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2003 DIGILAW 869 (AP)

D. Ram Mohan Rao v. Sridevi Hotels Private Limited, Nizamabad

2003-07-14

B.PRAKASH RAO

body2003
B. PRAKASH RAO, J. ( 1 ) THE petitioner, who is the defendant, by way of revision under article 227 of the Constitution of India seeks to assail the orders passed in LA. No. 3660 of 2002 in O. S. No. 34 of 2002 dated 2-5-2003 on the file of the Additional District Judge at Nizamabad allowing the application filed under Section 151 read with Order 12 Rule 6 of C. P. C. seeking delivery of vacant possession of the suit premises to the respondents-plaintiffs. ( 2 ) HEARD Sri M. Ramachandra Rao, the learned Counsel appearing for the petitioner and Sri J. V. Suryanarayana, learned senior counsel on behalf of the respondents. ( 3 ) THE case of the respondents in this application is that the petitioner was a tenant in pursuance of the lease deed executed on 11-4-2001, the lease period of which expired on 31-3-2005. In the suit filed seeking for eviction of the petitioner, earlier, an application was filed in IA. No. 1894 of 2002 seeking directions to pay the arrears of the rent and the same was allowed on 29-7-2002. On revision by the petitioner, this Court has confirmed the same as per orders in C. R. P. No. 4021 of 2002, dated 12-9-2002. Thereafter another application was filed in LA No. 2936 of 2002 under order 15-A C. P. C. to strike off the defence of the respondent In view of the non- compliance of the said orders directing the payment of the arrears of rent. The said application was allowed and the same was again confirmed in the revision by the petitioner as per the orders in C. P. P. No. 5868 of 2002, dated 9-1-2003. By an application in I. A. No. 2935 filed under Order 39 Rule 2-A of C. P. C. , the respondents-plaintiffs sought attachment of the property of the petitioner and to detain him in civil prison for violation of the orders. Simultaneously, the respondents also filed Execution petition in E. P. No. 107 of 2002 to execute the order In IA. No. 1894 of 2002 and the same was pending. Simultaneously, the respondents also filed Execution petition in E. P. No. 107 of 2002 to execute the order In IA. No. 1894 of 2002 and the same was pending. Thus, according to the respondents-plaintiffs, the petitioner stopped payment of rent from 29-3-2002 and he has not complied the orders of this Court passed earlier on both the occasions and therefore the conduct of the petitioner disentitles him to continue in possession and he is liable to handover the possession of suit premises to the respondents-plaintiffs. Hence the application. ( 4 ) CONTESTING the said application, the petitioner submitted that the application is not maintainable. The respondents are not liable to terminate the lease and seek any such relief and that he is entitled to continue in the premises and therefore there is no need to vacate the same. There exist no admissions to warrant delivery of possession and petition is liable to be dismissed. The suit has to be disposed of on merits after full trial, without which, the relief sought is not sustainable. ( 5 ) CONSIDERING the pleas raised on either side, the Court below allowed the application, mainly on the ground that in spite of directions given earlier including by this Court, the petitioner did not pay the rents in spite of grant of instalments and expiry of period allowed thereunder and therefore the petitioner cannot continue in possession and thus having committed a breach thereof, the petitioner has no right to continue in possession of the suit premises. Ultimately, allowing the application the Court below directed the petitioner to handover vacant suit premises to the respondents-plaintiffs. ( 6 ) SRI M. Ramachandra Rao, the learned Counsel appearing for the petitioner submitted that having regard to the facts and circumstances of the case and In spite of the Interim orders passed in earlier occasions as stood confirmed by this court, the respondents are not entitled to seek any such Interim delivery of possession pending the main suit, which is yet to be tried, and disposed of on merits. There being no such final executable decree, the relief cannot be granted. Further that there is no power to give interim delivery of possession. There being no such final executable decree, the relief cannot be granted. Further that there is no power to give interim delivery of possession. And, there are no admissions, to attract the provisions under Order 12-A of c. P. C. ( 7 ) SRI J. V. Suryanarayana, learned standing senior Counsel on behalf of the respondents submitted that having regard to terms and conditions of lease and breach in toto by the petitioner, he has no right to continue, more so, when the directions given earlier having not been complied, which admittedly show existence of arrears, he is not entitled to continue in the suit property. Therefore, the Court below was right in allowing the application and it does not call for any interference by this court. ( 8 ) ON a consideration of the submissions made on either side and on perusal of the record, an important question, which arise for consideration In this revision is as to whether on the facts and circumstances of the case, the plaintiff can seek interim delivery of possession for committing breach of earlier interim orders and whether such orders constitute admissions to warrant provocation of Order 12 A of CPC. ( 9 ) THE undisputed facts are that as per the lease deed dated 11-4-2001, the petitioner has taken the suit premises on lease for the purpose of running the hotel in the name and style of M/s. Sridevi Hotels private Limited on the payment of rent of rs. 5,200/- per day and the lease period was for four years ending by 31-3-2005. It was further agreed that there should be enhancement of the lease amount by additional 10% after completion of two years. The Clause-13 thereof contemplates that in case of default of payment of daily rent for a period of one week, the lessor/ plaintiff is entitled to interest at 36% on the defaulting rents and in case the default extends the period of one month, the lease would be cancelled and the premises shall have to be handed over to the plaintiffs, whereupon the plaintiff shall refund the deposit of Rs. lo,00,000/-deducting rental dues and any other amounts due to the defendant. lo,00,000/-deducting rental dues and any other amounts due to the defendant. It is the case of the plaintiffs that the petitioner-defendant paid rents only up to 28-3-2002 and defaulted thereafter; therefore the plaintiffs issued a notice on 10-5-2002 to vacate the premises by 31-5-2002 and for payment of damages. The defendant got Issued reply dated 25-5-2002 denying the allegations as contained in the notice. Thereupon, the plaintiffs filed the suit on 4-7-2002 seeking handing over of vacant possession by the defendant to the plaintiffs and for direction to pay the arrears of rent at Rs. 5,200/- from 29-3-2002 to 31-5-2002 and damages at rs. 10,4qo/- from 1-6-2002 to 4-7-2002 and for future damages at Rs. 10,400/- per day till eviction. Contesting suit, the petitioner filed a written statement on 27-8-2002 denying the claim and the allegations in the plaint that the suit as has been filed is pre mature and the plaintiffs have no right to cancel the lease and there is no valid termination of the lease and thus the plaintiffs have no right and cause of action to seek the eviction against the defendant. The defendant also laid a counter claim to the effect that he has already paid a sum of rs. 5,00,000/- as advance on 17-4-2001 and that apart further sum of Rs. 10,46,050/- and Rs. 89,950/- was paid on 29-6-2001 and 30-6-2001 respectively. Therefore, the defendant is entitled for the refund of the deposits. Later, on the application filed by the respondents-plaintiffs in IA. No. 1894 of 2002 for direction to pay the arrears of rent to a tune of Rs. 6,86,400/- and for the payment of enhanced rent at Rs. 10,400/- per day was allowed on 29-7-2002, directing the petitioner to deposit the rents at the rate of Rs. 10,400/- per day and to deposit the arrears of rent at that rate from 29-3-2002. The said order was challenged in revision by the petitioner in C. R. P. No. 4021 of 2002 and this Court dismissing the revision directed the petitioner to pay the arrears of rents as directed by the trial Court in two instalments first one to be paid on or before 12-10-2002 and second payable on or before 12-11-2002 and in regard to the daily rents, the petitioner was permitted to deposit the same once in a week. In an application, In ia. In an application, In ia. No. 2936 of 2002 filed at the instance of the plaintiffs under Order 15-A C. P. C. to strike off the defence on the ground that the petitioner has not complied the orders of the court in IA No. 1894 of 2002 as confirmed in C. R. P. No. 4021 of 2002, the Court below allowed the same and the same was confirmed by this Court in C. R. P. No. 5868 of 2002 as per the order dated 9-1-2003. Now, in the present application the plaintiffs sought the delivery of possession of the suit premises on the ground of violation of the both the orders as aforesaid, which amply show existence of arrears of rents and nonpayment of which disentitles him to continue to remain in occupation. The petitioner relies on Order XII Rule 6 CPC, which reads as follows:"6. Judgment of admission : (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for this determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admission. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. " ( 10 ) THE main purport of the aforesaid rule is that on the basis of admissions by the party impleading or otherwise, made orally or in writing, the provision has been made for the Court to pass a decree. The admissions as contemplated are to be specific and clear and it should be authorised by the party. The same cannot be presumed on any circumstances. However, there are no admissions made by the petitioner in any of the pleadings or otherwise. The only plea on which the present application came to be filed is that there are arrears of rent existing as evident from earlier orders, which would suffice to invoke the aforesaid provision. The same cannot be presumed on any circumstances. However, there are no admissions made by the petitioner in any of the pleadings or otherwise. The only plea on which the present application came to be filed is that there are arrears of rent existing as evident from earlier orders, which would suffice to invoke the aforesaid provision. It is to be seen that the admissions as contemplated above has to be a specific admission by a party in the pleadings or otherwise on which the court can pass a decree accepting the said admissions. No such admissions are pointed out by the plaintiffs nor there are any allegations to constitute admission in the pleadings. The orders passed in jursuance of application seeking the direction for payment of arrears itself at the most would go to show that there exists arrears payable on the part of the petitioner, but do not amount to an admission. An adverse order is only a udicial finding, which binds a party but does not fall in the category of admission. Even an executable order does not fall either mischief or admission as contemplated under aforesaid rule. Further, the resultant effect of striking off defence, would not attract this provision. ( 11 ) IN the circumstances, it is to be held that there are no party made versions to constitute to pass a decree, therefore the very application as has been filed is not maintainable and the same is liable to be dismissed. The revision is accordingly allowed. No costs.