S. M. ASIFversusVI RENDER KUMAR BAJAJ

                     [2015] 9 S.C.R. 179


                         S. M. ASIF                            A
                              v.
                 VI RENDER KUMAR BAJAJ
            (Civil Appeal Nos. 6106-6108 of2015)
                                                               B
                     AUGUST 12, 2015
        [T. 5. THAKU~, V. GOPALA GOWDA AND
                    R. BANUMATHl·JJ.]
      Code of Civil Procedure, 1908:                           c
      Order 12 Rule 6 - Power under, scope - Discussed.

        Order 12 Rule 6 - .Judgment on admission - Suit for
  eviction - Eviction decree by trial court u/Order 12 Rule 6 on
  the ground that defendant-tenant admitted landlord-tenant D
  relationship and period of lease agreement - Challenged
, by tenant on the ground that the landlord had agreed to sell
  the suit property to him and he had paid an advance of Rs.
  82.50 lacs and a suit for specific performance filed by him E
  was pending - Held: Trial Court ought to have opportunity
  afforded to the tenant to put forth his defence and contest the
  suit - Matter remitted to Rent Controller for fresh hearing.

    Allowing the appeals and remitting the matter to the
 Rent Controller, the Court                                    F

      HELD: 1. The words in Order XII Rule 6 CPC "may"
 and "make such order ... " show that the power under
 Order XII Rule 6 CPC is discretionary and cannot be
 claimed as a matter of right. Judgment on admission is G
 not a matter of right and rather is a matter of discretion
 of the Court. Where the defendants have raised
 objections which go to the root of the case, it would not
 be appropriate to exercise the discretion under Order
 XII Rule 6 CPC. The said rule is an enabling provision H
                             179
180         SUPREME COURT REPORTS                [2015] 9 S.C.R.


A which confers discretion on the Court in delivering a
    quick judgment on admission and to the extent of the
    claim admitted by one of the parties of his opponent's
    claim. In the suit for eviction filed by the respondent-
  . landlord, appellant-tenant has admitted the relationship
B of tenancy and the period of lease agreement; but
    resisted respondent-plaintiff's claim by setting up a
    defence plea of agreement to sale. and that he paid an
    advance of Rs.82.50 lakhs, which was stoutly denied by
    the respondent-landlord. The appellant-defendant also
C filed the Suit for Specific Performance, which was
    contested by the respondent-landlord. When such
    issues arising between the parties ought to be decided,
    mere admission of relationship of landlord and tenant
D cannot be said to be an unequivocal admission to decree
    the suit under Order XII Rule 6 CPC. [Para 9) [184-E-H;
    185-A-B]

       2. An opportunity ought to have been afforded to
  the appellant to put forth his defence and contest the
E suit and therefore, the matter is to be remitted to the trial
  court for a fresh hearing, however, subject to the
  condition that the appellant should pay the arrears of
  rent at the rate of Rs.44,000/- per month within a period
F of eight weeks. Further the appellant shall pay
  Rs.1,00,000/- per month to the respondent-landlord as
  compensation for use and occupation of the suit
  premises with effect from 01.08.2015.[Para 1OJ [185-8-D]

      CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.
G 6106-6108 of 2015

           From the Judgment and Order of the High Court of Delhi
      at New Delhi dated 16.10.2014 and 27.10.2014 in RFA No.
      505 of 2014 and dated 19.11.2014 in RP No. 499 of 2014 in
H     RFA No. 505 of 2014
         S. M. ASIF v. VIRENDER KUMAR BAJAJ                     181


   R. Basant, Samit Mukharji, Manoj K. Mishra, Sandeep          A
Kumar Dwivedi for the Appellant.

    C. U. Singh, Parveen Pahuja, Bhargava V. Desai,
Saumya Mehrotra, Dhaval Mehjrotraa, Rishi Gautam for the
Respondent.                                                     B

     The Judgment of the Court was delivered by

     R. BANUMATHI, J. 1. Leave granted.

     2. Challenge in these appeals is the correctness of the C
orders dated 16.10.2014 and 27.10.2014 passed by the High
Court of Delhi in RFA No.505/2014, whereby the High Court
disposed of the appeal observing that the appellant having
not pressed the appeal and by changing their counsel cannot
be .allowed to plead for adjournment to argue the appeal. D
Review Petition No.499/2014 also came to be dismissed by
the High Courtvide order dated 19.11.2014 which is also under
challenge in these appeals.

      3. Brief facts which led to filing of these appeals are as E
under:- Respondent-landlord is the owner of the disputed
premises which is a built up area of entire second floor with
terrace/roof of the property bearing No. R-849 situated at New
Rajinder Nagar, New Delhi admeasuring 200 sq. yards. The
appellant-tenant contended that the respondent-landlord F
entered into a registered agreement for lease at a monthly
rent of Rs.37 ,500/- for a period of twenty two months i.e. from
15.03.2008 to 14.01.2010. After the expiry of first lease,
another registered lease was entered into between the parties
for two years i.e. from 15.01.2010 to 14.01.2012 on monthly G
rent which was fixed at Rs.44,000/-. According to the appellant,
during the subsisten.ce of the second lease, as the respondent-
landlord was in financial crisis, the respondent-landlord and
the appellant-tenant entered into an agreement of sale in H
182        ·SUPREME COURT REPORTS                 [2015] 9 S.C.R.


A     respect of the same tenancy premises for an amount of Rs.1.56
      crores. The appellant-tenant is said to have advanced a sum
      of Rs.82.50 lakhs vide six payments viz.:-
                 Rs.15,00,000/- on 16.01.2010;
B                Rs.12,50,000/- on 24.04.201 O;
                 Rs.18,00,000/-on 15.09.2010;
                 Rs. 7,00,000/-on 01.11.2010;_
                 Rs.15,00,000/- on 12.02.2011 and
c                Rs.15,00,000/- on 19.08.2011
           For the above payments the respondent-landlord is said
      to have issued six receipts acknowledging the receipts of
      money. Agreement of sale was executed between the parties .
      on 19.08.2011. ·
D
       4. The respondent-landlord alleges that under Section
  106 of the Transfer of Property Act terminating the lease, he
  sent a legal notice through speed post on 26.12.2011; however,
  the appellant-tenant denied having received any such notice.
E As the defendant-tenant was not vacating the premises, the
  respondent-landlord filed a Suit No.256/13 for recovery of
  possession, mesne profits and injunction in the Court of
  Additional District Judge, Tis Hazari, Delhi. During ttie
  pendency of the suit, an application under Order XII Rule 6
F CPC read with Section 151 CPC was filed by the respondent-
  landlord and the trial court vide its order dated 25.08.2014
  allowed the said application and directed the appellant-tenant
  to vacate and handover physical possession of the suit
G premises to the respondent-landlord.

       5. Aggrieved by the Order, the appellant-tenant preferred
  RFA No.505/2014 in the High Court of Delhi.As per the order
  of the High Court, on the date of preliminary hearing i.e.
  16.10.2014, the learned counsel for the appellant-tenant is said
H to have submitted that the "appeal is not pressed on merits
        S. M. ASIF v. VI RENDER KUMAR BAJAJ                     183
                   [R. BANUMATHI, J.]

and he prays for grant of time to vacate the suit premises. A
Limited on the point of grant of time matter is listed for
24. 10.2014 .. .. ". On 27 .10.2014, the appellant-tenant changed
his counsel and requested that the appeal may be heard and
sought for an adjournment. The learned Single Judge declined
the request for adjournment and disposed of the appeal B
observing that notice was issued to the respondent-landlord
limited only to the point of grant of time to vacate the premises.
Aggrieved by the said order, the appellant-tenant filed a Review
Petition No.499/2014 which also came to be dismissed by an
order dated 19.11.2014. These appeals assail the correctness C
of the said orders passed in the appeal as well as the Review
Petition.

      6. Learned counsel for the appellant-tenant submitted that
the appellant is an accredited journalist with good reputation D
and has paid a huge sum of Rs. 82.50 lakhs under an
agreement of sale and while so, the trial court erred in passing
decree for eviction under Order XII Rule 6 CPC. It was
submitted that the trial court vide its order dated 30.09.2013,
while directing the payment to be made during the pendency E
of the suit at Rs.44,000/- per month has stipulated a condition
that in the event of the appellant-tenant succeeding, the monthly
amount paid would be adjusted against the balance sale
consideration amount under the agreement for sale dated F
19.08.2011. It was further submitted that having regard to the
defence taken by the appellant-tenant, the trial court ought to
have adjudicated the matter and erred in passing a decree for
eviction without trial. It was also submitted that when the matter
came up before.the High Court of Delhi on 16.10.2014, the G
appellanHenant was not present in the Court and his counsel
sought time to take instructions and according to the appellant-
tenant, his counsel did not make the statement 'not pressing
the appeal'. It is contended that even assuming that the counsel
forthe appellant-tenant has made such a statement, the learned H
184         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A     Single Judge can certainly permit a party to resile from the
      concession.

       7. Per contra, learned counsel for the respondent-landlord
  submitted that it is clear from the order that the advocate
B appearing for the appellant in High Court had only sought for
  time to vacate the premises and did not press the appeal on
  merits. Contention at the hands of the respondent is that it is
  quite unbelievable that the appellant has paid a huge sum of
  Rs.82.50 lakhs by cash and the alleged agreement of sale is
C a fabricated one and since the appellant does not have a
  substantial defence, the trial court rightly passed the decree
  under Order XII Rule 6 CPC and the impugned orders do not
  suffer from any infirmity warranting interference.

o         8. We have carefully considered the rival contentions and
      perused the impugned orders and r:naterial on record.

        9. The words in Order XII Rule 6 CPC "may" and "make
  such order ... " show that the power under Order XII Rule 6 CPC
E is discretionary and cannot be claimed as a matter of right.
  Judgment on admission is not a matter of right and rather is a
  matter of discretion of the Court. Where the defendants have
  raised objections which go to the root of the case, it would not
  be appropriate to exercise the discretion under Order XII Rule
F 6 CPC. The said rule is an enabling provision which confers
  discretion on the Court in delivering a quick judgment on
  admission and to the extent of the claim admitted by one of
  the parties of his opponent's claim. In the suit for eviction filed
  by the respondent-landlord, appellant-tenant has admitted the
G relationship of tenancy and the period of lease agreement;
  but resisted respondent-plaintiffs claim by setting up a defence
  plea of agreement to sale and that he paid an advance of
  Rs.82.50 lakhs, which of course is stoutly denied by the
  respondent-landlord. The appellant-defendant also filed the
H Suit for Specific Performance, which of course is contested
          S. M. ASIF v. VIRENDER KUMAR BAJAJ                       185
                    [R. BANUMATHI, J.]

by the respondent-landlord. When such issues arising A
between the parties ought to be decided, mere admission of
relationship of landlord and tenant cannot be said to be an
unequivocal admission to decree the suit under Order XII Rule
6CPC.
                                                                  B
       10. Having regard to the stand taken by the parties, in
our view, an opportunity has to be afforded to the appellant to
put forth his defence and contest the suit and therefore, the
matter is to be remitted to the trial court for a fresh hearing,
however, subject to the condition that the appellant should pay C
the arrears of rent at the rate of Rs.44,000/- per month within a
period of eight weeks. Further the appellant shall pay
Rs.1,00,000/- per month to the respondent-landlord as
compensation for use and occupation of the suit premises with
effect from 01.08.2015 and the respondent-landlord shall issue D
necessary receipt/acknowledgment for having received the
same. The trial court vide its order dated 30.09.2013 while
directing the payment of Rs. 44,000/- per month has stipulated
a condition that in the event of the appellant succeeding, the
said amount would be adjusted against the balance sale E
consideration amount under the agreement for sale dated
19.08.2011. Having regard to the said order passed by the
trial court, payment of sum of Rs.1,00,000/- per month would
also be subject to the final outcome of the eviction suit as well F
as the suit for specific performance.

     11. The impugned orders are set aside and the matter is
remitted back to the Rent Controller for consideration of the
matter afresh and the appeals are allowed on the above terms.
The rent controller shall dispose of the matter as expeditiously G
as possible. We make it clear that we have not expressed
any opinion on the merits of the matter. No order as to costs.

Devika Gujral                                   Appeals allowed.
                                                                   H