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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4344 OF 2010
(Arising out of SLP (Civil) No.2689 of 2009)
M/s Jeevan Diesels & Electricals Ltd. ..Appellant(s)
Versus
M/s Jasbir Singh Chadha (Huf) & Anr. ..Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This appeal is directed against the judgment and
order dated 28.11.2008 passed by the High Court of
Delhi in Regular First Appeal No.465 of 2008. In the
impugned judgment upon admission the High Court came
to a finding that a case of ejectment was made out
against the appellant on the basis of admission of
the case of the plaintiff-landlord in the written
statement filed by appellant. In passing the said
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judgment the High Court affirmed the judgment and
decree of dispossession passed by the Additional
District Judge, Delhi on 23.09.2008 against the
appellant.
3. The material facts of the case are that the
respondents-plaintiffs, claiming to be the
landlords/owners of the premises bearing Flat
No.205, (2nd Floor), Arunachal Building, 19,
Barakhambha Road, New Delhi-110001 having area of
581 sq. ft., (super area) (hereinafter, `the suit
premises') filed a suit against the appellant for
recovery of possession and mesne profit. The case of
the plaintiff-landlord in the plaint is that the
appellant was inducted as a tenant vide lease deed
dated 07.07.2003 at a monthly rent of Rs.23,200/-
for a period of three years with effect from
07.07.2003. According to the respondents-plaintiffs
the said lease dated 07.07.2003 was initially for a
period of three years and which was to be renewed
for a further period of three years as per the
mutual consent of both the parties with 20% increase
in the monthly rent. The main case of the plaintiff-
landlord is that the said lease deed had expired by
efflux of time and notice to that effect was sent to
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appellant which was enclosed with the plaint. In
paragraph 6 of the plaint further averment is that
the appellant, despite determination of its tenancy
of the suit property, has failed to vacate the suit
property, and handover the possession thereof to the
respondents-plaintiffs.
4. The stand of the respondents-plaintiffs before the
Civil Court and also the High Court and before this
Court also was that the case of termination of
tenancy has been admitted by the appellant in its
written statement.
5. In order to appreciate this controversy it will be
proper to set out the relevant averments in the
plaint and written statement of the parties.
6. Paragraphs 5 and 6 of the plaint on which the
respondents-plaintiffs rely are as follows:-
"5. That the tenancy has expired by efflux of
time but for the precautionary measure, the
Plaintiffs vide notice dated July 15, 2006
terminated the tenancy of the Defendant, which
was sent via Regd. Ad. & UPC. The aforesaid
notice dated July 15, 2006 was duly served upon
the defendant. The copy of said notice is
annexed herewith as Annexure A-3. The
registration receipt, UPC and acknowledgement
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card are annexed herewith as Annexure A-4 to A-6
respectively.
6. That the defendant, despite, the
determination of its tenancy of the said suit
property has failed to vacate the suit property
and handover the possession thereof to the
Plaintiffs".
7. In the written statement, which was filed by the
appellant, paragraphs 5 and 6 of the plaint have
been dealt with in paragraphs 5 and 6 of the written
statement respectively. Those two paragraphs are set
out below:-
"5. That the contents of para 5 of the plaint
are a matter of record. It is submitted that
tenancy has neither expired by efflux of time
nor it has been terminated.
6. That in reply to the contents of para 6 of
the plaint, it is submitted that defendant is in
possession of the premises. There has been no
determination of tenancy.
8. It is clear from a perusal of the aforesaid
averments in the written statement that the
appellant has disputed (a) the fact of expiry of
tenancy by efflux of time; (b) the appellant has
also disputed that there has been a determination of
tenancy. So far as receipt of notice referred to in
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paragraph 5 of the plaint is concerned, there has
been no denial by the appellant.
9. Learned counsel for the appellant also argued before
us that the lease deed cannot be terminated in view
of certain clauses contained in the lease. The said
argument was opposed by the learned counsel for the
respondents-plaintiffs. But in the facts of this
case and in view of the nature of the judgment we
propose to pass we need not decide those contentions
at all.
10. It may be noted herein that to the written statement
filed by the appellant, the respondents-plaintiffs
did not file any rejoinder. They filed an
application under Order 12 Rule 6 of the Code of
Civil Procedure for passing a judgment on admission.
In the said petition in paragraph 4, the
respondents-plaintiffs also averred as follows:-
"4. That in view of the admission (i) On
existence of relationship of landlord and tenant
and there after (ii) service of the termination
notice, the only question left for adjudication
for the purpose of possession is "whether the
termination of the tenancy has been validly
terminated?"
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11. To that application the appellant had given a reply.
In paragraph 2 of the reply it was again denied by
the appellant that there was any admission by them
about termination or determination of tenancy. In
the said reply it has been stated that in the suit
issues are still to be framed and the case be tried
in accordance with the Civil Procedure Code as there
is no admission by the appellant and the
respondents-plaintiffs have to prove its case with
legally admissible evidence.
As such prayer was made to dismiss the application
of the respondents-plaintiffs under Order 12 Rule 6.
12. Learned counsel for the respondents-plaintiffs
relied on a judgment of this Court in Karam Kapahi &
Others vs. M/s. Lal Chand Public Charitable Trust &
Another reported in 2010 (3) SCALE 569 and contended
that in view of the principles laid down in that
case, this Court may affirm the judgment of the High
Court in the instant case. This Court is unable to
accept the aforesaid contention. In Karam Kapahi
(supra) a Bench of this Court analyzed the
principles of Order 12 Rule 6 of the Code and held
that in the facts of that case there was clear
admission on the part of the lessee about non-
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payment of lease rent. The said admission was made
by the lessee in several proceedings apart from its
pleading in the suit. In view of such clear
admission, the Court applied the principles of Order
12 Rule 6 in the case of Karam Kapahi (supra). The
principles of law laid down in Karam Kapahi (supra)
can be followed in this case only if there is a
clear and unequivocal admission of the case of the
plaintiff by the appellant.
13. Whether or not there is a clear, unambiguous
admission by one party of the case of the other
party is essentially a question of fact and the
decision of this question depends on the facts of
the case. This question, namely, whether there is a
clear admission or not cannot be decided on the
basis of a judicial precedent. Therefore, even
though the principles in Karam Kapahi (supra) may be
unexceptionable they cannot be applied in the
instant case in view of totally different fact
situation.
14. In Uttam Singh Duggal & Co. Ltd. Vs. United Bank of
India and others reported in (2000) 7 SCC 120 the
provision of Order 12 Rule 6 came up for
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consideration before this Court. This Court on a
detailed consideration of the provisions of Order 12
Rule 6 made it clear "wherever there is a clear
admission of facts in the face of which it is
impossible for the party making such admission to
succeed" the principle will apply. In the instant
case it cannot be said that there is a clear
admission of the case of the respondents-plaintiffs
about termination of tenancy by the appellant in its
written statement or in its reply to the petition of
the respondents-plaintiffs under Order 12 Rule 6.
15. It may be noted here that in this case parties have
confined their case of admission to their pleading
only. The learned counsel for the respondents-
plaintiffs fairly stated before this Court that he
is not invoking the case of admission `otherwise
than on pleading'. That being the position this
Court finds that in the pleadings of the appellant
there is no clear admission of the case of
respondents-plaintiffs.
16. In this connection reference may be made to an old
decision of the Court of Appeal between Gilbert vs.
Smith reported in 1875-76 (2) Chancery Division 686.
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Dealing with the principles of Order XL, Rule 11,
which was a similar provision in English Law, Lord
Justice James held, "if there was anything clearly
admitted upon which something ought to be done, the
plaintiff might come to the Court at once to have
that thing done, without any further delay or
expense" (see page 687). Lord Justice Mellish
expressing the same opinion made the position
further clear by saying, "it must, however, be such
an admission of facts as would shew that the
plaintiff is clearly entitled to the order asked
for". The learned Judge made it further clear by
holding, "the rule was not meant to apply when there
is any serious question of law to be argued. But if
there is an admission on the pleading which clearly
entitles the plaintiff to an order, then the
intention was that he should not have to wait but
might at once obtain any order" (see page 689).
17. In another old decision of the Court of Appeal in
the case of Hughes vs. London, Edinburgh, and
Glasgow Assurance Company (Limited) reported in The
Times Law Reports 1891-92 Volume 8 at page 81,
similar principles were laid down by Lord Justice
Lopes, wherein His Lordship held "judgment ought not
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to be signed upon admissions in a pleading or an
affidavit, unless the admissions were clear and
unequivocal". Both Lord Justice Esher and Lord
Justice Fry concurred with the opinion of Lord
Justice Lopes.
18. In yet another decision of the Court of Appeal in
Landergan vs. Feast reported in The Law Times
Reports 1886-87 Volume 85 at page 42, in an appeal
from Chancery Division, Lord Justice Lindley and
Lord Justice Lopes held that party is not entitled
to apply under the aforesaid rule unless there is a
clear admission that the money is due and
recoverable in the action in which the admission is
made.
19. The decision in Landergan (supra) was followed by
the Division Bench of Calcutta High Court in
Koramall Ramballav vs. Mongilal Dalimchand reported
in 23 Calcutta Weekly Notes (1918-19) 1017. Chief
Justice Sanderson, speaking for the Bench, accepted
the formulation of Lord Justice Lopes and held that
admission in Order 12, Rule 6 must be a "clear
admission".
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20. In the case of J.C. Galstaun vs. E.D. Sassoon & Co.,
Ltd., reported in 27 Calcutta Weekly Notes (1922-23)
783, a Bench of Calcutta High Court presided over by
Hon'ble Justice Sir Asutosh Mookerjee sitting with
Justice Rankin while construing the provisions of
Order 12, Rule 6 of the Code followed the aforesaid
decision in Hughes (supra) and also the view of Lord
Justice Lopes in Landergan (supra) and held that
these provisions are attracted "where the other
party has made a plain admission entitling the
former to succeed. This rule applies where there is
a clear admission of the facts on the face of which
it is impossible for the party making it to
succeed". In saying so His Lordship quoted the
observation of Justice Sargent in Ellis vs. Allen
[(1914) 1 Ch. D. 904] {See page 787}.
21. Similar view has been expressed by Chief Justice
Broadway in the case of Abdul Rahman and brothers
vs. Parbati Devi reported in AIR 1933 Lahore 403.
The learned Chief Justice held that before a Court
can act under order 12, Rule 6, the admission must
be clear and unambiguous.
22. For the reasons discussed above and in view of the
facts of this case this Court cannot uphold the
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judgment of the High Court as well as of the
Additional District Judge. Both the judgments of the
High Court and of the Additional District Judge are
set aside.
23. The matter is remanded to the trial Court for
expeditious disposal of the suit as early as
possible, preferably within a period of six months
from the date of service of this order on the
learned trial Court. It is made clear that this
Court has not made any observation on the merits of
the case.
24. The appeal is allowed. There will be no order as to
costs.
.....................J.
(G.S. SINGHVI)
.....................J.
(ASOK KUMAR GANGULY)
New Delhi
May 7, 2010 12
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