Delhi District CourtSh. Tara Chand vs Sh. Shalender Kumar on 6 October, 2008- :: 1 :: -

         IN THE COURT OF SH. PITAMBER DUTT :
          ADDITIONAL DISTRICT JUDGE : DELHI



In the matter of: -

Suit No. 246/2007.



Sh. Tara Chand.                                 ... Plaintiff.


         Vs.


Sh. Shalender Kumar.                            ... Defendant.



                         - : ORDER : -



1.By way of this order ,I shall decide an application

  under order xii rule viCPCfiled by the plaintiff. The

  fact     necessary   for   the    disposal   of   the   present

  application are reproduced in brief-:1.It is stated in the plaint that the plaintiff is the- :: 2 :: -absolute owner /landlord of the suit property

 bearing -997-E, Lohia Gali No: -4, Babarpur,

 Delhi 110032.2.It is further stated that hat the suit property was

 let out to the defendant through a registered

 lease deed dt 4-5-2006 at the rent of Rs 14,300/-

 pm for a total period of 22 month commencing

 from 3-5-2006 and ending with 1-3-2008, for

 industrial purposes.3.It is further averred that the defendant stopped

 paying the rent w.e.f. Jan 2007,therefore the

 plaintiff was not interested to keep the defendant

 as his tenant any more consequently the plaintiff

 got issue a legal notice through his counsel dt 9-

 5-2007terminating the tenancy of the defendant

 through registered AD and UPC however the

 same is received back with the endorsement that- :: 3 :: -"Intimation delivered".4.It is further the case of the plaintiff that after the

       legal   notice   the   defendant   approached     the

       plaintiff and assured that he would make the

       entire payment of arrear of rent and also hand

       over the possession of the demised premises on

       31-10-2007.5.It is further stated that despite the assurance

       defendant did not hand over the possession nor

       made the payment of arrears with effect from Jan

       2007 thus the plaintiff was constrained to file

       present suit.2.In pursuance of the summons the defendant appeared

 and file his written statement wherein the defendant

 has taken various preliminary objection that the

 plaintiff has not come with clean hands and this court- :: 4 :: -has no jurisdiction to entertain the suit as the plaintiff

 has claimed recovery of possession which is less than

 Rupees    3      lacs   thus   this      court   lacs   pecuniary

 jurisdiction .3.That on merit It is admitted that the plaintiff is the

 owner /landlord of the tenanted premises. It is further

 admitted that the defendant approached to the plaintiff

 for taking the demised premises on rent . It is further

 admitted that the demised premises was let out to the

 defendant by the plaintiff by virtue of a registered lease

 deed dt 4-5-2006 at the rate of rent Rs 14,300/- pm for

 a total period of 22 months for industrial purpose.4.Regarding the non payment of rent since Jan 2007 it is

 stated by the defendant that plaintiff had obtained a

 loan of rupees 70,000/- from the defendant on various

 occasions to meet contingencies i.e. Rs 20,000/- was

 received on 10-7-2006,35,000/- on 24-8-2006and- :: 5 :: -35,000/- on 5-9-2006 and when the said amount was

  demanded back the plaintiff agreed to adjust the said

  loan amount against rent payable by the defendant but

  subsequently the plaintiff turned dishonest and started

  taking undue advantage of the post dated cheques of

  the defendant in favour of the plaintiff in good faith .5.In reply of para 5 of the plaint it is also admitted that 5

  cheques issued by the defendant as part payment

  toward arrears were also dishonoured with the remark

  ' Insufficient fund'.and a criminal complaint is pending

  against those dishonoring of cheques.6.In reply of para 7 of the plaint though the fact qua legal

  notice   and   service   thereof       is   specifically   denied

  ,however did not deny the fact that the defendant has

  stopped paying his monthly rent w.e.f. Jan 2007.7.On the basis of the aforesaid material facts and- :: 6 :: -circumstances of the case the plaintiff has filed the

 present application whereby praying that a decree for

 possession of the suit premises be passed in favour of

 the plaintiff on the admission made by the defendant

 in his written statement .8.In para 3 of the application it is stated that the whole

 case of the plaintiff based upon a duly registered lease

 deed dt 4-5-2006 and the defendant has not disputed

 the same thus in accordance of the said lease deed the

 tenancy has come to an end on 1-3-2008 and

 thereafter the defendant has no right to stay in the

 said property. It is further stated that the defendant

 has admitted the execution of the lease deed and also

 the rate of rent Of rs 14,300/-pm . It is also stated in

 para 6 that the defendant has also admitted that he

 had not paid the rent and ready to pay the same to the

 plaintiff in para 15 of the written statement. On the

 strength of the aforesaid admission made by the- :: 7 :: -defendant in his written statement the plaintiff prayed

 that a decree for possession qua suit property be

 passed in his favour .9.A reply of this application is file by the defendant

 stating that the application has been file to harass the

 defendant and further the admission of the defendant

 qua the execution of lease deed would not make the

 plaintiff entitled for the decree.10.In reply of para of the application it is stated by the

 defendant though the defendant has not denied the

 execution of the lease deed however has raised various

 tribal issues which require adjudication before deciding

 the matter.11.In the entire reply of this application the basic

 averment qua the duration of tenancy, rate of rent

 Existence of registered lease deed and the most- :: 8 :: -important averment made in para 3 of the application

 that ' the said agreement has expired on 1-3-2008 and

 the defendant has no right to stay in the said property"has    not   been   denied    by       the   defendant   rather

 specifically admitted the same .The only defence put

 forth by way of this reply is that the defendant has

 raised various issues which requires adjudication.12.Before dealing with the application and the respective

 contention of ld counsels of the parties let us analyze

 the contents of the lease deed. A perusal of the lease

 deed reveals that it was executed between plaintiff and

 defendant and following are the material terms and

 condition -:1.That the rent of the said premises is Rs 14,300/-per month.2.That this tenancy is commencing from 3rd day of- :: 9 :: -May 2006 and ending on 1st Day of March ,2008

 for the fixed period of 22 months.3.That the tenant will use the said rented premises

 for industrial purpose only.4.If the tenant fails to pay the rent of the said

 rented premises regularly then the landlord shall

 have full right to terminate this tenancy.5.After expiry of the fixed period the tenant will

 deliver the vacant possession of the said rented

 premises to the landlord.6.That after the expiry of the fixed period of

 tenancy the tenant shall not claim     any right of

 the tenancy nor shall seek any right through the

 court of law.- :: 10 :: -13.A perusal of the material terms and condition of the

 lease deed makes it absolutely clear that the tenancy

 was for a total period of 22 months and on the expiry

 of the said 22 month the defendant was to hand over

 the possession of the demised premises to the plaintiff.It is further amply clear that there is no renewal clause

 in the said registered lease deed.14.I have heard the Ld Counsels of the parties and

 peruse the plaint ,lease deed attached thereto, written

 statement ,application and its reply.15.Ld counsel for the plaintiff contended hat in view of

 the   admission made by the defendant                  Qua the

 registered leases-deed, rate of rent and landlord and

 tenant   relation    the     application     be    allowed   and

 judgment     on     admission      be     passed   against   the

 defendant.- :: 11 :: -16.On the other hand ld counsel for the defendant

 contended that the present application is devoid of

 merits and deserve dismissal . it is further contended

 that defendant has raised various triable issues which

 require adjudication thus prayed that application be

 dismissed.17.The dispute raised by the defendant in his written

 statement is qua the service of the legal notice whereby

 the tenancy of the defendant was terminated by the

 plaintiff .18.The another aspect of the matter which is required to

 be address at this juncture is whether the relief

 claimed by way of the present application can be

 granted in spite of the fact that the present suit has

 been filed before the expiry of the lease period ?

 ,though the said period has come to an end and more

 than 7 months have already been expire from the day- :: 12 :: -of expiry of the term of the lease.19.Let me deal with both these question one by one -Service of Notice
         Admittedly the period of tenancy was
         22 months ,which has come to an end
         on 1-3-2008 i.e during the pendency of
         the present suit . According to the term
         of the registered lease deed on the
         expiry of the lease deed the defendant
         was bound to hand over the possession
         to the plaintiff.20.Section 111of transfer of property act describe

 various modes for termination of the tenancy Clause {a}

 ofsection 111reads as under: -111.Determination of lease
         A lease of immovable property
         determines--(a)by efflux of the time limited
                 thereby:Thus a lease for fixed period determine
         by efflux of time.- :: 13 :: -21.The   Hon'ble   Supreme        Court       In    AIR   1978

 SUPREME COURT 1518 "Firm Sardari Lal Vishwa

 Nath v. Pritam Singh" has held that Having examined

 the matter on authority and precedent it must be

 frankly confessed that no other conclusion is possible

 on the first principle. Lease of urban immovable

 property represents a contract between the lessor and

 the lessee. If the contract is to be put to an end it has

 to be terminated by a notice to quit as envisaged underS. 106of the T. P. Act. But it is equally clear as

 provided byS. 111of the T. P. Act that the lease of

 immovable property determines by various modes

 therein prescribed. Now, if the lease of immovable

 property   determines    in    any     one    of   the   modes

 prescribed underS. 111, the contract of lease comes to

 an end, and the landlord can exercise his right of re-

 entry. This right of re-entry is further restricted and- :: 14 :: -fettered by the provisions of the Rent Restriction Act.

 Nonetheless the contract of lease has expired and the

 tenant lessee continues in possession under the

 protective wing of the Rent Restriction Act until the

 lessee loses protection. But there is no question of

 terminating the contract because the contract

 comes to an end once the lease determines in any

 one of the modes prescribed underS. 111. There is,

 therefore, no question of giving a notice to quit to

 such a lessee who continued in possession after the

 determination of the lease, i.e. after the contract

 came to an end under the protection of Rent

 Restriction Act. If the contract once came to an

 end there was no question of terminating the

 contract over again by a fresh notice.22.In the present case the tenancy was for a fixed period

 of 22 months, thus, same was expired by afflux of time- :: 15 :: -on 1.3.2008.    Thus in view of the termination of the

 lease deed in view of clause a ofsection 111of Transfer

 Of Property Act 1882, No notice of termination at all is

 required.Suit being Premature23.It is the admitted case of the parties that the tenancy

 was crated through a registered lease deed for a fixed

 period of 22 month commencing from               3rd day of May

 2006 and ending on 1st Day of March ,2008 .24.The present suit is filed on 19-11-2007 i.e. before the

 expiry   of   the   agreed   fixed     period.    however   the

 defendant has not taken any objection in his written

 statement as the suit being premature. In view of the

 clause 11 of the lease deed a right is conferred to both

 the parties to terminate the lease even before the

 expiry of the fixed period by giving 1 month notice. In- :: 16 :: -view of this clause the plaintiff issued a legal notice

 upon the defendant which according to the defendant

 was never served upon the defendant.25.During the pendency of the present suit the fixed

 period   as   agreed   between          the   plaintiff and   the

 defendant has also expired and thus the present

 application is filed by the plaintiff.26. Where the right to sue has not matured on the date

 of the institution of the suit an objection in that regard

 must be promptly taken by the defendant. The Court

 may reject the plaint if it does not disclose the cause of

 action. It may dismiss the suit with liberty to the

 plaintiff to file a fresh suit on its maturity. The plaintiff

 may himself withdraw the suit at that stage and such

 withdrawal would not come in the way of the plaintiff

 in filing the suit on its maturity. In either case, the

 plaintiff would not be prejudiced. On the other hand, if- :: 17 :: -the   defendant   by    his     inaction   amounting   to

 acquiescence or waiver allows the suit to proceed

 ahead then he cannot be permitted to belatedly urge

 such a plea as that would cause hardship, may be

 irreparable prejudice, to the plaintiff because of lapse

 of time. If the suit proceeds ahead and at a much later

 stage the Court is called upon to decide the plea as to

 non-maintainability of the suit on account of its being

 premature.27.The Hon'ble Supreme Court In "Vithalbhai Pvt.

 Ltd. V Union of India. reported as AIR 2005

 SUPREME COURT 1891 has held that " The question

 of suit being premature does not go to the root of

 jurisdiction of the Court; the Court entertaining such a

 suit and passing decree therein is not acting without

 jurisdiction but it is in the judicial discretion of the

 Court to grant decree or not. The Court would examine

 whether any irreparable prejudice was caused to the- :: 18 :: -defendant on account of the suit having been filed a

  little before the date on which the plaintiff's entitlement

  to relief became due and whether by granting the relief

  in such suit a manifest injustice would be caused to

  the     defendant.   Taking     into   consideration   the

  explanation offered by the plaintiff for filing the suit

  before the date of maturity of cause of action, the

  Court may deny the plaintiff his costs or may make

  such other order adjusting equities and satisfying the

  ends of justice as it may deem fit in its discretion. The

  conduct of the parties and unmerited advantage to

  plaintiff or disadvantage amounting to prejudice to the

  defendant, if any, would be relevant factors."28.The   Hon'ble Delhi High Court in M/s Associates Pvt

  Ltd. V/S Karnataka Handloom Pvt. Ltd. Reported as

  62{1996}DLT 386 has held that even assuming in

  favour of the plaintiff that the lease was to be further

  extended for a period of three years without the- :: 19 :: -consent of the plaintiff as per the term of the

 agreement . That period of three has also now come to

 an end during the pendency of the suit .No doubt a

 suit must be practically in all stages on the cause of

 action as it existed on its date of commencement . But

 the court may however in suitable cases take notices of

 the events which have happened since the institution

 of the suit and afford relief to the parties on the basis

 of the altered condition .This must be done by the

 court by giving relief to the parties on the basis of the

 altered circumstances in order to shorten the litigation

 and get complete justice between the parties .The

 plaintiff is thus entitled to get a relief of eviction under

 the provision of rule 6 of order 12CPC.29.Applying the aforesaid legal proposition in the case in

 hand there appears no impediment to grant relief to

 the plaintiff under order 12 rule 6CPCon the ground

 as the suit has bees filed before the expiry of the fixed- :: 20 :: -period for two reasons firstly no prejudice would be

 caused to the defendant as it is agreed between the

 partied that after the expiry of 22 month period on 1-3-

 2008, the defendant shall handover the possession of

 the demised premises.30.Secondly In the case in hand the defendant has not

 taken the plea that suit is bad being premature thus

 the said plea available to the defendant deemed to have

 been waived by the defendant.31.ORDER XII Rule 6 of C.P.C. Reads as underJudgment 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- :: 21 :: -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 (J) a decree shall be drawn up in

          accordance with the judgment and the decree

          shall bear the date on which the judgment was

          pronounced.]32.A bare perusal of the order xii rule vi cpc clearly

 shows, that it confers very wide powers on the

 Court, to pronounce judgment on admission at any

 stage of the proceedings. The admission may have

 been made either in pleadings, or otherwise. The- :: 22 :: -admission may have been made orally or in writing.

  The Court can act on such admission, either on an

  application of any party or on its motion without

  determining the other questions. This provision is

  discretionary, which has to be exercised on well

  established principles. Admission must be clear and

  unequivocal; it must be taken as a whole and it is

  not permissible to rely on a part of the admission

  ignoring the other part.33.The powers under Order XII Rule 6 of the Code has to

  be exercised judicially on the facts and circumstances

  of each case. The admission on the basis of which the

  Court wishes to pass a decree has to be unambiguous,

  clear and unconditional.34.It is also a settled principle of civil jurisprudence that

  judgment on admission is not a matter of right and- :: 23 :: -rather is a matter of discretion of a Court. Where the

 defendant has raised objection which will go to the very

 root of the case it would not be appropriate to exercise

 this discretion. notwithstanding the admission made

 by the defendant in his pleading, the Court may still

 require the plaintiff to prove the facts pleaded by him

 in the plaint.35.The Hon'ble Supreme Court in AIR 2000 SUPREME

 COURT 2740 "Uttam Singh Dugal and Co. Ltd. v.

 Union Bank of India" has held "As to the object of the

 Order XII , Rule 6, we need not say anything more than

 what the legislature itself has said when the said

 provision came to be amended . In the objects and

 reasons set out while amending the said rule, it is

 stated that "where a claim is admitted, the Court has

 jurisdiction to enter a judgment for the plaintiff and to

 pass a decree on admitted claim.The object of the Rule

 is to enable the party to obtain a speedy judgment at- :: 24 :: -least to the extent of the relief to which according to

 the admission of the defendant, the plaintiff is

 entitled." We should not unduly narrow down the

 meaning of this Rule as the object is to enable a party

 to obtain speedy judgment. Where other party has

 made a plain admission entitling the former to

 succeed, it should apply and also wherever there is a

 clear admission of facts in the face of which, it is

 impossible for the party making such admission to

 succeed.36.If one examine the pleading of the present case

 following admitted facts emerges -:1.The the plaintiff is the owner/landlord of the

      demised premises bearing no:-997-E, Lohia Gali

      No: -4, Babarpur, Delhi 110032.- :: 25 :: -2.That the suit property has been let out to the

       defendant vide a registered lease deed.3.That the rate of rent of the tenanted premises is

       Rs 14,300/- P M .4.That the duration of the lease is 22 months

       commencing from 4-5-2006 ending with first

       March 2008.5.That the purpose of letting is industrial.37.The material averments relating to the execution of a

 registered lease deed for 22 months commencing from

 3.5.2006 and ending on 1.3.2008.38.the relation of landlord and tenant being not denied.39.The fact regarding the rate of rent as Rs. 14,300/-- :: 26 :: -having not denied and the admission of the defendant

 that after expiry of 22 months commencing from

 3.5.2006 and ending on 1.3.2008, the defendant has

 no right to stay in the demised premises.40.Each of these averments have not been denied by the

 defendant. On an overall consideration of the written

 statement and the reply to the application what

 appears that these basic facts have not been disputed

 by the defendant rather these averments have been

 unequivocal       and      unambiguous       admitted       by     the

 defendant in the written statement and reply to the

 application.41.In view of the above discussion, this Court is of the

 opinion    that      the    defendant       has      made        clear,

 unambiguous and unequivocal admission qua material

 particulars in its written statement, reply of the legal

 notice    and   in   the     reply    of   present    application,- :: 27 :: -therefore, the plaintiff is entitled to a decree for

 possession   on   admission.           The    application   is

 accordingly allowed. Suit for possession as per prayer

 clause 'B' of the plaint is decreed.         Decree sheet be

 prepared accordingly.Announced in the open
Court on 6.10.2008.(PITAMBER DUTT)
                      ADDITIONAL DISTRICT JUDGE,
                                DELHI