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2018 DIGILAW 715 (ORI)

Gajanan Agarwal v. Daitary Senapati

2018-08-02

D.DASH

body2018
JUDGMENT This appeal under Section 100 of the Code of Civil Procedure (for short, called as ‘the Code’) has been filed challenging the judgment and decree passed by the learned District Judge, Khurda in RFA No.85 of 2017 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division),, Bhubaneswar in C.S. No.2414 of 2016.The respondent as the plaintiff has filed the suit for eviction. 2 The trial Court has decreed the suit for eviction, directing the appellant (defendant) to give the vacant possession of the suit premises to the respondent (plaintiff) within a stipulated time failing which to be so done through the process of the Court.. 3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 4. The plaintiff’s case is that he is the owner of the suit premises situated over the land under plot No.122 in Sahid Nagar, Bhubaneswar. He had inducted the defendant as a tenant. There was an agreement to that effect between them for the purpose, fixing the period of tenancy commencing on and from 1.8.2014 and ending as on 31.7.2016. It is the case of the plaintiff that during the period, the defendant damaged the suit premises necessitating immediate repair. It is also alleged that the defendant has sub-let the suit premises without the knowledge and consent of the plaintiff. So when the period of tenancy expired, the defendant was asked to vacate the suit premises. It is stated that the defendant although gave assurance to give vacant possession of the suit premises, instead of doing so, filled a suit for injunction in the Court of learned Civil Judge (Jr. Divn.), Bhubaneswar making some false allegations against the plaintiff. As the plaintiff came to know about the same, he served a notice through his advocate calling upon the defendant to vacate the suit premises by 30th September, 2016.Since the notice did not yield any fruitful result, the suit has been filed. 5. The defendant having entered appearance in the suit although questioned its maintainability and lack of cause of action, further taking a plea that it is bad for non-joinder of necessary party, yet he admitted the fact that he was a tenant under the plaintiff in respect of the suit premises. 5. The defendant having entered appearance in the suit although questioned its maintainability and lack of cause of action, further taking a plea that it is bad for non-joinder of necessary party, yet he admitted the fact that he was a tenant under the plaintiff in respect of the suit premises. The defendant of course denied the fact that the period of tenancy has expired since 31.7.2017. He claimed the tenancy to be continued and accordingly, asserted as to be continuing to occupy the suit premises as a bonafide tenant, regularly paying the rent to the plaintiff. It is stated that after lapse of the period of agreement on 31.7.2016; on the next day, the plaintiff was requested to renew the agreement for further term with usual enhancement of the rent. The proposal although had initially been accepted and the plaintiff has assured to do so by the end of August, 2016. However, on 30,.8.2016 the plaintiff asked the defendant to vacate the suit premises. It is alleged that then the plaintiff having made an attempt to evict him by using force, failed in that mission. He denied the plaint averments that he had sub-let the suit premises to anyone. It is further stated that the notice given by the plaintiff is not a statutory notice. 6. On the above pleadings, a move being made by the plaintiff before the trial Court for passing judgment and decree in accordance with the provision of Order 12 Rule 6 of the Code on the ground that the defendant has admitted their jural relationship, as also the issuance and receipt of notice under Section 105 of the T.P. Act in his written statement, the trial Court accepted the same in holding that it is a fit case to pass judgment by pressing the provision contained in Order 12 Rule 6 of the Code into service and has accordingly done so. 7. The defendant being aggrieved by the said judgment and decree filed the first appeal, which has also been dismissed by the lower appellate Court confirming the judgment and decree passed by the trial Court in the suit. Hence the present second appeal. 8. 7. The defendant being aggrieved by the said judgment and decree filed the first appeal, which has also been dismissed by the lower appellate Court confirming the judgment and decree passed by the trial Court in the suit. Hence the present second appeal. 8. Learned counsel for the appellant submitted that the Courts below have erred in law by holding that the defendant has admitted the entire case of the plaintiff in clear terms in the written statement so as to enable the Court to pass the judgment and decree, in exercise of the power under Order 12 Rule 6 of the Code. He further submitted that even though from the written statement, it can be said that the defendant has admitted the jural relationship between the plaintiff and himself, there was no admission relating to termination of tenancy and thus a dispute clearly surfaces with regard to the validity of notice under Section 106 of the T.P., Act for the adjudication holding a trial. According to him, under the circumstances, the Courts below have erred in law by exercising the power under Order 12 Rule 6 of the Code so as to finally dispose of the suit in terms of said provision and on admission. He therefore urged for admission of this appeal formulating the substantial questions of law in the light of the above. 9. Learned counsel for the respondent who has entered by filing a caveat petition submitted all in favour of the view taken by the Courts below that it is a fit case for disposal in accordance with the provisions of Order 12 Rule 6 of the Code which has been rightly so done. 10. In order to address the submission, the provision of Order 12 Rule 6 of the Code need be given a careful reading. The said provision provides that – “6. Judgement on admissions – (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.” 11. The question of law is well settled that a judgment can be given on an ‘admission’ contained in written statement. But such admission should be categorical and it should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. The Court has to examine the facts and circumstances so as to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial and it permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. The judgment on admission is a matter of discretion of the Court. Where the defendant has raised objection which goes to the root of the case, it would not be appropriate to exercise the discretion and such exercise of discretion would not be in consonance with the provision of Order 12 Rule 6 of the Code and rather would be in breach of the same. The said rule is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission and to the extent of the claim stands admitted by one of the parties of his opponent’s claim. 12. In case of Payal Vision Ltd. vs. Radhika Choudhury; 2012 (12) SCC 405, the Apex Court at para-6, has held as under :- “6. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff-landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the Code of Civil Procedure, which reads as under :- 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 admission. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” It has been next stated at para-7 :- “The above sufficiency empowers the Court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case whether the plaintiff seeks to invoke the powers of the Court under Order XII Rule 6 of the Code of Civil Procedure and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. (supra) relied upon by the High Court where this Court has observed :- Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi (supra) may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation.” 13. Coming then to the question regarding existence of jural relationship of the landlord and tenant, in the case at hand, the same clearly stands admitted. In the plaint, such relationship has been the foundation of the case of the plaintiff and that stands admitted. Undeniably, the defendant having founded upon such relationship has filed a suit against the plaintiff for injunction so as not to dispossess him without taking recourse to law. The objection taken in the written statement to thwart the prayer of eviction is that the notice served upon the defendant for such eviction is not as per the statute which on its face is not acceptable. The next challenge is on the ground that the defendant having invested huge amount in the interior decoration of the tenanted premises, such move of eviction is not permissible which is also not cognizable in the absence of any such agreement between them. Here in the case, the service of notice upon the defendant prior to the suit is not denied. When it is said in the written statement that “the notice issued by the plaintiff for vacation of the premises is not statutory notice under the act” (para-9 of the written statement), it makes no sense and rather is vague. From this, it cannot all be so inferred that any such dispute as to the validity of the notice has been raised. The notice is dated 8.9.2016 land the request thereby for eviction on or before 30th September, 2016. Here the agreement is not a registered one and therefore the tenancy is treated as monthly tenancy. Even the agreement being taken into account, the period fixed under the same i.e. two years having elapsed for which 15 clear days notice is the mandate of law as it presently stands as provided under Section 106 of the T.P. Act and admittedly that has been received by the defendant which puts an end to the matter. 14. Even the agreement being taken into account, the period fixed under the same i.e. two years having elapsed for which 15 clear days notice is the mandate of law as it presently stands as provided under Section 106 of the T.P. Act and admittedly that has been received by the defendant which puts an end to the matter. 14. In case of S.M. Asif vs. Virendra Kumar Bajaj, (2015) 9 SCC 589, where although jural relationship stood admitted, there was an objection by the defendant-tenant setting up a defence of agreement for sale and payment of advance consideration in pursuance of the said agreement. Moreover, in that case, the defendant had filed the suit for specific performance of contract which was being contested by the plaintiff-landlord. In view of the above, when such issues arising between the parties stood for adjudication, the Apex Court has taken the view that mere admission of jural relationship cannot be taken to be an unequivocal admission for the purpose of passing judgment and decree in exercise of the provisions sunder Order 12 Rule 6 of the Code in that suit for eviction. 15. In the case in hand, the relationship of the landlord and tenant is clearly admitted which is the most significant aspect to be seen by the Court in a suit for eviction. Coming to the question of termination of tenancy, here it is not a case where the defendant did enjoy the benefit of secured term under a registered deed and the result is that the tenancy is a monthly tenancy, terminable under Section 106 of the T.P. Act. The service of said notice stands admitted, period as provided has also expired prior to the suit. For the aforesaid discussion and reasons, the trial Court, in my considered view is perfectly justified in decreeing the suit filed by the plaintiff for eviction invoking the provision of Order 12 Rule 6 of the Code and the lower appellate Court did commit no fault in confirming the same. This Court thus finds no such substantial question of law so as to be formulated here in this appeal for being answered. 16. The appeal therefore, does not merit admission. Accordingly, the second appeal stands dismissed. No order as to cost. Appeal dismissed.