CRL.M.C./2310/2020 of SANJAY CHAUHAN AND OTHERS Vs STATE OF NCT OF DELHI

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 8[th]December, 2021

+RSA 90/2021 & CM APPLs. 44124-26/2021

GURBINDER SINGH DHILLON..... AppellantThrough:Mr.S.S.JauharandMr.AmietAndlay, Advocates(M: [REDACTED])versus

GAGAN DASS

..... RespondentThrough:Mr.VipinKumarSainandMr.PawanKumar,Advocates(M:[REDACTED])

CORAM:JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1.This hearing has been done in physical Court. Hybrid mode ispermitted in cases where permission is being sought from the Court.CM APPLs. 44125/2021 & 44126/2021 (for exemption)

2.Allowed, subject to all just exceptions. Application is disposed of.RSA 90/2021 & CM APPL. 44124/2021 (for stay)

3.The present is second appeal challenging the impugned order dated2[nd]December, 2021, by which the Appellate Court in RCA DJ 47/2020titled Gurbinder Singh Dhillon v. Gagan Dass, has upheld the judgmentand decree dated 20[th]September, 2019, passed by the Trial Court in CS SCJ83556/16 titled Gagan Dass v. Gurbinder Singh Dhillon.

4.The suit for possession, recovery for arrears, rent and damages andpermanent injunction, was filed by the Plaintiff/Respondent/Sh. Gagan Dass,S/o Late Jai Karan Dass (hereinafter “Plaintiff”) in respect of property

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bearing No. P-81, South Extension, Part-II, New Delhi-55 which isadmeasuring 200 sq. yards (hereinafter “suit property”). The case of thePlaintiff was that the said property was leased out to the Defendant videlease deed dated 5[th]August, 2009 w.e.f. 1[st]August, 2009, for mutuallyagreed monthly rent of Rs.6,000/-. The said tenancy was for period ofthree years and had expired due to efflux of time. The tenancy wasterminated by the Plaintiff vide notice dated 22[nd]December, 2014, andthereafter the suit has been filed claiming the outstanding rent since 2013,along with possession. The reliefs claimed in the suit are as under:

“a.pass decree of possession in favour of the plaintiffand against the defendant in respect of the property i.e. P-81, South Extension, Part-II, New Delhi admeasuring about200 sq. yds. more particularly shown in the site planattached herewith, and

b)pass decree of sum of Rs. 1,50,000/- in favour ofthe plaintiff and against the defendant, being arrears ofrent w.e.f 31/12/2012 to till date and till handing over thepeaceful vacant possession of the suit property and

c.pass decree in favour of the plaintiff and againstthe defendant for sum of Rs.15,000/- per month (which isthe prevalent market rent of the suit property) as mesneprofits and damages for illegal use and occupation of theproperty w.e.f. 31/12/2012 till the date of handing over ofpossession by the defendant upon which the plaintiffundertake to pay the court fees on the amount so awardedin favour of the plaintiffs and

d.pass decree of permanent injunction in favour oftheplaintiffandagainstthedefendant,itsagents,representatives, employees workmen or any other personacting for, through and/or on behalf of the defendant fromparting of the possession of the suit property to any thirdperson.

d.award pendent elite, and future interest 18% perannum on the amount due to the plaintiff till the realization

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of the aforesaid amount and

e.award cost of the suit in favour of the plaintiff andagainst the defendant; andf.any other order or orders which this Hon’ble Courtmaydeemfitandproperinthegivenfactandcircumstances of the case may also be passed.”

5.Issues were framed in the suit on 15[th]December, 2015, as below:

“Issue no.1 Whether the plaintiff is entitled to relief ofpossession of the premises as prayed for? OPPIssue no.2 Whether the plaintiff is entitled to relief ofrecovery of Rs.1,50,000/- as arrears of rent as prayed for, ifyes for which period? OPP

Issue no.3 Whether the plaintiff is entitled to mesne profitsprayed for, if yes at what rate and for which period? OPPIssue no.4 Whether the plaintiff is entitled to interest uponthe arrears of rent and damages? OPP

Issue no.5 Whether the plaintiff is entitled to relief ofpermanent injunction as prayed for? OPPIssue no.6 Whether the present suit is not maintainable forwant of cause of action and suppression of material facts?OPD

Issue No.7 Relief.”

6.The evidence also commenced and some part of the cross-examination was recorded however, at that stage, there was change incounsel and an application under Order XII Rule 6 CPC was filed on behalfof the Plaintiff, relying on the admissions in the written statement. The saidapplication has been decided by the Trial Court vide order dated 20[th]September, 2019. The Trial Court has arrived at finding that there are clearadmissions made by the Defendant in this case in the written statement.Since the fresh lease agreement dated 5[th]August, 2009, (a typographicalerror led to the same being mentioned as 4[th]August, 2009 in the writtenstatement) was entered into by the Defendant with the Plaintiff himself, and

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the said fact is admitted in the written statement, there is no plausibledefence and in fact it is case for passing decree on admissions. The TrialCourt also records that in view of estoppel under Section 116 of the IndianEvidence Act, 1872, challenge to the ownership of the Plaintiff by theDefendant is also barred in law. The findings of the Trial Court are set outbelow:

“11. In view of this legal position, it is very clear thatwhere there is clear admission of certain facts by theopposite party and no other evidence is required for thedecision on the said fact, judgment should be certainlypassed on the basis of admission. In the present case,plaintiff has claimed himself to be the landlord of thedefendant in the suit property on the basis of latest leasedeed dated 05.08.09 and therefore, if the said relationshipof landlord and tenant is admitted and the rate of rent atwhich arrears have been claimed are admitted and againthe rate of damages sought by the plaintiff are admitted,plaintiff is certainly liable for judgment on the basis ofadmission.

12. Now in view of this legal position, let me advert to theadjudicationofthepresentapplication.Theplaintiff/applicant has relied upon the admission made bythe defendant in the WS and therefore, the pleadings ofboth the parties arc to be perused minutely. Now onperusal of WS, it comes to fore that in para no. 8 of thepreliminary objections, defendant has stated that he hadentered into fresh lease agreement dated 07.05.08 withLate Jai Karan Dass. In para no. 9 of the preliminaryobjections, it is stated that Jai Karan Dass expired on04.05.09 and thereafter, the plaintiff, son of Jai KaranDass, represented himself as owner of suit property andhe- entered into fresh lease agreement dated 04.08.09,however, it is alleged that he mislead the defendant on thebasis of false representations regarding his ownership.

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Again, on perusal of WS, it is further clear that in the lastsub-para of para no.1 of reply on merits, defendant hasfurther admitted that he had entered into the lease deeddated 04.08.09 with the plaintiff. There is no lease deeddated 04.08.09 in picture but only the lease deed dated05.08.09 filed by the plaintiff and therefore, it is certainlya typographical error in the WS and same has not beencontroverted on behalf of defendant in the reply to theapplication or during arguments at Bar. Accordingly, therelationship of landlord and tenant between the plaintiffand defendant is clearly admitted.

13. Now regarding the termination of tenancy, it is toobserve that in response to para no. 8 to 10 of the plaint,as mentioned in para no. 3 of reply on merits on WS, thedefendant has simply stated that plaintiff had no locus toserve the notice dated 22.12.14 terminating the leaseagreement, however, has not denied the service of thenotice of termination of tenancy and therefore, it is theclear admission of service of notice. Accordingly, by wayof such notice, the tenancy of the defendant in the suitproperty is further proved being admitted.

14. Now regarding the defence taken on behalf of thedefendant that plaintiff is not the owner of the suit propertyand has mislead the defendant at the time of entering intothe lease agreement, it is to observe that law is well settledas provided u/S 116 of lEA that tenant cannot challengethe title of the landlord in any manner. Moreover, it isnowhere the case of defendant that he not the tenant in theproperty. Accordingly, even if the plaintiff is not the realowner of the suit property, same does not entitle thedefendant to retain the possession of the suit propertythoughbeingatenant,oncehehasadmittedthelandlordship of the plaintiff. In this regard reliance can beplaced upon authority of Atma Ram (Supra). Therefore, Icome to the conclusion that plaintiff Is certainly entitledfor relief of possession from the defendant.

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15. Now regarding the relief of arrears of rent, it IS toobserve that in reply to para no. 5 of the plaint, whereinthe plaintiff has alleged that defendant had not paid therent since 31. 12. 12, the defendant in his WS in para no. 2of reply on merits has simply denied without any specificaverments and rather has stated about the agreement tosell between the parties. Undoubtedly, the agreement tosell, if any, does not cease the tenancy of the defendant inthe suit property and defendant has separate remedy toenforce the agreement to sell, if any, as per law. However,by evasive denial, defendant has certainly admitted thenon-payment of rent to the plaintiff. Same is furthercorroborated by the very fact that the appeal filed againstthe order dated 14.12.18 vide which the defendant wasdirected to deposit the rent @ Rs. 8800/- p.m. wasdismissed as withdrawn. Accordingly, I am satisfied thatplaintiff is further entitled for the arrears of rent @ Rs.8800/- p.m. as per the lease agreement dated 05.08.08 tilldate of termination of tenancy i.e. 22.12.14, which is thedate of notice of the termination.16. Now regarding the relief of damages claimed @ Rs.300/- per day, it is to observe that in response to theaverment in para no. 5 of the plaint that it was agreedbetween the parties in the lease agreement that in the eventof failure to handover the peaceful possession of thepremises by the defendant. he shall be liable to pay Rs.300/- per day as over staying charges till date of handingover the possession, the defendant has not stated even asingle word to deny the same. Therefore, the said evasionon part of defendant to the said averment is again innature of admission. It is nowhere stated in the WS onbehalf of defendant that the said lease agreement dated05.08.09 was signed by him under any coercion or undueinfluence. Accordingly, the defendant has further admittedthe entitlement of plaintiff for damages @ Rs. 300/- perday as per the lease agreement dated 05.08.08.

17. Now regarding relief of permanent injunction, it is toobserve that when it is admitted that defendant is thetenant of the plaintiff, the defendant certainly has no rightto part with the possession of the suit property to any thirdperson.

18. Lastly, regarding relief of interest claimed by theplaintiff, it is to observe that it is the discretionary relief tobe granted by the court as there was no agreementregarding any interest on the delayed payment of rent ordamages, however, I do not find any ground to award anyinterest.

19. It is to further observe that as laid· down m theauthority of Uttam Singh (Supra), the facts of the presentcase are that even if the suit is continued and decided onmerits after appreciation of evidence, the defendant cannotsucceed in any manner as the defence taken by thedefendant is not tenable in law and suit of the plaintiff is tobe certainly decreed. Accordingly, in view of aforesaiddiscussion, application u/0 XII Rule 6 CPC is herebyallowed and suit is hereby decreed with costs to the effectthat defendant is directed to hand over the vacantpossession of the suit property to the plaintiff within twomonths from today and to pay the arrears of rent @ Rs.8800/-, as per the lease agreement dated 05.08.08 from01.01.2013 to 22.12.2014 and again the damages @ Rs.300/- per day from 23.12.2014 till date of delivery ofpossession. In case of failure, plaintiff is at liberty toapproach the court by filing appropriate petition. Plaintiffis further directed to pay the court fee on the amount ofdamages calculated till date of judgment and decree sheetbe prepared only thereafter.”

7.This order was challenged by the Defendant and in the appeal, theAppellate Court has also come to the conclusion that the findings of theTrial Court are liable to be upheld. The Appellate Court holds that the title to

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the suit property need not to be proved by the Plaintiff so long as the leasedeed in this case is admitted. The appeal was accordingly dismissed.

8.Mr. Amit Andlay, ld. counsel appearing for the Defendant, primarilyraises the question of law that once issues were framed and trial hadcommenced, the application under Order XII Rule 6 CPC ought not to beentertained and decree on admission ought not to have been passedinasmuch as there is an FIR which has been lodged by the original owners’children i.e. Late Banarasi Dass’ children against the Plaintiff. He submitsthat considering the allegations raised in the said FIR, there is seriousdispute to the title of the Plaintiff and whether the Plaintiff in fact inheritedthe suit property or not. He relies upon the following two judgments:

(i)Balraj Taneja & another vs. Sunil Madan & Anr., AIR 1999 SC3381: to contend that even in cases where judgment is passed underOrder VIII Rule 10 CPC, while facts in the plaint are considered tobe admitted in absence of written statement, the Court mayrequire the plaintiff to prove such facts. Similarly, under Order XIIRule 6 CPC, admitted facts may be required to be proven. Hetherefore submits, that notwithstanding the admission in the writtenstatement, the Trial Court herein could have required proof of theownership of the Plaintiff; and3381: to contend that even in cases where judgment is passed underOrder VIII Rule 10 CPC, while facts in the plaint are considered tobe admitted in absence of written statement, the Court mayrequire the plaintiff to prove such facts. Similarly, under Order XIIRule 6 CPC, admitted facts may be required to be proven. Hetherefore submits, that notwithstanding the admission in the writtenstatement, the Trial Court herein could have required proof of theownership of the Plaintiff; and

(ii)Hari Steel and General Industries ltd. & Ors. v. Daljeet Singh &Ors, AIR 2019 SC 4796: to state that in judgment on admissions,the discretion is to be exercised judiciously, since judgmentwithout trial permanently denies any remedy to the Defendant andsuch judgment should not be passed once the trial has commencedin view of serious factual disputes in that matter;Ors, AIR 2019 SC 4796: to state that in judgment on admissions,the discretion is to be exercised judiciously, since judgmentwithout trial permanently denies any remedy to the Defendant andsuch judgment should not be passed once the trial has commencedin view of serious factual disputes in that matter;

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9.He submits that this is substantial question of law that has beenraised, i.e., the trial having commenced, the judgment on admissions oughtnot to have been passed.

10.On the other hand, counsel for the Plaintiff places reliance upon thecontents of the written statement as also the lease agreement dated 5[th]August, 2009. He submits that the lease deed is registered lease deed and itis an admitted document. Further, there is also an agreement to sell whichwas entered into on 24[th]May, 2010, though that transaction ultimately didnot fructify. However, the acknowledgement exists in both documents thatthe Plaintiff is the owner of the suit property. He submits that on the basis ofadmissions and due to non-payment of rent since 2013 by the Defendant,who is enjoying prime South Delhi property, without use and occupationcharges, the present second appeal is liable to be dismissed.

11.The Court has heard the counsel for the parties and has perused thepleadings as also the relevant documents.

12.The Defendant and his family have been tenants in this property since1984. It is the admitted position that Late Sh. Banarasi Dass was the originalowner of the suit property, who had given the suit property on rent to theDefendant/his predecessor. The original owner, Sh. Banarasi Dass, had foursons and two daughters and the Plaintiff in this case i.e. Sh. Gagan Dass isthe son of Sh. Jai Karan Dass, one of the sons of Sh. Banarasi Dass. Theremay be disputes between the other legal heirs of Banarasi Dass and thePlaintiff. However, this Court is not concerned with the said title disputes.

13.In the present case, this Court is to merely see the validity of thedecree which has been passed by the Trial Court. Admittedly, in the writtenstatement, the Defendant accepts that the lease agreement dated 5[th]August,

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2009 had been entered into by the Defendant. The defence which is nowraised is that the same was entered into on the basis of the fraudulentrepresentation made by the Plaintiff. The Defendant is not new person inthe suit property. He has always been residing in this suit property forseveral years. He has entered into lease deed as also, tried to have saletransaction in respect of this suit property with the Plaintiff. Both thesedocuments are admitted documents. Once the lease agreement dated 5[th]August, 2009 is admitted and the warranties and the conditions therein arealso admitted, the Defendant’s status in this case can only at best be that of alessee/tenant. The tenancy having expired and the tenancy having now beenterminated, the Defendant is estopped in law from challenging theownership/title of the Plaintiff. The Defendant cannot seek to take advantageof an inter-se dispute between the legal heirs of late Sh. Banarasi Dass andthe Plaintiff in order to continue to remain in occupation of the suitproperty.

14.A perusal of the judgment cited by Mr. Andlay, ld. counsel, in BalrajTaneja (supra) clearly shows that even the invocation of Order XII Rule 6CPC, is purely within the discretion of the Court. Though there is no doubtthat it can be read with Order VIII Rule 5 CPC, it is only if the Courts feelsthat there is necessity to prove the facts in the plaint that the trial ought tobe ordered. It is not in every case that trial would be required, as also heldby the Rajasthan High Court in Ramswaroop v. Manna Lal, 2016 (2) CCC368:

The case of Balraj Taneja & Anr. (supra) relied upon by Ms.Joshi- counsel for the defendant is of no succour. All that thesaid Judgment even otherwise enunciated, in whollydifferent context of suit for specific performance being

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decreed without written statement being filed and itsconsequence under Order 8 Rule 5, 9 and 10 CPC, is thateven in the event of an admission by the defendant in thewritten statement, the Court is to be cautious beforedecreeing the suit based thereon. Before passing Judgmenton the defendant's admissions it must be seen whether aJudgment must necessarily follow without the plaintiff beingrequired to prove any additional fact mentioned in the plaint.The Apex Court held "It is matter of Court's satisfactionand, therefore, only on being satisfied that there is no factwhich need be proved on account of deemed admission(underlining mine), the Court can conveniently pass aJudgment against the defendant who has not filed the writtenstatement." The law as stated does not support the sweepingcontention of the counsel for the defendant that admissions ofthe defendant apart, the plaintiff has yet to prove what hasbeen admitted. It all depends on the nature of the suit and theadmission in context thereto.”

15.Even in Raj Kumar Chawla v. Lucas India Services, (2006) 129DLT 755, Division Bench of the Delhi High Court held:

“6. The powers under Order XII rule 6 of the Code has to beexercised judicially on the facts and circumstances of eachcase. The admission on the basis of which the Court wishes topassadecreehastobeunambiguous,clearandunconditional. There is no doubt that in suit there can bemore than one decree passed at different stages and eachdecree being separate and independent is enforceable inaccordancewithlaw,wastheprinciplestatedbyMANU/SC/0505/1970 : AIR 1971 SC 1081C hanchal v.Jalaluddin. Admission understood in its common parlancestill must be specific admission. There is very finedistinction between unambiguous and specific admission onthe one hand and vague averments of facts which, if proved,could even tantamount to an admission on the part of partyto the suit. The Court has to consider the need for passing adecree on admission under these provisions only in the cases

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of first category and normally should decline in the cases ofthe later category.

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8. It is also settled principle of civil jurisprudence thatjudgment on admission is not matter of right and rather is amatter of discretion of Court. Where the defendant hasraised objection which will go to the very root of the case, itwould not be appropriate to exercise this discretion. The useof the words 'May' and 'make such orders' or 'give suchjudgment' spells out that power under these rules arediscretionary and use of discretion would have to becontrolled in accordance with the known judicial cannons.The cases which involves questions to be decided uponregular trial and the alleged admissions are not clear andspecific, it may not be appropriate to take recourse to theseprovisions.”

16.The title dispute in question being completely alien to the present suit,the proving of title beyond any doubt would not be required in the presentcase. In so far as the judgment in Hari Steel (supra) is concerned, theSupreme Court has observed therein as under:

“37. In this case it is to be noted that the suit was filed on1.11.2006 and written statement was filed on 25.01.2007 andthe application Under Order XII Rule 6 was filed on9.2.2007. In year 2010 issues and additional issues wereframed and trial is also commenced. In that view of thematter, there is no reason to pass the impugned order nowfor decreeing the suit on claimed admissions, in exercise ofpower Under Order XII Rule 6 of Code of Civil Procedure atthis stage. In view of the serious factual disputes and thedefence of the Appellants in the suit, it is not permissible formaking roving inquiry for disposal of the application filedUnder Order XII Rule 6 of Code of Civil Procedure. Whenthe trial is already commenced, it is desirable to recordfindings on various contentious issues and disputes in the suit

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on merits by appreciating evidence but at the same time thereis no reason or justification to decree the suit at this stage.For the aforesaid reasons, we are of the view that theimpugned judgment of the High Court cannot be sustainedand is liable to be set aside on this ground alone.”

17.Therefore, the decision in Hari Steel (supra) was peculiar to the factsthe case where there were serious factual disputes and it was held to bedesirable to record findings on such contentious issues. On the contrary, inthis case the documents such as the lease deed and agreement to sell areadmitted clearly. While the trial was on, the moving of an application underOrder XII Rule 6 CPC placed upon the admissions in the written statementcannot be held to be incorrect procedure in this case. The Court has tomerely see if there were admissions or not in the written statement. There isno doubt that in the present written statement filed by the Defendant, therewas clear admission of the lease deed dated 5[th]August, 2009. In the leasedeed, there is also clear admission that the lessor has given out theproperty on lease to the lessee and the Defendant.

18.The relevant portions of the written statement are set out below:

“8.That in the year 2007 Late Sh. Jai Karan Dass, father ofthe plaintiff approached defendant and demanded the rentwhatever was unpaid till 2006. He claimed that he has beenauthorized by the family to collect the rent of the premises andshowed the defendant some document with respect to thesame. copy of the document was not provided to thedefendant. After some negotiations with Mr. Jai Karan Dass,it was agreed that the defendant should pay the rent of threeyears for the unpaid period and this was duly paid to Late Sh.Jaikaran Dass. Thereafter fresh lease was entered into for aperiod of four years between Late Sh. Jai Karan Dass and thedefendant starting from 7/05/2008. Copy of lease deed dated07/05/2008 marked and annexed as ANNEXURE-8.the plaintiff approached defendant and demanded the rentwhatever was unpaid till 2006. He claimed that he has beenauthorized by the family to collect the rent of the premises andshowed the defendant some document with respect to thesame. copy of the document was not provided to thedefendant. After some negotiations with Mr. Jai Karan Dass,it was agreed that the defendant should pay the rent of threeyears for the unpaid period and this was duly paid to Late Sh.Jaikaran Dass. Thereafter fresh lease was entered into for aperiod of four years between Late Sh. Jai Karan Dass and thedefendant starting from 7/05/2008. Copy of lease deed dated07/05/2008 marked and annexed as ANNEXURE-8.

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9.That Sh. Karan Dass expired on 04/05/2009. Thereafterthe plaintiff, son of Sh. Jai Karan Dass approached thedefendant and falsely represented himself to be true andabsolute owner of the suit property. Plaintiff told defendantthat Late Sh. Banarasi Dass had sold the suit property to oneMr. Shyam Lal who in turn sold the suit property to him.Defendant was unaware of true state of family affairs ofplaintiff’s family and did not know that plaintiff was makingfalse representations and claims. Defendant didn’t know thatLate Sh. Banarasi Dass Santosh Nath had executed willdated 24/01/1990 and as per it plaintiff had only 1/4[th]share in1/3[rd]share of the suit property which had fallen into plaintiff’sfathers share as per the will. Plaintiff misled defendant onbasis of his false representation and forged documents toenter into fresh lease agreement dated 04/08/2009.”19.In view of the clear stand of the Defendant that fresh leaseagreement dated 5[th]August 2009 was entered into, though the same isalleged to be based on false representation, the status of the Defendantwould not change from lessee/tenant to one who has title to the suitproperty. The lease deed having been entered into on 5[th]August, 2009 andand no relief having been sought of cancellation of the said lease deed or theDefendant showing any better title or ownership in respect of the property,the Defendant being only an admitted lessee/tenant, he cannot takeadvantage to continue to remain in the suit property. Accordingly, this Courtdoes not find any ground to interfere in the Trial Court’s order or in theAppellate Court’s order.

20.The decree passed by the Trial Court to pay the arrears of rent at Rs.8,800/- as per the lease agreement dated 5[th]August, 2008 from 1[st]January,2013 to 22[nd]December, 2014 and again the damages @ Rs. 300/- per dayfrom 23[rd]December, 2014, till date of delivery of possession, is upheld.

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21.There is no substantial question of law that arises. The present appealis dismissed. All pending applications are disposed of. The decision in thepresent appeal or in the impugned orders would not however have anybearing on any title dispute/s between the legal heirs of Late Sh. BanarsiDass, if any, in respect of the title to the suit property, which would beadjudicated on their own merits.

DECEMBER 8, 2021R/mw/MS

PRATHIBA M. SINGHJUDGE