KARAN KAPOORversusMADHURI KUMAR

                         [2022] 16 S.C.R. 677                              677


                         KARAN KAPOOR                                      A
                                   v.
                        MADHURI KUMAR
                   (Civil Appeal No. 4645 of 2022)
                            JULY 06, 2022                                  B
    [INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
       Code of Civil Procedure, 1908 – Or.12, r.6 – Judgment on
Admission – Appellant was a tenant in the residential property owned
by respondent – Respondent-landlord entered into lease agreement
with appellant from 07.08.2011 to 07.08.2013 – Thereafter, lease           C
deed was extended for subsequent term of 11 months on 07.08.2013
–Appellant did not pay rent after expiry of lease agreement on
07.07.2014 – Legal notice by respondent to appellant to vacate the
property –Respondent-plaintiff filed suit for recovery of possession,
rent, mesne profit, pendent lite and interest –Appellant-defendant filed
written statement contending that after expiry of lease agreement          D
dated 07.08.2013, respondent had approached him to sell suit
property, in furtherance of which agreement to sell (ATS-I) was
executed between the parties for Rs.3.60 crores and the rent accrued
for the year 2014-2017 be adjusted in the said ATS-I – Also, another
agreement to sell (ATS-II) was entered for a plot situated at Amloh        E
for Rs. 15 lakhs –Respondent-plaintiff filed application u/Or.12,
r.6 –Trial Court relying upon the admission made in the written
statement, passed judgment and decree u/Or.12, r.6 for delivery of
possession in favour of respondent – High Court dismissed the
Regular First Appeal – On appeal, held: In view of the contents of
the agreements and terms specified therein, the defense as taken by        F
the appellant/defendant is plausible or not is a matter of trial which
may be appreciated by the Court after granting opportunity to lead
evidence by the respective parties –There may be admission with
respect to tenancy as per lease agreements but the defense as taken
is also required to be looked into by the Court and there is need to
                                                                           G
decide justiciability of defense by full-fledged trial – For the purpose
of Or.12, r.6, the said admission is not clear and categorical, so as
to exercise a discretion by the Court without dealing with the defense
as taken by the defendant –Therefore, judgment and decree passed
by the trial Court as confirmed by the High Court is set aside.
                                                                           H
                                  677
678           SUPREME COURT REPORTS                     [2022] 16 S.C.R.


A          Allowing the appeal, the Court
            HELD: 1. As per the pleadings, there may be admission to
      the extent of execution of the Lease Agreement, rate of rent and
      monthly payment but simultaneously the defense taken by the
      Defendant is also based on ATS-I, II and III. In view of the
B     contents of those agreements and terms specified therein, the
      defense as taken by the Appellant/Defendant is plausible or not
      is a matter of trial which may be appreciated by the Court after
      granting opportunity to lead evidence by the respective parties.
      There may be admission with respect to tenancy as per lease
      agreements but the defense as taken is also required to be looked
C     into by the Court and there is need to decide justiciability of
      defense by the full-fledged trial. In view of this Court, for the
      purpose of Order XII Rule 6, the said admission is not clear and
      categorical, so as to exercise a discretion by the Court without
      dealing with the defense as taken by Defendant. As this court is
D     conscious that any observation made by this Court may affect the
      merit of either side, therefore, we are not recording any finding
      either on the issue of tenancy or with respect to the defense as
      taken by the Defendant. We are only inclined to say whether the
      judgment and decree passed in exercise of the power under Order
      XII Rule 6 of CPC is based on clear and categorical admission.
E     In view of this Court, the facts of the case in hand and the
      judgment in S.M. Asif are altogether similar, therefore, the ratio
      of the said judgment rightly applies to the present case.
      Consequently, the judgment and decree passed by the Trial
      Court, as confirmed by the High Court, only on admission of fact
F     without considering the defense in exercise of power under Order
      XII Rule 6 of CPC is hereby set-aside. The matter is remitted
      back to the Trial Court to decide the suit as expeditiously as
      possible affording due opportunity to the parties to record
      evidence that shall be appreciated by the Court on merit. [Para
      22][691-A-F]
G
           Shrimant Rao Suryavanshi v. Prahlad Bhairoba
           Suryavanshi (2002) 3 SCC 676 : [2002] 1SCR 393;
           Hari Steel and General Industries Limited and Another
           v. Daljit Singhand Others (2019) 20 SCC 425; Himani
           Alloys Ltd. v. Tata Steel Ltd (2011) 15 SCC 273 : [2011]
H
            KARAN KAPOOR v. MADHURI KUMAR                                   679


      7 SCR 60; R. Kanthimathi v. Beatrice Xavier (2000) 9                  A
      SCC 339; Nagindas Ramdas v. Dalptram Iccharam
      (1974) 1 SCC 242 : [1974] 2 SCR 544; S.M. Asif v.
      Virendar Kumar Bajaj – (2015) 9 SCC 287 : [2015] 9
      SCR 179 – referred to.
                         Case Law Reference                                 B
[2002] 1 SCR 393                   referred to               Para 12
(2019) 20 SCC 425                  referred to               Para 13
[2011] 7 SCR 60                    referred to               Para 13
[2000] 9 SCC 339                   referred to               Para 13        C
[1974] 2 SCR 544                   referred to               Para 14
[2015] 9 SCR 179                   referred to               Para 18
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4645
of 2022.                                                                    D
      From the Judgment and Order dated 08.04.2021 of the High Court
of Delhi at New Delhi in RFA No. 218/2021.
      Tanmaya Mehta, Ms. Rupali Sharma, Lalit Valecha, Rahul Malik,
Advs. for the Appellant.
                                                                            E
      Ms. Meenakshi Arora, Sr. Adv., Ms. Mallika Joshi, Vaibhav Joshi,
Advs. for the Respondent.
      The Judgment of the Court was delivered by
      J. K. MAHESHWARI, J.
                                                                            F
        Leave granted.
      2. This appeal arises out of the Judgment dated 08.04.2021, passed
by the High Court of Delhi in Regular First Appeal No.218 of 2021
(hereinafter referred as ‘RFA No.218 of 2021’) preferred by the
Appellant, whereby the said RFA was dismissed and the High Court
thereby upheld the Order dated 01.12.2020 passed in Civil Suit No.867       G
of 2018 and Review Order dated 17.02.2021 in Civil Suit No.867 of
2018 passed by ADJ-O7, Saket Court, (South East), New Delhi.
      3. The brief facts of the matter are that Appellant was a tenant in
the Residential Property owned by Respondent bearing No. B-228,
                                                                            H
680             SUPREME COURT REPORTS                             [2022] 16 S.C.R.


A     Ground Floor, Greater Kailash-1, New Delhi-110048, including the built-
      up area in the stilt portion of the building (hereinafter referred as the
      ‘Suit Property’), which comprises of drawing room, dining room, a foyer,
      four bedrooms with attached bathrooms, kitchen, lounge, service area
      and a servant quarter with common bathroom and parking for two cars.
      The Respondent-Landlord entered into a Lease Agreement dated
B
      07.08.2011 with proprietorship concern of the Appellant, namely M/s.
      Fantasy Lights, at monthly rent of Rs.1,17,000/- for a period of 24 months
      starting from 07.08.2011 till 07.08.2013 and interest free security deposit
      of Rs.3,51,000/- (Three Lakhs Fifty – One Thousand Only) was paid by
      the Appellant at the time of the execution of the Lease Agreement.
C     After the expiry of the Lease Agreement, an extended Lease Agreement
      for subsequent term of 11 months was executed on 07.08.2013 at the
      rate of Rent of Rs.1,50,000/- per month which was to expire on
      06.07.2014. The Security Deposit paid earlier was retained as Interest
      Free Security Deposit towards Lease Agreement dated 07.08.2013 as
      well.
D
             4. The Appellant tenant did not pay any rent after the expiry of
      the extended Lease Agreement dated 06.07.2014 with effect from
      07.07.2014 and continued in occupation of the Suit Property. A Legal
      Notice dated 12.04.2018 was served by the Respondent landlord upon
      the Appellant calling him to vacate the Suit Property. However, even
E     thereafter, neither the Suit Property was vacated, nor the rent was paid
      which led the Respondent/Plaintiff to file Civil Suit No.867 of 2018 for
      recovery of possession, arrears of rent, mesne profit, Pendent Lite, and
      interest before ADJ-O7, Saket Court, (South East), New Delhi. The
      Appellant/Defendant filed a Written Statement contending that after the
F     expiry of the Lease Agreement dated 07.08.2013, the Respondent/
      Plaintiff had approached to him and made the offer to sell the right, title
      and interest in the Suit Property, in furtherance of which Agreement to
      Sell dated 22.04.2017 (herein after referred as ‘ATS-I’) was executed
      between the parties for a sum of Rs.3,60,00,000/- (Three Crores and
      Sixty Lakhs Only) and it was allegedly agreed that the rent accrued for
G     the year 2014-2017 be adjusted into the said Agreement to Sell. Appellant
      also contended that in addition to the execution of ATS-I, he also agreed
      to transfer its right, title and interest of a plot of land situated at Amloh in
      favor of Respondent for a consideration of Rs.15 Lakhs through
      Agreement to Sell (‘ATS-II’) which would partially satisfy the obligations
H     of sale consideration of ATS-I. Further, it was averred in the Written
            KARAN KAPOOR v. MADHURI KUMAR                                    681
                 [J. K. MAHESHWARI, J.]

Statement that certain adjustments were made to the consideration            A
payable for the subject property consequent to a new Agreement to Sell
(‘ATS-III’) was executed.
       5. In view of the averments made in Written Statement filed by
the Appellant/Defendant in Civil Suit No.867 of 2018, the Respondent/
Plaintiff filed an Application under Order XII Rule 6 and another            B
application under Order XXXIX Rule 10 of the Code of Civil Procedure
(in short ‘CPC’) with a prayer to pass a judgment on admission of facts
made in Written Statement and to draw a decree accordingly.
        6. The contention of the Respondent/Plaintiff before the Trial
Court was that looking to the admissions made with respect to the            C
Landlord-Tenant relationship, rate of rent and the defense taken by the
Appellant/Defendant in Written Statement is sham, as no consideration
was exchanged. While on the other side, the Appellant/Defendant
contended that the Respondent/Plaintiff has concealed the material facts
regarding existence of ATS-I, II and III, though the two Lease Agreement
dated 07.08.2011 and dated 07.08.2013 were not denied. It was said           D
only on the expiry of the term of the extended Lease Agreement, the
Respondent/Plaintiff approached the Appellant/Defendant and offered
to sell the Suit Property. Further it was contended that, no demand to the
accrued rent was made as it was agreed between the parties that the
amount of rent shall be adjusted in ATS. In furtherance of which ATS-I       E
dated 22.04.2017 was executed by the Respondent/Plaintiff in favor of
Appellant/Defendant with respect to Suit Property where Appellant
agreed to pay Rs.3,60,00,000/- as consideration. It was also contended
by the Appellant/Defendant before the Trial Court that earlier Rs.4.7
Cr. was agreed towards consideration, however, after the payment of
enormous earnest money to the Respondent before signing ATS-I, the           F
consideration was reduced to Rs.3.6 Cr. Subsequently, Second Agreement
to Sell dated 22.05.2017 was signed to transfer Appellant’s rights, title
and interest in the property situated in Amloh to representatives of
Respondent for a sum of Rs.15,00,000/- (Fifteen Lakhs Only) which
was to be adjusted towards the consideration of Rs.3.6 Cr. payable to        G
the Respondent. Further, Third Agreement to Sell dated 30.12.2017 was
executed between the parties consequent to the aforesaid adjustments.
The Appellant/Defendant also argued before the Trial Court to have
approached the Allahabad Bank for loan amounting to Rs.1.7 Cr. to
purchase the Suit Property, but the Respondent/Plaintiff refused to
                                                                             H
682             SUPREME COURT REPORTS                             [2022] 16 S.C.R.


A     execute the subject Sale Deed. Lastly, it was submitted that there is no
      clear and categorical admission from his side and the Written Statement
      filed by him and the suit has to be read as a whole and not in isolation.
      Moreover, the present Suit involves adjudication of facts and serious
      questions of law which is possible only after leading oral evidence and
      on appreciating it, therefore, no decree under Order XII Rule 6 can be
B
      passed on the pleadings of the parties.
             7. The Trial Court perused the material on record and in Para 17
      of the order dated 01.12.2020 recorded that there are certain undisputed
      facts. Those are: (a) The Plaintiff being absolute owner of the suit
      property is not disputed; (b) The identity of the suit property is not disputed;
C     (c) Execution of the Lease Agreement dated 07.08.2011 between the
      Plaintiff and M/s Fantasy Lights @ Rs.1,17,000/- per month for the
      period of two years is not disputed; (d) Interests free security deposit of
      Rs.3,50,000/- paid by the Defendant to Plaintiff is not disputed; (e) The
      execution of Lease Agreement dated 07.08.2013 between the Plaintiff
D     and Defendant for 11 months @ Rs.1,50,000/- per month is also not
      disputed; (f) It is not disputed that no rent has been paid since July 2014
      though certain defenses have been taken with respect to payment of the
      said rent; (g) The issuance and receipt of the legal notice dated 12.04.2018
      calling upon the Defendant to hand over the possession is also not
      disputed.
E
              8. Apart from dealing with the aforementioned admissions, the
      Trial Court also dealt with each defense taken by the Appellant in the
      written statement and observed: (i) Appellant/Respondent did not mention
      any amount which has been paid by him as ‘Bayana’ in lieu of the ATS-
      I dated 22.04.2017. It is beyond the comprehension of the Court as to
F     what stopped the Appellant from mentioning the exact figures of the
      amount paid by the Appellant as ‘Bayana’; (ii) No document was placed
      before the Court by Appellant/Defendant to show the quantum of amount
      paid as consideration thus ATS-I executed without any consideration
      has no significance; (iii) ATS-II with respect to the Amloh Property has
      also been filed and the same cannot be relied upon for the aforesaid
G
      reasons; (iv) None of the original Agreements to Sell have been filed;
      (v) It is a settled proposition of law that even if the consideration has
      been exchanged the purchaser does not become the owner of the property
      till the time the registered Sale Deed is executed in his favor and the
      Tenant-Landlord relationship cannot come to an end on the execution of
H     the Agreement to Sell.
             KARAN KAPOOR v. MADHURI KUMAR                                      683
                  [J. K. MAHESHWARI, J.]

       9. The Trial Court relying upon the admissions as aforementioned,        A
passed the judgment and decree allowing the application under Order
XII Rule 6 of CPC for delivery of possession with respect to the Suit
Property in favor of the Respondent/Plaintiff. Aggrieved Appellant/
Defendant sought review of the Order dated 01.12.2020 wherein the
Trial Court was pleased to dismiss the same vide order dated 17.02.2021.
                                                                                B
       10. The Appellant preferred Regular First Appeal No.218 of 2021
before the High Court of Delhi challenging both the orders i.e. order
dated 01.12.2020 passed by Trial Court and review order dated
17.02.2021. It was the case of the Appellant before the High Court that
a Suit for specific performance in relation to aforementioned three
Agreements to Sell is pending, in which the High Court has issued notice,       C
but nowhere the Trial Court has considered the same in the impugned
judgment. Further, Appellant also contended that no categoric admission
was made in the Written Statement to pass judgment granting decree of
possession to the Respondent in exercise of discretion under Order XII
Rule 6 of CPC. Lastly, it was argued that the Sale Deed is not required         D
to be registered in view of Section 17(2) of the Registration Act.
        11. The High Court vide impugned order dated 08.04.2021 rejected
the Appeal with observations that the Trial Court in its order dated
17.02.2021 has noted that there has been clear admission with regard to
relationship of Landlord-Tenant and the rent paid by the Appellant.             E
Further, the Appellate Court upheld the Trial Court’s findings qua
admission of the facts. The High Court also noted that the findings qua
admissions is not challenged by the Appellant which is sufficient to grant
the decree for possession of suit property. Further, High Court observed
that it is settled in law that the suit for specific performance filed by the
Appellant is of no impediment for the Trial Court to proceed with or            F
decide the Suit for possession based on Landlord-Tenant relationship.
Lastly, an ATS of immovable property where the possession of premises
is delivered in part performance can only be possible by registered
document after paying the requisite stamp duty. The High Court dismissed
the Regular First Appeal with the said observations, which is challenged        G
by the Appellant by filing instant appeal.
       12. Appellant has argued before this Court that he is well within
his rights to defend his possession in the suit property having satisfied
the conditions enunciated by this Court in Shrimant Rao Suryavanshi
v. Prahlad Bhairoba Suryavanshi - 2002 (3) SCC 676. As there is                 H
684             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     an ATS for transfer of rights in the suit property in favor of the Appellant,
      which has not been disputed to have been signed by Respondent. The
      covenants therefore expressly construes the intention of parties towards
      the sale and purchase of the suit property. It is further argued by the
      Appellant that the issues put before the Trial Court were triable issues
      and in such a scenario the Trial Court should not dismiss the suit in
B
      limine and pass a decree under Order XII Rule 6 of CPC when only the
      truth can be revealed by a full-fledged trial. Appellant also argues that
      when Seller-Landlord accepted the earnest money she actually acted
      under the agreement. This acceptance provided by the ATS ended the
      relationship of lessor and lessee and the tenancy ceases.
C            13. Appellant has placed reliance on Hari Steel and General
      Industries Limited and Another v. Daljit Singh and Others – (2019)
      20 SCC 425 and Himani Alloys Ltd. v. Tata Steel Ltd reported in -
      2011 (15) SCC 273 to contend that the Trial Court should have refrained
      from exercising its jurisdiction by decreeing the suit of Respondent/
D     Plaintiff under Order XII Rule 6 keeping in mind that the judgment on
      admission is judgment without trial which permanently denies any remedy
      to the Appellant on merit. Further, by referring to the case of R.
      Kanthimathi v. Beatrice Xavier reported in - 2000 (9) SCC 339 the
      Appellant argued that by accepting the earnest money, the Landlord-
      Seller has actually acted under the agreement and thus the relationship
E     of landlord and tenant has ceased to exist.
             14. Per Contra, on behalf of Respondent, it has been argued that
      the Appellant came in the possession of suit premises by virtue of lease
      deed dated 07.08.2011 and extended lease deed dated 07.08.2013 and is
      continuing to be in possession without payment of rent from 2014 onwards,
F     which makes out a classic case of abuse of due process of law. It was
      urged that Appellant has not put in possession in furtherance to the ATS,
      however without proving the contents of ATS his status would not change.
      It was further argued that once it is admitted that there is undisputed
      Landlord-Tenant relationship between parties; a termination notice under
      Section 106 has been issued prior to filing the suit followed by receipt of
G
      the rent. Thus, the Respondent have a prima facie case to decree the
      suit on admission under Order XII Rule 6. Further, it has been argued
      that the defense under Section 53-A of the Transfer of Property Act,
      1882 can only be applicable when consideration has been exchanged
      which is not the case of the Appellant. Furthermore, learned senior
H     counsel placing reliance on Nagindas Ramdas v. Dalptram Iccharam
            KARAN KAPOOR v. MADHURI KUMAR                                   685
                 [J. K. MAHESHWARI, J.]

- 1974 (1) SCC 242 argued that the admissions in pleadings or in            A
proceedings of Court at the time of hearing of the case stand on higher
footing and are admissible in evidence as per Section 58 of the Evidence
Act, 1872. Thus, in light of the facts as discussed, the Respondent has a
good case for a judgment on admission and the courts below have not
committed any error while passing the judgment.
                                                                            B
      15. Heard learned counsel for both the parties and perused the
records. Prior to appreciating the arguments in the facts and looking to
the controversy involved in the present case, it is required to know the
object and the purport to introduce Order XII of CPC. The relevant
provisions are reproduced hereinunder:
                                                                            C
      “1. Notice of admission of case.—Any party to a suit may
      give notice, by his pleading, or otherwise in writing, that he
      admits the truth of the whole or any part of the case of any
      other party.
      2. Notice to admit documents.—Either party may call upon              D
      the other party [to admit, within 7 [seven] days from the date
      of service of the notice any document,] saving all exceptions;
      and in case of refusal or neglect to admit, after such notice,
      the costs of proving any such document shall be paid by the
      party so neglecting or refusing, whatever the result of the
      suit may be, unless the Court otherwise directs; and no costs         E
      of proving any document shall be allowed unless such notice
      is given, except where the omission to give the notice is, in the
      opinion of the Court, a saving of expense.
      [2A. Document to be deemed to be admitted if not denied after
      service of notice to admit documents.—(1) Every document              F
      which a party is called upon to admit, if not denied specifically
      or by necessary implication, or stated to be not admitted in
      the pleading of that party or in his reply to the notice to admit
      documents, shall be deemed to be admitted except as against
      a person under a disability: Provided that the Court may, in
      its discretion and for reasons to be recorded, require any            G
      document so admitted to be proved otherwise than by such
      admission. (2) Where a party unreasonably neglects or refuses
      to admit a document after the service on him of the notice to
      admit documents, the Court may direct him to pay costs to the
      other party by way of compensation.]                                  H
686     SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A     3. Form of notice.—A notice to admit documents shall be in
      Form No. 9 in Appendix C, with such variations as
      circumstances may require.
      [3A. Power of Court to record admission.—Notwithstanding
      that no notice to admit documents has been given under rule
B     2, the Court may, at any stage of the proceeding before it, of
      its own motion, call upon any party to admit any document
      and shall, in such a case, record whether the party admits or
      refuses or neglects to admit such document.]
      4. Notice to admit acts.—Any party may, by notice in writing,
C     at any time not later than nine days before the day fixed for
      the hearing, call on any other party to admit, for the purposes
      of the suit only, any specific fact or facts, mentioned in such
      notice. And in case of refusal or neglect to admit the same
      within six days after service of such notice, or within such
      further time as may be allowed by the Court, the costs of
D
      proving such fact or facts shall be paid by the party so
      neglecting or refusing, whatever the result of the suit may be,
      unless the Court otherwise directs: Provided that any
      admission made in pursuance of such notice is to be deemed
      to be made only for the purposes of the particular suit, and
E     not as an admission to be used against the party on any other
      occasion or in favour of any person other than the party
      giving the notice.
      5. Form of admissions. —A notice to admit facts shall be in
      Form No. 10 in Appendix C, and admissions of facts shall be
F     in Form No. 11 in Appendix C, with such variations as
      circumstances may require.
      6. Judgment 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 of the suit,
G     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 (1) a
      decree shall be drawn up in accordance with the judgment
H
            KARAN KAPOOR v. MADHURI KUMAR                                     687
                 [J. K. MAHESHWARI, J.]

      and the decree shall bear the date on which the judgment                A
      was pronounced”
       Thus, the scheme of Order XII Rule 1 prescribes that any party
to a suit may give notice, by his pleading, or otherwise in writing that he
admits the truth of whole or any part of the case to other party. As per
Rule 2 of Order XII notice to admit the documents may be given by             B
either party to the other party within the specified time for admission of
a document and in case of refusal or admission of the document after
the notice, the cost of proving such document shall be borne by the party
who neglects or refuse, which shall be based on the discretion of the
Court. Rule 2A enables the deemed admission if after notice the document
                                                                              C
has not been denied. The said notice is required to be given in Form
No.9 of Appendix ‘C’ of CPC. Rule 3A confers overriding powers to
the Court, that even in absence of a notice to admit a document under
Rule 2, the Court may record such admission on its own motion or by
calling upon a party. The Court also have a power to record whether the
party admits or refuses or neglect to admit such document. Rule 4 of          D
Order XII relates to notice to admit the facts. Any party may by a notice
in writing at any time not later than 9 days before the day fixed for the
hearing, call upon any other party to admit for the purposes of suit only,
any specific fact or facts, mentioned in such notice that is required to be
answered within a specified time or within such further time as directed
                                                                              E
by the Court in case of refusal or neglect to admit the same, the cost of
proving such fact or facts be paid by the parties as directed. By adding
a proviso, it was made clear that the admission, if any, made in a
proceeding would be relating to the same proceeding not for any other
proceedings. The notice under Rule 4 is required to be given in Form
No.10 of Appendix ‘C’ of CPC as prescribed in Rule 5. Rule 6 confers          F
discretionary power to a Court who ‘may’ at any stage of the suit or
suits on the application of any party or in its own motion and without
waiting for determination of any other question between the parties makes
such order or gives such judgment as it may think fit having regard to
such admission.                                                               G
       16. Thus, legislative intent is clear by using the word ‘may’ and
‘as it may think fit’ to the nature of admission. The said power is
discretionary which should be only exercised when specific, clear and
categorical admission of facts and documents are on record, otherwise
the Court can refuse to invoke the power of Order XII Rule 6. The said
                                                                              H
688             SUPREME COURT REPORTS                           [2022] 16 S.C.R.


A     provision has been brought with intent that if admission of facts raised
      by one side is admitted by other, and the Court is satisfied to the nature
      of admission, then the parties are not compelled for full-fledged trial and
      the judgment and order can be directed without taking any evidence.
      Therefore, to save the time and money of the Court and respective
      parties, the said provision has been brought in the statute. As per above
B
      discussion, it is clear that to pass a judgment on admission, the Court if
      thinks fit may pass an order at any stage of the suit. In case the judgment
      is pronounced by the Court a decree be drawn accordingly and parties
      to the case is not required to go for trial.

C           17. Some special provisions have been made in Rules 7, 8 and 9
      regarding affidavit of signature, notice to produce documents and also to
      the cost which may not have much relevance to the facts of the present
      case hence, not being discussed elaborately in this judgment.
             18. On the issue of discretion of Court to pass judgment on
D     admission, a three-Judge Bench of this Court in the case of S.M. Asif v.
      Virendar Kumar Bajaj – (2015) 9 SCC 287 made the legislative
      intent clear to use the word ‘may’ which clearly stipulates that the power
      under Order XII Rule 6 of CPC is discretionary and cannot be claimed
      as a matter of right. In the said case, the suit for eviction was filed by the
      Respondent-Landlord against the Appellant-Tenant. The relationship of
E
      tenancy was admitted including the period of Lease Agreement. The
      Plaintiffs’ claim was resisted by the Defendant setting up a plea that the
      property in question was agreed to be sold by an agreement and the
      advance of Rs. 82,50,000/- was paid. The Defendant in course of taking
      the defense stoutly denied that Respondent/Plaintiff has continued to be
F     the landlord after entering into Agreement to Sell. The suit for specific
      performance was also filed which of course was contested by the
      Plaintiff. In the said case, this Court was of the view that deciding such
      issues requires appreciation of evidence. Mere relationship of landlord
      and tenant cannot be said to be an unequivocal admission to decree the
G     suit under Order XII Rule 6 of CPC. Resultantly, this Court by setting
      aside the judgment passed by the High Court remitted the matter back
      to the Trial Court subject to deposit of the arrears of the rent and the
      compensation for use of occupation of the suit premises. Such deposit
      was subject to final outcome of the eviction as well as suit for specific
      performance.
H
             KARAN KAPOOR v. MADHURI KUMAR                                     689
                  [J. K. MAHESHWARI, J.]

       19. In the context of the said legal position, reverting to the facts   A
of the present case, it is apparent that the first Lease Agreement was
executed on 07.08.2011 on a monthly rent of Rs.1,17,000/- of a suit
premises. The said Lease Agreement was for a period of 02 years ending
in July 2013. By the consent of the parties extended Lease Agreement
dated 07.08.2013 was executed for a further period of 11 months for a
                                                                               B
monthly rent of Rs.1,50,000/- with approximate increase in rent amount
by 30% for the next one year. Admittedly, the notice for eviction was
issued terminating the lease due to non-payment of the rent after the
expiry of the extended lease period which is due for payment by the
Defendant. The suit for eviction was filed on 18.05.2018 for possession
(based on Landlord-Tenant relationship), arrears of rent, mesne profit         C
and pendente lite. The said suit was contested by the Defendant in
which the ownership was not denied. The execution of first Lease
Agreement dated 07.08.2011 and the extended Lease Agreement dated
07.08.2013 was also not denied. The monthly tenancy and payment of
rent in terms of Lease Agreement is also not denied by the Defendant.
                                                                               D
The Defendant has taken a defense that the property belonging to him in
Amloh was agreed to be sold to the Plaintiff to which effect ATS-II
dated 25.05.2017 was executed. Further the Defendant has contended
that, ATS-III dated 30.12.2017 was executed after some adjustments in
consideration was made. Hence, the Defendant argued that on account
of execution of the three Agreements to Sell with respect to the suit          E
property for a sum of Rs. 3,60,00,000/-, the relationship of Landlord-
Tenant ceased to exist and the Defendant acquired the status of the
owner as he has already parted with the possession of the property
under the Lease Agreement.
       20. Learned counsel for the Appellant has placed heavy reliance         F
on a judgment of R. Kanthimathi (supra). In the said case, this Court
has specified that any jural relationship between two persons could be
created through an agreement and similarly could be changed through
an agreement subject to the limitations under the law. However, it is
urged that the relationship of the Appellant has now been changed to
purchaser on signing the ATS-I by landlord subsequent to lease agreement,      G
therefore the relationship of landlord and tenant extinguishes. Reliance
has also been placed on the judgment of Himani Alloys Limited (supra)
and it has been urged by Appellant that in case the admission is not of
the amount as alleged and not categoric and clear, the decree under
Order XII Rule 6 cannot be directed. The case of Hari Steel (supra)            H
690             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     has also been relied upon to contend that the relief under Order XII Rule
      6 is discretionary and the Court should not deny the valuable right of the
      Defendant to contest the suit, meaning thereby, the discretion should be
      used only when there is a clear, categorical and unconditional admission
      and such right should not be exercised to deny valuable right of a
      Defendant to contest the claim based on defense taken. Further, relying
B
      upon the judgment of Shrimant Shanrao Suryavanshi (supra), it has
      been contended that when a possession is with the Appellant by virtue
      of a part performance of agreement to sell as prescribed under Section
      53 of the Transfer of Property Act, 1882, he has right to defend or
      protect his possession.
C             21. On the other hand, Ms. Meenakshi Arora, learned senior
      counsel, placed reliance on the judgment of Nagindas Ramdas (supra),
      inter alia, contending that the admissions if true and clear are the best
      proof of the fact admitted, it is also stated the admissions in the pleadings
      or judicial admissions admissible under Section 58 of the Evidence Act,
D     1872, made by the parties or their agents at or before hearing of the
      case stands on higher footings than evidentiary admissions. It is binding
      and constitute the waiver of proof. Learned senior counsel further submits
      that the judgment of R. Kanthimathi (supra) is distinguishable with the
      present case. In the said case, after referring the terms of the agreement
      it reflected that the major amount of sale consideration was paid and
E     only Rs.5,000/- was remaining to be paid. Also, by conveyance the
      possession of property was surrendered, therefore, Court said that the
      jural relationship between the persons were changed by way of subsequent
      agreement subject to the limitations under the law. While in the present
      case ATS-I was executed on 22.04.2017. In clause 2 of the said
F     agreement, it was specifically mentioned “however, no advance –
      earnest money has been paid to the first party”. With respect to
      possession, it was mentioned that it shall be handed over on spot. Thus,
      out of the total sale consideration of Rs.3,60,00,000/- nothing was paid
      and the Appellant was in possession under the Lease Agreement as
      tenant. The document Annexure P-1 (Advance Receipt-cum Agreement
G     to Sale & Purchase) produced alongwith the paperbook of appeal is a
      document which has not been produced before the lower Court. Thus,
      vide order dated 07.10.2021, it was made clear by this Court that the
      said document be deleted from the paperbook of this case. In view of
      the said distinction drawn it was urged that judgment of R. Kanthimathi
H     (supra) is of no help to the Appellant.
             KARAN KAPOOR v. MADHURI KUMAR                                        691
                  [J. K. MAHESHWARI, J.]

       22. Be that as it may, the arguments advanced by both the sides,           A
in our view can be appreciated by the Trial Court by affording opportunity
to them to lead evidence. As per the pleadings, there may be admission
to the extent of execution of the Lease Agreement, rate of rent and
monthly payment but simultaneously the defense taken by the Defendant
is also based on ATS-I, II and III. In view of the contents of those
                                                                                  B
agreements and terms specified therein, the defense as taken by the
Appellant/Defendant is plausible or not is a matter of trial which may be
appreciated by the Court after granting opportunity to lead evidence by
the respective parties. There may be admission with respect to tenancy
as per lease agreements but the defense as taken is also required to be
looked into by the Court and there is need to decide justiciability of defense    C
by the full-fledged trial. In our view, for the purpose of Order XII Rule 6,
the said admission is not clear and categorical, so as to exercise a discretion
by the Court without dealing with the defense as taken by Defendant.
As we are conscious that any observation made by this Court may affect
the merit of either side, therefore, we are not recording any finding either
                                                                                  D
on the issue of tenancy or with respect to the defense as taken by the
Defendant. We are only inclined to say whether the judgment and decree
passed in exercise of the power under Order XII Rule 6 of CPC is
based on clear and categorical admission. In our view, the facts of the
case in hand and the judgment in S.M. Asif (supra) are altogether similar,
therefore, the ratio of the said judgment rightly applies to the present          E
case. Consequently, the judgment and decree passed by the Trial Court,
as confirmed by the High Court, only on admission of fact without
considering the defense in exercise of power under Order XII Rule 6 of
CPC is hereby set-aside. The matter is remitted back to the Trial Court
to decide the suit as expeditiously as possible affording due opportunity
                                                                                  F
to the parties to record evidence that shall be appreciated by the Court
on merit.
       23. In the present case, the tenant has not paid any amount of
rent w.e.f. 07.07.2014. In a suit based on Landlord-Tenant relationship,
the amount of rent and arrears thereof ought to be paid in terms of the
order of the Court. The said view is fortified by the judgment of S.M.            G
Asif (supra). As the Lease Agreement dated 07.08.2011 and the
extended Lease Agreement dated 07.08.2013, which are not in dispute
and by the extended Lease Agreement, which was for one year, the rent
was increased for the year 2013-2014 by 30%. The Defendant has not
paid any rent till date though the period of more than 7 years has already        H
692                SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A     passed. Therefore, we direct that in terms of the admitted fact by extended
      Lease Agreement and the increase in the percentage of rent, the Trial
      Court shall first decide the issue of payment of monthly rent applying the
      said increase on year to year basis and pass appropriate orders for
      payment of arrears as well as deposit of regular monthly rent. The said
      payment may be subject to outcome of the decision of the present suit
B
      as well as the suit for specific performance of the agreement filed by
      the Appellant.
            24. Resultantly, this appeal is allowed to the extent indicated
      hereinabove and the order of High Court and Trial Court is set aside and
      the matter is remitted back to the Trial Court.
C

      Ankit Gyan                                                   Appeal allowed.




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