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High Court Of Delhi
KIRAN KAPUR - Appellant
Versus
ASHOK KUMAR SHARMA - Respondent
First Appeal Order 110 of 1996
Decided On : 01/01/1997
Order 39 Rule 10, r/w Order 12 Rule 6 — Applicability of — Ambit and scope — Powers of court — Admissions of fact by party in pleadings — Judgment on admissions by the Court — Section 151 — Suit for ejectment/recovery of possession, for recovery of arrears of rent and interest — Defendant admitted continuance as tenant — Plaintiff filed application under orders — Sought payment of rent — Trial court allowed — Defendant moved in appeal and pleaded maintainability of application and jurisdiction of trial court in deciding application — Application dismissed.
Held:
The principle underlying the provisions of Order XII CPC, empowering the Courts to make orders on the basis of admitted parts of the claim, can be extended even to a case where a suit is brought against a tenant, who is in occupation of the premises, for possession and a claim for past and future mesne profit. In my opinion, it is implicit in the circumstances that the liability on the part of the person, in occupation, for payment on account of use and occupation of the premises, is admitted. If it is admitted, then the form which the order will take directing him to make that payment will vary and may depend upon the circumstances and the situation. It may be an amount of rent claimed as due and admitted. It may be an amount equivalent to rent where the claim is for mesne profits before the institution of the suit and also subsequent to the institution of a suit until the decision of the suit and delivery of property. The nature of the claim and the label with which it would be described would not change the character or the principle, governing the orders in that behalf. On the basis of the principle as contained in Order XII CPC, empowering the Courts to pass orders and decrees on admission, it is a mere extension of that principle to make an order relating to delivery of an amount claimed as due prior to the institution of the suit, pending trial and decision of the suit.
In many cases landlords depend for their livelihood upon the income from these properties. It would thus be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of use and occupation of the premises while the landlord is required to meet his responsibilities and liabilities.
There is hardly any justification for a tenant to deny his moral and legal responsibility to pay as long as he is in occupation of the premises on the supposed strict words of law or procedure not providing for a situation of this kind. The provisions of Section 151 CPC and the inherent jurisdiction and the powers of the Court are ideally meant and suited to bring relief and redress to meet the ends of the situation and also to meet the ends of justice. If factual circumstances tend to result in operating unjustly against a particular litigant then I do not think that the powers under Section 151 CPC cannot be utilised for his assistance. Courts would undoubtedly and should in such a situation go to his assistance and would not be precluded from doing so merely on formal technicalities which may result in technical tortures which can be avoided in such a situation by virtue of the provisions of Section 151 CPC.
( 1 ) THE present appeal, filed by the appellants, is directed against the order dated 13. 3. 96, passed by the learned Additional District Judge, Delhi in Suit No. 267/95 - entitled Ashok Kumar Sharma Vs. Kiran Kapoor and others, allowing the application of the respondent Shri Ashok Kumar Sharma, filed by him under Order XXXIX Rule 10 read with Order XII Rule 6 and Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC ).
( 2 ) THE facts relevant for the disposal of the present appeal, briefly stated, are that the respondent Shri Ashok Kumar Sharma filed a suit for ejectment/ recovery of possession, for the recovery of Rs 1,00,650. 00 (on account of arrears of rent and interest thereon) and Rs 25,000. 00 on account of damages for use and occupation/mesne profits of a portion of property bearing No. 82, Sukhdev Vihar, Mathura Road, New Delhi against the appellants/defendants. The claim of the respondent/plaintiff in the above suit was resisted by the appellants who filed a written statement taking certain preliminary objections with regard to the maintainability of the suit. The appellants, in the written statement filed by them in the suit, while not denying the execution of the lease deed dated the 31st December, 1986, contended that the same relates to three different tenancies and not to a single tenancy. The appellants, in the written statement, have admitted their continuance as tenants under the respondent/ plaintiff but their plea is that the tenancy in question was not one but there were three separate and distinct tenancies and that the figure of Rs 4,000. 00 , mentioned in the lease deed dated 31. 12. 86 pertained to consolidated rent in respect of the three tenancies mentioned therein. The appellants have also denied their liability to pay arrears of rent, interest and mesne profit as claimed by the respondent/plaintiff.
( 3 ) THE respondent/plaintiff in the above said suit, pending in the Court of learned Additional District Judge, Delhi, also filed an application under Order XXXIX Rule 10 read with Order XII Rule 6 and Section 151 Civil Procedure Code praying that the appellants/defendants be directed to pay the arrears of rent w. e. f. 1. 5. 93 @ Rs 4,000. 00 per month and future rent at the above said rate month by month till the disposal of the suit subject to the decision of the rights of the parties in the above noted case. The learned Additional District Judge, Delhi vide impugned order has allowed the above mentioned application of the respondent and directed the appellants to pay arrears of rent from 1. 5. 93 to 29. 2. 96 @ Rs 4,000. 00 per month within a period of 30 days from the date of the order and also directed that future rent at the above said rate be deposited month by month according to English Calender by the 15th of the each month with the respondent/plaintiff.
( 4 ) FEELING aggrieved the appellants have preferred the present appeal. Notice of the appeal was issued to the respondent.
( 5 ) I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. On behalf of the appellants the matter was argued by Shri Ramesh Chandra, Sr. Advocate who was assisted by Ms. Geeta, Advocate. On behalf of the respondent arguments were advanced by Shri Ishwar Sahai, Sr. Advocate who was assisted by Shri C. P. Aggarwal, Advocate. The learned counsel for the appellants, while arguing the case on behalf of the appellants, submitted that the application in question of the respondent/plaintiff was not maintainable as no such order, as has been passed and is being assailed in the present appeal, could have been passed by the learned Additional District Judge under Order XXXIX Rule 10 read with Order XII Rule 6 and Section 151 CPC. His second limb of argument was that as the property in suit consisted of three different tenancies, each having rent less than Rs 3,500. 00 per month, the Civil Courts h
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