M/S Jeevan Diesels & Electricals Ltd vs M/S Jasbir Singh Chadha (Huf) & Anr

decree of dispossession passed by the Additional

District Judge, Delhi on 23.09.2008 against the

appellant.

3. The material facts of the case are that the

respondents-plaintiffs, claiming to be the

landlords/owners of the premises bearing Flat

No.205, (2nd Floor), Arunachal Building, 19,

Barakhambha Road, New Delhi-110001 having area of

581 sq. ft., (super area) (hereinafter, `the suit

premises') filed a suit against the appellant for

recovery of possession and mesne profit. The case of

the plaintiff-landlord in the plaint is that the

appellant was inducted as a tenant vide lease deed

dated 07.07.2003 at a monthly rent of Rs.23,200/-

for a period of three years with effect from

07.07.2003. According to the respondents-plaintiffs

the said lease dated 07.07.2003 was initially for a

period of three years and which was to be renewed

for a further period of three years as per the

mutual consent of both the parties with 20% increase

in the monthly rent. The main case of the plaintiff-

landlord is that the said lease deed had expired by

efflux of time and notice to that effect was sent to

2 appellant which was enclosed with the plaint. In

paragraph 6 of the plaint further averment is that

the appellant, despite determination of its tenancy

of the suit property, has failed to vacate the suit

property, and handover the possession thereof to the

respondents-plaintiffs.

4. The stand of the respondents-plaintiffs before the

Civil Court and also the High Court and before this

Court also was that the case of termination of

tenancy has been admitted by the appellant in its

written statement.

5. In order to appreciate this controversy it will be

proper to set out the relevant averments in the

plaint and written statement of the parties.

6. Paragraphs 5 and 6 of the plaint on which the

respondents-plaintiffs rely are as follows:-

"5. That the tenancy has expired by efflux of time but for the precautionary measure, the Plaintiffs vide notice dated July 15, 2006 terminated the tenancy of the Defendant, which was sent via Regd. Ad. & UPC. The aforesaid notice dated July 15, 2006 was duly served upon the defendant. The copy of said notice is annexed herewith as Annexure A-3. The registration receipt, UPC and acknowledgement

3 card are annexed herewith as Annexure A-4 to A-6 respectively.

6. That the defendant, despite, the determination of its tenancy of the said suit property has failed to vacate the suit property and handover the possession thereof to the Plaintiffs".

7. In the written statement, which was filed by the

appellant, paragraphs 5 and 6 of the plaint have

been dealt with in paragraphs 5 and 6 of the written

statement respectively. Those two paragraphs are set

out below:-

"5. That the contents of para 5 of the plaint are a matter of record. It is submitted that tenancy has neither expired by efflux of time nor it has been terminated.

6. That in reply to the contents of para 6 of the plaint, it is submitted that defendant is in possession of the premises. There has been no determination of tenancy.

8. It is clear from a perusal of the aforesaid

averments in the written statement that the

appellant has disputed (a) the fact of expiry of

tenancy by efflux of time; (b) the appellant has

also disputed that there has been a determination of

tenancy. So far as receipt of notice referred to in

4 paragraph 5 of the plaint is concerned, there has

been no denial by the appellant.

9. Learned counsel for the appellant also argued before

us that the lease deed cannot be terminated in view

of certain clauses contained in the lease. The said

argument was opposed by the learned counsel for the

respondents-plaintiffs. But in the facts of this

case and in view of the nature of the judgment we

propose to pass we need not decide those contentions

at all.

10. It may be noted herein that to the written statement

filed by the appellant, the respondents-plaintiffs

did not file any rejoinder. They filed an

application under Order 12 Rule 6 of the Code of

Civil Procedure for passing a judgment on admission.

In the said petition in paragraph 4, the

respondents-plaintiffs also averred as follows:-

"4. That in view of the admission (i) On existence of relationship of landlord and tenant and there after (ii) service of the termination notice, the only question left for adjudication for the purpose of possession is "whether the termination of the tenancy has been validly terminated?"

5 11. To that application the appellant had given a reply.

In paragraph 2 of the reply it was again denied by

the appellant that there was any admission by them

about termination or determination of tenancy. In

the said reply it has been stated that in the suit

issues are still to be framed and the case be tried

in accordance with the Civil Procedure Code as there

is no admission by the appellant and the

respondents-plaintiffs have to prove its case with

legally admissible evidence.

As such prayer was made to dismiss the application

of the respondents-plaintiffs under Order 12 Rule 6.

12. Learned counsel for the respondents-plaintiffs

relied on a judgment of this Court in Karam Kapahi &

Others vs. M/s. Lal Chand Public Charitable Trust &

Another reported in 2010 (3) SCALE 569 and contended

that in view of the principles laid down in that

case, this Court may affirm the judgment of the High

Court in the instant case. This Court is unable to

accept the aforesaid contention. In Karam Kapahi

(supra) a Bench of this Court analyzed the

principles of Order 12 Rule 6 of the Code and held

that in the facts of that case there was clear

admission on the part of the lessee about non-

6 payment of lease rent. The said admission was made

by the lessee in several proceedings apart from its

pleading in the suit. In view of such clear

admission, the Court applied the principles of Order

12 Rule 6 in the case of Karam Kapahi (supra). The

principles of law laid down in Karam Kapahi (supra)

can be followed in this case only if there is a

clear and unequivocal admission of the case of the

plaintiff by the appellant.

13. Whether or not there is a clear, unambiguous

admission by one party of the case of the other

party is essentially a question of fact and the

decision of this question depends on the facts of

the case. This question, namely, whether there is a

clear admission or not cannot be decided on the

basis of a judicial precedent. Therefore, even

though the principles in Karam Kapahi (supra) may be

unexceptionable they cannot be applied in the

instant case in view of totally different fact

situation.

14. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of

India and others reported in (2000) 7 SCC 120 the

provision of Order 12 Rule 6 came up for

7 consideration before this Court. This Court on a

detailed consideration of the provisions of Order 12

Rule 6 made it clear "wherever there is a clear

admission of facts in the face of which it is

impossible for the party making such admission to

succeed" the principle will apply. In the instant

case it cannot be said that there is a clear

admission of the case of the respondents-plaintiffs

about termination of tenancy by the appellant in its

written statement or in its reply to the petition of

the respondents-plaintiffs under Order 12 Rule 6.

15. It may be noted here that in this case parties have

confined their case of admission to their pleading

only. The learned counsel for the respondents-

plaintiffs fairly stated before this Court that he

is not invoking the case of admission `otherwise

than on pleading'. That being the position this

Court finds that in the pleadings of the appellant

there is no clear admission of the case of

respondents-plaintiffs.

16. In this connection reference may be made to an old

decision of the Court of Appeal between Gilbert vs.

Smith reported in 1875-76 (2) Chancery Division 686.

8 Dealing with the principles of Order XL, Rule 11,

which was a similar provision in English Law, Lord

Justice James held, "if there was anything clearly

admitted upon which something ought to be done, the

plaintiff might come to the Court at once to have

that thing done, without any further delay or

expense" (see page 687). Lord Justice Mellish

expressing the same opinion made the position

further clear by saying, "it must, however, be such

an admission of facts as would shew that the

plaintiff is clearly entitled to the order asked

for". The learned Judge made it further clear by

holding, "the rule was not meant to apply when there

is any serious question of law to be argued. But if

there is an admission on the pleading which clearly

entitles the plaintiff to an order, then the

intention was that he should not have to wait but

might at once obtain any order" (see page 689).

17. In another old decision of the Court of Appeal in

the case of Hughes vs. London, Edinburgh, and

Glasgow Assurance Company (Limited) reported in The

Times Law Reports 1891-92 Volume 8 at page 81,

similar principles were laid down by Lord Justice

Lopes, wherein His Lordship held "judgment ought not

9 to be signed upon admissions in a pleading or an

affidavit, unless the admissions were clear and

unequivocal". Both Lord Justice Esher and Lord

Justice Fry concurred with the opinion of Lord

Justice Lopes.

18. In yet another decision of the Court of Appeal in

Landergan vs. Feast reported in The Law Times

Reports 1886-87 Volume 85 at page 42, in an appeal

from Chancery Division, Lord Justice Lindley and

Lord Justice Lopes held that party is not entitled

to apply under the aforesaid rule unless there is a

clear admission that the money is due and

recoverable in the action in which the admission is

made.

19. The decision in Landergan (supra) was followed by

the Division Bench of Calcutta High Court in

Koramall Ramballav vs. Mongilal Dalimchand reported

in 23 Calcutta Weekly Notes (1918-19) 1017. Chief

Justice Sanderson, speaking for the Bench, accepted

the formulation of Lord Justice Lopes and held that

admission in Order 12, Rule 6 must be a "clear

admission".

10

20. In the case of J.C. Galstaun vs. E.D. Sassoon & Co.,

Ltd., reported in 27 Calcutta Weekly Notes (1922-23)

783, a Bench of Calcutta High Court presided over by

Hon'ble Justice Sir Asutosh Mookerjee sitting with

Justice Rankin while construing the provisions of

Order 12, Rule 6 of the Code followed the aforesaid

decision in Hughes (supra) and also the view of Lord

Justice Lopes in Landergan (supra) and held that

these provisions are attracted "where the other

party has made a plain admission entitling the

former to succeed. This rule applies where there is

a clear admission of the facts on the face of which

it is impossible for the party making it to

succeed". In saying so His Lordship quoted the

observation of Justice Sargent in Ellis vs. Allen

[(1914) 1 Ch. D. 904] {See page 787}.

21. Similar view has been expressed by Chief Justice

Broadway in the case of Abdul Rahman and brothers

vs. Parbati Devi reported in AIR 1933 Lahore 403.

The learned Chief Justice held that before a Court

can act under order 12, Rule 6, the admission must

be clear and unambiguous.

22. For the reasons discussed above and in view of the

facts of this case this Court cannot uphold the 11 judgment of the High Court as well as of the

Additional District Judge. Both the judgments of the

High Court and of the Additional District Judge are

set aside.

23. The matter is remanded to the trial Court for

expeditious disposal of the suit as early as

possible, preferably within a period of six months

from the date of service of this order on the

learned trial Court. It is made clear that this

Court has not made any observation on the merits of

the case.

24. The appeal is allowed. There will be no order as to

costs.

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

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

New Delhi May 7, 2010

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