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High Court Of Delhi
K.KISHORE AND CONSTRUCTION (HUF) - Appellant
Versus
ALLAHABAD BANK - Respondent
Interim Application 1383 of 1997
Decided On : 01/28/1998
Normally, a party cannot be allowed to abandon its own case, adopt that of the defendant and claim on that footing where the latter is prejudiced by such a course. However, where a party makes an admission, a finding in favor of the other party based on such admission is not in competent even though it is at variance with the case set up by the latter in its pleadings inasmuch as there could be no surprise or prejudice in such a case.
A plaintiff may move for judgment under this provision at any stage. This can obviously be availed even after he has joined issues on the defense. The admission may be made either in pleadings or otherwise which means that the admissions contained in documents written or executed between the parties before the action is brought are also sufficient for the purpose of this rule.
The position that, thus, emerges is that, (i) the relationship of landlord and tenant is admitted, (ii) the sublease of defendant had come to an end by efflux of time on 1.2.97; (iii) the last rate of rent as agreed in the sublease is Rs. 22,500/- and (iv) in any case it is admitted in the written statement that initially the rent of the premises was Rs. 3,750/- which is more than Rs. 3,300/- per month. In view of the law laid down by the Supreme Court in the case of D.C. Bhatia v. Union of India JT 1993 (7) SC 114, the Delhi Rent Control Act is not applicable and after the tenancy had been terminated and had come to an end; the landlord is entitled to seek possession and the Civil Court is competent to grant a decree for possession.
In that view of the matter there is no friable issue which needs investigation so far as the relief of possession is concerned. Suit to this extent thus can be decreed under Order 12, Rule 6, of the Code.
( 1 ) BY this order application (IA No. 1383 /97) under Order 12, Rule 6, Code of Civil Procedure the plaintiff seeks a decree for possession against the defendant in respect of the suit premises on the basis of admissions made by the defendant in the written statement in a suit for recovery of possession and mesne profits.
( 2 ) PLAINTIFFS case is that they are tenants in respect of Flat No. 29 First Floor, Regal Building, Parliament Street, Connaught Place, New Delhi and they had sublet the premises to M/s; United Industrial Bank Ltd. (for short uib ) under a registered sub-lease dated 18. 5. 87 at a monthly rent of Rs. 10,500. 00 with escalation clause regarding increase in rent.
( 3 ) UIB was amalgamated with the defendant Bank in pursuance of Notification dated 30. 10. 89 issued by the Central Government under the Banking Regulation Act, 1949 but plaintiff has not accepted the defendant as their tenant alleging that the tenancy of UIB could not have been transferred in favour of the defendant by means of the aforesaid amalgamation order and the defendant is in unauthorised `possession of the premises.
( 4 ) THE defendant in their written statement is contesting the suit. On the question of possession it is admitted that formerly UIB was a sub-tenant of the plaintiff, the sub-tenancy had started under sub-lease dated 28. 1. 77 at a monthly rent of Rs. 3,750. 00 , the rent could not be increased under the Delhi Rent Control Act but in 1987 the plaintiff pressurised and coerced the UIB to increase the rent from Rs. 3,750. 00 to Rs. 32,000. 00 by executing-sub-lease dated 18. 5. 87. in favour of plaintiff and another licence deed in favour of M/s. Smarts (P) Ltd. which is sham agreement; that in pursuance of aforesaid Central Government Notification dated 30. 10. 89 all the assets, liabilities, rights and interests of UIB including the tenancy rights have vested in the defendant Bank, the defendant Bank is thus a sub-tenant in the said premises on the same terms and conditions at the monthly rent of Rs. 3,750. 00 with increase if any not more than 10% under Delhi Rent Control Act. The defendant is not in unauthorised possession of the premises and is not liable to vacate as the sub-tenancy is still continuing.
( 5 ) ON the pleadings of the parties the following issues were framed :
1. Whether the plaintiff proves that on account of amalgamation of United Industrial Bank with the Allahabad Bank, the defendant, i. e. Allahabad Bank, is in unauthorised occupation? 2. Whether the plaintiff proves that the tenancy of the defendant has been legally terminated? 3. Whether the plaintiff is entitled to mesne profits? If yes, from which date and at what rate? 4. Whether the defendant, by way of counter-claim, is entitled to Rs. 16,286,85, as averred in written statement? 5. To what relief if any, the plaintiff/defendant is entitled to? 6. What order and decree?
THE case is at the trial stage and in the meantime as the sub-lease has come to an end by efflux of time on 1. 2. 1997, taking advantage of this fact the present application was filed by the plaintiff under Order 12, Rule 6, Code of Civil Procedure. The defendant has filed a reply contesting the said application.
( 6 ) LEARNED Counsel for the plaintiff has contended that defendant has admitted in the written statement that they have succeeded to the rights of UIB, the former sub-tenant of the plaintiff and thus they have admitted the relationship of landlord; and tenant; the sub-lease dated 18. 5. 1987 is also admitted; this sub-lease was for ten years which has come to an end on 1. 2. 1997 by efflux of time and as such plaintiff is entitled to a decree on the admission of`the defendant and the Court can take into consideration subsequent events. He has placed reliance on M/s. S. L. Associates Pvt. Ltd. v. Karnataka Handloom Dev. , 62 (96) DLT 386; Atma Ram Properties Pvt. Ltd. v. Airlndia, 65 (1997) DLT 533; M/s. Sun Chandra and Company v. Punjab and Sind Bank, 1
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