous admission by the Appellant before the Trial Court regarding the tenancy set up by the Respondents and therefore, the Trial Court erred in passing a possession decree on admission. Merely admitting factual position does not attract provisions of Order 12 Rule 6 CPC. The Trial Court overlooked the fact that at the instance of the Respondents, Appellant had paid additional charges, which were not reflected as a part of the Lease Deed. It is stated by the Appellant in her written statement that Respondents had started taking rent in cash from her with an assurance to adjust in the future lease rent. Several factual and legal controversies were raised in the written statement, which required leading of evidence and in the absence of clear admissions, the Trial Court has wholly erred in passing a partial decree under Order 12 Rule 6 CPC.
10. Per contra learned counsel for the Respondents supports the impugned judgment and submits that in a suit for possession of the present nature, for obtaining a decree on admission, Plaintiff is only required to show that: (a) there is a relationship of landlord and tenant between the parties to the lis; (b) the tenancy is not protected under the Delhi Rent Control Act, 1958; and (c) tenancy has been validly terminated, despite which the tenant has refused to hand over the possession. In the written statement, Appellant has admitted that the rent of the suit premises is Rs.49,500/- per month and has also admitted the execution and signing of the registered Lease Deed dated 20.06.2018 with Respondent No. 1. Respondent No. 1 had served a notice dated 23.06.2020, calling upon the Appellant to pay the outstanding rent, failing which the tenancy would stand terminated, which was duly received by the Appellant and therefore, in view of these clear admissions, Trial Court has rightly decreed the suit for possession in favour of the Respondents.
11. I have heard the respective counsels for the parties.
12. Since the decree in question has been passed under Order 12 Rule 6 CPC, it is necessary to examine the said provision, which is extracted hereunder for ready reference: “ADMISSIONS ……. [6. 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 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. (2) Whenever a judgment is pronounced under sub-rule (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.]
13. By virtue of an amendment by the Amending Act 104 of 1976, it is now clear that even where admissions are oral, Court is empowered, at any stage, of the suit to pass a judgment on admission(s). In this context, I may place reliance on the judgment of the Supreme Court in Himani Alloys Limited v. Tata Steel Limited, (2011) 15 SCC 273, where the scope and ambit of Order 12 Rule 6 CPC was considered and the relevant passage is as under:
14. Relevant would it be to also refer to the following judgments: (a) In Karam Kapahi v. Lal Chand Public Charitable, (2010) 4 SCC 753, Supreme Court held as follows:
39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it “ex debito justitiae”, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment.
40. If the provision of Order 12 Rule 1 is compared with Order
12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by “pleading or otherwise in writing” but in Order
12 Rule 6 the expression “or otherwise” is much wider in view of the words used therein, namely:“admission of fact … either in the pleading or otherwise, whether orally or in writing”.
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan [(2005) 11 SCC 279], SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas's Commentary on the Code, 16th Edn., Vol. II, p. 2177).
42. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000) 7 SCC 120] this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment.
43. In Uttam Singh Duggal case [(2000) 7 SCC 120] it was contended on behalf of the appellant, Uttam Singh Duggal, that: (a) Admissions under Order 12 Rule 6 should only be those which are made in the pleadings. (b) The admissions would in any case have to be read along with the first proviso to Order 8 Rule 5(1) of the Code and the court may call upon the party relying on such admission to prove its case independently.
(c) The expression “either in pleadings or otherwise” should be interpreted ejusdem generis. (See para 11, p. 126-27 of the Report.) Almost similar contentions have been raised on behalf of the Club. In Uttam Singh [(2000) 7 SCC 120] those contentions were rejected and this Court opined no effort should be made to narrow down the ambit of Order 12 Rule 6.
44. In Uttam Singh [(2000) 7 SCC 120] this Court made a distinction between a suit just between the parties and a suit relating to the Specific Relief Act, 1963 where a declaration of status is given which not only binds the parties but also binds generations. The Court held that such a declaration may be given merely on admission (SCC para 16 at p. 128 of the Report). But in a situation like the present one where the controversy is between the parties on an admission of nonpayment of rent, judgment can be rendered on admission by the court.
45. Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of the Madhya Pradesh High Court in Shikharchand v. Bari Bai [AIR 1974 MP 75]. G.P. Singh, J. (as His Lordship then was) in a concurring judgment explained the aforesaid Rule, if we may say so, very authoritatively at p. 79 of the Report. His Lordship held: (AIR para 19) “… I will only add a few words of my own. Rule 6 of Order 12 of the Code of Civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now Rule 3 of Order 27, and is almost identically worded (see Annual Practice, 1965 Edn., Part I, p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen [[1914] 1 Ch. 904: (1911) 13 All ER 906]. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against sub-letting. Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under Rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that Rule. Sargant, J. rejected the argument that the Rule is confined to admissions made in pleadings or under Rules 1 to 4 in the same order (same as ours) and said: ‘The Rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.’ Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargant, J. The words ‘either on the pleadings or otherwise’ in Rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial.”
46. This Court expresses its approval of the aforesaid interpretation of Order 12 Rule 6 by G.P. Singh, J. (as His Lordship then was). Mulla in his commentary on the Code has also relied on the ratio in Shikharchand [AIR 1974 MP 75] for explaining these provisions.
47. Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word “pleading” under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word “pleading” has been suffixed by the expression “or otherwise”. Therefore, a wider interpretation of the word “pleading” is warranted in understanding the implication of this Rule. Thus the stand of the Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing the judgment on admission under Order 12 Rule 6 in view of clear words “pleading or otherwise” used therein especially when that petition was in the suit filed by the Trust.
48. However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word “may” has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment.” (b) In Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeria, (2012) 3 SCC 550, the Supreme Court held as follows:
15. Seen in the above conspectus of law the question that arises is whether the admissions by the Appellant were unequivocal and unambiguous, entitling the Respondents to a partial decree on admission. The judgment of the Supreme Court in Jeevan Diesel & Electricals Ltd. v. Jasbir Singh Chahdha, (2010) 6 SCC 601 is a complete answer to this question, where the Supreme Court laid down the parameters of admission required in a suit for possession/ejectment by a landlord against the tenant.
16. In the present case perusal of the written statement reflects that Appellant had accepted the landlord-tenant relationship between the parties as well as the monthly rent payable by her, which is more than Rs.3,500/- per month, so as to take the suit premises outside the ambit of the Delhi Rent Control Act, 1958. The only surviving issue, therefore, is with regard to termination of the tenancy. The Lease Deed indicates that the lease was for a period of three years commencing from 15.06.2018 and ending on 14.06.2021. Nothing has been placed on record by the Appellant to show any Agreement in writing, signed by the parties, extending the lease beyond 14.06.2021 and the entire defence is only predicated on the ground that Respondent No. 1 had no right to terminate the Lease Deed until the advance rent was adjusted in the future monthly rent. Even in the reply to the application under Order 12 Rule 6 CPC Appellant’s opposition is premised on the amount of rent and adjustment of security deposit.
17. In Union Bank of India v. Sushila Goela, 2005 (8) AD 541, a Division Bench of this Court has held that object of notice under Section 106 of the Transfer of Property Act, 1882 is to inform the other party of the intention of the landlord to have his premises back. Since in the present case receipt of the notice is admitted the law does not require any further act on the part of the landlord to seek possession/ejectment. Even otherwise, the law is settled that mere filing of a suit is itself a notice on the tenant to quit. In this context, I may rely on the judgement in Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2008 2 SCC 728, relevant portion of which is as follows:
18. There is yet another facet to the present case. Admittedly, the lease has expired on 14.06.2021 and it is no longer res integra that where a tenancy expires by efflux of time and the tenant continues in possession, this would not amount to renewal of the tenancy, since it was not in pursuance of any contract, express or implied between the parties. [Ref. Delhi Jal Board v. Surendra P. Malik, (2003) 104 DLT 151]
19. Having considered the written statement and reply to the application under Order 12 Rule 6 CPC, in my view, there is a clear admission by the Appellant on all the aspects required to be established by a landlord in a suit for possession. No error can thus be found with the impugned judgment of the Trial Court.
20. Insofar as the dispute with respect to the outstanding rent is concerned, the suit is pending before the Trial Court qua the mesne profits, etc. and it is open to the parties to raise these issues before the Trial Court.
21. After the judgment has been dictated in the open Court, learned counsel for the Appellant, on instructions, seeks a period of two months to vacate the suit premises and also agrees that complete rent shall be paid, commencing from July, 2022 till the Appellant vacates the suit premises at the end of the period of 2 months from today.
22. Learned counsel for the Respondents has no objection as long as an affidavit of undertaking is filed by the Appellant to this effect and further states that the rent shall be accepted without prejudice to its contentions with respect to outstanding rent, before the Trial Court.
23. It is accordingly, directed that subject to the Appellant tendering an affidavit of undertaking that the Appellant shall vacate the suit premises within two months from today on payment of complete monthly rent commencing from month of July, 2022 till the end of two months from today, Respondents shall not execute the decree in this period.
24. The affidavit shall be filed within 3 weeks from today.
25. It is made clear that the appeal has been dismissed on merits, upholding the impugned order and in case the Appellant does not abide by the undertaking given, it will be open to the Respondents to take steps in accordance with law for execution of decree before the expiry of 2 months from today.
26. The Appeal along with pending application is, accordingly, dismissed.
JYOTI SINGH, J DECEMBER 08, 2022