M/S PAYAL VISION LTD.versusRADHIKA CHOUDHARY

                        [2012] 7 S.C.R. 1160


A                     M/S PAYAL VISION LTD.
                                   v.
                      RADHIKA CHOUDHARY
                  (Civil Appeal No. 6734 of 2012)

                       SEPTEMBER 20, 2012
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

        CODE OF CIVIL PROCEDURE, 1908:

c      0.12, r.6 - Judgment on admissions - Held: In a suit for
  recovery of possession from a tenant whose tenancy is not
  protected under the provisions of the Rent Control Act,
  plaintiff-landlord is required to establish the existence of jural
  relationship of landlord and tenant between parties and
D termination of tenancy either by lapse of time or by notice
  served - In the instant case, the averments made in the plaint
  and the written statement clearly establish admissions by
  tenant on both the aspects - Trial court was perfectly justified
  in decreeing the suit for possession filed by the appellant by
E invoking its powers under 0. 12 r. 6 - Transfer of Property Act,
  1882 - s.106.

        EVIDENCE ACT, 1872 :

        s. 116 - Estoppel - Applicability of.
F
       The plaintiff-appellant filed a suit for possession and
  recovery of mesne profit with the averments, inter alia,
  that it had let out the suit property along with the super
  structure to the defendant for residential requirement at
  a monthly rent of Rs.50,000/-; and that since the
G defendant made substantial super structural changes in
  the premises and did not comply with the terms of the
  lease agreement, a notice u/s 106 of the Transfer of
  Property Act, 1882 (TP Act) was served upon him

H                                1160
   PAYAL VISION LTD. v. RADHIKA CHOUDHARY               1161


terminating the tenancy. After the defendant filed the          A
written statement, the plaintiff filed an application under
0.12 r.6, Code of Civil Procedure, 1908 praying for decree
for possession on admissions. The trial court allowed the
application and decreed the suit for possession holding
that the jural relationship of the landlord and tenant was      B
admitted between the parties and so was the rate of rent
settled and the service of notice terminating the tenancy.
However, in the first appeal of the tenant, the High Court
set aside the judgment and decree passed by the trial
court holding that there was no clear admission by the          c
defendant either regarding relationship of landlord and
tenant between the parties or the service of notice of
termination of the tenancy upon the defendant, and
remanded the matter back to it for disposal afresh.

    Allowing the appeal filed by the landlord, the Court        D

     HELD: 1.1 In a suit for recovery of possession from
a tenant whose tenancy is not protected under the
provisions of the Rent Control Act, all that is required to
be established by the plaintiff-landlord is the existence of    E
the jural relationship of landlord and tenant between the
parties and the termination of the tenancy either by lapse
of time or by notice served by the landlord uls 106 of the
T.P. Act. So long as these two aspects are not in dispute,
the court can pass a decree in terms of 0.12, r.6, CPC.         F
Whether or not there is a clear admission upon the said
two aspects is a matter to be seen in the fact situation
prevailing in each case. In the instant case, the tenancy
in question is not protected under the Rent Control Act
hav.ing regard to the fact that the rate of rent is more than   G
Rs. 35001- per month. [Para 6-7 and 11] [1166-G-H; 1167-
A-F; 1170-E]

    Jeevan Diesels & Electricals Ltd. v. Jasbir Singh Chadha
(2010) 6 sec 601 ::: 2010 (6) SCR 546 - relied on.
                                                                H
    1162   SUPREME COURT REPORTS             [2012] 7 S.C.R.


A     1.2 When placed in juxtaposition, the averments
  made in the plaint and the written statement clearly spell
  out an admission by the defendant that the lease
  agreement dated 10.10.2001 was indeed executed
  between the parties. It is also evident that the monthly
8 rent was settled at Rs.50,000/- which fact too is clearly
  admitted by the defendant although according to the
  defendant, the said amount represented rent for
  commercial use of the premises and not residential
  purposes as alleged by the plaintiff. [Para 1O] [1169-C-D]
c      1.3 Suffice it to say that the averments made in the
  written statement clearly accept the existence of the jural
  relationship of landlord and tenant between the parties
  no matter the lease agreement was not duly registered.
  Whether the tenancy was for residential or commercial
D use of the property is wholly immaterial for the grant of a
  decree for possession. Even if the premises were let out
  for commercial and non-residential use, the fact remained
  that the defendant-respondent entered upon and is
  occupying the property as a tenant under the plaintiff.
E Further, the relationship of the landlord and the tenant
  remains unaffected even if the tenant has with or without
  the consent of the landlord made structural changes in
  the property when the tenancy was not protected by the
  rent law. [Para 10-11] [1169-D-F; 1170-C-D]
F
       2. The defendant-tenant did not have the benefit of a
  secure term under a registered lease deed. The result
  was that the tenancy was only a month to month tenancy
  that could be terminated upon service of a notice in terms
G of s.106 of the T.P. Act. The plaintiffs case in the plaint
  was that a notice was served upon the tenant u/s 106 of
  the T.P. Act pointing out that the defendant-tenant had
  made substantial structural changes in the premises and
  had not complied with the terms of the lease agreement.
  In reply, the defendant has not chosen to deny even
H impliedly leave alone specifir.ally that the notice dated
    PAYAL VISION LTD. v. RADHIKA CHOUDHARY              1163


17 .3.2003 was not served upon her. She has simply              A
disputed the validity of notice on the ground that the
same is not in accordance with s.106 of the T.P. Act. The
order passed by the High Court was not supported on
the plea of the notice being illegal for any reason. A copy
of the notice in question is on the record and the same         B
does not, suffer from any illegality so as to make it non-
est in the eye of law. [Para 12-14] [1170-G-H; 1171-D-E:
1171-H; 1172-A]

     3. In an order dated 17 .2.1999 passed by the
Revenue Authority under the Delhi Land Reforms Act, it          C
was directed that the property would stand vested in the
Gram Sabha if the plaintiff did not re-convert the land in
question for agricultural purposes within three months.
What is important is that the tenancy under the lease
agreement dated 10.10.2001 started subsequent to the            D
passing of the said order. Thus, the challenge to the title
of the plaintiff qua the suit property was based on a
document anterior to the commencement of the tenancy
in question. It also meant that the challenge was in
substance a challenge to the landlord's title on the date       E
of the commencement of the tenancy. Section 116 of the
Evidence Act, 1872, however, estops the tenant from
doing so. [Para 15] [1172-C-F]

      Mangat Ram v. Sardar Mehartan Singh (1987) 4 SCC          F
319 and Anar Devi (Smt.) v. Nathu Ram (1994) 4 SSC 251
- relied on.

    Krishna Prasad v. Baraboni Coal Concern Ltd. AIR 1937
PC 251 - referred to.
                                                                G
     4. The trial court was, perfectly justified in decreeing
the suit for possession filed by the appellant by invoking
its powers under 0.12 r.6 of the Code. Inasmuch as the
High Court took a different view ignoring the pleadings
and the effect thereof, it committed a mistake. Therefore,      H
    1164     SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   the impugned judgement and order of the High Court is
    set aside and the judgment and decree passed by the
    trial Court affirmed. [Para 17-18) [1174-B-D]

         Karam Kapahi v. Lal Chand Public Charitable Trust 2010
B (4) SCR 422 = (2010) 4 SCC 753 and Charanjit Lal Mehra
                                                     =
  v. Kamal Saroj Mahajan 2005 (2) SCR 661 (2005) 11 SCC
  279 - cited.
                           Case Law Reference:

         2010 (4) SCR 422              Cited                 Para 4
c
         2005 (2) SCR 661              Cited                 Para 4

         2010 (6) SCR 546              relied on             Para 5

         (1987) 4 sec 319              relied on             Para 15
D
         (1994) 4 SSC 251              relied on             Para 15

         AIR 1937 PC 251               referred to           Para 16

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E 6734 of 2012.

        From the: Judgment and Order dated 14.03.2011 of the
    High Court of Delhi at New Delhi in R.F.A. No. 81 of 2009.

         Nagendra Rai, Abhay Kumar, Rupesh Kumar Pandey for
F   the Appellant.

          M.P. Raju, Nitin Bhardwaj, Ajit Kumar Gupta, Sachit Sripal
    for the Respondent.

         The Judgment of the Court was delivered by
G
         T.S. THAKUR, J. 1. Leave granted.

        2. In a suit for possession and recovery of mesne profit
  filed by the plaintiff- appellant before the trial Court of Additional
H District Judge, Delhi, the plaintiff prayed for a decree for
    PAYAL VISION LTD. v. RADHIKA CHOUDHARY                     1165
                 [T.S. THAKUR, J.]

possession in its favour on admissions, invoking the Court's            A
powers under Order XII Rule 6 of the Code of Civil Procedure,
1908. The trial Court examined the prayer and held that the jural
relationship of landlord and tenant was admitted between the
parties and so was the rate of rent as settled by them. Service
of a notice terminating the tenancy of the defendant-respondent         B
also being admitted, the trial Court saw no impediment in
decreeing the suit for possession of the suit property. The
application filed by the plaintiff-appellant under Order XII Rule
6 of the CPC was accordingly allowed and the suit filed by the
plaintiff to the extent it prayed for possession of the suit property   c
decreed in its favour.

     3. Aggrieved by the decree passed against the
respondent, the respondent filed Regular First Appeal No. 81
of 2009 before the High Court of Delhi which was allowed by
the High Court in terms of its order dated 14th March, 2011             D
reversing the judgment and decree passed by the trial Court
and remanding the matter back to the said Court for disposal
in accordance with law. The present appeal by special leave
assails the correctness of the said judgment.
                                                                        E
     4. Mr. Nagendra Rai, learned counsel appearing on behalf
of the appellant, strenuously argued that the High Court had
fallen in error in holding that there was no clear admission by
the defendant either regarding the existence of a relationship
of landlord and tenant between the parties or the service of            F
notice of termination of tenancy upon the defendant. He
referred to the averments made in the plaint and the written
statement to buttress his submission that the existence of the
tenancy was unequivocally admitted, no matter the defendant-
tenant had questioned the validity of the lease deed in her             G
favour for want of stamp duty and registration as required under
law. The fact that the lease deed was not registered did not,
contended Mr. Rai, make any material difference so long that
the defendant had been put in possession of the demised
property pursuant to the said document and so long as she held
                                                                        H
    1166    SUPREME COURT REPORTS                    (2012] 7 S.C.R.


A the same as a tenant. The rate of rent was also not disputed
  by the defendant nor was the service of notice of termination,
  which aspects alone were relevant and if admitted or proved,
  sufficient for the Court to decree the suit for the relief of
  possession. Mr. Rai submitted that the defendant had no doubt
B disputed the title of plaintiff-appellant and alleged that the land
  underlying the super structure had vested in the Gram Sabha
  but any such contention was not available to her in view of
  Section 116 of the Indian Evidence Act, 1872 that estopped a
  tenant from denying the title of the landlord. Relying upon the
C decisions of this Court in Karam Kapahi v. Lal Chand Public
  Charitable Trust (2010) 4 SCC 753 and Charanjit Lal Mehra
  v. Kamal Saroj Mahajan (2005) 11 SCC 279, Mr. Rai argued
  that the High Court ought to have refused any interference with
  the decree passed by the Court below especially when no
  triable issue arose for determination by the trial Court.
0
       5. On behalf of the respondent, it was argued that the High
  Court was justified in holding that the written statement did not
  contain a clear and unequivocal admission of the relevant
  aspects, namely the existence of the jural relationship of
E landlord and tenant between the parties and the termination of
  the tenancy by service of a notice under Section 106 of the
  Transfer of Property Act, 1882. According to him, the High Court
  was also justified in relying upon the decision of this Court in
  Jeevan Diesels & Electricals Ltd. v. Jasbir Singh Chadha
F (2010) 6 sec 601 while reversing the judgment and decree
  passed by the Court below.

       6. In a suit for recovery of possession from a tenant whose
  tenancy is not protected under the provisions of the Rent
G Control Act, all that is required to be established by the plaintiff-
  landlord is the existence of the jural relationship of landlord and
  tenant between the parties and the termination of the tenancy
  either by lapse of time or by notice served by the landlord under
  Section 106 of the Transfer of Property Act. So long as these
  two aspects are not in dispute the Court can pass a decree in
H
    PAYAL VISION LTD. v. RADHIKA CHOUDHARY                     1167
                 [T.S. THAKUR, J.]

terms of Order XII Rule 6 of the CPC, which reads as under:             A

     "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, either on the application of any party or of its
                                                                        8
     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              C
      (1) a decree shall be drawn upon in accordance with the
     judgment and the decree shall bear the date on which
     the judgment was pronounced."

      7. The above sufficiently empowers the Court trying the suit      D
to deliver judgment based on admissions whenever such
admissions are sufficient for the grant of the relief prayed for.
Whether or not there was an unequivocal and clear admission
on either of the two aspects to which we have referred above
and which are relevant to a suit for possession against a tenant        E
is, therefore, the only question that falls for determination in this
case and in every other case where the plaintiff seeks to invoke
the powers of the Court under Order XII Rule 6 of the CPC and
prays for passing of the decree on the basis of admission.
Having said that we must add that whether or not there is a clear
admission upon the two aspects noted above is a matter to be
                                                                        F
seen in the fact situation prevailing in each case. Admission
made on the basis of pleadings in a given case cannot
obviously be taken as an admission in a different fact situation.
That precisely is the view taken by this Court in Jf)evan Diesels
& Electricals Ltd. (supra) relied upon by the High Court where          G
this Court has observed:

     "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               H
    1168     SUPREME COURT REPORTS                   [2012] 7 S.C.R.

A       depends on the facts of the case The 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
B       case in view of totally different fact situation. "

        8. Coming then to the question whether there is any
  admission by the tenant-respondent regarding the existence of
  the jural relationship of landlord and tenant between the parties,
  it would be profitable to refer to the averments made by the
C plaintiff-appellant in para 2 of the plaint which is to the following
  effect:

         "That the plaintiff had agreed to let out the entire property
         at Khasra No. 857 min. (1-03) Village Tehsil Mehrauli in
D        the NCT of Delhi Gitorani alongwith superstructure
         including servant quarter and garage of the defendant to
         the defendant for residential requirement at a monthly
         rent of Rs.50,0001- (Rupees fifty thousand only) towards
         the rent for the demised premises exclusive of charges
E        for the electricity appliances, fixtures and fittings for a
         period of three years commencing on 10th day of
         October 2001 vide lease agreement dated 10.10.2001."

       9. In the written statement filed by her, the defendant has
  while asserting that the averments made in para 2 above are
F vague, false and wrong asserted that the property in question
  was not let out for residential purposes as alleged by the tenant
  but was constructed for commercial use and let out for that
  purpose only. The execution of the lease deed dated 10th
  October, 2001 to which the plaintiff made a reference in para
G 2 of the plaint is also not denied. Although the defendant
  appears to be suggesting some collateral agreement also to
  have been orally entered into by the parties, the relevant portion
  of the written statement dealing with these aspects may at this
  stage be extracted:
H
   PAYAL VISION LTD. v. RADHIKA CHOUDHARY                     1169
                [T.S. THAKUR, J.]

    "................ It is further denied that property was let out   A
    for residential purposes. As submitted in preceding paras
    the said property was constructed for use of commercial
    purposes and was let out for commercial purposes at
    commercial rent. Execution of Lease Deed is though not
    denied but is vehemently submitted that the said                   B
    document was entered upon on the asking of the plaintiff
    whereas the terms were different than those incorporated
    in the lease deed. "

     10. When placed in juxtaposition the averments made in            C
the plaint and the written statement clearly spell out an
admission by the defendant that lease agreement dated 10th
October 2001 was indeed executed between the parties. It is
also evident that the monthly rent was settled at Rs.50,000/-
which fact too is clearly admitted by the defendant although
according to the defendant, the said amount represented rent           D
for commercial use of the premises and not residential
purposes as alleged by the plaintiff. Suffice it to say that the
averments made in the written statement clearly accept the
existence of the jural relationship of landlord and tenant
between the parties no matter the lease agreement was not              E
duly registered. Whether the tenancy was for residential or
commercial use of the property is wholly immaterial for the grant
of a decree for possession. Even if the premises were let out
for commercial and not residential use, the fact remained that
the defendant-respondent entered upon and is occupying the             F
property as a tenant under the plaintiff. The nature of this use
may be relevant for determination of mesne profits but not for
passing of a decree for possession against the defendant.

     11. Incidentally, the defendant appears to have raised in         G
the written statement a plea regarding the nature and extent of
the super structure also. While the plaintiffs case is that the
super structure as it existed on the date of the lease deed had
been let out to the defendant and the defendant had made
structural changes without any authorisation, the defendant's
                                                                       H
    1170     SUPREME COURT REPORTS                    [2012) 7 S.C.R.


A   case is that the super structure was constructed by her at her
    own cost pursuant to some oral agreement between the parties.
    It is unnecessary for us to delve deep into that aspect of the
    dispute, for the nature and extent of superstructure or the legality
    of the changes allegedly made by the defendant is not relevant
B   to the determination of the question whether the existence of
    tenancy is admitted by the defendant. At any rate, nature and
    extent of structure whether modified or even re-constructed by
    the defendant is a matter that can not alter the nature of the
    possession which the defendant holds in terms of the
C   agreement executed by her. The relationship of the landlord and
    the tenant remains unaffected even if the tenant has with or
    without the consent of the landlord made structural changes in
    the property. Indeed if the tenancy was protected by the rent
    law and making of structural changes was a ground for eviction
    recognised by such law, it may have been necessary to examine
D   whether the structure was altered and if so with or without the
    consent of the parties. That is not the position in the present
    case. The tenancy in question is not protected under the Rent
    Control Act having regard to the fact that the rate of rent is more
    than Rs. 3500/- per month. It is, therefore, of little significance
E   whether any structural change was made by the defendant and
    if so whether the same was authorised or otherwise. The
    essence of the matter is that the relationship of the landlord and
    the tenant is clearly admitted. That is the most significant aspect
    to be examined by the Court in a suit for possession especially
F   when the plaintiff seeks a decree on the basis of admissions.

       12. That brings us to the second question, namely, whether
  the tenancy stands terminated either by lapse of time or by a
  notice served upon the defendant. The defendant-tenant did not
G have the benefit of a secure term under a registered lease deed.
  The result was that the tenancy was only a month to month
  tenancy that could be terminated upon service of a notice in
  terms of Section 106 of the Transfer of Property Act. The
  plaintiffs case in para 6 of the plaint was that a notice was
H served upon the tenant under Section 106 of the Transfer of
    PAYAL VISION LTD. v. RADHIKA CHOUDHARY                 1171
                 [T.S. THAKUR, J.]

Property Act pointing out that the defendant-tenant had made        A
substantial structural changes in the premises and had not
complied with the terms of the lease agreement. The notice was
duly served upon the tenant to which the tenant has not replied.
Para 6 reads as under:
                                                                    B
           "That since the defendant had carried out
    substantial structural changes and further did not comply
    with the covenants of the lease agreement the plaintiff was
    compelled to serve a notice under Section 106 of the
    Transfer of Property Act. The said notice was duly served       C
    upon the defendant and no reply to the said notice has
    been received by the plaintiff or its counsel."

      13. In reply, the defendant has not denied the service of a
notice upon the defendant. Instead para 6 is entirely dedicated
to the defendant's claim that the whole structure standing on the   D
site today has been constructed by her out of her own money.
The defendant has not chosen to deny even impliedly leave
alone specifically that notice dated 17th March 2003 was not
served upon her. In para 6 of the preliminary objections raised
in the written statement she has simply disputed the validity of    E
the notice on the ground that that the same is not in accordance
with Section 106 of the Transfer of Property Act. Para 6, reads
as under:

    "That the alleged notice dated 17th March, 2003 is not          F
    as per the provisions of Section 106 of Transfer of
    Property Act. It is settled law that notice for termination
    of lease has to be in mandatory terms so specified in
    Section 106 of Transfer of Property Act."

     14. Far from constituting a denial of the receipt of the       G
notice the above is an admission of the fact that the notice was
received by her but the same was not in accordance with
Section 106 of the Transfer of Property Act. In fairness to
counsel for the tenant-respondent in this appeal, we must
record that the order passed by the High Court was not              H
                                                                        I   j




    1172    SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A supported on the plea of the notice being illegal for any reason.
  A copy of the notice in question is on the record and the same
  does not, in our opinion, suffer from any illegality so as to make
  it non-est in the eye of law.

B        15. We may, before parting, refer to yet another contention
    that was raised by the defendant-respondent in her defence
    before the courts below. In para 1 of the written statement filed
    by her it was contended that the property in question had vested
    in the Gram Sabha and that the plaintiff, therefore, could not
    seek her eviction from the same. The contention was. it
C   appears, based on an order dated 17th February, 1999
    passed by the Revenue Authority under the Delhi Land Reforms
    Act whereby it was directed that the property would stand
    vested in the Gram Sabha if the plaintiff did not re-convert the
    land in question for agricultural purposes within three months.
D   What is important is that the tenancy under the lease agreement
    dated 10th October, 2001 started subsequent to the passing
    of the said order of the Revenue Authority. In other words, the
    challenge to the title of the plaintiff qua the suit property was
    based on a document anterior to the commencement of the
E   tenancy in question. It also meant that the challenge was in
    substance a challenge to the landlord's title on the date of the
    commencement of the tenancy. Section 116 of the Evidence
    Act, 1872, however, estoppes the tenant from doing so. The
    legal position in this regard is settled by several decisions of
F   this Court and the Privy Council. Reference may in this regard
    be made to Mangat Ram v. Sardar Mehartan Singh (1987) 4
    SCC 319 and Anar Devi (Smt.) v. Nathu Ram (1994) 4 SSC
    251. In the later case this Court observed:

              "13. This Court in Sri Ram Pasricha v. Jagannath,
G
        has a/so ruled that in a suit for eviction by landlord, the
        tenant is estopped from questioning the title of the
        landlord because of Section 116 of the Act. The Judicial
        Committee in Kumar Krishna Prasad Lal Singha Deo v.
        Baraboni Coal Concern Ltd., when had occasion to
H
   PAYAL VISION LTD. v. RADHIKA CHOUDHARY                  1173
                [TS. THAKUR. J.]

    examine the contention based on the words 'at the               A
    beginning of the tenancy' in Section 116 of the Evidence
    Act, pronounced that they do not give a ground for a
    person already in possession of land becoming tenant
    of another, to contend that there is no estoppel against
    his denying his subsequent lesser's title. Ever since, the      B
    accepted position is that Section 116 of the Evidence Act
    applies and estops even a person already in possession
    as tenant under one landlord from denying the title of his
    subsequent landlord when once he acknowledges him as
    his landlord by attornment or conduct. Therefore, a tenant      c
    of immovable property under landlord who becomes a
    tenant under another landlord by accepting him to be the
    owner who had derived title from the former landlord,
    cannot be permitted to deny the latter's title, even when
    he is sought to be evicted by the latter on a permitted         D
    ground."

     16. To the same effect is the decision of Privy Council in
Krishna Prasad v. Baraboni Coal Concern Ltd. AIR 1937 PC
251, where Privy Council observed:
                                                                    E
          "The section postulates that there is a tenancy still
    continuing, it had its beginning at a given date from a
    given landlord. It provides that neither a tenant nor any
    one claiming through a tenant shall be heard to deny that
    that particular landlord had at that date a title to the        F
    property. In the ordinary case of a lease intended as a
    present demise (which is the case before the Board, on
    this appeal) the section applies against the lessee, any
    assignee of the terms a.'1d any sub-lessee or licensee.
    What all such persons are precluded from denying is that        G
    the lessor had a title at the date of the lease and there is
    no exception even for the case where the lease itself
    discloses the defect of title. The principle does not apply
    to disentitle a tenant from disputing the derivative title of

                                                                    H
    1174      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A        any who claims to have since become disentitled to the
         reversion ...... "

                                                 (emphasis supplied)

        17. In the light of the above, the trial Court was, in our view,
B perfectly justified in decreeing the suit for possession filed by
  the appellant by invoking its powers under Order XII Rule 6 of
  the Code of Civil Procedure. Inasmuch as the High Court took
  a different view ignoring the pleadings and the effect thereof, it
  committed a mistake.
c
          18. We accordingly allow this appeal, set aside the
    impugned judgement and order of the High Court and affirm
    the judgment and decree passed by the trial Court. The Parties
    are directed to bear their own costs.
D
           19. Keeping in view the fact that the premises in question
  is being used by the tenant for commercial purposes, we grant
  to the defendant time till 31st December, 2012 to vacate the
  same on furnishing an undertaking in usual terms before this
E Court within four weeks from today. Needless to say that the
  defendant shall be liable to pay the mesne profit for the period
  hereby granted at the rate determined by the trial Court.

         20. The appeal is allowed accordingly.

F R.P.                                               Appeal allowed.