9. The words in Order XII Rule 6 CPC “may” and
“make such order…” show that the power under Order XII
Rule 6 CPC is discretionary and cannot be claimed as a
matter of right. Judgment on admission is not a matter of
right and rather is a matter of discretion of the Court. Where
the defendants have raised objections which go to the root of
the case, it would not be appropriate to exercise the
discretion under Order XII Rule 6 CPC. The said rule is an
enabling provision which confers discretion on the Court in
delivering a quick judgment on admission and to the extent
of the claim admitted by one of the parties of his opponent’s
claim. In the suit for eviction filed by the
respondent-landlord, appellant-tenant has admitted the
relationship of tenancy and the period of lease agreement;
but resisted respondent-plaintiff’s claim by setting up a
defence plea of agreement to sale and that he paid an
advance of Rs.82.50 lakhs, which of course is stoutly denied
by the respondent-landlord. The appellant-defendant also
filed the Suit for Specific Performance, which of course is
contested by the respondent-landlord. When such issues
arising between the parties ought to be decided, mere
admission of relationship of landlord and tenant cannot be
said to be an unequivocal admission to decree the suit under
Order XII Rule 6 CPC.
“make such order…” show that the power under Order XII
Rule 6 CPC is discretionary and cannot be claimed as a
matter of right. Judgment on admission is not a matter of
right and rather is a matter of discretion of the Court. Where
the defendants have raised objections which go to the root of
the case, it would not be appropriate to exercise the
discretion under Order XII Rule 6 CPC. The said rule is an
enabling provision which confers discretion on the Court in
delivering a quick judgment on admission and to the extent
of the claim admitted by one of the parties of his opponent’s
claim. In the suit for eviction filed by the
respondent-landlord, appellant-tenant has admitted the
relationship of tenancy and the period of lease agreement;
but resisted respondent-plaintiff’s claim by setting up a
defence plea of agreement to sale and that he paid an
advance of Rs.82.50 lakhs, which of course is stoutly denied
by the respondent-landlord. The appellant-defendant also
filed the Suit for Specific Performance, which of course is
contested by the respondent-landlord. When such issues
arising between the parties ought to be decided, mere
admission of relationship of landlord and tenant cannot be
said to be an unequivocal admission to decree the suit under
Order XII Rule 6 CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6106-6108 OF 2015
S.M. ASIF V VIRENDER KUMAR BAJAJ
Dated: August 12, 2015
R. BANUMATHI, J.
Citation;(2015) 9 SCC287,2016(2) MHLJ510
2. Challenge in these appeals is the correctness of
the orders dated 16.10.2014 and 27.10.2014 passed by the
High Court of Delhi in RFA No.505/2014, whereby the High
Court disposed of the appeal observing that the appellant
having not pressed the appeal and by changing their counsel
cannot be allowed to plead for adjournment to argue the
appeal. Review Petition No.499/2014 also came to be
dismissed by the High Court vide order dated 19.11.2014
which is also under challenge in these appeals.
3. Brief facts which led to filing of these appeals are
as under:- Respondent-landlord is the owner of the disputed
premises which is a built up area of entire second floor with
terrace/roof of the property bearing No.R-849 situated at
New Rajinder Nagar, New Delhi admeasuring 200 sq. yards.
The appellant-tenant contended that the respondent-landlord
entered into a registered agreement for lease at a monthly
rent of Rs.37,500/- for a period of twenty two months i.e.
from 15.03.2008 to 14.01.2010. After the expiry of first lease,
another registered lease was entered into between the parties
for two years i.e. from 15.01.2010 to 14.01.2012 on monthly
rent which was fixed at Rs.44,000/-. According to the
appellant, during the subsistence of the second lease, as the
respondent-landlord was in financial crisis, the
respondent-landlord and the appellant-tenant entered into
an agreement of sale in respect of the same tenancy premises
for an amount of Rs.1.56 crores. The appellant-tenant is said
2Page 3
to have advanced a sum of Rs.82.50 lakhs vide six payments
viz.:-
Rs.15,00,000/- on 16.01.2010;
Rs.12,50,000/- on 24.04.2010;
Rs.18,00,000/- on 15.09.2010;
Rs. 7,00,000/- on 01.11.2010;
Rs.15,00,000/- on 12.02.2011 and
Rs.15,00,000/- on 19.08.2011
For the above payments the respondent-landlord is said to
have issued six receipts acknowledging the receipts of money.
Agreement of sale was executed between the parties on
19.08.2011.
4. The respondent-landlord alleges that under
Section 106 of the Transfer of Property Act terminating the
lease, he sent a legal notice through speed post on
26.12.2011; however, the appellant-tenant denied having
received any such notice. As the defendant-tenant was not
vacating the premises, the respondent-landlord filed a Suit
No.256/13 for recovery of possession, mesne profits and
injunction in the Court of Additional District Judge, Tis
Hazari, Delhi. During the pendency of the suit, an
application under Order XII Rule 6 CPC read with Section
151 CPC was filed by the respondent-landlord and the trial
3Page 4
court vide its order dated 25.08.2014 allowed the said
application and directed the appellant-tenant to vacate and
handover physical possession of the suit premises to the
respondent-landlord.
5. Aggrieved by the Order, the appellant-tenant
preferred RFA No.505/2014 in the High Court of Delhi. As
per the order of the High Court, on the date of preliminary
hearing i.e. 16.10.2014, the learned counsel for the
appellant-tenant is said to have submitted that the “appeal is
not pressed on merits and he prays for grant of time to vacate
the suit premises. Limited on the point of grant of time matter
is listed for 24.10.2014….”. On 27.10.2014, the
appellant-tenant changed his counsel and requested that the
appeal may be heard and sought for an adjournment. The
learned Single Judge declined the request for adjournment
and disposed of the appeal observing that notice was issued
to the respondent-landlord limited only to the point of grant
of time to vacate the premises. Aggrieved by the said order,
the appellant-tenant filed a Review Petition No.499/2014
which also came to be dismissed by an order dated
4Page 5
19.11.2014. These appeals assail the correctness of the said
orders passed in the appeal as well as the Review Petition.
6. Learned counsel for the appellant-tenant
submitted that the appellant is an accredited journalist with
good reputation and has paid a huge sum of Rs. 82.50 lakhs
under an agreement of sale and while so, the trial court erred
in passing decree for eviction under Order XII Rule 6 CPC. It
was submitted that the trial court vide its order dated
30.09.2013, while directing the payment to be made during
the pendency of the suit at Rs.44,000/- per month has
stipulated a condition that in the event of the
appellant-tenant succeeding, the monthly amount paid
would be adjusted against the balance sale consideration
amount under the agreement for sale dated 19.08.2011. It
was further submitted that having regard to the defence
taken by the appellant-tenant, the trial court ought to have
adjudicated the matter and erred in passing a decree for
eviction without trial. It was also submitted that when the
matter came up before the High Court of Delhi on
16.10.2014, the appellant-tenant was not present in the
5Page 6
Court and his counsel sought time to take instructions and
according to the appellant-tenant, his counsel did not make
the statement ‘not pressing the appeal’. It is contended that
even assuming that the counsel for the appellant-tenant has
made such a statement, the learned Single Judge can
certainly permit a party to resile from the concession.
7. Per contra, learned counsel for the
respondent-landlord submitted that it is clear from the order
that the advocate appearing for the appellant in High Court
had only sought for time to vacate the premises and did not
press the appeal on merits. Contention at the hands of the
respondent is that it is quite unbelievable that the appellant
has paid a huge sum of Rs.82.50 lakhs by cash and the
alleged agreement of sale is a fabricated one and since the
appellant does not have a substantial defence, the trial court
rightly passed the decree under Order XII Rule 6 CPC and
the impugned orders do not suffer from any infirmity
warranting interference.
8. We have carefully considered the rival contentions
and perused the impugned orders and material on record.
9. The words in Order XII Rule 6 CPC “may” and
“make such order…” show that the power under Order XII
Rule 6 CPC is discretionary and cannot be claimed as a
matter of right. Judgment on admission is not a matter of
right and rather is a matter of discretion of the Court. Where
the defendants have raised objections which go to the root of
the case, it would not be appropriate to exercise the
discretion under Order XII Rule 6 CPC. The said rule is an
enabling provision which confers discretion on the Court in
delivering a quick judgment on admission and to the extent
of the claim admitted by one of the parties of his opponent’s
claim. In the suit for eviction filed by the
respondent-landlord, appellant-tenant has admitted the
relationship of tenancy and the period of lease agreement;
but resisted respondent-plaintiff’s claim by setting up a
defence plea of agreement to sale and that he paid an
advance of Rs.82.50 lakhs, which of course is stoutly denied
by the respondent-landlord. The appellant-defendant also
filed the Suit for Specific Performance, which of course is
contested by the respondent-landlord. When such issues
arising between the parties ought to be decided, mere
admission of relationship of landlord and tenant cannot be
said to be an unequivocal admission to decree the suit under
Order XII Rule 6 CPC.
10. Having regard to the stand taken by the parties, in
our view, an opportunity has to be afforded to the appellant
to put forth his defence and contest the suit and therefore,
the matter is to be remitted to the trial court for a fresh
hearing, however, subject to the condition that the appellant
should pay the arrears of rent at the rate of Rs.44,000/- per
month within a period of eight weeks. Further the appellant
shall pay Rs.1,00,000/- per month to the
respondent-landlord as compensation for use and occupation
of the suit premises with effect from 01.08.2015 and the
respondent-landlord shall issue necessary
receipt/acknowledgment for having received the same. The
trial court vide its order dated 30.09.2013 while directing the
payment of Rs. 44,000/- per month has stipulated a
condition that in the event of the appellant succeeding, the
said amount would be adjusted against the balance sale
consideration amount under the agreement for sale dated
19.08.2011. Having regard to the said order passed by the
trial court, payment of sum of Rs.1,00,000/- per month
would also be subject to the final outcome of the eviction suit
as well as the suit for specific performance.
11. The impugned orders are set aside and the matter
is remitted back to the Rent Controller for consideration of
the matter afresh and the appeals are allowed on the above
terms. The rent controller shall dispose of the matter as
expeditiously as possible. We make it clear that we have not
expressed any opinion on the merits of the matter. No order
as to costs.
…………………………J.
(T.S. THAKUR)
…………………………J.
(V. GOPALA GOWDA)
…………………………J.
(R. BANUMATHI)
New Delhi;
August 12, 2015
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