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2024 DIGILAW 2204 (ALL)

Manoj Kumar Yadav v. Munna Lal Gupta

2024-10-16

AJIT KUMAR

body2024
JUDGMENT : 1. Heard Sri Ajay Kumar Singh learned council for the petitioner and Sri Chetan Chatterjee, learned counsel for the opposite parties. 2. This petition is filed at the instance of the tenant of the premises in question as directed against the order passed by the Judge, Small Causes dated 18.02 2021 in S.C.C. No.46 of 2021 as well as the order passed by the court sitting in revision dated 05.03.2022 in S.C.C. Revision No.20 of 2021. 3. Briefly stated facts of the case are that respondent-landlord instituted a suit for recovery of arrears of rent and damages and for eviction after issuing notice dated 3.01.2015 to the tenant-petitioner determining the tenancy. He took a specific plea to the effect that the construction of tenanted premises were made in the year 2001 and that there was a written agreement between him and tenant petitioner executed on 01.12.2008 for an agreed rent of Rs.1000/- per month. Written statement was filed in the matter in which not only these averments made in paragraph nos. 2, 5 and 9 of the plaint were admitted as it was clearly stated that these are not being denied. A particular statement had been made in paragraph no. 30 to the effect that the Act No.13 of 1972 was not applicable. Taking this to be an admission on the part of the defendant of the plaint case, the landlord moved an application under Order 12 Rule 6 CPC which was initially allowed by the Judge, Small Causes by judgment and decree dated 04.05.2019 which came to be challenged before this court directly by moving a petition being Matter Under Article 227 No.607 of 2020 against which, a rivision petition was filed bearing No.14 of 2019 which too was dismissed on 23.10.2019. Both these orders came to be challenged before this court on the plea that the objection moved by the petitioner and the application moved by the landlord were not considered at all. 4. This court took notice of the arguments advanced on behalf of the petitioner and the learned Advocate who was appearing for the landlord-respondent in the said case agreed that order be quashed and the matter be remanded. It was in these circumstances that matter was remanded to the trial court by setting aside both the orders assailed in the petition to decide Order 12 Rule 6 application afresh. It was in these circumstances that matter was remanded to the trial court by setting aside both the orders assailed in the petition to decide Order 12 Rule 6 application afresh. The last 3 paragraphs of the order of this court dated 23/1/2020 are reproduced hereunder: "In view of submission made by learned counsel for the respondents and considering the facts and circumstances of the case, the order dated 04.05.2019 passed by Judge Small Cause Court, Varanasi in J.S.C.C. Suit No.46 of 2015 (Munna Lal and Another Vs. Manoj Kumar) as well as order dated 23.10.2019 passed by District Judge, Varanasi in S.C.C. Revision No.14 of 2019 is set aside. The writ petition is allowed with a direction to Judge Small Cause Court, Varanasi to consider and decide the application no. 72-Ga of respondents/landlord under Order 12 Rule 6 of C.P.C expeditiously preferably within a period of six months from the date of production of certified copy of this order without granting any unnecessary adjournment to either of the parties. In case if any adjournment is inevitable, the authority concerned may grant the same by imposing heavy cost which may not be less than Rs.1,000/-. The writ petition is allowed subject to observations made above. " 5. It is after the matter was remanded that petitioner moved an application under Order 6 Rule 17 CPC seeking amendment of the written statement in respect of paragraph 30 for deleting the same and adding a new paragraph to the effect that Act No.13 of 1972 did apply. The court, however, firstly rejected the amendment application vide order dated 29.02.2020 which was again challenged before this court. However the writ petition this time remained pending and in the meanwhile Order 12 Rule 6 application came to be allowed by decreeing the suit afresh vide detailed judgment and order dated 18.02.2021. This order along with an order deciding the amendment application came to be challenged before the court sitting in revision vide S.C.C. Revision No.20 of 2021. The court in revision affirmed the order passed by the Judge, Small Causes, both on merits of the case as well as order passed on amendment application, vide judgment and order dated 05.03.2022. 6. This order along with an order deciding the amendment application came to be challenged before the court sitting in revision vide S.C.C. Revision No.20 of 2021. The court in revision affirmed the order passed by the Judge, Small Causes, both on merits of the case as well as order passed on amendment application, vide judgment and order dated 05.03.2022. 6. Following arguments have been advanced by learned counsel appearing for the petitioner before the court: i) Even while the matter was remitted earlier by this Court directing for deciding the Order 12 Rule 6 application afresh, no consideration was accorded to the objection filed by the petitioner to the said application even though some reference has been made thereof in the judgment by the trial judge. ii) Even while Order 7 Rule 11 application had remained pending consideration, the trial judge fell in serious error of law in decreeing the suit itself without adverting to the said application. iii) The amendment application did dispute the date of construction but the said application was rejected and therefore petitioner's admission has wrongly been read into by the trial judge. iv) For the admission of the landlord in sending the second notice on 07.02.2015, the first notice issued on 30.01.2015 stood vague, on the basis of which suit was filed and the second notice was never brought on record. Thus according to him the plaintiff was liable to be non-suited on this ground. 7. Assailing the order of the court sitting in revision, learned counsel for the petitioner submitted that the court of revision instead of looking into the legal and technical aspects of the maintainability of application under Order 12 Rule 6 CPC proceeded to justify the order passed by the Judge, Small Causes leading the evidence in the form of documents available on record which according to learned advocate is a manifest error in exercise of jurisdiction committed by the Judge, sitting in revision. 8. In support of his submission learned advocate has placed reliance upon a number of authorities of Supreme Court and this court which are as under; 1. Zubair Ahmad Khan v. Court of Judge, Small Causes Court/A.D.J. (Ct-4)L. Kheri: 2019 SCC OnLine All 4182, 2. Laxmi Kishore and another v. Har Prasad Shukla: 1979 SCC OnLine All 721, 3. Ram Sahai v. IIIrd Additional District Judge, Jalaun at Orai and Ors.: Civil Misc. Zubair Ahmad Khan v. Court of Judge, Small Causes Court/A.D.J. (Ct-4)L. Kheri: 2019 SCC OnLine All 4182, 2. Laxmi Kishore and another v. Har Prasad Shukla: 1979 SCC OnLine All 721, 3. Ram Sahai v. IIIrd Additional District Judge, Jalaun at Orai and Ors.: Civil Misc. Writ Petition No.6457 of 1979 decided on 08.07.1980, 4. Ram Saroop Rai v. Smt Lilavati in Civil Appeal No.2109 of 1979 decided on 07.05.1979, 5. Vindhaychal Prasad Jaiswal v. VIIth Additional District Judge, Varanasi and Ors.: MANU/SC/1047/1993, and 6. Ali Ahmad Khan v. Badshah Khatoon and Ors.: Writ A No.1000106 of 2010. 9. Countering the above submissions Mr. Chetan Chatterjee, learned counsel for the respondent-landlord has raised 2 fold arguments; Firstly, the Court dealt with the entire matter of pleadings in its judgment and order after the remand, and specifically referred to the paragraphs where the admissions had been made and there being no denial of the date and year of the constructions as pleaded in paragraph 2 of the plaint, by fiction of law as per Section 2(2) of The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the said Act would not apply and, therefore, result would be that with the issuance of the notice, the landlord will be taken to have determined the tenancy. Leading the arguments further he submits that there being a fair admission in the written statement itself. He submits that petitioner had replied to the first notice, so it was liable to be taken to have been duly served upon tenant and this itself accounted to an admission which did not require any further leading of evidence at the instance of the landlord qua serve notice. 10. The second argument advanced is that the amendment application was only on account of the legal effect of applicability and non applicability of Act No.13 of 1972. There was already sufficient pleading taken in the original written statement regarding the attempt made by the petitioner in making deposits under section 30 (1) of the Act No.13 of 1972 and having failed to do so, he proceeded to make deposits under Section 20 (4) of the Act No.13 of 1972 and in the face of these pleadings, the amendment to withdraw the admission and that too at the stage of commencement of trial was rightly rejected by the trial court. He further argues that withdrawal of admission in the written statement prejudices the right already accrued in favour of the plaintiff and so such an amendment liable to be rejected. On the plea of maintainability of Order 12 Rule 6 application in the objections raised by the plaintiff qua the said application, Sri Chatterjee, learned counsel has placed reliance upon the judgment of the Supreme Court in the case of Payal Vision Limited v. Radhika Choudhary: (2012) 11 Supreme Court Cases 405. 11. Meeting the arguments regarding the court sitting in revision having wrongfully exercised the jurisdiction in deciding the issue of applicability or non applicability of the Act on the basis of appreciation of evidence in the form of documents available on record, Mr. Chatterjee argues that even if the court sitting in revision has traveled beyond the limits or boundaries of law qua revisional exercise of power in appreciating certain evidence available on record, it would certainly not have affected the legal aspect of admission made in the pleadings by the parties. He argues that the order 12 Rule 6 application was to be dealt with on the basis of pleadings and from the judgment of the court sitting in revision it cannot be deciphered that there was any dilation on the findings returned by the trial court to that count. Thus, Sri Chatterjee submits that this petition is liable to be dismissed. 12. Having heard learned counsel for the respective parties and having perused the documents available on record, in so far as the first argument advanced on behalf of the petitioner is concerned I find that the Judge, Small Causes in his judgment has considered the objections by referring the same just before the analysis part and it is thereafter that he has proceeded to discuss the application under Order 12 Rule 6 filed by the petitioner referring to various paragraphs of the plaint as well as the written statement. The date of construction of the building had been referred to in paragraph no.2 of the plaint as of the year 2001 and it is thereafter that the owners of the property had started living in the same. The house that was duly constructed in the year 2001 was allotted House No.2/554D-1. The date of construction of the building had been referred to in paragraph no.2 of the plaint as of the year 2001 and it is thereafter that the owners of the property had started living in the same. The house that was duly constructed in the year 2001 was allotted House No.2/554D-1. In paragraph no.4 it has come to be averred that there was a shop situate in the house itself rented to the petitioner at a monthly rent of Rs.1000/- and then in paragraph no.5, it has been stated that this entire property bearing no.2/554D-1 was purchased by the present petitioner from the original landlord vide sale deed dated 15.10.2012. In paragraph 14, the date of notice mentioned is 30.01.2015 sent by the subsequent purchaser who stepped into the shoes of landlord of the present petitioner, determining the tenancy. 13. In the written statement averments made in paragraph nos.2 and 3 have not been denied by stating that the defendant does not deny the same. In paragraph no.9 of the plaint, he admits the jural relationship of landlord and tenant between him and the petitioner and then interestingly the petitioner admits that notice was sent to him on 30.01.2015 to which he had replied vide letter dated 15.02.2015 vide paragraph 25 of the written statement. Thus the date of construction of the tenanted premises having been admitted as 2001 by virtue of Sub-section 2 of Section 2, the Act No.13 of 1972 would not be applicable. Thus the date of construction of the tenanted premises having been admitted as 2001 by virtue of Sub-section 2 of Section 2, the Act No.13 of 1972 would not be applicable. The relevant provisions are quoted hereunder: "(2) [Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed]: [Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section, to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter.]: [Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed.] Explanation I.[For the purposes of this section]-- (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants." 14. It is thus clear that there was a fair admission on the part of the tenant qua the construction of the house and therefore the legal effect of the second proviso would step in and the Act No.13 of 1972 would not apply. The objections that were taken by the petitioner to the application moved under Order 12 Rule 6 was that Act No.13 of 1972 would apply but he could not deny the fact that he himself admitted the year of construction of the building. Thus, where the legal effect has taken place of a provision of law on account of admission made by the defendant of the plaint allegation, a mere objection that Act No.13 of 1972 would not value and for this the evidence should have been permitted to be led, in my considered view is of no relevance. Thus, the first argument advanced by learned counsel for the petitioner does not hold merit. 15. In so far as the second argument is concerned that Order 7 Rule 11 application is pending consideration even while the Judge, Small Causes proceeded to decide the suit itself, in my considered view, this aspect also looses its relevance in view of the directions issued by the Court in a writ petition filed by the petitioner himself asking for decision afresh upon Order 12 Rule 6 application. I have already quoted above the operative portion of the order and it does not call for consideration of the application of the petitioner under Order 7 Rule 11 CPC. It was open for the petitioner while pressing his earlier petition before this Court being No.607 of 2020 to have pressed for decision also upon Order 7 Rule 11 application but he chose not to do it on his own volition. So, now this argument cannot be pressed into service. 16. In so far as the third argument regarding rejection of Order 6 Rule 17 application seeking amendment in the written statement is concerned, I find that the said application was moved after Order 12 Rule 6 application stood disposed of by the Court in its first judgment dated 4.05.2019 and even while challenging the order in first round of revision petition being no.14 of 2019, there was no such application pending consideration. It is only after the matter was remanded by this Court on 23.01.2020, that petitioner came to move an amendment application on 17.02.2020. In the entire order passed by this Court on 23.01.2020, there is no such request recorded of the petitioner seeking liberty to move any amendment application in a pending suit which was at the stage of examination of witnesses after the exchange of pleadings. 17. In the circumstances I do not find any manifest error in the order passed by the trial judge holding that Order 6 Rule 17 application was not maintainable after the trial had begun, more so, when the order was passed by this Court on 23.01.2020 to decide Order 12 Rule 6 application on the basis of the pleadings available on record. Even otherwise, in the amendment application that was moved to seek amendment in respect of paragraph no.30 of the written statement I do not find there to be any amendment sought in paragraph nos.2 and 3 of the written statement. Thus the admitted position of fact remains intact. Even otherwise on merits, once an admission has been made in the written statement by the defendant of a fact pleaded in the plaint and a right accrued to the plaintiff for such admission as in the present case petitioner moved an application under Order 12 Rule 6 C.P.C., such an admission cannot be permitted to be withdrawn in view of the judgment of the Supreme Court in the case of Modi Spinning Mills and Weaving Mills Company Limited and another v. Ladharam and Company : AIR 1977 SC 680 . 18. In so far as the last argument advanced by learned counsel for the petitioner is concerned that the second notice admitted in the plaint would result in abating the first notice and that the second notice was not brought on record in the suit, in my considered view even this argument does not hold merit. Once the petitioner himself admitted the first notice and made reply thereof making specific averment to this effect vide paragraph no.25 which remained intact, whether the second notice was issued or not issued, will have hardly any relevance/significance. 19. Coming to the authorities cited by Mr. Once the petitioner himself admitted the first notice and made reply thereof making specific averment to this effect vide paragraph no.25 which remained intact, whether the second notice was issued or not issued, will have hardly any relevance/significance. 19. Coming to the authorities cited by Mr. Singh, learned counsel appearing on behalf of the petitioner, in the case of Vindhyachal Prasad Jaiswal (supra), the matter related to a case where a disputed question arose as to the date of construction of building relating to the assessment of the house tax made by the Municipality. This situation would not arise in the present case because of the admission by the petitioner in his written statement regarding year of construction of building. For this very reason, another citation placed before the Court in the case of Ram Swaroop Rai (supra) is distinguishable on facts. The issue in the case of Ram Sahai (supra) was absolutely different because in that case the right of the landlord was disputed on the ground of mortgage treated by the owner in possession of the house and there the petitioner claimed to be not the tenant of the mortgagee and therefore, pleaded not liable to pay rent. The judgment in the case of Laxmi Kishore (supra) has been cited qua scope of revisional power under Section 25 of Provincial Small Causes Courts Act. The issue in that case was whether the revisional court would have passed a suitable decree in a case by re-appreciating the evidence on record, if it found that the findings recorded by the trial court were vitiated by any error of law. Vide paragraph nos.17, 18 and 19 the Court held thus: "17. The court deciding a revision under section 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial courts' decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Court's dictum in Naicker’ case (supra) that a wrong decision on fact is also a decision according to law. 18. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. 18. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision. 19. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact." 20. Applying the above principle of law to the facts of the case, in my considered view the judgment of affirmance should not be interfered with if on fact position is not dispute qua the pleadings raised in the suit. In the present case, it is on account of admission of the petitioner in his written statement regarding construction of the building that Act No.13 of 1972 was held to be not applicable. So the appreciation of relevant material/pleadings by the revisional court would not change the legal position either. 21. The judgment in the case of Zubair Ahmad Khan (supra) is also of no help to the petitioner because the fact position of petition cannot be diluted by any legal interpretation of a provision of law. 22. In so far as the judgment of another coordinate Bench in the case of Ali Ahmad Khan (supra) is concerned it relates again to the evidence led in that case regarding construction of building. 22. In so far as the judgment of another coordinate Bench in the case of Ali Ahmad Khan (supra) is concerned it relates again to the evidence led in that case regarding construction of building. I have already held that in view of admission made by the petitioner in paragraph nos.2 and 3 of the written statement there would be no occasion to lead any further evidence to contradict the admission unless and until the paragraph nos.2 and 3 are sought to be amended and I do not find there to be any such amendment pleaded even in subsequent amendment application. 23. Now coming to the judgment in the case of Payal Vision Limited (supra), the Court I find has dealt with the legal position qua a decree to be passed in terms of Order 12 Rule 6 C.P.C. Vide paragraph nos.7 and 8, the Court has held thus: "7. 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 CPC, which reads as under: "Judgment 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. (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." 8. The above sufficiently 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. The above sufficiently 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 and 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 where the plaintiff seeks to invoke the powers of the Court under Order XII Rule 6 of the CPC 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: "10. ... 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." 24. Thus applying the above legal principle to the facts in hand where there is a fair admission regarding construction of a building to have taken place in the year 2001 and the landlord-tenant relationship has not been denied, the resultant action would be the eviction of the tenant petitioner upon termination of tenancy vide notice issued under Section 106 of Transfer of Property Act. The period of tenancy having expired, the notices issued would amount to determining tenancy and the tenant would be liable to eviction. 25. The petition against the order granting eviction and claim for arrears of rent and damages stands dismissed. 26. The period of tenancy having expired, the notices issued would amount to determining tenancy and the tenant would be liable to eviction. 25. The petition against the order granting eviction and claim for arrears of rent and damages stands dismissed. 26. At this stage, learned counsel for the petitioner Sri Ajay Kumar Singh submits that the petitioner if afforded some reasonable time, he would be vacating the premises. 27. To this above request, learned counsel for the respondent, Sri Chetan Chatterjee does not dispute but he submits that a reasonable rent should be paid for such use and occupation of the premises, eviction wherefrom has been directed by the courts. 28. Considering the above facts and circumstances and with consent of the parties this petition stands disposed of with following directions: A) Petitioner before this Court shall be furnishing an affidavit of undertaking in the court of Judge, Small Causes on or before 30.11.2024 to the effect that he would be vacating the premises in any case by 30.09.2025. B) The tenant-petitioner shall be paying damages @ Rs.3000/- per month towards the use and occupation of the premises in question on seventh day of every month beginning from the month of November, 2024 and first deposit for the month of November, 2024 shall be made alongwith an affidavit of undertaking to be filed before the Judge, Small Causes as directed hereinabove. 29. It is directed that in the event of compliance of above two directions petitioner shall not be evicted till 30.11.2025 pursuant to the judgment and decree dated 18.02.2021, however, in the event of default either in furnishing affidavit of undertaking as directed hereinabove or depositing the monthly damages as directed hereinabove, the protection granted to the petitioner from eviction shall cease to operate and petitioner shall be liable to eviction at the instance of the landlord.