DEVINDER GUPTA ( 1 ) THIS appeal has arisen against the judgment and decree passed by learned Single Judge decreeing the suit of the plaintiff/respondent thereby granting a decree against the defendant for possession of flat No. 118, 1st Floor in the Complex of Nav Niti Co-operative Group Housing Society Limited situated at Plot No. 51, Patparganj, Delhi. ( 2 ) FACTS in brief are that on 20. 8. 1998 the plaintiff filed suit against the appellant for grant of a decree for possession and mesne profits at the rate of Rs. 5,000. 00 per month or at such higher rate as may be prevalent in future, inter alia, on the ground that the plaintiff is a practicing lawyer and the appellant is also a practicing lawyer; plaintiff is a founder member of Nav Niti Co-operative Group Housing Society and was allotted a flat in question by the society; the appellant since about 1992 was working for the plaintiff as Junior and used to carry out investigation of title of properties and as such relations were cordial; in or about February, 1996 the appellant informed the plaintiff that he and his family members were in need of accommodation and requested the plaintiff to permit him and his family members to stay in the suit premises; on the basis of the assurance and representation and in view of the cordial relation, the appellant was permitted by the plaintiff to stay with his family in the suit premises; no right, title or interest was created in favour of the appellant; his stay was at the pleasure of the plaintiff, who was not charging any rent, fee or any other amount for the appellant s stay in the suit premises; in or about January, 1998 the appellant was informed by the plaintiff that the permission to stay, granted to him in the premises was being withdrawn; the appellant was accordingly requested to leave and vacate the flat but despite such request the appellant failed to do so; a notice was also served upon the appellant to vacate the premises failing which he was informed that suit will be filed. Claiming that the stay of the appellant in the premises was only on the basis of the permission granted by the plaintiff without creating any relation of landlord and tenant; lessor or lessee and after the permission had ceased to exist his possession was unauthorised, the suit was filed for the reliefs aforementioned. ( 3 ) THE appellant contested the suit and filed his written statement on 12. 1. 1999. The appellant denied the plaintiffs right to claim possession, inter alia, alleging that he was not a junior but an associate of the plaintiff; he and plaintiff were working with M/s. Khaitan and Company, Advocates and Solicitors, which in mid of 1991 split into arid is known as Khaitan and Khaitan, Advocate; the appellant started his independent practice and also did private work of plaintiff as well as of Khaitan and Khaitan Co. After about one year the plaintiff also left Khaitan and Co. and started his own practice; in August, 1994, the plaintiff offered the appellant his revenue work as he was having expertise therein; it was agreed that the plaintiff would give lesser amount towards retainership charges, which started at Rs. 500. 00 and with passage of time was increased to Rs. 2500. 00 per month; in addition to this, the appellant was to be paid separately for investigation of title and documentation; professional fee had to shared in equal shares; the appellant worked with the plaintiff till 1. 11. 1996. During long association the appellant conducted various title investigations and prepared his reports and planned strategy with respect to the lands situated in numerous villages; both of them also worked together for well known groups like Malibue Group, Teharn Group, the Great Eastern Shipping Co. , Shital Group etc. as per list annexure "a" attached to the written statement; the plaintiff was always paid directly by the clients and in turn the plaintiff was to pay 50% amounts to the appellant, which he failed, which amount was recoverable from the plaintiff. After narrating further details, it is alleged by the appellant that in the mid of 1992 amongst other works, the plaintiff assigned a big project to the appellant, which the appellant completed within a period of 677 months and submitted his reports running into 250 pages; the appellant raised initial bill for which the plaintiff had to receive a sum of Rs. 4,84,000. 4,84,000. 00 from the clients out of which the appellant s share was Rs. 2,42,000. 00; no payment was given to the appellant except an assurance of transferring of the suit flat in future as and when allotted to the plaintiff; various-other projects were assigned by the plaintiff to the appellant and considerable amount became due and payable to the appellant. In the month of March, 1996 peaceful physical and vacant possession of the flat was handed over to the appellant by the plaintiff with instructions not to disclose the facts of transfer of the flat to any one including the society. It was orally settled that all charges like maintenance, electricity and water shall be paid by the appellant to the society and a sum of Rs. 700. 00 per month shall be paid in cash to the plaintiff to meet the house tax of the suit premises to be imposed in future for which the society was in process of assessing the same. In order to conceal actual facts of transfer from the society, the said amount of Rs. 700. 00 was agreed to be shown as rent of the flat and it was further settled that all loan instalments of the suit premises shall be paid by the plaintiff to the society and at the time of transfer of the premises, the plaintiff shall pay all the loan instalments in lump-sum in one go. In 1996 the appellant completed the title investigation of 330, acres of various villages. The plaintiff and the appellant were entitled to Rs. 7,26,000. 00 - jointly as professional charges out of which the appellant s share was to the tune of Rs. 3,63,000. 00 and at the instance of the plaintiff, the appellant raised an initial bill of Rs. 1,69,000. 00 in the end of year 1996 out of which nothing was paid to the appellant. The appellant further alleged that a sum of Rs. 15,26,900. 00 had been due and payable to him and after adjusting a sum of Rs. 6,00,000. 00 against the suit premises, a sum of Rs. 9,26,900. 00 is still outstanding for which the appellant stated in the written statement that he will take appropriate action for recovery. The appellant further alleged that a sum of Rs. 15,26,900. 00 had been due and payable to him and after adjusting a sum of Rs. 6,00,000. 00 against the suit premises, a sum of Rs. 9,26,900. 00 is still outstanding for which the appellant stated in the written statement that he will take appropriate action for recovery. The appellant denied having entered the suit premises on the basis of the alleged promises and assurances but pleaded that after summer vacation in the year 1996 the plaintiff offered the appellant to join his office permanently; the appellant first demanded that the suit premises be first transferred to him in clearance of his dues; instead of transferring the suit premises; the plaintiff had stopped paying retainership amount; the plaintiff had retained the amount, which he had charged as the appellant s share and with the said amount the plaintiff purchased numerous properties either in his own name or in the name of his family members, the details of which the defendant gave in Annexure- "c". It is alleged that the said properties were purchased by the plaintiff for appreciation of money and out of the money due and payable by the plaintiff to the appellant. The appellant was assured by the plaintiff that the said properties shall be sold and the share of the appellant will be paid and a sum, of Rs. 6,00,000. 00 shall be adjusted against payment of the suit premises, which had been handed over by the plaintiff to the appellant on ownership basis pursuant to the oral agreement between the parties. The flat in dispute was absolutely unfinished having no facility. On these basis the appellant alleged that the claim of the plaintiff is mala fide, unjust, being untenable in law and the defendant is not entitled to possession. ( 4 ) IN the replication, the plaintiff denied the stand taken by the appellant and reiterated that the appellant worked as a junior advocate and on the instructions of the plaintiff used to carry out investigation of title of the properties. The plaintiff denied the alleged understanding of sharing of professional fee to the extent of 50% for which the plaintiff stated that so far as retainership fee is concerned, the appellant as a junior of the plaintiff was paid a sum, which was increased from Rs. 500. 00/- to Rs. 2500. 00 per month. The plaintiff denied the alleged understanding of sharing of professional fee to the extent of 50% for which the plaintiff stated that so far as retainership fee is concerned, the appellant as a junior of the plaintiff was paid a sum, which was increased from Rs. 500. 00/- to Rs. 2500. 00 per month. ( 5 ) AFTER pleadings were complete, an application (IA. 539/99) was moved by the plaintiff praying for a direction to the appellant to personally remain present in Court for recording his statement in terms of the provisions of Order 10 Rules 1 and 2 C. P. C. On 21. 4. 1999 the said application was disposed by learned Single Judge observing that on careful perusal of the pleadings of the parties presence of the plaintiff and the defendant would be necessary to examine them orally in order to elucidate the matters of controversy in suit. Accordingly, the plaintiff and the appellant were directed to remain present in Court on 8. 7. 1999 when they would be examined orally in terms of the provisions of Order 10 Rule 2 C. P. C. ( 6 ) ANOTHER application (IA. 3150/99) had been moved by the plaintiff under Section 151 C. P. C. seeking direction against the appellant to deposit in court a sum of Rs. 5,000. 00 per month w. e. f. 1. 9. 1998 till disposal of the suit towards use and occupation charges. On the said application the appellant was called upon to file reply, which was also directed to be a came up for consideration on 8. 7. 1999. ( 7 ) ON 8. 7. 1999 instead of recording the statement of the plaintiff and the appellant, who were present in Court, learned Single Judge proceeded to hear arguments on the plaintiff s application for direction to deposit Rs. 5,000. 00 per month. Simultaneously, the Court allowed time to the parties that they should satisfy whether the provision/principles of Order 12 Rule 6 C. P. C. are not attracted in the suit. Arguments thereafter were heard on 12. 7. 1999 and on 14. 7. 1999. On conclusion of arguments order was reserved. On 24. 3. 2000 the impugned judgment and decree was passed. Simultaneously, the Court allowed time to the parties that they should satisfy whether the provision/principles of Order 12 Rule 6 C. P. C. are not attracted in the suit. Arguments thereafter were heard on 12. 7. 1999 and on 14. 7. 1999. On conclusion of arguments order was reserved. On 24. 3. 2000 the impugned judgment and decree was passed. ( 8 ) BY the impugned judgment, learned Single Judge came to the conclusion that on the pleadings of the parties, no material proposition of law or fact, which need investigation and trial arise and in view of the admissions made in the written statement, a judgment can safely and properly be passed under Order 12 Rule 6 and Order 15 Rule 1 C. P. C. Learned Single Judge concluded that from the pleadings of the parties, the only conclusion that can be drawn is that the appellant was inducted in the premises as a licensee by the plaintiff and no notice was required for terminating the license; the appellant had pleaded that the property a in question was transferred to him by way of sale in March, 1996 when he also occupied it but such a plea was not supportable on material on record; transaction between the appellant and the plaintiff was neither a sale, nor any sale consideration was agreed or paid; the only possibility was that the appellant came to occupy the premises as a licensee ( 9 ) LEARNED counsel for the appellant contended that arguments were heard only on application seeking direction against the appellant for deposit of the amount of damages. No other arguments were heard except to a limited extent that whether or not provisions of Order 12 Rule 6 C. P. C. would apply to the facts of the case. This submission cannot be accepted in as much as the order dated 8. 7. 1999 is very clear that learned counsel for the parties were aware of the fact that they have to address arguments on the applicability of provisions of Order 12 Rule 6 C. P. C. Learned counsel for the appellant also vehemently contended that the impugned judgment has been passed under Order 12 Rule 6 C. P. C. as prayed by plaintiff for which it was necessary for the plaintiff to have moved an application. It was not a suo Moto exercise of power and thus the appellant was not afforded an opportunity to point out that there was no such admission, which would enable the Court to pronounce judgment. Otherwise also learned counsel for the appellant contended that in view of highly disputed questions of fact the suit ought to have been set down for trial more particularly when appellant s suits for specific performance of agreement to sell and for recovery of amount were pending, which fact was brought to the notice of the Court. Pronouncement of judgment in this case without trial has the effect of almost making the two suits filed by the appellant for substantive relief as infructuous. ( 10 ) LEARNED counsel for the respondent urged that the Court was not precluded from pronouncing judgment after it came to the conclusion that no triable issue of law or fact arise for consideration. To the fact arise for consideration. To the facts of the case provisions of Order 15 Rule 1 C. P. C. were attracted. Since no triable issue arose for determination on the pleading, the Court was entitled to proceed to pass appropriate orders of either dismissing the suit or decreeing it. It was contended that suit had rightly been decreed. ( 11 ) WE have considered the respective submissions made at the bar and were taken through the record. ( 12 ) THE appellant filed written statement on 12. 1. 1999 to which replication was filed on 20. 3. 1999. In reply to I. A. 3150/99 the appellant specifically pleaded that suit for specific performance had been filed by him, which was still pending and we are informed that such a suit was instituted on 27. 2. 1999 in this Court. Suit for the recovery of the amount, alleged to be due and payable by the plaintiff to the appellant was instituted by the appellant in this Court on 20. 12. 1999, which is also pending. Learned Single Judge failed to notice these facts while passing the impugned judgment and decree. ( 13 ) AS noticed above, the plaintiff s suit was for recovery of possession of the flat in question and for mesne profits at the rate of Rs. 5,000. 00 per month. 12. 1999, which is also pending. Learned Single Judge failed to notice these facts while passing the impugned judgment and decree. ( 13 ) AS noticed above, the plaintiff s suit was for recovery of possession of the flat in question and for mesne profits at the rate of Rs. 5,000. 00 per month. The plaintiff never gave up his claim for recovery of mesne profits and while disposing of the suit by the impugned judgment, learned Single Judge did not take into consideration the second prayer made in the suit by the plaintiff and did not hold whether the plaintiff was or was not entitled to any mesne profits. Apart form noticing the pleadings of the parties, learned Single Judge proceeded to critically analyse the correctness, legality and validity thereof that whether or not the pleas taken by the appellant are tenable in law or not and proceeded to record finding thereupon. Opinion was formed even on the question whether or not any agreement to sell was ever arrived at amongst the parties or not, as was alleged by the appellant in his written statement, without adjudicating on the said question of fact on merits. It was observed that as the appellant had not pleaded that when he occupied the premises an agreement to sell of the property between him and the plaintiff had been arrived at and if so on what terms and on what consideration, therefore, the appellant had no right to hold back possession of the premises. Such an inference is not in consonance with what is pleaded by the appellant in his written statement read as a whole. The defendant in fact has pleaded that on the basis of an oral agreement the unfinished flat was agreed consideration of Rs. 6,00,000. 00, which was to be adjusted at the time of legal transfer of the premises from out of the amount payable to him and pursuant to the said agreement he was duly put in possession of the premises with the assurance not to disclose the said fact to any body including the society with further condition that all charges like maintenance, electricity and water shall be directly paid by the appellant to the society. A sum of Rs. 700. 00 per month was to be paid in cash by him to the plaintiff to meet the house tax liability as and when imposed. A sum of Rs. 700. 00 per month was to be paid in cash by him to the plaintiff to meet the house tax liability as and when imposed. The appellant did apprise the court of the fact of his having filed a suit for specific performance of the said agreement to sell. The very fact that the appellant had filed a suit for specific performance of the agreement to sell, which was pending adjudication, itself would make the said pleaof the appellant to be a triable issue in the light of what had been pleaded in the written statement by the appellant that out of the amount of Rs. 15,26,900. 00 due and payable till 1996 the plaintiff had agreed to adjust a sum of Rs. 6,00,000. 00 against the payment of the suit premises and the balance amount of Rs. 9,26,900. 00 was still due and payable for which a separate suit had been filed by him on 20. 12. 1996 against the plaintiff, which is pending adjudication. ( 14 ) LEARNED Single Judge thus in view of the highly disputed question of fact, as alleged by the plaintiff and specifically denied by the appellant was not at all justified in observing that no triable issue arise for consideration. Moreover, in exercise of its power under Order 12 Rule 6 C. P. C. the Court is entitled to pass judgment on admission provided the admission is categorical, unequivocal and unambiguous. Admission in the written statement should be taken as a whole and not in part. There has to be positive statement made by the defendant in the written statement admitting the plaintiff s claim. It is not a case in which learned Single Judge proceeded to exercise his jurisdiction under Rule 6 of Order 12 suo moto. The very first paragraph of the impugned judgment would suggest that the power was exercised on the oral prayer made by learned counsel for the plaintiff, which it was not permissible to have done since Rule 6 of Order 12 provide for an application to be moved by a party under Rule 6 of Order 12 C. P. C. , in case the said party feel that there are admissions made on which judgment may be pronounced. There is no-manner of doubt that power can be exercised at any stage of the suit by the Court on its own motion and without waiting for determination of any other question between the parties, but in case power is not exercised by the Court on its own motion but on the motion of any party. Rule 6 of Order 12 requires making of an application, which was not done in this case. The Court did not even keep the question of payment of mesne profit open for adjudication. It proceed to dispose of the entire suit. The Court also proceeded to accede to the request of the plaintiff of passing a judgment on the alleged admission without first proceeding to examine the parties under Order 10 Rule 2 C. P. C. for which purpose it had on 21. 4. 1999 passed an order. The suit was adjourned for that purpose only. It was necessary to have examined both the parties to elucidate the matter in controversy. It is not borne on record that what circumstances prevailed with the Court in proceeding to pass the impugned judgment without taking up that issue for which the suit had been adjourned. Nothing was got elucidated from 21. 4. 1999 till the judgment was pronounced. Impugned judgment thus being bad in law is liable to be set aside. ( 15 ) CONSEQUENTLY, the appeal is allowed. Impugned judgment and decree is set aside. ( 16 ) IN view of the fact that two suits have been filed by the appellant, which are pending, we are of the view that in the interest of justice it will be necessary that a direction is issued for simultaneous trial and disposal of the three suits by the same Single Judge, namely, Suit No. 1762/98 (Shri S. C. Nanda Vs. Shri Jagannath Chauhan and another ). Suit No. 547/99 (Shri Jagannath Chauhan Vs. Shri S. C. Nanda and others) and Suit No. 2831/99 (Shri Jagannath Chauhan Vs. Shri Sarat Chandra Nanda ). Ordered accordingly. The three suits will be posted before the same Judge for trial. ( 17 ) SUIT Nos. 1762/98; 547/99 and 2831/99 will be posted before Learned Single Judge on 16. 10. 2000. Suit No. 547/99 (Shri Jagannath Chauhan Vs. Shri S. C. Nanda and others) and Suit No. 2831/99 (Shri Jagannath Chauhan Vs. Shri Sarat Chandra Nanda ). Ordered accordingly. The three suits will be posted before the same Judge for trial. ( 17 ) SUIT Nos. 1762/98; 547/99 and 2831/99 will be posted before Learned Single Judge on 16. 10. 2000. After the pleadings are complete in Suit No. 547 and 2831/99 learned Single Judge will also consider the desirability of passing an appropriate order for consolidation of the three suits to avoid duplication of evidence and conflict of judgment.