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2010 DIGILAW 522 (CAL)

Sketch Vinimay Pvt. Ltd. v. Deen Dayal Kayan

2010-05-13

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT: The plaintiff’s prayer for disposal of the suit by passing a judgment on admission under Order 12 Rule 6 of the Civil Procedure Code was rejected by the learned Trial Judge vide Order No.6 dated 4th March, 2010 passed in Title Suit No.852 of 2009. The learned Trial Judge rejected the petitioner’s said application under Order 12 Rule 6 of the Civil Procedure Code by mentioning different parts of the pleadings made out by the defendant in his written statement which according to the learned Trial Judge do not constitute admission of the claim of the plaintiff made out in the plaint. The learned Trial Judge held that though the defendant admitted in his written statement that he is not in possession in the suit property and has also no right to oppose the passing of the decree for recovery of possession from his tenants, no decree for eviction can be passed on the basis of such admission as the tenants inducted by the defendant who are admittedly in possession of the suit premises are not parties in the suit. The plaintiff’s application under Order 12 Rule 6 was rejected by the learned Trial Judge with the aforesaid findings. The plaintiff is aggrieved by the said order. Hence, the plaintiff has come before this Court with this application under Article 227 of the Constitution of India for challenging the propriety of the said order. Heard Mr. Chatterjeee, learned Advocate appearing for the petitioner and Mr. Konar learned Advocate appearing for the opposite party, Considered the materials on record including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. Since the Court was invited to pass a judgment on admission, let me first of all discuss the relevant portion of the pleadings of the respective parties for finding out as to whether the defendant, in fact, admitted the plaintiff’s claim in the said suit, in his written statement and further as to whether on the basis of such admission a decree can be passed under Order 12 Rule 6 sub-rule 2 of the Civil Procedure Code. Let me first of all mention the admitted case of the parties. Execution of the registered lease deed dated 5th July, 1985 between Shraddha Pramanick and Sitaram Kayan is not disputed between the parties. Let me first of all mention the admitted case of the parties. Execution of the registered lease deed dated 5th July, 1985 between Shraddha Pramanick and Sitaram Kayan is not disputed between the parties. By the said lease the suit property was let out to Sitaram Kayan by Smt. Shraddha Pramanick for a period of 21 years commencing from 1st day of Jaistha, 1392 B.S. corresponding to 15 day of May, 1985 and ending with the last day of Baisakh 14, 13 B.S. corresponding to 14th day of May, 2006. It is also not disputed that the defendant no.1 being the only heir of the said lessee inherited the leasehold interest in the said property from the lessee upon his death. It is also an admitted fact that several persons were inducted as tenants in the said premises by the original lessee during his lifetime and after his death, by the present defendant. The expiry of the said lease by efflux of time on 14th May, 2006 is also not disputed by the defendant. The demand for delivery of vacant possession of the suit premises made by the original lessor from the defendant is also not disputed by the defendant. The title of the plaintiff who purchased the suit property from the lessor by a registered deed of conveyance dated 12th July, 2008 is also not disputed by the defendant. Thus, the plaintiff’s title in the suit property is admitted by the defendant. Demand for possession made by the transferee viz. the plaintiff herein from the defendant, is also not disputed by the defendant. The defendant stated in his written statement that the sub-tenant who were inducted in the said premises either by the original lessee or by the defendant could continue their possession during the currency of the lease upto 14th May, 2006. The defendant further stated therein that after the expiry of the said lease by efflux of time, notices were given to the sub-tenants by the defendant, calling upon them to deliver vacant possession of the suit property to the original lessor but the sub-tenants did not adhere to the said notice. But in spite thereof the original lessor, instead of taking steps for recovery of possession from them, transferred the suit property to the present plaintiff. But in spite thereof the original lessor, instead of taking steps for recovery of possession from them, transferred the suit property to the present plaintiff. The defendant claimed that he had already left the suit premises and handed over symbolic possession thereof in favour of the original lessor by surrendering his tenancy therein. The defendant also admitted that after expiry of the said lease, he has no right in the suit property and has no right to oppose the passing of the decree for recovery of possession from the tenant inducted by the defendant or his predecessor in interest during the currency of the said lease. Thus, if the aforesaid pleadings of the respective parties are taken into consideration, then this Court has no hesitation to hold that the plaintiff’s right to recover possession of the suit property from the defendant and/or the sub-tenants inducted therein either by the original lessee or by the present defendant, after expiry of the said lease by efflux of time, is clearly, specifically and unambiguously admitted by the defendant in his written statement. As such, passing of the decree for eviction in such a suit on the basis of such admission made by the defendant in his written statement cannot be refused even though the sub-tenants are not the parties in the suit, as the presence of such sub-tenants, in my view, is not necessary for adjudication of dispute involved in the suit. That apart, since the sub-tenants have no independent right in the suit property, if any decree is passed against the tenant such decree will be binding upon the sub-tenants as they cannot claim any better right than that of their landlord in respect of the suit premises. Since the possession of the superior landlord after the expiration of the lease period is illegal, the possession of the present occupants is also equally illegal. As such, the admission made by the defendant is sufficient enough to pass a decree for eviction against the defendant. Since the possession of the superior landlord after the expiration of the lease period is illegal, the possession of the present occupants is also equally illegal. As such, the admission made by the defendant is sufficient enough to pass a decree for eviction against the defendant. However, since no admission has been made by the defendant with regard to the plaintiff’s prayer for mesne profit, no decree for mesne profit can be passed on admission but a decree for enquiry for ascertainment of mesne profit can be directed as the liability to pay damages for illegal occupation is a consequential liability which continues so long as the actual vacant possession of the suit premises is not recovered by the plaintiff from the defendant and/or the sub-tenants inducted therein. In the aforesaid circumstances, this Court holds that the impugned order cannot be maintained. The impugned order, thus, stands set aside. A decree of eviction for recovery of khas possession of the suit premises from the defendant is hereby passed. The defendant is directed to vacate the suit premises and deliver vacant and peaceful possession thereof to the plaintiff within two months from date, failing which the plaintiff/petitioner will be at liberty to recover vacant possession of the suit premises by evicting the defendant/opposite party therefrom by executing this decree. A decree for enquiry for ascertainment of mesne profit under Order 20 Rule 12 is also hereby passed in favour of the plaintiff. This revisional application is, thus, disposed of, by passing a judgment on admission in the suit in the manner as indicted above. Since the learned Advocate appearing for the defendant submitted before this Court that his client has no objection if a decree for eviction is passed against the defendant in the said suit, this Court does not feel any necessity for imposing costs upon the defendant. The suit is, thus, decreed without cost. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.