Karam Kapahi vs Lal Chand Public Charitable Trust

2. Both the appeals impugn the judgment and

order dated 9.1.2009 passed by a Division

Bench of Delhi High Court in RFA (OS) No.

34/2002.

3. In the appeal filed by Karam Kapahi, Sujit

Madaan, Anup Malik and Neeraj Girotra, it is

asserted that as members of the M/s South

Delhi Club Ltd. (hereinafter referred to as

the `Club') they are directly affected by the

judgment and decree passed in Suit (Suit

No.518 of 1999) filed by the respondent

Trust. Challenging the judgment and decree in

the suit, Appeal RFA (OS) No. 34 of 2002 was

filed by the Club. Their main contention in

the SLP is that they were not parties to the

Suit but they may be affected by the orders

passed therein. On such representation a

Bench of this Court by an order dated

9.4.2009 permitted them to file a special

leave petition and also issued notice and

2 stayed further proceedings for the execution

of the judgment and decree of the High Court.

4. About a fortnight thereafter, the Club filed

another Special leave petition (C) No.

9091/2009 challenging the same judgment of

the Appellate Bench of the High Court and a

Bench of this Court on 24.4.2009 in view of

the previous notice already against the same

judgment issued notice in that special leave

petition filed by the Club and directed it to

be tagged with the earlier special leave

petition (C) No. 9080/2009 filed by the

members. Both the matters were heard together

in view of common questions of fact and law

in these matters.

5. The material facts are as under.

6. Respondent No.1 - M/s Lal Chand Public

Charitable Trust and Anr., a registered

charitable trust (hereinafter, `the Trust')

was the lessor and the Club was the lessee.

3 On or about 16.12.1998 the Trust and some of

its members filed a Suit, being Suit No.

518/1999, before the Delhi High Court against

the Club in view of termination of club's

lease for non-payment of lease rent by the

Club. The suit was for possession in respect

of its land and building situated at Central

Park, Greater Kailash-I, New Delhi and also

for recovery of an amount of Rs. 11,60,000/-

as damages and mesne profit and also for

future damages.

7. In the said plaint the stand of the

plaintiff-trust was that by a sub-lease dated

4.11.1965 property in question (fully

described in the plan attached to the plaint)

was leased to the Club for 25 years.

Thereafter, Supplementary deed of Sub-lease

dated 25.7.1979 was also executed between the

parties and the same was duly registered. As

the supplementary lease dated 25.7.1979

expired on 3.11.1990, the Club requested the

4 Trust for a further renewal and further

renewal was given for a period of 25 years

from 4.11.1990 on the terms and conditions as

stipulated in the Agreement and the said

lease was also duly registered.

8. In terms of the sub-lease, the Club undertook

to pay quarterly to the Trust on account of

monthly lease rent by the 10th of the

beginning of each quarter month, and a sum

equivalent to 14% of the monthly subscription

paid or payable by the members of the Club.

It is also averred in the plaint that it is

agreed between the parties that in case of

default in payment of lease rent for two

consecutive quarters, the Trust will be

entitled to terminate the said sub-lease.

9. The case of the respondent-Trust is that the

Club defaulted in payment of rent and before

the filing of the Suit the Trust issued

several letters dated 25.12.1996, 14.1.1997

and 18.6.1997 calling upon the Club to pay

5 the rent but as the Club failed to pay the

amount, the respondent-Trust served a legal

notice dated 25.7.1997, again calling upon

the Club to pay the entire lease rent failing

which, it was made clear, that the Trust will

take legal action. The exact averment in the

plaint is as follows:

"...thus compelling the plaintiff to serve a legal notice dated 25.7.1997 and by the said notice, the defendant was called upon to pay the entire lease money failing which the defendant was informed that the plaintiff shall be left with no option but to terminate the sub-lease and take further legal action in the matter. The said notice was duly received by the defendant and despite receipt of the notice; the defendant did not pay the amount."

10. In the Written Statement filed by the Club,

paragraph (9) of the plaint was dealt with in

paragraph (9) of the Written Statement but

the aforesaid fact was not denied.

11. Prior to suit another legal notice dated

28.10.1997 was issued by the Advocate on

6 behalf of the Trust to the Club wherein it

was expressly stated that the Club has

deliberately committed default in making

payment for the quarters ending September

1996, December, 1996, March 1997, June 1997,

September 1997, December 1997, March 1998,

June, 1998 despite service of previous

notices.

12. It appears that the Club did not respond to

the said notice. This has been stated in

paragraph 10 of the plaint and it has been

further averred that the said notice dated

28.10.1997 sent by the Advocate on behalf of

the trust was received by the Club but the

Club did not give any reply. This fact was

not denied in paragraph (10) of the Written

Statement filed by the Club.

13. Thereafter a legal notice dated 2.12.1997 was

sent on behalf of the Trust terminating the

tenancy of the Club in view of non-payment of

7 lease rent and the arrears and calling upon

the Club to hand over the peaceful vacant

possession. The said notice has been

disclosed by the Club in its special leave

petition before this Court.

14. After the Trust terminated the tenancy of the

Club by its notice dated 2.12.1997, a reply

was sent by the Club on 6.12.1997 with a plea

that the Trust is not the lessor of the suit

premises and has no right to let out the same

to the Club and thus inter alia the title of

the Trust over the suit premises was

challenged. In the said reply, the Club

pointed out to a suit filed by it, namely,

Suit No. 1605 of 1997 (South Delhi Club

Limited v. DLF Housing and Construction and

others). However, prior thereto the Trust

gave its notice dated 25.7.1997 demanding

rent.

8

15. The main contention in Club's suit, inter

alia, is that the Trust has divested itself

from its ownership over the suit property and

has ceased to be its owner and as such is not

entitled to any beneficiary interest. In the

suit a declaration was sought to the effect

that the Trust has no right, title and

interest in the suit premises and also for

cancellation and revocation of the sub-lease

dated 23.09.1992 and with a further prayer to

restrain the Trust from claiming and

demanding any lease rent from the Club.

16. To that suit, being 1605 of 1997, the Trust

filed a written statement on 17.08.1998 and

also filed an application for rejection of

plaint (I.A. No. 7294 of 1998). The Club was

to file its replication to the written

statement filed by the Trust. The matter was

repeatedly adjourned on 18.3.1995, 15.9.1999

and 19.1.2000 but the Club did not file its

replication nor did it take steps to effect

service on defendant no.5. Under those

9 circumstances, the Court declined the prayer

of the Club for further adjournment to file

their replication and directed the matter to

be listed on 21.2.2002. It appears that the

Club was not taking any step and the matter

was adjourned from time to time. On

10.12.2001, the matter again appeared and it

was recorded that there was no appearance on

behalf of the plaintiff i.e. the Club and the

matter was directed to be listed on 8.4.2002.

Nobody appeared for the Club on 8.4.2002, and

the Court was pleased to pass the following

order:-

"There is no appearance on behalf of the plaintiff. On the last date also, nobody had turned up on his behalf.

In the circumstances, the application as well as suit are dismissed for default."

17. Then on 8.5.2002 the Club filed its

application for restoration of the suit and

the restoration application was listed for

disposal on 1.10.2002. Then again by an

10 order dated 11.12.2002 the restoration

application was ordered to be listed on

6.2.2003.

18. In the course of hearing of the matter before

this Court nothing was produced to show that

the said suit has been restored. It appears

that the said application for restoration was

kept pending and the last order for its

listing was passed on 16.5.2006.

19. Now coming beck to the suit filed by the

Trust, it appears that in that suit (No. 518

of 1999) the Club filed its written statement

on 14.2.2000.

20. On a perusal of the written statement of the

Club, the following position will emerge:

(a) The club has admitted that there was an

execution of sub-lease dated 4.11.1965

between the parties though the title of the

11 trust over the suit property was disputed.

It was also admitted in paragraph 8 that

the Club withheld the payment or rent and

was ready to deposit the same before the

Registrar of the High Court. In paragraph

15 of the written statement the arrears of

rent were worked out. In paragraph 10 of

the written statement non-payment has been

admitted but the Club gave its reasons for

such non-payment. In paragraph 11, 12 and

13 the notice of termination of the lease

was acknowledged.

(b) In the said suit the Club filed an I.A.

being 1724 of 2000 inter alia praying that

the Trust be restrained from receiving the

lease money.

(c) The said I.A. came up for hearing on

24.07.2000 and a learned Judge of the Delhi

High Court inter alia held since the Club

admitted that it was inducted as a tenant

in the suit premises under the lease deed,

it cannot withhold the payment of

12 rent/damages inter alia on the ground that

the suit premises belong to MCD who had

never demanded any rent. The I.A. was thus

dismissed and the Club was directed to pay

the arrears of rent from July 1996 till the

date of the said order within a month from

the date of the order. The operative

portion of High Court's order dated

24.7.2000 is set out below:-

"...It is pertinent to note that under Section 116 of the Indian Evidence Act, a tenant is estopped from denying the title of the lessor to the tenanted premises during the continuane of lease. The Defendant having admitted that it was inducted as a tenant in the Suit premises by the Plaintiff under aforesaid two registered lease deeds, can not now withhold the payment of rent/damages on the ground of premises allegedly belonging to MCD who has not demanded any rent. I.A. 1724/2000 is, therefore, liable to be dismissed and in I.A.2281/99 an Order under Rule 10 of Order 39 CPC deserves to be passed against the Defendant directing it to pay the arrears of rent/damages since July 1996 and future rent/damages at the last paid rate which the Defendant's counsel had also undertaken to pay as is manifest from the Order dated 15th December, 1999.

Accordingly, I.A. 1724/2000 is dismissed. In I.A.2281/99 the Defendant is directed to pay

13

arrears of rent/damages since July 1996 till date at the last paid rate within one month from today and it will also continue to make payment thereof for the subsequent period, month by month at the same rate to the Plaintiff Trust."

21. Prior to that order dated 24.7.2000 in the

suit filed by the Trust (Suit No. 518 of

1999) an order was passed on 15.12.1999

wherein it was recorded by the High Court

that the counsel for the Club undertook to

pay rent and clear all damages on or before

the next date of hearing. The exact order

passed by the High Court is set out below:-

"Ld. Counsel for defendant submit that defendants would make the payment of the rent/damages at the "last paid rate" and clear all arrears on or before the next date of hearing. It is made clear that payments made towards rent/damages would be without prejudice to the rights and contentions raised by the defendants assailing the right of the plaintiff to receive payment of rent/damages."

22. Challenging the Single Bench order dated

24.7.2000, the Club filed an appeal being FAO

14 (OS) No. 272 of 2000 before the Division

Bench and one of the contentions of the Club

was that the learned Single Judge was in

error in holding that under Section 116 of

the Indian Evidence Act, a tenant is estopped

from denying the title of the lessor to the

tenanted premises during the continuance of

the lease. However, the said appeal with all

those contentions of the Club was dismissed

in-limine by a Division Bench of the Delhi

High Court by an order dated 19.9.2000 which

reads as under:

"A copy of the order dated 15th December, 1999 passed in this very suit has been brought to our notice. In view of the said order, in our view it is not even open to the appellant to raise this issue of payment of rent/damages to the respondents again.

The said order has been passed protecting the rights and contentions of the respective parties. In view of the said order, this appeal is dismissed in limine."

23. It appears that the said order of the High

Court dated 19.9.2000 was never challenged by

15 the Club and it became final. However, the

direction which was given by the learned

Single Judge in its order dated 24.7.2000

referred to hereinabove was not complied with

by the Club.

24. Then on 8.5.2001, the Club filed an

application under Section 114 of the Transfer

of Property Act in the suit filed by the

Trust (Suit No.518 of 1999).

25. In the said application the stand of the Club

is that the controversy between the parties,

namely, the Trust and the Club has been

resolved and the Club has no objection to pay

the rent reserved under the said sub-lease

dated 23.9.1992. In paragraphs (7) and (8),

the Club made this categorical statement:

"7. That with the disclosure of the said documents the controversy between the parties stands resolved and the Defendant can have no objection to paying the rent reserved under the said sub-lease Deed dated 23.9.1992.

16 8. That the Defendant has paid a portion of the arrears of rent and undertakes to pay all future rent in accordance with the terms of the said sub-lease Deed dated 23.9.1992".

26. In that application a prayer was made for

relieving the Club against forfeiture

resulting from the non-payment of rent and to

declare that the Club holds the suit property

as if the forfeiture has not occurred on the

Club's undertaking to honour all its

obligations under the sub-lease dated

23.9.1992.

27. Sometime in May 2000, the Trust, in its Suit,

filed an application under Order 12 Rule 6 of

the Code of Civil Procedure for passing a

judgment on admission. In the said

application in paragraph 4, the Trust

asserted that on a perusal of the written

statement filed by the Club following things

are admitted; (i) relationship of Lessor and

Lessee (ii) Rent being above Rs.3500/- p.m.

17 and (iii) a notice of termination of lease of

the Club has been duly served on the Club and

(iv) non-payment of rent by the Club.

28. To that application a reply was filed by the

Club. While replying the averments made in

paragraph 4 of that application, the Club

only referred to the suit filed by the Club

stating that the lease in question is

fraudulent and is under challenge, but

specific averments made in paragraph 4 of

Trust's application were not denied. In

answer to the averment made in paragraph 6 of

the Trust's application about the monthly

rent of the suit premises, no specific denial

was given by the Club except urging that the

lease deed is void ab-initio.

29. The suit filed by the Trust then came up for

hearing and by a judgment and order dated

22.10.2002 the learned Trial Judge refused to

grant relief under Section 114 of the

Transfer of Property Act. The Court also held

18 that since there is clear admission by the

club about non-payment of rent the plaintiff

is entitled to a decree for possession in

respect of the entire suit property.

30. Then an appeal was filed by the Club

impugning the said judgment which was

dismissed by a Division Bench of the Delhi

High Court by judgment and order dated

9.1.2009.

31. The Division Bench also held that the conduct

of the Club disentitles it from the equitable

relief under Section 114.

32. The Division Bench after dismissing the

appeal directed the Club to hand over vacant

possession in respect of the suit property to

the Trust by 31.3.2009.

33. It is interesting to note that even though in

its petition under Section 114 of the

19 Transfer of Property Act, the Club took a

stand that it has no objection of paying the

rent reserved under the sub-lease dated

23.9.1992, in the appeal which was filed by

the Club being RFA (OS) No.34 of 2002 against

the order of Single Judge dated 22.10.2002,

the Club took a totally contrary stand that

the Trust has no right or title over the suit

premises and it cannot demand the rent.

34. It appears that in the course of the appeal,

the Club took various contrary stands and

adopted various dilatory tactics. From the

order passed by the Division Bench of the

High Court, it appears that it has been noted

that the appellant took various adjournments

before concluding its arguments and sought

adjournments on 21.7.2003, 11.12.2003,

12.4.2004, 13.10.2004, 23.11.2004 11.1.2005,

7.2.2005, 2.8.2005, 16.9.2005 and as a result

of which the appeal was dismissed for non-

20 prosecution on 18.10.2005 by the Division

Bench.

35. Thereafter, the Club again filed an

application for restoration of the appeal and

the appeal was restored by the Division Bench

on 16.1.2006 wherein the Court commented upon

the dilatory tactics resorted to by the Club

and restored the appeal by imposing a cost of

Rs.10,000/- on the Club.

36. As the Division Bench refused to grant any

stay of the order dated 30.11.2005 in respect

of the execution proceeding, the Club filed a

special leave petition being SLP (C) No.

25261 before this Court. The said Special

Leave Petition was disposed of by this Court

by an order dated 6.7.2006. While disposing

of the said petition, this Court was pleased

to observe that the appeal filed by the Club

should be disposed of within a reasonable

time and all dilatory tactics adopted by the

21 tenant-Club should be defeated. After

observing that this Court ordered that the

High Court should dispose of the appeal with

utmost expedition preferably within six

months and made it clear that in case the

tenant-Club adopts dilatory tactics in the

disposal of the appeal within the time

schedule, the High Court shall record an

order to that effect that the interim order

passed by this Court shall stand vacated and

the decree may be executed, if necessary, by

deputation of armed forces.

37. Even though this Court by its order dated

6.7.2006 directed the disposal of the appeal

within six months, it was disposed of, as

stated above, only in the month of January,

2009.

38. Even after the disposal of the appeal,

several steps were taken delaying the

execution of the decree. Some Members of the

22 Club filed a petition praying for extension

of time for handing over possession beyond

31st March, 2009 as that was the deadline to

hand over possession by the Club to the

trust. The Members prayed for extension of

time of eight weeks from 31.3.2009. The

application by the members was dismissed by

the Division Bench of the High Court by an

order dated 24.3.2009.

39. Thereafter, another set of Members filed a

suit being CS(OS) No. 509/2009 before the

Delhi High Court with a prayer to set aside

the judgment of the learned Single Judge

dated 22.10.2002 which was affirmed by the

Division Bench by its judgment dated

9.1.2009.

40. I.A. No. 3583/2009 was also filed in the said

suit for staying the operation of the order

dated 22.10.2002 passed by the Single Judge.

The said application was also dismissed by a

23 detailed order of the Delhi High Court on

30.3.2009. While doing so the Court observed

that the Club and its members were fully

aware about the pendency of the suit, the

passing of the judgment and decree as well as

of the appeal filed against the judgment

otherwise resolution could not have been

passed on 23.10.2002 in favour of Mr.

Bhandari to file the appeal against the

judgment and decree of the High Court.

41. The said judgment dated 30.3.2009 passed in

the I.A. was not challenged.

42. In the earlier part of this judgment, this

Court noted that the first special leave

petition against the Division Bench Judgment

was filed by some members of the Club, inter

alia, on the ground that they are affected by

the judgment and decree of the High Court to

which they were not made parties and on such

representation, this Court issued notice and

24 stayed the operation of the High Court's

judgment dated 9.1.2009. About a fortnight

thereafter the Club filed its special leave

petition and took advantage of the previous

order of stay which was passed by this Court

and got its special leave petition tagged

with the petition filed by the Club members.

Now this Court is hearing both the petitions

together.

43. In the background of these facts, Mr. Ravi

Shankar Prasad, learned Senior Counsel for

the appellant-Club highlighted the following

points in support of his submission that the

appeal should be allowed:

(a) The High Court erred by applying the

principles of Order 12 Rule 6 of Civil

Procedure Code in the facts and

circumstances of this case as there was

no clear admission by the Club of case

of the Trust in its plaint.

25 (b) The principles of Section 114 of the

Transfer of Property Act are

independent of the provision of Order

12 Rule 6. Section 114 of the Transfer

of Property Act is an equitable remedy

for a lessee in a given case and the

stand taken in a proceeding under

Section 114 cannot be taken into

consideration to reach a finding under

Order 12 Rule 6 of the Code.

(c) Assuming there is failure to deny case

in the plaint that does not necessarily

amount to proof and the Court before

granting decree ought to have

considered the proviso to Order 8 Rule

5 of the Code.

(d) The overall conduct of a litigant in

pursuing the case at various stages

cannot be considered for the purpose of

disentitling it from getting an

equitable relief in a proceeding under

26 Section 114 of the Transfer of property

Act.

(e) In the facts of this case, bar of

estoppel under Section 116 of the

Evidence Act does not operate on the

Club from questioning the title of the

Trust.

44. On the other hand, Mr. Soli J. Sorabjee,

learned Senior Counsel appearing on behalf of

the Trust advanced the following

submissions:-

(a) The object of Order 12 Rule 6 is to

enable a party to obtain speedy

judgment and the application of the

Rule cannot be narrowed down.

According to the learned counsel,

certain relevant and vital facts in the

plaint of the Trust have been admitted

by the Club.

(b) The learned Counsel further submitted

that in the instant case, the Club

27 cannot question the title of the

landlord i.e. the Trust, and the suit

(Suit No. 1605 of 1997) which it filed

questioning the title of the Trust was

dismissed and there is nothing on

record to show that it has been

restored.

(c) The contentions which the Club raised

in its petition for relief under

Section 114 of the Transfer of Property

Act were not taken without prejudice to

its stand in the written statement.

Club's admissions in the written

statement and in its petition under

Section 114 of the Transfer of Property

Act are clear and the Court can take

both into consideration.

(d) The stand of the Club in its suit and

in its application filed in the Trust's

suit for restraining the Trust from

receiving the rent is inconsistent with

the Club's stand in its application

28 under Section 114 of the Transfer of

Property Act. The Club thus approbates

and reprobates which it legally cannot

do.

(e) The Club did not accept the order dated

24.7.2000 passed by the learned Single

Judge directing it to pay arrears from

July 1996 but it was challenged by the

Club by way of appeal, which was

dismissed. Assuming subsequent payments

were made pursuant to the said order

dated 24.7.2000 that does not efface

the consequences of non-payment in the

past.

(f) Reliance on the first proviso to Order

8 Rule 5 of the Code is misconceived

and in the instant case both the

learned Single Judge and the Division

Bench on appreciation of the pleading

held that there were clear admissions.

(g) In the facts and circumstances of the

case and on its overall conduct, the

29 Club is not entitled to obtain the

discretionary relief from this Court

under Article 136 of the Constitution

of India.

45. Considering the aforesaid rival contentions

of the parties, this Court is unable to

accept the stand of the appellant and is

inclined to dismiss both the appeals for the

reasons discussed hereinbelow.

46. The principles behind Order 12 Rule 6 are to

give the plaintiff a right to speedy

judgment. Under this Rule either party may

get rid of so much of the rival claims about

`which there is no controversy' [See the

dictum of Lord Jessel, the Master of Rolls,

in Thorp versus Holdsworth in (1876) 3

Chancery Division 637 at 640]. In this

connection, it may be noted that order 12

Rule 6 was amended by the Amendment Act of

1976.

30

47. Prior to amendment the Rule read thus:-

"6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just."

48. 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 judges to use it `ex debito

justitial, 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,

31 can press for judgment, as a matter of legal

right. However, the Court always retains its

discretion in the matter of pronouncing

judgment.

49. 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 in as much 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'.

50. Keeping the width of this provision in mind

this Court held that under this rule

admissions can be inferred from facts and

circumstances of the case [See Charanjit Lal

Mehra and others v. Kamal Saroj Mahajan

32 (Smt.) and another, (2005) 11 SCC 279 at page

285 (para 8)]. Admissions in answer to

interrogatories are also covered under this

Rule [See Mullas's commentary on the Code,

16th Edition, Volume II, page 2177].

51. In the case of Uttam Singh Duggal & Co. Ltd.,

v. United Bank of India and others, (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.

52. In that case 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

33 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, pages

126-127 of the report]

53. Almost similar contentions have been raised

on behalf of the Club. In Uttam Singh (supra)

those contentions were rejected and this

Court opined no effort should be made to

narrow down the ambit of Order 12 Rule 6.

54. In Uttam Singh (supra) this Court made a

distinction between a suit just between the

parties and a suit relating to Specific

Relief Act where a declaration of status is

given which not only binds the parties but

also binds generations. The Court held such a

declaration may be given merely on admission

(para 16, page 128 of the report). 34

55. But in a situation like the present one where

the controversy is between the parties on an

admission of non-payment of rent, judgment

can be rendered on admission by Court.

56. Order 12 Rule 6 of the Code has been very

lucidly discussed and succinctly interpreted

in a Division Bench judgment of Madhya

Pradesh High Court in the case of

Shikharchand and others Vs. Mst. Bari Bai and

others reported in AIR 1974 Madhya Pradesh

75. Justice G.P. Singh (as His Lordship then

was) in a concurring judgment explained the

aforesaid rule, if we may say so, very

authoritatively at page 79 of the report.

His Lordship held:-

"... 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 edition Part I. p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen (1914) Ch 904. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of

35 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 Sargent, 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."

(Emphasis added)

57. This Court expresses its approval of the

aforesaid interpretation of Order 12 Rule 6

by Justice G.P. Singh (as His Lordship then

was). Mulla in his commentary on the Code

has also relied on ratio in Shikharchand

(supra) for explaining these provisions.

58. Therefore, in the instant case even though

statement made by the Club in its petition

36 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 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.

59. 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.

37

60. But in the given situation, as in the instant

case, the said provision can be applied in

rendering the judgment.

61. The contentions of the Club cannot be

accepted on another legal ground also. It is

clear that the Club has taken inconsistent

pleas. On the one hand the Club alleged that

the Trust is not its Lessor and has no right

to receive the lease rent and it questions

the title of the Trust. On the other hand the

Club is seeking the equitable remedy against

forfeiture under Section 114 of the Transfer

of Property Act where it has proceeded on the

basis that the Trust is its Lessor and the

Club is the Lessee and as a Lessee it has to

pay the lease rent to the Trust. Therefore,

the Club seeks to approbate and reprobate.

62. The phrase `approbate and reprobate' is

borrowed from Scots Law where it is used to

38 express the Common law principles of

Election, namely, that no party can accept

and reject the same instrument.

63. In the instant case while filing its Suit and

questioning the title of the Trust, the Club

seeks to reject the lease deed. At the same

time while seeking the equitable remedy under

Section 114 of the Transfer of Property Act,

the Club is relying on the same instrument of

lease. Legally this is not permissible. {See

the observation of Scrutton, L.J., in

Verschures Creameries Ltd. Vs. Hull and

Netherlands Steamship Co. Ltd.,- 1921-2 KB

608, which has been approved by a

Constitution Bench of this Court in Bhau Ram

Vs. Baij Nath Singh and Ors. - AIR 1961 SC

1327]

64. The principle of Election has been very

felicitously expressed in the treatise

`Equity - A course of lectures' by F.W.

Maitland, Cambridge University, 1947. The

39 learned author has explained the principle

thus:

"The doctrine of Election may be thus stated: That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it....."

65. In the old equity case of Streatfield Vs.

Streatfield (White and Tudor's Leading Cases in

Equity, 9th Edition, Volume I, 1928) this

principle has been discussed in words which are

so apt and elegant that I better quote them:

"Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both

(f). The principle is stated thus in Jarman on Wills (g): "That he who accepts a benefit under a deed or will must adopt the whole contents of the

40 instrument, conforming to all its provisions, and renouncing every right inconsistent with it" (h). The principle of the doctrine of election is now well settled."

66. This principle has also been explained by

this Court in Nagubai Ammal and Ors. Vs. B. Shama

Rao and Ors.- AIR 1956 SC 593. Speaking for a

three-Judge Bench of this Court, Justice

Venkatarama Ayyar stated in para 23 at page 602

of the report:

"The doctrine of election is not however confined to instruments. A person cannot say at time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.

________________________

(f) Story (3rd ed.), p.452; Dillon v. Parker, 1 Swans.394, note (b); Thellusson v. Woodford, 13 V. 220.

(g) (6th ed.), 532; and see Farwell on Powers (3rd ed.), p.429.

(h) See Walpole v. Conway, Barn. C. 159; Kirkham v.

Smith, 1 Ves. Sen. 258; Macnamara v. Jones, 1 Bro. Ch. 481; Blake v. Bunbury, 4 Bro. Ch. 21; Wintour v. Clifton, 21 B. 447; 8 De G. M. & G. 641; Codrington v. C., L.R. 7 H.L. 854, 861; Pitman v. Crum Ewing, [1911) A.C., at pp.228, 233; Brown v. Gregson, [1920] A.C. 860, 868.

It is clear from the above observations that the maxim that a person cannot `approbate and reprobate' is only one application of the doctrine of election."

41

67. On the doctrine of election the learned Judge has

also referred to Halsbury's Laws of England,

(Volume XIII page 454 para 512) in which this

principle of `approbate and reprobate' has been

described as a species of estoppel which seems to

be `intermediate between estoppel by record and

estoppel in pais' (Page 602 of the report).

68. The said principle has also been accepted by this

Court in C. Beepathuma and Ors. Vs. Velasari

Shankaranarayana Kadambolithaya and Ors. - AIR 1965

SC 241, paragraphs 17-18.

69. Therefore, the common law doctrine of Election is a

part of our jurisprudence and squarely applies in

this case inasmuch as the Club has advanced

inconsistent pleas as noted hereinabove.

70. In so far as non-payment of lease rent is

concerned, the Club has admitted it in its written

statement in paragraphs (8) and (10). The Club has

also admitted it in its reply to the Trust's

42 petition under Order 12 Rule 6 referred to

hereinabove. The Club has also admitted non-payment

of rent in its petition under Section 114 of the

Transfer of Property Act where it sought the

equitable remedy of forfeiture and which has been

denied to it by the High Court for valid reasons.

71. From the pleadings between the parties in this case

the following things are admitted:

(a) the Club has admitted in its written

statement that the Trust is its Lessor;

(b) the Club has also admitted that it has not

paid the lease rent;

(c) the Club has also admitted that the lease

rent is more than Rs.3500/- per month in

its reply to the Trust's petition under

Order 12 Rule 6;

(d) the Club has also admitted the receipt of

notice of termination of lease issued by

the Trust on the ground of non-payment of

lease rent.

43 72. The Suit filed by the Club questioning the title of

the Trust as its Lessor has been dismissed and

nothing has been shown to this Court that it has

been restored as on date. Such a plea is prima

facie not acceptable in view of the provisions

under Section 116 of the Evidence Act. However, in

support of its case that the Club is not estopped

under Section 116 of the Evidence Act to challenge

the title of the lessor, learned Counsel for the

Club relied on a judgment of this Court in D.

Satyanarayana Vs. P. Jagadish - (1987) 4 SCC 424.

The principle laid down in that decision is not

attracted in the facts of this case.

73. In D. Satyanarayana (supra) the tenant was a sub-

tenant of the tenant-respondent. The sub-tenant was

threatened with eviction by the superior landlord.

Being threatened with such eviction, the sub-tenant

started paying monthly rent directly to the

superior landlord. In such a situation the Court

held that an exception to the rule of estoppel

under Section 116 of the Evidence Act can be made

44 since title of the landlord came to an end as he

was evicted by the title paramount. The Court held

even if there is a threat of eviction by the title

paramount, the tenant can attorn to the title

paramount and a new jural relationship of landlord

and tenant may come into existence. In such a

situation, a sub-tenant can question the title of

the tenant and the bar under Section 116 of the

Evidence Act cannot apply. Here the fact situation

is totally different. Here the Club was not facing

threat of eviction from anybody excepting the Trust

and there is no question of a superior landlord. In

the instant case Section 116 prima facie applies

and the Club is prima facie stopped from

challenging the title of the Trust.

74. Apart from the reasons discussed above, in our

opinion the Club is not entitled to any equitable

relief under Article 136 of the Constitution having

regard to its conduct. From the facts discussed

above it is clear that the Club was very negligent

in pursuing its case. Its case was dismissed on

several occasions. The Club also adopted dilatory

45 tactics in prolonging the litigation. Even after

losing the appeal before the High Court, the Club,

through its members initiated several proceedings

to stall the execution of the decree and in those

proceedings the High Court held that with knowledge

of the Club those proceedings by the members were

initiated. Even while filing the Special Leave

Petition before this Court, initially the members

of Club came with the usual plea of not being aware

of the eviction proceeding against the Club as they

were not parties to the same. On that plea the

members initially obtained a stay of the execution

proceedings. Thereafter, the Club taking advantage

of the existing stay order, filed its SLP.

75. In the backdrop of these facts one thing is clear

that the conduct of the Club is such as to

disentitle it to any discretionary remedy.

76. The jurisdiction of this Court under Article 136 of

the Constitution is basically one of conscience.

The jurisdiction is plenary and residuary in

nature. It is unfettered and not confined within

46 definite bounds. Discretion to be exercised here is

subject to only one limitation and that is the

wisdom and sense of justice of the judges (See

Kunhayammed and others vs. State of Kerala and

another - (2000) 6 SCC 359 at 371). This

jurisdiction has to be exercised only in suitable

cases and vary sparingly as opined by the

Constitution Bench of this Court in the case of

Preetam Singh vs. The State reported in AIR 1950 SC

169, at paragraph 9.

77. Over the years this view has been repeated in

several cases and some of which are noticed

hereunder.

78. In Municipal Board, Pratabgarh and another vs.

Mahendra Singh Chawla and others reported in (1982)

3 SCC 331, a two Judge Bench of this Court held

that in exercising the discretionary jurisdiction

under Article 136 law is to be tempered with equity

and if the equitable situation so demands the

47 Supreme Court should mould the final order (See

paragraph 6).

79. Subsequently in Transmission Corpn. of A.P. Ltd.

Vs. Lanco Kondapalli Power (P) Ltd. reported in

(2006) 1 SCC 540 this Court held that while

exercising jurisdiction under Article 136 the

conduct of the party is a relevant factor and in a

given situation this Court may refuse its

discretionary jurisdiction under Article 136 (See

paragraphs 54, 55 and 56). Similar views have been

expressed in the case of Jagraj Singh vs. Birpal

Kaur reported in (2007) 2 SCC 564 wherein this

Court held that the conduct of the parties is

relevant when the Court is exercising its

jurisdiction under Article 136 (See paragraph 30). In Tanna & Modi vs. CIT, Mumbai XXV and others

reported in (2007) 7 SCC 434 this Court held it

does not exercise its discretionary jurisdiction

under Article 136 just because it is lawful to do

so (See paragraph 23). In the case of Prestige

Lights Ltd. vs. State Bank of India reported in

48 (2007) 8 SCC 449 the Court refused to exercise

jurisdiction under Article 136 of the Constitution

having regard to the conduct of the parties.

80. For the reasons aforesaid this Court is not

inclined to interfere in exercise of its

jurisdiction under Article 136. Both the appeals,

the one filed by Karam Kapahi & Others and the next

one filed by the M/s. South Delhi Club Ltd. are

dismissed with costs assessed at Rs.25,000/-

(Rupees Twenty-five thousand) to be paid by M/s

South Delhi Club to M/s. Lal Chand Public

Charitable Trust within four weeks from date. The

Judgment of the High Court is affirmed.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi April 07, 2010

49