H. S. CHIMA v. STATE BANK OF INDIA — 1999 DIGILAW 416 (DEL)

Dr. M. K. Sharma, J: ( 1 ) THE plaintiffs have instituted the present suit praying for a decree of possession by ejectment of the defendant from the suit premises and delivery of vacant and peaceful possession of the said suit premises restored in favour of the plaintiff and also for a decree for mesne profits and damages for occupation of the suit premises @ Rs. 51,645. 00 per day subsequent to 1. 4. 1997 till the date of delivery of possession to the plaintiffs. ( 2 ) THE plaintiff No. l, who has recently retired from servece service in the Army together with plaintiff No. 2 are the landlords in respect of the suit premises comprising the ground floor at 16, Channan Singh Park, and measuring 6064 Sq. Ft. of area. The said premises were let out the said premises to the defendant bank at a monthly rent of Rs. 42,000. 00. In respect of the aforesaid tenancy a lease deed was also executed between the parties which is placed on record. The said lease deed is a registered document and it stipulates that suit premises have been let out to the defendant bank at a monthly rental of Rs. 42,000. 00 from 1. 1. 1994 to 31. 3. 1997. ( 3 ) IN the said lease deed no clause has been incorporated giving an option to the defendant to seek for renewal of the tenancy. Plaintiffs served a notice dated 9. 9. 1996 on the defendant drawing the attention of the defendant to clause l (e) and II (j) of the lease deed calling upon the defendant that at the termination of the lease and determination thereof by efflux of time w. e. f. 31. 3. 1997 vacant and peaceful possession of the demised premises be handed over to the plaintiff. Another notice was issued by the plaintiffs through their counsel dated 24. 11. 1996 terminating the tenancy w. e. f. 31. 8. 1997 and drawing the attention of the defendant to handover vacant and peaceful possession of the suit premises to the plaintiff on expiry of the tenancy period. The defendant however, did not reply to any of the aforesaid notices and the plaintiff again through their counsel served another notice dated 15. 1. 1997. It further appears from the record that a further notice dated 20. 2. The defendant however, did not reply to any of the aforesaid notices and the plaintiff again through their counsel served another notice dated 15. 1. 1997. It further appears from the record that a further notice dated 20. 2. 1997 was again issued through the counsel for the plaintiffs reiterating the contents of the earlier notices. It is also stated in the plaint that since the plaintiffs need the aforesaid premises for their own personal bonafide use after retirement of the plaintiff No. l from active service in the Army the aforesaid notices terminating the tenancy of the lease were issued to the defendant. Since the defendant failed to handover and deliver to the plaintiff vacant and peaceful possession of the suit premises the present suit has been instituted by the plaintiffs for the aforesaid reliefs. ( 4 ) THE defendant was served but it did not file any written statement and accordingly the plaintiffs filed an application under Order 8 Rule 10 of the Code of Civil Procedure for pronouncing judgment against the defendant forthwith. By the time the said application was put up for arguments, the defendant filed the written statement in this court and accordingly, the counsel for the plaintiffs did not press the application filed by the plaintiff under Order 8 Rule 10 of the Code of Civil Procedure and the same was dismissed as not pressed. The counsel for the plaintiff however, submitted that the plaintiffs are entitled to a decree for eviction and recovery of possession of the suit premises in view of the admission of the defendant in the written statement. On the aforesaid issue which arose for my consideration in view of the submission of the learned counsel appearing for the plaintiffs, I heard the learned counsel appearing for the plaintiffs as also the learned counsel appearing for the defendant. The question, therefore, that arises for my consideration at this stage is whether the plaintiff is entitled to a decree for possession and eviction as sought for in the plaint, on the basis of admission of the defendant in the written statement, if any. ( 5 ) PROVISIONS of Order 12 Rule 6 of the Code of Civil Procedure provide a remedy to a party to obtain speedy relief in respect of a fact which is admitted by the other party. ( 5 ) PROVISIONS of Order 12 Rule 6 of the Code of Civil Procedure provide a remedy to a party to obtain speedy relief in respect of a fact which is admitted by the other party. Such an admission in the written statement could be in respect of the entire claim made in the suit or even for a part of the claim for which decree could be passed separately. There are several decisions of this court whereunder the decree for possession on the basis of admission made by the defendant in the written statement was passed. In this connection reference may be made to the decision in M/. v. S. L. Associates Pvt. Ltd. Vs. Kamataka Handloom Development; reported in 61 (19%) DLT 386 and in Surjit Sachdev Vs. Kazakhastan Investment Services Pvt. Ltd. and Others; reported in 66 (1997) DLT 54 (DB ). In the said decision the law has been reiterated to the effect that it is open to the court in- a suitable case to afford relief on the basis of a case set up by the defendant since no prejudice is caused to the defendant because the relief legitimately springs from the case set up by the defendant. It was also held in the said decisions that upon expiry of the period of tenancy as provided for under the lease deed between the parties the plaintiff may be entitled to judgment under Order 12 Rule 6 of the Code of Civil Procedure on unequivocal admission that entry and possession was on the basis of the lease and that in case of clear and unequivocal admission suit can be decreed in entirety or in part. It is true that before giving a decree in the aforesaid manner the court must be satised that there is an admission in the case entitling the plaintiff to claim a decree for possession. ( 6 ) A bare reading of rule 6 would also indicate that the court either on the application of any party or on its own motion and without waiting for determination of any other question between the parlies proceed to give judgment as it may think fit having regard to the clear and unequivocal admission. ( 6 ) A bare reading of rule 6 would also indicate that the court either on the application of any party or on its own motion and without waiting for determination of any other question between the parlies proceed to give judgment as it may think fit having regard to the clear and unequivocal admission. In the light of the aforesaid settled position of law let me consider, as to whether a relief in the nature of grant of a decree on the basis of admission in the written statement tiled by the defendant could be granted in favour of the plaintiffs in the facts and circumstances of the present case. ( 7 ) I have carefully perused the contents of the plaint as also the contents of the written statement. The defendant in the present case cannot and did not dispute that the rights of the defendant in respect of the suit premises were governed by the terms and conditions of the registered lease deed which is placed on record. The said deed which is an admitted document explicitly stipulates that the period of tenancy is from 1. 1. 1994 to 31. 3. 1997 and the monthly rent fixed under the registered lease deed is Rs. 42,000. 00. The defendant has not disputed that there was no renewal clause in the registered lease deed. Thus the tenancy created under the lease deed came to an end by efflux of time on expiry of 31. 3. 1997. The aforesaid tenancy was not only terminated and determined by efflux of lime but also was specifically terminated and determined by issuance of several notices by the plaintiffs. ( 8 ) THE defendant however, in its written statement has taken up a plea that the defendant in pursuance of the terms and conditions of the lease deed constructed counters, strong room doors, and partitions which constructions and works were of permanent character by incurring huge expenditure amounting to lakhs of Rupees and therefore, the lease containing permission to execute works of permanent character is irrevocable. The defendant has also taken up a plea that the plaintiffs cannot have possession of such portions of the suit property wherein a work of permanent character has been executed by the defendant and since the contract of tenancy cannot be split and thus it was urged that neither the lease can be terminated nor the possession can be had for the entire premises. During the course of arguments the learned counsel for the defendant also submitted and reiterated the contents of the written statement contending inter alia that the plaintiffs are estopped by the doctrine of promissory estoppel as the plaintiff assured that the defendant could incur expenditure on the premises for making works of permanent character and that they would not be evicted from the premises notwithstanding the expiry of the lease. Counsel also submitted that there is no clear and unequivocal admission made in the written statement by the defendant and therefore, no decree could be passed in favour of the plaintiffs. All the aforesaid allegations and submissions were refuted by the counsel appearing for the plaintiffs. In the light of the aforesaid submissions let me consider the merits of the objections taken by the defendant. ( 9 ) THE contents of the lease deed provide the defendant bank shall not make any permanent structural additions or alterations to demised premises without the prior consent in writing of the lessor/lessors but such consent shall not be unreasonably withheld in the case of such additions/alterations as shall be necessary or required by the Bank for the purpose of carrying on its banking business. The said stipulation is contained in clause l (c ). A further stipulation is contained in the lease deed stipulating that the bank shall be at liberty to remove at any time all material employed in the construction of their strong room and all counters, strong room doors, safes, steel fittings expended metal compartments, partitions, railing, temporary structures of any kind. The aforesaid clauses in the registered lease deed make it explicitly clear that for erecting any permanent structures by way of additions or alterations in the suit premises the bank has to obtain prior consent inwriting of the lessor/lessors. No such permission for erection of any permanent structural additions or alterations has been placed on record by the defendant. The aforesaid clauses in the registered lease deed make it explicitly clear that for erecting any permanent structures by way of additions or alterations in the suit premises the bank has to obtain prior consent inwriting of the lessor/lessors. No such permission for erection of any permanent structural additions or alterations has been placed on record by the defendant. Even assuming that such permission was granted by the plaintiffs for erection of permanent structural additions and alterations, the bank has been given liberty under the agreement to remove at any time all material employed in such constructions. In the present case the defendant has stated in the written statement that pursuant to the conditions of the lease permitting the defendant to construct counters, strong room doors and partitions, the defendant has constructed and executed works of permanent character and incurred huge expenditure amounting to lakhs of Rupees. Clause II (i) of the lease agreement provides and permits the bank to remove at any time all material employed in the construction of their strong room and all counters, strong rooms doors, safes; steel fittiings expended metal compartments, partitions, railing, temporary structure of any kind. Thus all such fixtures and permanent structural additions and alterations made by the bank in the nature of strong rooms, partitions, locker rooms etc. could be removed by the bank at any time. The lease deed docs not stipulate payment of any consideration to the bank for making such constructions nor the lease agreement envisages splitting up of the tenancy in any manner even if such construction is made. The lease deed stood determined by efflux of lime and therefore, the defendant is required to handover vacant and peaceful possession of the suit premises to the plaintiff and while doing so the defendant is at liberty to remove all material employed in the construction of their strong room, counters, strong room doors, steel fittings and other such constructions made in the suit premises. The defendant has pleaded promissory estoppel which principle in my considered opinion is not applicable to the facts and circumstances of the case inasmuch as terms and conditions of the lease have been set out in clear terms in the registered lease deed, and therefore, any averment made in the written statement contrary to and in conflict with the terms and conditions contained in the lease deed is inadmissible in evidence in view of the provisions of Section 91 and 92 of the Evidence Act. ( 10 ) THE defendant has stated in reply to paragraph 2 of the plaint that the plaintiff assured the defendant to incur expenditure in making of works of permanent character and that the defendant can not be evicted notwithstanding the expiry of the lease and therefore the doctrine of promissory estoppel would be applicable. This plea is contrary to and in conflict with the terms and conditions of the lease agreement and no such contention is contained in the registered lease agreement. Thus the aforesaid plea is not available to the defendant. ( 11 ) THE defendant has not denied in the written statement about the execution of the aforesaid lease deed which is a registered document and therefore, the terms and conditions on which the aforesaid lease was created are to be looked into and are vital for determining the present issue that arises for my consideration. No oral evidence could be led by the defendant in support of its plea as raised during the course of arguments and in the written statement. The lease was for a fixed period without any clause of renewal-of the lease as is revealed from the contents of the registered lease deed. The period of lease has admittedly expired and the lease also stood determined not only by efflux of lime but also by issuance of notices by the plaintiff. ( 12 ) IN that view of the matter, in my. considered opinion, the plaintiffs are definitely entitled to a decree for possession, since no issue could be staled to have arisen for determination so far claim for possession is concerned. It is held that the plaintiffs are entitled to a decree for possession in respect of the suit premises and defendant is directed to put the plaintiff in possession of the suit property within a period of 2 months from today. It is held that the plaintiffs are entitled to a decree for possession in respect of the suit premises and defendant is directed to put the plaintiff in possession of the suit property within a period of 2 months from today. Decree be drawn up in terms thereof. ( 13 ) SO far as the remaining issue namely - ascertainment of mesne profits and damages is concerned the same would be considered and decided by framing issues. Put up on 13,10. 1999 for further orders in the suit.