MOHD. RAZA & ANR. versus GEETA @ GEETA DEVI

[2021] 8 S.C.R. 772

[2021] 8 S.C.R.

MOHD. RAZA & ANR.

GEETA @ GEETA DEVI

(Civil Appeal No. 6098 of 2021)

BOCTOBER 04, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Code of Civil Procedure, 1908: Or.XII r.6 – Decree onadmission – Respondent-plaintiff filed suit for possession,mandatory/ permanent injunction and mesne profit with respect toCsuit property against defendants-appellants claiming himself to bethe owner of suit property and claiming that defendant No.1 wastenant and has sub-let the suit property/premises in favour ofdefendant No.2 – In the written statement, case of defendants wasthat they were not ‘now’ the tenant of the plaintiff but the actualDowner of suit property – It was further stated therein that defendantno.2 had purchased the suit property from plaintiff and suit forspecific performance of contract against the plaintiff was pendingfor adjudication before trial court – After the written statement wasfiled by defendants, plaintiff filed an application before trial courtto pass decree on admission under Or.XII r.6 of CPC – Trial courtEdismissed the application holding that defendant no.2 did not makeany admission regarding ownership of the plaintiff and their tenancyin the suit property – High Court, however, allowed the revisionpetition and passed decree for eviction against the defendants –On appeal, held: In the written statement, it was specifically statedFby defendants that they were not ‘now’ the tenant of the plaintiffbut the actual owner of the suit property – It is not in dispute andeven it was the case of defendants that defendant No.2 had institutedthe suit for specific performance against the plaintiff with respectto the suit property – Therefore, at this stage, defendant No.2 cannotbe said to be the owner as her suit for specific performance wasGpending adjudication – Unless and until decree for specificperformance is passed in her favour and/or the sale deed is executedpursuant to such decree, she cannot be said to be owner of thesuit property and plaintiff continues to be the owner and defendantNo.1 continues to be the tenant – Therefore, the aforesaid is rightlyHtreated as an admission on behalf of defendants with respect to

ownership of plaintiff and tenancy of defendant No.1 – High Courtas such has rightly passed the decree on admission – However,decree passed by High Court shall be subject to the outcome of thesuit for specific performance filed by defendant no.2.

Dismissing the appeal, the Court

HELD: Till the suit for specific performance is decided infavour of the defendants, more particularly defendant No. 2, shecannot be said to be the owner and that therefore the plaintiff-respondent continues to be the owner and defendant No.1continues to be the tenant. Therefore, the aforesaid is rightlytreated as an admission on behalf of the defendants with respectto the ownership of the plaintiff and that defendant No.1 is atenant. Therefore, the High Court as such has rightly passed thedecree on admission under Order XII Rule 6 of CPC which inthe facts and circumstances of the case cannot be said to beerroneous. However, at the same time, when the substantive suitfiled by defendant No. 2 against the plaintiff for specificperformance is pending, the decree passed by the High Courtshall always be subject to the outcome of the said suit filed bydefendant No. 2 against the plaintiff and if ultimately she succeedsin the suit, and decree for specific performance is passed andthe Trial Court passes the decree for possession (if prayed), thennecessary consequences shall follow and the plaintiff, subjectto filing the appeal, shall have to abide by the decree that maybe passed in the suit for specific performance. [Paras 8, 9][778-F-H; 779-A-B]

Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273: [2011] 7 SCR 60 – referred to.

Case Law Reference[2011] 7 SCR 60 referred toPara 5CIVIL APPELLATE JURISDICTION: Civil Appeal No.6098 of2021

From the Judgment and Order dated 14.11.2019 of the High Courtof Delhi at New Delhi in Civil Revision Petition No.175 of 2019 & CMApplication No.35781 of 2019.

ASanobar Ali, Anurag Rawat, Irshad Ahmad, Advs. for theAppellants.

Harsh Kumar, Ms. Sikha Gogoi, Ms. Anzu K. Varkey, Advs. forthe Respondent.The Judgment of the Court was delivered byB

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 14.11.2019 passed by the High Court of Delhi at NewDelhi in Civil Revision Petition No.175 of 2019, by which the High CourtChas allowed the said civil revision petition by quashing and setting asidethe order dated 27.07.2019 passed by the learned Trial Court andconsequently passed decree of eviction on admission under Order XIIRule 6 of CPC, the original defendants have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:-D2.1 That the respondent – original plaintiff had instituted Civil Suit

D2.1 That the respondent – original plaintiff had instituted Civil SuitNo.805 of 2018 against the original defendants – appellants herein in thecourt of Senior Civil Judge, (East) Karkardooma, Delhi for possession,mandatory injunction, permanent injunction and mesne profit with respectto the property bearing No.246/4, Ground Floor, East School Block,Mandawali, Delhi (hereinafter referred to as the suit property). It wasEaverred in the plaint that she is the lawful owner of the suit propertysince 15.01.2013 and defendant No.1 is the tenant vide rent agreementdated 14.03.2016, who illegally sub-let the property to defendant No.2without any prior intimation to the plaintiff and thus the tenancy ofdefendant No.1 has been revoked/terminated by the plaintiff onF17.07.2018. Thus the plaintiff claimed the ownership and claimed thatoriginal defendant No.1 is the tenant.

2.2 At this stage, it is required to be noted that the defendantsfiled the written statement (the contents of the same shall be dealt withherein below). After the written statement filed on behalf of theGdefendants, the plaintiff filed an application before the learned Trial Courtto pass decree on admission under Order XII Rule 6 of CPC on theground that in the written statement the defendants have admitted thatthe plaintiff is the owner and defendant No.1 is the tenant of the suitproperty. The said application was opposed on behalf of the defendants.A detailed reply was filed under Order XII Rule 6 of CPC on behalf ofH

the defendants. That thereafter the learned Trial Court dismissed thesaid application vide order dated 27.07.2019 by observing that from theperusal of written statement filed by the defendants, it is palpably clearthat defendant No.2 did not make any admission regarding the ownershipof the plaintiff and their tenancy in the suit property.

3. Feeling aggrieved and dissatisfied with the order passed by thelearned Trial Court dated 27.07.2019, dismissing the application underOrder XII Rule 6 of CPC and refusing to pass the decree on admission,the plaintiff – respondent herein preferred the revision petition beforethe High Court. By the impugned judgment and order, the High Courthas allowed the said revision application and quashed and set aside theorder passed by the learned Trial Court dismissing the application underOrder XII Rule 6 of CPC and consequently passed decree for evictionin favour of the plaintiff and against the defendants. At this stage, it isrequired to be noted that in the written statement, it was the specificcase on behalf of the defendants – appellants herein that defendantNo.2 is the absolute owner of the suit property and has paid sum ofRs.19 lakhs to the plaintiff and therefore she is in possession of the suitproperty as an owner. However, it is to be noted that defendant No.2had instituted suit against the plaintiff for specific performance of thecontract/agreement on the basis of which defendant No.2 is claiming tobe the owner of the suit property and the said suit is still pending.

4. Feeling aggrieved and dissatisfied with the judgment and orderpassed by the High Court, the original defendants have preferred thepresent appeal.

5. Shri Sanobar Ali, learned counsel appearing on behalf of theappellants – original defendants, has vehemently submitted that in thefacts and circumstances of the case the High Court has materially erredin passing decree on admission under Order XII Rule 6 of CPC. It issubmitted that the High Court has failed to appreciate and consider thefact that as such there was no clear admission on the part of thedefendants that the plaintiff is the owner and that the defendants/defendant No.1 is the tenant. It is submitted that therefore in absence ofany clear and unambiguous admission, the plaintiff shall not be entitledto the decree on admission. Reliance is placed upon the decision of thiscourt in the case of Himani Alloys Ltd. v. Tata Steel Ltd. reported in(2011) 15 SCC 273.

A5.1 It is further submitted by the learned counsel appearing onbehalf of the appellants that not only there are no specific admissions onthe part of the defendants that the plaintiff is the owner of the suit property,but it was the specific case on behalf of defendant No.2 that she is theabsolute owner of the suit property pursuant to the agreement to sellexecuted by the plaintiff and that defendant No.2 has paid sum ofBRs.19 lakhs to the plaintiff and therefore she is in possession of the suitproperty as an owner.

5.2 It is further submitted by the learned counsel appearing onbehalf of the appellants that even otherwise the substantive suit filed bydefendant No.2 against the plaintiff for specific performance of theCcontract to sell is pending before the learned Trial Court and that there isan injunction in favour of defendant No.2 – plaintiff in that suit.

6. The present appeal is vehemently opposed by Shri Harsh Kumar,learned counsel appearing on behalf of the respondent – original plaintiff.It is submitted that in the facts and circumstances of the case andDconsidering the averments in the written statement, it can be seen thatthere is clear admission on the part of the defendants that the plaintiffis the owner. He has taken us to the relevant averments in the writtenstatement filed on behalf of the defendants – appellants herein.

6.1 It is submitted that it is the case on behalf of the defendantsEmore particularly defendant No.2 that she is the owner of the suitproperty, therefore she is in possession of the suit property as an owner.It is submitted that defendant no.2 is claiming the ownership on the basisof the agreement to sell. It is submitted that agreement to sell does notconfer ownership at all. person in whose favour agreement to sell isFexecuted becomes the owner either pursuant to the sale deed executedby the executor and/or decree for specific performance of the contracthas been passed. It is submitted that even as per the case of defendantNo.2 the suit for specific performance is pending.

6.2 It is submitted that if the written statement as whole isGconsidered, in that case there is an admission on the part of the defendantsthat plaintiff is the owner and that even the tenancy in favour of defendantNo.1 also has been admitted. However, it is the case on behalf ofdefendant No.2 that she is the owner and as an owner she is in possessionwhich has no legal basis. It is submitted that therefore in the facts andcircumstances of the case the High Court has rightly passed decreeHon admission under Order XII Rule 6 of CPC.

7. We have heard the learned counsel appearing on behalf of therespective parties at length.

8. At the outset, it is required to be noted that as such respondentherein - plaintiff filed the suit for possession, mandatory injunction,permanent injunction and mesne profit with respect to the propertybearing No.246/4, Ground Floor, East School Block, Mandawali, Delhiagainst the defendants – appellants herein, claiming to be the owner ofthe suit property and claiming that defendant No.1 is the tenant anddefendant No.1 has sub-let the suit property/premises in favour ofdefendant No.2. In the written statement, it was the case on behalf ofthe defendants – appellants herein that defendants are not ‘now’ thetenant of the plaintiff but the actual owner of the suit property. Inparagraphs 1 to 3, it is stated in the written statement as under:-

1. “That the present suit is not maintainable as the answeringdefendants are not now the tenant of the plaintiff but the actualowner of the suit property. The plaintiff sold the suit property inquestion to the answering defendants for which some documentswere also executed by the plaintiff in favour of the answeringdefendant no. 2/Seema Begum on 15.01.2017 and 29.01.2017,hence the suit of the plaintiff is liable to be dismissed with heavycost.

2. That the plaintiff has filed false and fabricated suit byconcealing the material and true facts of the case and the plaintiffwants to harass the answering defendants and to grab the earnestmoney of the answering defendants by filing the present suit. It issubmitted that the suit of the plaintiff is not maintainable in theeye of law because this matter is not the suit for possession,mandatory injunction, permanent injunction and mesne profitbetween the parties but it is the matter of the ownership, cheatingand grabbing the money of Rs. 19 Lakhs of the answeringdefendant and it is the matter of compliance the agreement betweenthe parties which is executed by the plaintiff on 29.01.2017 hencethe suit of the plaintiff is liable to be dismissed with cost.3. That it is submitted that the suit property is absolutely concernedwith the defendants. The defendant no. 2/Seema Begum is absoluteowner of the suit property and she has every right or interest inthe suit property in question. She has purchased the suit propertyin question and other part of the suit property (measuring area 30

Asq. yards and 50 sq. yards) and the defendants had taken thepeaceful possession both part of the suit property from the plaintiff.The defendant no. 2 has also filed case/suit for specificperformance of contract, declaration, eviction and permanentinjunction against the plaintiff which is pending for adjudicationbefore the Hon’ble Court of Sh. Sanatan Prasad, Ld. ADJ, East,BKKD Courts, Delhi”

Thus from the aforesaid, it is clear that the defendants are claimingthe ownership of the suit property. The defendant no.2 is claiming to bein possession as an owner and claiming to be the owner. It can also beseen that the plaintiff has filed the suit as an owner. It is not in disputeCand even it is the case on behalf of the defendants that defendant No.2had instituted the suit for specific performance against the plaintiff withrespect to the suit property, meaning thereby there is clear cut admissionthat the plaintiff is the owner.

9. It is to be noted at this stage that defendant No.2 cannot beDsaid to be the owner as her suit for specific performance is yet to bedecided by the learned Trial Court. Unless and until there is decreepassed in her favour and the decree for specific performance is passedand/or the sale deed is executed pursuant to such decree, she cannotbe said to be the owner of the suit property. Till the suit for specificEperformance is decided, the plaintiff – respondent herein continues to bethe owner and defendant No.1 – appellant herein continues to be thetenant. In the written statement in paragraph 1, it is specifically statedby the defendants that the defendants are not ‘now’ the tenant of theplaintiff but the actual owner of the suit property. As observedhereinabove, till the suit for specific performance is decided in favour ofFthe defendants, more particularly defendant No.2, she cannot be said tobe the owner and that therefore the plaintiff – respondent herein continuesto be the owner and defendant No.1 continues to be the tenant. Therefore,the aforesaid is rightly treated as an admission on behalf of the defendantswith respect to the ownership of the plaintiff and that defendant No.1 isGa tenant. Therefore, the High Court as such has rightly passed the decreeon admission under Order XII Rule 6 of CPC which in the facts andcircumstances of the case cannot be said to be erroneous. However, atthe same time, when the substantive suit filed by defendant No.2 againstthe plaintiff for specific performance is pending, it is to be observed thatthe decree passed by the High Court by the impugned judgment andH

MOHD. RAZA & ANR. v. GEETA @ GEETA DEVI

order shall always be subject to the outcome of the said suit filed bydefendant No.2 against the plaintiff and if ultimately she succeeds in thesuit, and decree for specific performance is passed and the learnedTrial Court passes the decree for possession (if prayed), then necessaryconsequences shall follow and the plaintiff, subject to filing the appeal,shall have to abide by the decree that may be passed in the suit forspecific performance. It also goes without saying that any injunctiongranted by the learned Trial Court in the suit filed by defendant No.2 forspecific performance of the contract shall also not be affected unlesssubsequently the order of injunction if any in favour of defendant No.2 ismodified by the learned Trial Court.

10. In view of the above and for the reasons stated above, thepresent appeal fails and the impugned judgment and order passed by theHigh Court is confirmed subject to the observations made in earlierparagraph No. 9. In the facts and circumstances of the case there shallbe no order as to costs.

Devika Gujral