Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1168

IN THE HIGH COURT AT CALCUTTA
Krishna Rao, J.
Sadhana Mehra - Petitioner
Versus
Arvind Kumar Jayaswal – Respondents
IA No. GA 2 of 2022, In CS 95 of 2019
Decided On : 28-06-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Swatarup Banerjee, Ms. Somali Mukhopadhyay
For the Defendant : Mr. Rupak Ghosh, Mr. Debmalya Ghosal, Mr. Dilip Kumar Ghosh

The court's decision highlights the principle that judgment on admission under Order XII, Rule 6 of the Code of Civil Procedure, 1908 is discretionary and cannot be claimed as a matter of right, and that where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC.

Headnote:
LANDLORD TENANT - POSSESSION - JUDGMENT ON ADMISSION - TRANSFER OF PROPERTY ACT, 1882, SECTION 106 - Whether the defendant's admission in the written statement constitutes an unequivocal admission for passing judgment under Order XII, Rule 6 of the Code of Civil Procedure, 1908.
Fact of the Case:

Plaintiff filed a suit for possession of the suit premises against the defendant, claiming to be the owner of the premises by virtue of a Deed of Gift executed in his favor by the previous owners. The defendant admitted in the written statement that he was paying rent to Mr. Mukesh Sood, who had inducted him into the premises, and that he had made certain expenditures for the maintenance of the premises which were to be adjusted from the rent. The plaintiff contended that the defendant's admission constituted an unequivocal admission for passing judgment on admission under Order XII, Rule 6 of the Code of Civil Procedure, 1908.
Finding of the Court:

The court held that the defendant's admission in the written statement did not constitute an unequivocal admission for passing judgment on admission under Order XII, Rule 6 of the Code of Civil Procedure, 1908. The court noted that the defendant had raised several issues in his written statement, including the relationship of the plaintiff and the defendant as landlord and tenant, payment of monthly rent by the defendant to Mr. Mukesh Sood, the expenditures made by the defendant for the purpose of maintenance of the premises is to be adjusted from the monthly rent and had not received the notice issued by the plaintiff to the defendant under Section 106 of the Transfer of Property Act, 1882, which required a trial.
Issues: 1. Whether the defendant's admission in the written statement constituted an unequivocal admission for passing judgment on admission under Order XII, Rule 6 of the Code of Civil Procedure, 1908? 2. Whether the issues raised by the defendant in his written statement required a trial?
Ratio Decidendi: The court held that Order XII, Rule 6 of the Code of Civil Procedure, 1908 is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC.
Final Decision: The court rejected the plaintiff's application for judgment on admission under Order XII, Rule 6 of the Code of Civil Procedure, 1908, and directed that the suit proceed to trial.

JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed the present application under Order XII, Rule 6 of the Code of Civil Procedure, 1908 praying for Judgement and Decree on admission.

2. The plaintiff has filed suit being C.S. No. 95 of 2019 against the defendant for recovery of Khas, peaceful and vacant possession of premises situated on the building known as Power Court situated at the premises No. 20A Abanindra Nath Thakur Sarani, Kolkata.

3. The plaintiff has filed the application for Judgement on admission on the ground that in paragraph 5 (a) of the written statement, the defendant has admitted that:

“In terms of the agreement as made between the parties hereto this defendant continue to tender rent for a sum of Rs. 9,000/- per month with Mr. Mukesh Sood and in consequence thereto the rent receipts were issued in favour of defendant.”

4. It is also contended that in the written statement the defendant has also admitted the fact that the defendant was inducted by Mr. Mukesh Sood, who by a registered Deed of Gift dated March 26, 2008 has transferred his share along with the share of his mother Pushpavati Sood and his brother Rakesh Sood in the suit premises in favour of the plaintiff.

5. Mr. Swatarup Banerjee, learned Advocate representing the plaintiff submits that by way of Deed of Gift dated March 26, 2008, Smt. Pushpavati Sood, Sri Rakesh Sood and Sri Mukesh Sood transferred the entire first floor, third floor, fifth floor and sixth floor of the eight storied building together with undivided proportionate share of the land measuring 4 Cottahs and 12 Chittaks being the premises No. 20A Camac Street, Kolkata in favour of the plaintiff.

6. Mr. Banerjee submitted that the defendant is in occupation of residential flat admeasuring super built-up area of 2095 sq.ft. on the sixth floor of the building known as Power Court situated at premises No. 20A Abanindra Nath Thakur Sarani (formerly known as Camac Street), Kolkata.

7. Mr. Banerjee submitted that since admittedly the tenancy of the defendant is from month by month without having any registered lease, the same is terminable by 15 days notice in accordance with Section 106 of the Transfer of Property Act, 1882.

8. Mr. Banerjee submitted that there is a clear admission on the part of the defendant that he is a tenant under the Transfer of Property Act, 1882 and there is no defence against the eviction of the lease.

9. Mr. Banerjee submits that the plaintiff had issued notice under Section 106 of the Transfer of Property Act, 1882 to the defendant on October 13, 2018 and the said notice was duly received by the defendant which is being proved from the Acknowledgement Due Card wherein signature of the defendant is appearing and the defendant has not denied with regard to acknowledgement of said notice.

10. Mr. Banerjee relied upon the following judgments:

i. (2010) 4 SCC 753 (Karam Kapahi and Others -vs- Lal Chand Public Charitable Trust and Another).

ii. 2016 SCC OnLine Del 3835 (Bhawanjeet Singh -vs- Diwan Singh).

iii. (2012) 5 SCC 370 (Maria Margarida Sequeira Fernandes and Others -vs- Erasmo Jack De Sequeira (Dead) Through Legal Heirs).

iv. (2008) 2 SCC 728 (Nopany Investments (P) Ltd. -vs- Santokh Singh (Huf).

v. (1996) 6 SCC 373 (Sk. Sattar Sk. Mohd. Choudhari - vs- Gundappa Amabadas Bukate).

vi. (2015) 9 SCC 287 (S.M. Asif -vs- Virender Kumar Bajaj).

vii. (2015) 13 SCC 13 (Ambica Prasad -vs- Mohd. Alam and Another).

11. Mr. Rupak Ghosh, learned Advocate representing the defendant submits that plaintiff is not the landlord of the defendant and there is no existence of landlord and tenant relationship between the plaintiff and the defendant.

12. Mr. Ghosh submitted that defendant was inducted by one Mukesh Sood for a monthly rent of Rs. 9000/- per month and it was agreed between them that from the month of April’ 2017, the defendant shall pay towards the electricity bill including repairing works, maintenance of lifts as well as the water pumps of the entire building situated at the premis