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2016 DIGILAW 569 (KAR)

Caesars Restaurant v. T. Shivaram

2016-07-21

P.S.DINESH KUMAR

body2016
ORDER : These writ petitions are directed against order dated 9.3.2016 allowing I.A.1 filed under Order 12 Rule 6 read with Section 151 of CPC inpart. 2. Heard Shri Lokesh R. Yadav, learned Counsel for the petitioners and Shri T. Suryanarayana, learned Counsel for the respondents. 3. Respondents/plaintiffs filed the instant suit with the following prayers for a judgment and decree, directing the petitioners/defendants to quit and deliver vacant and peaceful possession of suit schedule property and to pay a sum of Rs.44,65,685/to plaintiff No.1 as arrears of rent:- (a) directing the Defendants to quit and deliver vacant and peaceful possession of the Suit Schedule Property to Plaintiff No.1; (b) directing the Defendants to pay Rs.44,65,685/- to Plaintiff No.1, being the arrears of rent till the date of termination of tenancy i.e. 30.09.2014; (c) directing the Defendants to pay interest of Rs.92,640/- on Rs.42,28,185/being the arrears of rent payable up to 31.08.2014, at the rate of 10 per cent. per annum from date of demand in the Quit Notice dated 06.09.2014 till the date of filing of the suit i.e. 25.11.2014; (d) directing the Defendants to pay interest on Rs.44,65,685/-, being the arrears of rent up to 30.09.2014, from the date of the suit till the date of the decree, at such rate as this Hon’ble Court deems reasonable; (e) directing the Defendants to pay future interest on Rs.44,65,685/- being the arrears of rent up to 30.09.2014, from the date of the decree to the date of payment by the defendants, at the rate at which moneys are lent by nationalized banks in relation to commercial transactions; (f) directing the Defendants to pay a sum of Rs.3,37,500/- to Plaintiff No.1, being past mesne profits and damages from 01.10.2014 till the date of filing of the suit; (g) directing the Defendants to pay future mesne profits and damages to Plaintiff No.1 from the date of filing of the suit until the date of delivery of possession by holding an enquiry under Order XX Rule 12 of the Code of Civil Procedure, 1908; and (h) grant such other or further reliefs as this Hon’ble Court may deem fit in the circumstances of the case” 4. The suit was contested by the petitioners/defendants by filing written statement. The suit was contested by the petitioners/defendants by filing written statement. Before issues were framed, based on the admissions in the written statement, the plaintiffs filed I.A.1 dated 25.11.2014 with the following prayers: (a) directing the defendants to quit and deliver vacant and peaceful possession of the Suit Schedule Property to Plaintiff No.1; and (b) directing the defendants to pay Rs.42,28,185/to plaintiff No.1 being the arrears of rent till 31.8.2014. 5. After hearing the parties and on consideration of the material on record, the trial Court has passed the order impugned in these writ petitions, allowing 1st prayer of the plaintiffs to direct the defendants to quit and deliver vacant possession of the suit schedule property. The 2nd prayer to direct the defendants to pay Rs.42,28,185/- as the arrears of rent till 31.8.2014 was rejected. Defendants were directed to deliver vacant and peaceful possession of the suit schedule property within three months from the date of the said order. 6. Assailing the correctness of the impugned order, learned Counsel for the petitioners makes the following submissions: i. that the impugned order is not a judgment and it is an order passed on an I.A and therefore, a decree cannot be drawn. Unless there is a decree, impugned order cannot be executed; ii. that the trial Court passed the order on I.A.1 without framing issues and disposed of the I.A.1 in a hurry; iii. that there are no clear admissions made by the petitioners/defendants. Therefore, the impugned order is unsustainable in law. 7. Per contra, Shri T.Suryanarayana, learned Counsel for the respondents by placing reliance on the judgment of this Court in the case of Smt. Shyamala Bai & Ors. vs. Smt. S. Saraswathi Bai & Ors. reported in ILR 1996 KAR 3091 contended that the instant writ petitions filed under Articles 226 & 227 of the Constitution of India are not maintainable. Adverting to paragraphs No.6 and 7 of the said judgment, he submits that any order passed under Order 12, Rule 6 CPC by the trial Court is a “decree” within the meaning of Section 2(2) of CPC. Adverting to paragraphs No.6 and 7 of the said judgment, he submits that any order passed under Order 12, Rule 6 CPC by the trial Court is a “decree” within the meaning of Section 2(2) of CPC. He also placed reliance on Notes of Cases reported in AIR 2004 NOC 374 (Andh.Pra) in the case of Mohammed Mohinuddin Ali vs. Mahesh Kumar Asaya and another and contended that a defendant against whom an order is passed under Order 12 Rule 6 of CPC cannot invoke jurisdiction of High Court under Article 227 of the Constitution of India. 8. I have carefully considered the submissions of the learned Counsel for the parties, perused the material papers and also judgments cited above. 9. In the case of Smt. Shyamala Bai supra, this Court framed a question for its consideration as to whether an order passed under Order 12 Rule 6 of CPC is merely an interim order or is it a decree and held that any order passed under Order 12 Rule 6 of CPC is a decree within the meaning of Section 2(2) of CPC. The relevant portion of said order reads as follows:- “6. Therefore, the material question that calls for determination is whether the so called impugned order of the Court below passed under Order 12, Rule 6 C.P.C. is merely an ‘interim order’ or is it a ‘decree’ and whether a revision under Section 115 C.P.C against the same is competent. 7. To effectively deal with the above question it becomes necessary to advert to the provision of Order 12, Rule 6 C.P.C., which reads : “6. Judgment on 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 the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (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”. (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”. The term ‘decree’ is defined by Subsection (2) of Section 2 C.P.C. as under:- “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include – (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final”. It is clear from the definition of the term ‘decree’ that it may be either preliminary or final and a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It further transpires from the definition of ‘decree’ that any order passed at any stage of its proceeding in a suit by which the rights of the parties with regard to all or any of the matters in controversy in the suit are conclusively determined shall tantamount to a ‘decree’ in the eye of law. In the instant case, indisputably, the impugned ‘order’ conclusively determines the rights of plaintiff and R1 to 4 in regard to the matter in controversy and accordingly the ‘decree’ has been drawn up by the Court below. The reading of Order 12, Rule 6 of C.P.C. and the plain language of this provision read with Section 2(2) C.P.C. makes it crystal clear that any order passed by the Trial Court allowing the plaintiff’s claim either partly or fully on the basis of defendant’s admission at any stage of the suit is a “judgment” to be followed by a ‘decree’ either preliminary or final, and that it is not merely an interim order passed in the proceeding deciding the rights and obligations of the parties. Therefore, there cannot be any dispute as to the legal position that any order passed under Order 12, Rule 6 C.P.C. by the Trial Court is a “decree” within the meaning of Section 2(2) C.P.C”. 10. Learned Counsel for the respondents is right in his submission. Based on the judgment of this Court in the case of Smt. Shyamala Bai as also the judgment in the case of Mohammed Mohinuddin Ali, the impugned order passed under Order 12 Rule 6 of CPC, is a decree. Hence, these petitions are not maintainable. Therefore, no exception can be taken to the order passed by the trial court. These writ petitions fail and are dismissed. No costs.