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2025 DIGILAW 135 (CAL)

Mridula Roy v. Kamalesh Chandra Chakraborty

2025-01-27

SHAMPA DUTT (PAUL)

body2025
JUDGMENT : Shampa Dutt (Paul), J. 1. The present revisional application has been preferred against an order dated 27th September, 2024 passed by the learned Civil Judge (Senior Division), 7th Court at Alipore in Ejectment Suit No. 32 of 2022 CNR: WBSP02-001881-2022. 2. The learned Magistrate has rejected the petitioners/plaintiff’s prayer for decree on admission under order XII R 6 of CPC. On the findings as follows:- “………The defendant also claims that on 01.06.2020, the defendant had verbally demanded extension of his tenancy through the said agreement dated 01.10.2019 and also prayed for adjustment of rents for another six months. On perusal of the plaint, it appears that the plaintiff has demanded and prayed for mesne profit @ Rs.1,000/- per month from April, 2022 till the taking of khas possession but in this respect, there appears a point of dispute between the parties regarding the fact of extension of the right to occupy beyond the period as stated in the agreement dated 01.10.2019. So, merely on the basis of admission of rate of rent and execution of agreement dated 01.10.2019, the points of mesne profit and extension of right to occupy cannot be determined and so, the petition praying for disposal of the suit on the basis of admission of the defendant deserves to be rejected. In this respect, as it appears that the intention of the provision of Order XII Rule 6 of the CPC is that the admission must be clear, unequivocal, unambiguous and unconditional. In this respect, as it has been observed by the Hon'ble Supreme Court and in (2022) Live Law Supreme Court Page 566 wherein the Hon'ble Court has been pleased to observe that the power to pass judgment on admission is discretionary and cannot be claimed as the matter of right. In this respect, as it has been observed by the Hon'ble Supreme Court and in (2022) Live Law Supreme Court Page 566 wherein the Hon'ble Court has been pleased to observe that the power to pass judgment on admission is discretionary and cannot be claimed as the matter of right. So, on the basis of consideration that though the defendant has admitted the rate of rent and also the execution of the agreement and merely as per Section 3 of West Bengal Premises Tenancy Act that disallows the Court to come to a conclusion that the defendant is a tenant in respect of the suit property but that does not set at the rest, the other disputes relating to the period of right to occupy and also the extension if any, that was allowed and also the mesne profit and in regards to such dispute, the Court is of the view that it cannot be adjudicated in terms of Order XII Rule 6 of the CPC so, the petition stands rejected on contest. Fix04/12/24 framing of issues………..” 3. Order XII Rule 6 CPC lays down as follows:- “6. 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 up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 4. The Supreme Court in Rajesh Mitra @ Rajesh Kumar Mitra & Anr. Versus Karnani Properties Ltd., in Civil Appeal Nos. 3593-3594 of 2024, decided on 20 September, 2024, the Court held:- “3. …………………… 6. The Supreme Court in Rajesh Mitra @ Rajesh Kumar Mitra & Anr. Versus Karnani Properties Ltd., in Civil Appeal Nos. 3593-3594 of 2024, decided on 20 September, 2024, the Court held:- “3. …………………… 6. 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 up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. no.1 which was made in another unconnected matter, as to our mind, it does not pass muster the test of “admission” visualised in Order XII Rule 6 CPC. It is not that a court cannot pass a judgment on the basis of an admission made in some other case. All the same, what has to be kept in mind is that Order XII Rule 6 is an enabling provision conferring wide discretionary powers on the courts which cannot be claimed by any party as a matter of right. Courts can invoke Order XII Rule 6 only in cases where admissions are unconditional, unequivocal and unambiguous or when admission is based upon undisputed inferences. (See: Charanjit Lal Mehra & Ors. v. Kamal Saroj Mahajan (Smt) And Anr. (2005) 11 SCC 279 , Raveesh Chand Jain v. Raj Rani Jain (2015) 8 SCC 428 , Uttam Singh Duggal & Co. Ltd. v. United Bank of India And Ors. (2000) 7 SCC 120 )…………… ………..We have perused the examination-in-chief and cross - examination of appellant no.1 made in that ‘other case’ where this statement was made. Such questions and their answers are common place in depositions before courts, but every such statement cannot be considered as an ‘admission’ to invoke Order XII Rule 6 of CPC. It is for the courts to see whether any statement in the pleadings or otherwise amounts to an admission of such a nature as to inspire the confidence of the court to pass judgment on admission under Order XII Rule 6 of CPC. It is for the courts to see whether any statement in the pleadings or otherwise amounts to an admission of such a nature as to inspire the confidence of the court to pass judgment on admission under Order XII Rule 6 of CPC. It will depend upon the content and kind of statement/admission which may vary from case to case. In other words, it would depend upon the totality of facts and circumstances of a particular given case. In the present case, here, it is not a ‘clear admission’ as is being made out. Moreover, where the question and its answer are both a mixed question of fact and law, as in the present case, a so called ‘admission’ against the law can never be an “admission” as visualised under Order XII Rule 6. However, more on this later. Order XII Rule 6 is meant for speedy disposal of the suits in some cases but on the risk of repetition, we would like to caution that unless there is a clear, unambiguous, unequivocal and unconditional admission, courts should not exercise their discretion under the Rule because judgment on admissions is without a trial which may even preclude a party to challenge the matter on merits in the court of appeal. The provision of law, which is meant for the expeditious disposal of appropriate cases, should therefore be cautiously exercised and it should never come in the way of any defendant denying him the valuable right of contesting the claim. (See: Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273 , Hari Steel & General Industries Ltd. v. Diljit Singh (2019) 20 SCC 425 )………… 6. ……………… This goes to the root of the controversy and involves a question of law and thus, the learned single Judge erred in passing the judgment under Order XII Rule 6. What has been given to the appellants under law cannot be taken away on the basis of an unclear deposition. In short, there cannot be an admission against law. Whether a particular statement amounts to an “admission” will depend on the fact of each case. In the case at hand, we are of the opinion that it is not an admission as visualised under Order XII Rule 6………..” 5. In the present case the agreement dated 1st October, 2019 between the parties is admitted. 6. Whether a particular statement amounts to an “admission” will depend on the fact of each case. In the case at hand, we are of the opinion that it is not an admission as visualised under Order XII Rule 6………..” 5. In the present case the agreement dated 1st October, 2019 between the parties is admitted. 6. The said agreement is in respect of the "Suit Flat" on a monthly license fees of Rs.11,000 (Rupees Eleven Thousand per month Payable according to English Calendar Month under the provision of The Transfer of Property Act 1882 of (hereinafter referred to as the "Said Act") for a period of 11 months commencing from 1st October 2019 ending on 31st August, 2020 (Admitted). 7. The Plaintiff by a notice dated 25th March, 2022 issued by her Learned Advocate under section 106(4) of the Transfer of Property Act 1882 requested the defendant/opposite party to handover the peaceful vacant possession of the suit flat on 18th April, 2022. 8. The Defendant failed and neglected to handedover the possession of the "Suit Flat" to the plaintiff even after the expiry of the date specified in the said notice dated 18th April, 2022 for which the plaintiff was constrained to file the suit for recovery of possession. 9. The petitioner/plaintiff’s further case is that defendant has been occupying the "Suit Property" as a trespasser since 19th April, 2022 as such the defendant is liable to pay mesne profit @ Rs.1000/- per diem till the date of recovery of khas possession of the suit flat. 10. The relevant pleadings in the written statement filed by the defendant/opposite party herein are as follows:- “………(i) That before dealings with the paragraphs made in the plaint, the defendant state true facts as follows:- a) The defendant is a monthly tenant under the plaintiff by virtue of an Agreement dated 01.10.2019, in respect of a self contained residential flat including fixtures and furniture, being Flat No. 2E, North Block, Diamond Tower, lying and situate at Premises No. P-37A, Diamond Park, Joka, Kolkata 700104, along with a covered car parking space marked as "2E". b) The defendant states that though the nomenclature of the said Agreement as Leave and License but actually the same is a Tenancy Agreement. b) The defendant states that though the nomenclature of the said Agreement as Leave and License but actually the same is a Tenancy Agreement. As per said Agreement dated 01.10.2019 the rent was fixed Rs.11,000/- (Rupees Eleven Thousand) only per month payable according to English Calendar month and the defendant has been paying the said rent from the date of the said Agreement dated 01.10.2019 but the defendant had got his actual possession in the suit property only in March, 2020. c) ………………………………. d) Ultimately after six months from the Agreement, the defendant had finally got possession of the suit property in the end of March, 2020 but the defendant pay the monthly rent to the plaintiff month by month since date of execution of the said Agreement dated 01.10.2019. At that time, the plaintiff had also verbally assure the defendant to extend the said six months and had also assured that the monthly rents will be adjusted with the current rent of another six months………..” 11. As such it is admitted that the agreement is dated 01.10.2019 for a period of 11 months ending on 31.08.2020. 12. It is also admitted that rent as agreed upon was paid since date of execution of the said agreement dated 01.10.2019. 13. The Notice dated 25th March, 2022 under Section 106 of the transfer of property has been served upon the defendant/opposite party to hand over vacant possession on 18th April, 2022. 14. Though the agreement ended on 31.08.2020, the defendant continued in possession till April, 2022 and is still continuing in possession by virtue of the pending of the suit in this case. 15. Admittedly there is no fresh written agreement between the parties. 16. The defendant/opposite party has continued to be in possession till date even though the term of 11 months in the agreement ended on 31.08.2020 (now four years and running). 17. Thus considering the said statement made in the written statement (pleading) which are clear, unambiguous, unequivocal and unconditional admission (Rajesh Mitra @ Rajesh Kumar Mitra & Anr. Versus Karnani Properties Ltd.,(Supra)), the suit before the trial court is thus to be decreed in favour of the plaintiff/petitioner herein on admission. 18. CO 4091 of 2024 is allowed. 19. 17. Thus considering the said statement made in the written statement (pleading) which are clear, unambiguous, unequivocal and unconditional admission (Rajesh Mitra @ Rajesh Kumar Mitra & Anr. Versus Karnani Properties Ltd.,(Supra)), the suit before the trial court is thus to be decreed in favour of the plaintiff/petitioner herein on admission. 18. CO 4091 of 2024 is allowed. 19. The order under revision dated 27th September, 2024 passed by the learned Civil Judge (Senior Division), 7th Court at Alipore in Ejectment Suit No. 32 of 2022 CNR: WBSP02-001881-2022, is set aside. 20. The plaintiff/petitioner does get a decree for recovery of khas possession of the suit property on admission along with arrear licence fees from September 2020 till recovery of possession. 21. The defendant/opposite party shall handover vacant khas possession of the suit premises within 30 days from the date of this order failing which the plaintiff shall be at liberty to put the decree into execution in accordance with law. 22. All connected applications, if any, stand disposed of. 23. Interim order, if any, stands vacated. 24. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously after due compliance.