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1996 DIGILAW 332 (DEL)

ADARSH CHUG v. JAVA DIXIT PARALATA

1996-04-09

body1996
M. S. A. SIDDIQUI ( 1 ) BOTH the appeals arise out of an order dated 14. 12. 1994 passed by the Additional District Judge. Delhi in Civil Suit No. III 5/93 on the petition filed by the plaintiff/landlord under Order 39 Rule 10 C. P. C. read with Section 151 C. P. C. ( 2 ) THE plaintiff/landlord filed a suit being suit No. III 5/93 against the tenant/defendant for eviction and recovery of arrears of rent and the mesne profits. Alongwith the plaint, the plaintiff/landlord filed an application under Order 39 Rule 10 C. P. C. read with Section 151 C. P. C. for direction to the defendant/tenant to pay to the plaintiff/landlord arrears of rent with effect from 1. 6. 93 till disposal of the suit. The learned Trial Judge by his order dated 14. 12. 1994 allowed the petition and directed the defendant/tenant to pay the plaintiff/landlord arrears at the rate of Rs. 7,150. 00 p. m from June. 1993 till November, 1994 within a period of 45 days. He also directed the plaintiff/landlord to adjust a sum of Rs. 1,10,000. 00 in computing the arrears of rent. The defendant/tenant was further directed to continue depositing rent month by month by the 7th of each succeeding month. Aggrieved by the said order, the plaintiff/landlord and the defendant/tenant have filed these appeals which can be disposed of by this common order. ( 3 ) IN this appeal the tenant/appellant has challenged the jurisdiction of the learned Trial Judge in passing the impugned order. The short question which this appeal raises is whether the learned Trial Court can. in a case of this kind in exercise of its discretion order to pay arrears of rent to the plaintiff/landlord pending decision of a suit. At the outset. I must make it clear that in the instant case. rate of rent of Rs. 7,150/ - p. m. and the relationship of landlord and tenant arc not in dispute. Thus. there is not only an admission with regard to the agreed rate of rent but even with regard to the period for which it is due. Learned counsel for the respondent has placed reliance on the decision in Bring. SS Puri (AVSM) (Retd.) Vs. R. Chandra Shekhar 1994 (1) Delhi Lawyer 1, in support of his contention that the learned trial court has Jurisdiction to pass the impugned order. Learned counsel for the respondent has placed reliance on the decision in Bring. SS Puri (AVSM) (Retd.) Vs. R. Chandra Shekhar 1994 (1) Delhi Lawyer 1, in support of his contention that the learned trial court has Jurisdiction to pass the impugned order. In the case of Brig. S. S. Puri (supra) the plaintiff/landlord filed a suit against his tenant for possession of recovery of rent. During pendency of the suit. the plaintiff filed an application under Section 151 Civil Procedure Code for direction to the tenant to deposit arrears of rent. The tenant contested the petition and took the plea about its maintainability. The petition was dismissed by the trial court. On revision to this court, one of the questions posed was whether an order of the kind sought by the plaintiff can be passed. In that case. it was found that there was not only an admission with regard to the rate of rent but even with regard to the period for which it was due. While reversing the order of the trial court, my learned brother Jaspal Singh, J. observed that; "the combined effect of Order 12 Rule 1 and Order 39 Rule 10 of the Code of Civil Procedure is that a court can, in a case of this kind. in fair exercise of its judicial discretion order for deposit of money pending decision of a suit. Surely, the provisions of Section 151 of the Code of Civil Procedure can be invited in aid to cover all such cases as are analogous to these principles. This being the position, invocation of section 151 in the present case would neither be in conflict with w hat has been expressly provided in the Code nor against the intention of the legislature. "he further observed that "i feel that it is in a situation like this that court must invoke its inherent jurisdiction and shower relief and redress upon the helpless victim of an unjust order" In Rajah Parthasaradhi Appa Row Vs. Rajah Rengiah Appa Row I. L. R. 27 Madras 168. "he further observed that "i feel that it is in a situation like this that court must invoke its inherent jurisdiction and shower relief and redress upon the helpless victim of an unjust order" In Rajah Parthasaradhi Appa Row Vs. Rajah Rengiah Appa Row I. L. R. 27 Madras 168. Madras High Court had occasion to consider the scope of Section 502 C. P. C. (old) which is in pari materia with Order 39 Rule 10 C. P. C. and the majority opined that the section applies when the party making the admissions holds the property or other thing which the party in whose favour the order is made seeks to have delivered to him. Whereas Subramania Ayyar J. in his dissenting judgment observed that the Court had power to direct the payment. notwithstanding that the money was not held by any of the parties to the suit, provided the order was otherwise sutainable. I am, therefore, in respectful agreement with the view taken by my learned brother Jaspal Singh. J. that in such cases, the Court has power under Order 39 Rule 10 C. P. C. to pass order for payment of money or its deposit pending decision of (he suit. I may also add here that for purposes of Order 39 Rule 10 C. P. C the admission made in the pleadings must be an admission sufficient under Order 12 Rule 6 C. P. C. ( 4 ) THE matter may be examined from another angle also. Rule 1 of Order 12 C. P. C. lays down that any party to a suit may give notice, by his pleading or otherwise in writing, that he admits the whole or any part of the claim-of any other party. Rule 6 of Order 12. C. P. C. enables the plaintiff to obtain a speedy judgment alleast to the extent of the claim admitted by the defendant. Rule 6 of Order 12 C. P. C. has been couched in a very wide language and it permits the passing of judgment or order at any stage without waiting for determination of other questions which would be executable as a decree. This would also be consistent with the established principle that in the same suit there can be more than one decree passed at different stages. Under Order 12 Rule 6. This would also be consistent with the established principle that in the same suit there can be more than one decree passed at different stages. Under Order 12 Rule 6. a party can move the Court for satisfaction of a part of his claim upon admission made by the opposite party and thus set at rest that portion of the action in respect of which there is no dispute, without prejudice to the remaining claim in the suit. In my opinion, the provisions of Rules 1 and 6 of Order 12 C. P. C read with Section 151 C. P. C can be invoked to expeditiously settle the admitted part of the claim and this would also be necessary for the ends of justice to expeditiously adjudicate upon the real questions in controversy between the parties Thus. it is apparent that the Court has jurisdiction to pass the impugned order Consequently. the appeal filed by the tenant/defendant has no force and is liable to be dismissed. ( 5 ) THE learned Trial Judge has added one condition in the impugned order by directing the landlord/ appellant to adjust a sum of Rs. 10,000. 00 alleged to have been paid by the defendant/tenant in computing the arrears of rent, which is the subject matter of this appeal filed by the plaintiff/landlord. The mangrievance of the plaintiff/landlord is that the learned trial court failed to consider or appreciate that until the tenant/ defendant succeeded to establish the alleged payment of Rs. 1,10,000. 00 she could not claim any deduction or adjustment in computing the arrears of rent. According to the learned counsel, the tenant/defendant having admitted her liability to continue to pay the agreed rate of rent on the extended lease terms, the question of deduction of the said amount from the arrears of rent for house in occupation of the suit accommodation did not arise. It is significant that although the defendant/tenant has admitted the agreed rate of rent and also the period for which it was due but she also pleaded that she had paid Rs. 1,10,000. 00 to the plaintiff/landlord on account of increase in rent for the extended lease terms, ft is not permissible to dissect a pleading and accept only the part that is favourable to the plaintiff. 1,10,000. 00 to the plaintiff/landlord on account of increase in rent for the extended lease terms, ft is not permissible to dissect a pleading and accept only the part that is favourable to the plaintiff. In other words, if an admission in a written satement is made subject to a condition, it must either be accepted subject to the condition or not accepted at all. In this connection. I may usefully excerpt the following observations of the Privy Council in Motabhoy Mulla Essabaoy Vs. Mufti Haridas A. I. R. 1915 P. C. 2; that: "it is permissible for a tribunal to accept part and reject (he rest of any witnesse s testimony. But an admission in pleading cannot be so dissected, and if it is made subject to a condition, it must either be accepted subject to the condition or not accepted at all. " ( 6 ) THE rule which is deducible from the said decision is that if a written statement incorporates an admission of some facts favourable to the plaintiff and an assertion of certain other facts which are unfavourable to him, he (plaintiff) must, if he wants to take advantage of the admission, take not only the first set of facts as truly stated but also the second set of facts as so stated. ( 7 ) BEARING in mind the said principle. I am of the opinion that the learned trial Judge has not committed any illegality in directing the plaintiff/landlord to adjust Rs. 1,10,000. 00 in computing the arrears of rent to be paid by the defendant/tenant. Similar adjustment was also allowed in the case of Brig S. S. Puri (AVSM) (supra ). I am therefore of the opinion that the impugned order does not suffer from any legal infirmity. ( 8 ) IN the result, there is no scope in this appeal. Accordingly. the same is dismissed. In the circumstances. I leave Ihe parties to bear their own costs.