KARAN KAPOOR versus MADHURI KUMAR on 6 July 2022

[2022] 16 S.C.R. 677

KARAN KAPOOR

v.

MADHURI KUMAR

(Civil Appeal No. 4645 of 2022)

JULY 06, 2022

[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]

Code of Civil Procedure, 1908 – Or.12, r.6 – Judgment onAdmission – Appellant was a tenant in the residential property ownedby respondent – Respondent-landlord entered into lease agreementwith appellant from 07.08.2011 to 07.08.2013 – Thereafter, leasedeed was extended for subsequent term of 11 months on 07.08.2013–Appellant did not pay rent after expiry of lease agreement on07.07.2014 – Legal notice by respondent to appellant to vacate theproperty –Respondent-plaintiff filed suit for recovery of possession,rent, mesne profit, pendent lite and interest –Appellant-defendant filedwritten statement contending that after expiry of lease agreementdated 07.08.2013, respondent had approached him to sell suitproperty, in furtherance of which agreement to sell (ATS-I) wasexecuted between the parties for Rs.3.60 crores and the rent accruedfor the year 2014-2017 be adjusted in the said ATS-I – Also, anotheragreement to sell (ATS-II) was entered for a plot situated at Amlohfor Rs. 15 lakhs –Respondent-plaintiff filed application u/Or.12,r.6 –Trial Court relying upon the admission made in the writtenstatement, passed judgment and decree u/Or.12, r.6 for delivery ofpossession in favour of respondent – High Court dismissed theRegular First Appeal – On appeal, held: In view of the contents ofthe agreements and terms specified therein, the defense as taken bythe appellant/defendant is plausible or not is a matter of trial whichmay be appreciated by the Court after granting opportunity to leadevidence by the respective parties –There may be admission withrespect to tenancy as per lease agreements but the defense as takenis also required to be looked into by the Court and there is need todecide justiciability of defense by full-fledged trial – For the purposeof Or.12, r.6, the said admission is not clear and categorical, so asto exercise a discretion by the Court without dealing with the defenseas taken by the defendant –Therefore, judgment and decree passedby the trial Court as confirmed by the High Court is set aside.

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678SUPREME COURT REPORTS

AAllowing the appeal, the Court

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678SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. As per the pleadings, there may be admission tothe extent of execution of the Lease Agreement, rate of rent andmonthly payment but simultaneously the defense taken by theDefendant is also based on ATS-I, II and III. In view of theBcontents of those agreements and terms specified therein, thedefense as taken by the Appellant/Defendant is plausible or notis a matter of trial which may be appreciated by the Court aftergranting opportunity to lead evidence by the respective parties.There may be admission with respect to tenancy as per leaseagreements but the defense as taken is also required to be lookedCinto by the Court and there is need to decide justiciability ofdefense by the full-fledged trial. In view of this Court, for thepurpose of Order XII Rule 6, the said admission is not clear andcategorical, so as to exercise a discretion by the Court withoutdealing with the defense as taken by Defendant. As this court isDconscious that any observation made by this Court may affect themerit of either side, therefore, we are not recording any findingeither on the issue of tenancy or with respect to the defense astaken by the Defendant. We are only inclined to say whether thejudgment and decree passed in exercise of the power under OrderXII Rule 6 of CPC is based on clear and categorical admission.EIn view of this Court, the facts of the case in hand and thejudgment in S.M. Asif are altogether similar, therefore, the ratioof the said judgment rightly applies to the present case.Consequently, the judgment and decree passed by the TrialCourt, as confirmed by the High Court, only on admission of factFwithout considering the defense in exercise of power under OrderXII Rule 6 of CPC is hereby set-aside. The matter is remittedback to the Trial Court to decide the suit as expeditiously aspossible affording due opportunity to the parties to recordevidence that shall be appreciated by the Court on merit. [Para22][691-A-F]G

Shrimant Rao Suryavanshi v. Prahlad BhairobaSuryavanshi (2002) 3 SCC 676 : [2002] 1SCR 393;Hari Steel and General Industries Limited and Anotherv. Daljit Singhand Others (2019) 20 SCC 425; HimaniAlloys Ltd. v. Tata Steel Ltd(2011) 15 SCC 273 : [2011]H

7 SCR 60; R. Kanthimathi v. Beatrice Xavier (2000) 9SCC 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] 9SCR 179 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4645of 2022.

From the Judgment and Order dated 08.04.2021 of the High Courtof Delhi at New Delhi in RFA No. 218/2021.

Tanmaya Mehta, Ms. Rupali Sharma, Lalit Valecha, Rahul Malik,Advs. for the Appellant.

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.

Leave granted.

2. This appeal arises out of the Judgment dated 08.04.2021, passedby the High Court of Delhi in Regular First Appeal No.218 of 2021(hereinafter referred as ‘RFA No.218 of 2021’) preferred by theAppellant, whereby the said RFA was dismissed and the High Courtthereby upheld the Order dated 01.12.2020 passed in Civil Suit No.867of 2018 and Review Order dated 17.02.2021 in Civil Suit No.867 of2018 passed by ADJ-O7, Saket Court, (South East), New Delhi.

3. The brief facts of the matter are that Appellant was a tenant inthe Residential Property owned by Respondent bearing No. B-228, A

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AGround 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 areaand a servant quarter with common bathroom and parking for two cars.The Respondent-Landlord entered into a Lease Agreement datedB07.08.2011 with proprietorship concern of the Appellant, namely M/s.Fantasy Lights, at monthly rent of Rs.1,17,000/- for a period of 24 monthsstarting from 07.08.2011 till 07.08.2013 and interest free security depositof Rs.3,51,000/- (Three Lakhs Fifty – One Thousand Only) was paid bythe Appellant at the time of the execution of the Lease Agreement.CAfter the expiry of the Lease Agreement, an extended Lease Agreementfor subsequent term of 11 months was executed on 07.08.2013 at therate of Rent of Rs.1,50,000/- per month which was to expire on06.07.2014. The Security Deposit paid earlier was retained as InterestFree Security Deposit towards Lease Agreement dated 07.08.2013 aswell.D

4. The Appellant tenant did not pay any rent after the expiry ofthe extended Lease Agreement dated 06.07.2014 with effect from07.07.2014 and continued in occupation of the Suit Property. A LegalNotice dated 12.04.2018 was served by the Respondent landlord upon the Appellant calling him to vacate the Suit Property. However, evenEthereafter, neither the Suit Property was vacated, nor the rent was paidwhich led the Respondent/Plaintiff to file Civil Suit No.867 of 2018 forrecovery of possession, arrears of rent, mesne profit, Pendent Lite, andinterest before ADJ-O7, Saket Court, (South East), New Delhi. TheAppellant/Defendant filed a Written Statement contending that after theFexpiry of the Lease Agreement dated 07.08.2013, the Respondent/Plaintiff had approached to him and made the offer to sell the right, titleand interest in the Suit Property, in furtherance of which Agreement toSell dated 22.04.2017 (herein after referred as ‘ATS-I’) was executedbetween the parties for a sum of Rs.3,60,00,000/- (Three Crores andSixty Lakhs Only) and it was allegedly agreed that the rent accrued forGthe year 2014-2017 be adjusted into the said Agreement to Sell. Appellantalso contended that in addition to the execution of ATS-I, he also agreedto transfer its right, title and interest of a plot of land situated at Amloh infavor of Respondent for a consideration of Rs.15 Lakhs throughAgreement to Sell (‘ATS-II’) which would partially satisfy the obligationsHof sale consideration of ATS-I. Further, it was averred in the Written Statement that certain adjustments were made to the considerationpayable 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 bythe Appellant/Defendant in Civil Suit No.867 of 2018, the Respondent/Plaintiff filed an Application under Order XII Rule 6 and anotherapplication under Order XXXIX Rule 10 of the Code of Civil Procedure(in short ‘CPC’) with a prayer to pass a judgment on admission of factsmade in Written Statement and to draw a decree accordingly.

6. The contention of the Respondent/Plaintiff before the TrialCourt was that looking to the admissions made with respect to theLandlord-Tenant relationship, rate of rent and the defense taken by theAppellant/Defendant in Written Statement is sham, as no considerationwas exchanged. While on the other side, the Appellant/Defendantcontended that the Respondent/Plaintiff has concealed the material factsregarding existence of ATS-I, II and III, though the two Lease Agreementdated 07.08.2011 and dated 07.08.2013 were not denied. It was saidonly on the expiry of the term of the extended Lease Agreement, theRespondent/Plaintiff approached the Appellant/Defendant and offeredto sell the Suit Property. Further it was contended that, no demand to theaccrued rent was made as it was agreed between the parties that theamount of rent shall be adjusted in ATS. In furtherance of which ATS-Idated 22.04.2017 was executed by the Respondent/Plaintiff in favor ofAppellant/Defendant with respect to Suit Property where Appellantagreed to pay Rs.3,60,00,000/- as consideration. It was also contendedby the Appellant/Defendant before the Trial Court that earlier Rs.4.7Cr. was agreed towards consideration, however, after the payment ofenormous earnest money to the Respondent before signing ATS-I, theconsideration was reduced to Rs.3.6 Cr. Subsequently, Second Agreementto Sell dated 22.05.2017 was signed to transfer Appellant’s rights, titleand interest in the property situated in Amloh to representatives ofRespondent for a sum of Rs.15,00,000/- (Fifteen Lakhs Only) whichwas to be adjusted towards the consideration of Rs.3.6 Cr. payable tothe Respondent. Further, Third Agreement to Sell dated 30.12.2017 wasexecuted between the parties consequent to the aforesaid adjustments.The Appellant/Defendant also argued before the Trial Court to haveapproached the Allahabad Bank for loan amounting to Rs.1.7 Cr. topurchase the Suit Property, but the Respondent/Plaintiff refused to AB

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Aexecute the subject Sale Deed. Lastly, it was submitted that there is noclear and categorical admission from his side and the Written Statementfiled 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 seriousquestions of law which is possible only after leading oral evidence andon appreciating it, therefore, no decree under Order XII Rule 6 can beBpassed on the pleadings of the parties.

7. The Trial Court perused the material on record and in Para 17of the order dated 01.12.2020 recorded that there are certain undisputedfacts. Those are: (a) The Plaintiff being absolute owner of the suitproperty 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 thePlaintiff and M/s Fantasy Lights @ Rs.1,17,000/- per month for theperiod of two years is not disputed; (d) Interests free security deposit ofRs.3,50,000/- paid by the Defendant to Plaintiff is not disputed; (e) Theexecution of Lease Agreement dated 07.08.2013 between the PlaintiffDand Defendant for 11 months @ Rs.1,50,000/- per month is also notdisputed; (f) It is not disputed that no rent has been paid since July 2014though certain defenses have been taken with respect to payment of thesaid rent; (g) The issuance and receipt of the legal notice dated 12.04.2018calling upon the Defendant to hand over the possession is also notdisputed.E

8. Apart from dealing with the aforementioned admissions, theTrial Court also dealt with each defense taken by the Appellant in thewritten statement and observed: (i) Appellant/Respondent did not mentionany 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 toFwhat stopped the Appellant from mentioning the exact figures of theamount paid by the Appellant as ‘Bayana’; (ii) No document was placedbefore the Court by Appellant/Defendant to show the quantum of amountpaid as consideration thus ATS-I executed without any considerationhas no significance; (iii) ATS-II with respect to the Amloh Property hasalso been filed and the same cannot be relied upon for the aforesaidGreasons; (iv) None of the original Agreements to Sell have been filed;(v) It is a settled proposition of law that even if the consideration hasbeen exchanged the purchaser does not become the owner of the propertytill the time the registered Sale Deed is executed in his favor and theTenant-Landlord relationship cannot come to an end on the execution ofHthe Agreement to Sell.

9. The Trial Court relying upon the admissions as aforementioned,passed the judgment and decree allowing the application under OrderXII Rule 6 of CPC for delivery of possession with respect to the SuitProperty in favor of the Respondent/Plaintiff. Aggrieved Appellant/Defendant sought review of the Order dated 01.12.2020 wherein theTrial Court was pleased to dismiss the same vide order dated 17.02.2021.

10. The Appellant preferred Regular First Appeal No.218 of 2021before the High Court of Delhi challenging both the orders i.e. orderdated 01.12.2020 passed by Trial Court and review order dated17.02.2021. It was the case of the Appellant before the High Court thata Suit for specific performance in relation to aforementioned threeAgreements to Sell is pending, in which the High Court has issued notice,but nowhere the Trial Court has considered the same in the impugnedjudgment. Further, Appellant also contended that no categoric admissionwas made in the Written Statement to pass judgment granting decree ofpossession to the Respondent in exercise of discretion under Order XIIRule 6 of CPC. Lastly, it was argued that the Sale Deed is not requiredto be registered in view of Section 17(2) of the Registration Act.

11. The High Court vide impugned order dated 08.04.2021 rejectedthe Appeal with observations that the Trial Court in its order dated17.02.2021 has noted that there has been clear admission with regard torelationship of Landlord-Tenant and the rent paid by the Appellant.Further, the Appellate Court upheld the Trial Court’s findings quaadmission of the facts. The High Court also noted that the findings quaadmissions is not challenged by the Appellant which is sufficient to grantthe decree for possession of suit property. Further, High Court observedthat it is settled in law that the suit for specific performance filed by theAppellant is of no impediment for the Trial Court to proceed with ordecide the Suit for possession based on Landlord-Tenant relationship.Lastly, an ATS of immovable property where the possession of premisesis delivered in part performance can only be possible by registereddocument after paying the requisite stamp duty. The High Court dismissedthe Regular First Appeal with the said observations, which is challengedby the Appellant by filing instant appeal.

12. Appellant has argued before this Court that he is well withinhis rights to defend his possession in the suit property having satisfiedthe conditions enunciated by this Court in Shrimant Rao Suryavanshiv. Prahlad Bhairoba Suryavanshi - 2002 (3) SCC 676. As there is AB

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Aan 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. Thecovenants therefore expressly construes the intention of parties towardsthe sale and purchase of the suit property. It is further argued by theAppellant that the issues put before the Trial Court were triable issuesand in such a scenario the Trial Court should not dismiss the suit inBlimine and pass a decree under Order XII Rule 6 of CPC when only thetruth can be revealed by a full-fledged trial. Appellant also argues thatwhen Seller-Landlord accepted the earnest money she actually actedunder the agreement. This acceptance provided by the ATS ended therelationship of lessor and lessee and the tenancy ceases.C

13. Appellant has placed reliance on Hari Steel and GeneralIndustries 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 refrainedfrom exercising its jurisdiction by decreeing the suit of Respondent/DPlaintiff under Order XII Rule 6 keeping in mind that the judgment onadmission is judgment without trial which permanently denies any remedyto the Appellant on merit. Further, by referring to the case of R.Kanthimathi v. Beatrice Xavier reported in - 2000 (9) SCC 339 theAppellant argued that by accepting the earnest money, the Landlord-Seller has actually acted under the agreement and thus the relationshipEof landlord and tenant has ceased to exist.

14. Per Contra, on behalf of Respondent, it has been argued thatthe Appellant came in the possession of suit premises by virtue of leasedeed dated 07.08.2011 and extended lease deed dated 07.08.2013 and iscontinuing to be in possession without payment of rent from 2014 onwards,Fwhich makes out a classic case of abuse of due process of law. It wasurged 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 undisputedLandlord-Tenant relationship between parties; a termination notice underSection 106 has been issued prior to filing the suit followed by receipt ofGthe rent. Thus, the Respondent have a prima facie case to decree thesuit on admission under Order XII Rule 6. Further, it has been arguedthat the defense under Section 53-A of the Transfer of Property Act,1882 can only be applicable when consideration has been exchangedwhich is not the case of the Appellant. Furthermore, learned seniorHcounsel placing reliance on Nagindas Ramdas v. Dalptram Iccharam

- 1974 (1) SCC 242 argued that the admissions in pleadings or inproceedings of Court at the time of hearing of the case stand on higherfooting and are admissible in evidence as per Section 58 of the EvidenceAct, 1872. Thus, in light of the facts as discussed, the Respondent has agood case for a judgment on admission and the courts below have notcommitted any error while passing the judgment.

15. Heard learned counsel for both the parties and perused therecords. Prior to appreciating the arguments in the facts and looking tothe controversy involved in the present case, it is required to know theobject and the purport to introduce Order XII of CPC. The relevantprovisions are reproduced hereinunder:

“1. Notice of admission of case.—Any party to a suit maygive notice, by his pleading, or otherwise in writing, that headmits the truth of the whole or any part of the case of anyother party.

2. Notice to admit documents.—Either party may call uponthe other party [to admit, within 7 [seven] days from the dateof 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 theparty so neglecting or refusing, whatever the result of thesuit may be, unless the Court otherwise directs; and no costsof proving any document shall be allowed unless such noticeis given, except where the omission to give the notice is, in theopinion of the Court, a saving of expense.

[2A. Document to be deemed to be admitted if not denied afterservice of notice to admit documents.—(1) Every documentwhich a party is called upon to admit, if not denied specificallyor by necessary implication, or stated to be not admitted inthe pleading of that party or in his reply to the notice to admitdocuments, shall be deemed to be admitted except as againsta person under a disability: Provided that the Court may, inits discretion and for reasons to be recorded, require anydocument so admitted to be proved otherwise than by suchadmission. (2) Where a party unreasonably neglects or refusesto admit a document after the service on him of the notice toadmit documents, the Court may direct him to pay costs to theother party by way of compensation.]

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3. Form of notice.—A notice to admit documents shall be inForm No. 9 in Appendix C, with such variations ascircumstances may require.

[3A. Power of Court to record admission.—Notwithstandingthat no notice to admit documents has been given under rule2, the Court may, at any stage of the proceeding before it, ofits own motion, call upon any party to admit any documentand shall, in such a case, record whether the party admits orrefuses or neglects to admit such document.]

4. Notice to admit acts.—Any party may, by notice in writing,at any time not later than nine days before the day fixed forthe hearing, call on any other party to admit, for the purposesof the suit only, any specific fact or facts, mentioned in suchnotice. And in case of refusal or neglect to admit the samewithin six days after service of such notice, or within suchfurther time as may be allowed by the Court, the costs ofproving such fact or facts shall be paid by the party soneglecting or refusing, whatever the result of the suit may be,unless the Court otherwise directs: Provided that anyadmission made in pursuance of such notice is to be deemedto be made only for the purposes of the particular suit, andnot as an admission to be used against the party on any otheroccasion or in favour of any person other than the partygiving the notice.

5. Form of admissions. —A notice to admit facts shall be inForm No. 10 in Appendix C, and admissions of facts shall bein Form No. 11 in Appendix C, with such variations ascircumstances may require.

6. Judgment on admissions. —(1) Where admissions of facthave been made either in the pleading or otherwise, whetherorally or in writing, the Court may at any stage of the suit,either on the application of any party or of its own motionand without waiting for the determination of any other questionbetween the parties, make such order or give such judgmentas it may think fit, having regard to such admissions. (2)Whenever a judgment is pronounced under sub-rule (1) adecree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgmentwas pronounced”

and the decree shall bear the date on which the judgmentwas pronounced”

Thus, the scheme of Order XII Rule 1 prescribes that any partyto a suit may give notice, by his pleading, or otherwise in writing that headmits the truth of whole or any part of the case to other party. As perRule 2 of Order XII notice to admit the documents may be given byeither party to the other party within the specified time for admission ofa document and in case of refusal or admission of the document afterthe notice, the cost of proving such document shall be borne by the partywho neglects or refuse, which shall be based on the discretion of theCourt. Rule 2A enables the deemed admission if after notice the documenthas not been denied. The said notice is required to be given in FormNo.9 of Appendix ‘C’ of CPC. Rule 3A confers overriding powers tothe Court, that even in absence of a notice to admit a document underRule 2, the Court may record such admission on its own motion or bycalling upon a party. The Court also have a power to record whether theparty admits or refuses or neglect to admit such document. Rule 4 ofOrder XII relates to notice to admit the facts. Any party may by a noticein writing at any time not later than 9 days before the day fixed for thehearing, 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 beanswered within a specified time or within such further time as directedby the Court in case of refusal or neglect to admit the same, the cost ofproving such fact or facts be paid by the parties as directed. By addinga proviso, it was made clear that the admission, if any, made in aproceeding would be relating to the same proceeding not for any otherproceedings. The notice under Rule 4 is required to be given in FormNo.10 of Appendix ‘C’ of CPC as prescribed in Rule 5. Rule 6 confersdiscretionary power to a Court who ‘may’ at any stage of the suit orsuits on the application of any party or in its own motion and withoutwaiting for determination of any other question between the parties makessuch order or gives such judgment as it may think fit having regard tosuch admission.

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 isdiscretionary which should be only exercised when specific, clear andcategorical admission of facts and documents are on record, otherwisethe Court can refuse to invoke the power of Order XII Rule 6. The said A

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

C17. Some special provisions have been made in Rules 7, 8 and 9regarding affidavit of signature, notice to produce documents and also tothe cost which may not have much relevance to the facts of the presentcase hence, not being discussed elaborately in this judgment.

18. On the issue of discretion of Court to pass judgment onDadmission, a three-Judge Bench of this Court in the case of S.M. Asif v.Virendar Kumar Bajaj – (2015) 9 SCC 287 made the legislativeintent clear to use the word ‘may’ which clearly stipulates that the powerunder Order XII Rule 6 of CPC is discretionary and cannot be claimedas a matter of right. In the said case, the suit for eviction was filed by theRespondent-Landlord against the Appellant-Tenant. The relationship ofEtenancy was admitted including the period of Lease Agreement. ThePlaintiffs’ claim was resisted by the Defendant setting up a plea that theproperty in question was agreed to be sold by an agreement and theadvance of Rs. 82,50,000/- was paid. The Defendant in course of takingthe defense stoutly denied that Respondent/Plaintiff has continued to beFthe landlord after entering into Agreement to Sell. The suit for specificperformance was also filed which of course was contested by thePlaintiff. In the said case, this Court was of the view that deciding suchissues requires appreciation of evidence. Mere relationship of landlordand tenant cannot be said to be an unequivocal admission to decree theGsuit under Order XII Rule 6 of CPC. Resultantly, this Court by settingaside the judgment passed by the High Court remitted the matter backto the Trial Court subject to deposit of the arrears of the rent and thecompensation for use of occupation of the suit premises. Such depositwas subject to final outcome of the eviction as well as suit for specificperformance.H

19. In the context of the said legal position, reverting to the factsof the present case, it is apparent that the first Lease Agreement wasexecuted on 07.08.2011 on a monthly rent of Rs.1,17,000/- of a suitpremises. The said Lease Agreement was for a period of 02 years endingin July 2013. By the consent of the parties extended Lease Agreementdated 07.08.2013 was executed for a further period of 11 months for amonthly rent of Rs.1,50,000/- with approximate increase in rent amountby 30% for the next one year. Admittedly, the notice for eviction wasissued terminating the lease due to non-payment of the rent after theexpiry of the extended lease period which is due for payment by theDefendant. The suit for eviction was filed on 18.05.2018 for possession(based on Landlord-Tenant relationship), arrears of rent, mesne profitand pendente lite. The said suit was contested by the Defendant inwhich the ownership was not denied. The execution of first LeaseAgreement dated 07.08.2011 and the extended Lease Agreement dated07.08.2013 was also not denied. The monthly tenancy and payment ofrent in terms of Lease Agreement is also not denied by the Defendant.The Defendant has taken a defense that the property belonging to him inAmloh was agreed to be sold to the Plaintiff to which effect ATS-IIdated 25.05.2017 was executed. Further the Defendant has contendedthat, ATS-III dated 30.12.2017 was executed after some adjustments inconsideration was made. Hence, the Defendant argued that on accountof execution of the three Agreements to Sell with respect to the suitproperty for a sum of Rs. 3,60,00,000/-, the relationship of Landlord-Tenant ceased to exist and the Defendant acquired the status of theowner as he has already parted with the possession of the propertyunder the Lease Agreement.

20. Learned counsel for the Appellant has placed heavy relianceon a judgment of R. Kanthimathi (supra). In the said case, this Courthas specified that any jural relationship between two persons could becreated through an agreement and similarly could be changed throughan agreement subject to the limitations under the law. However, it isurged that the relationship of the Appellant has now been changed topurchaser on signing the ATS-I by landlord subsequent to lease agreement,therefore the relationship of landlord and tenant extinguishes. Reliancehas 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 ofthe amount as alleged and not categoric and clear, the decree underOrder XII Rule 6 cannot be directed. The case of Hari Steel (supra)

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Ahas also been relied upon to contend that the relief under Order XII Rule6 is discretionary and the Court should not deny the valuable right of theDefendant to contest the suit, meaning thereby, the discretion should beused only when there is a clear, categorical and unconditional admissionand such right should not be exercised to deny valuable right of aDefendant to contest the claim based on defense taken. Further, relyingBupon the judgment of Shrimant Shanrao Suryavanshi (supra), it hasbeen contended that when a possession is with the Appellant by virtueof a part performance of agreement to sell as prescribed under Section53 of the Transfer of Property Act, 1882, he has right to defend orprotect his possession.C21. On the other hand, Ms. Meenakshi Arora, learned seniorcounsel, placed reliance on the judgment of Nagindas Ramdas (supra),inter alia, contending that the admissions if true and clear are the bestproof of the fact admitted, it is also stated the admissions in the pleadingsor judicial admissions admissible under Section 58 of the Evidence Act,D1872, made by the parties or their agents at or before hearing of thecase stands on higher footings than evidentiary admissions. It is bindingand constitute the waiver of proof. Learned senior counsel further submitsthat the judgment of R. Kanthimathi (supra) is distinguishable with thepresent case. In the said case, after referring the terms of the agreement it reflected that the major amount of sale consideration was paid andEonly Rs.5,000/- was remaining to be paid. Also, by conveyance thepossession of property was surrendered, therefore, Court said that thejural relationship between the persons were changed by way of subsequentagreement subject to the limitations under the law. While in the presentcase ATS-I was executed on 22.04.2017. In clause 2 of the saidFagreement, it was specifically mentioned “however, no advance –earnest money has been paid to the first party”. With respect topossession, 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 paidand the Appellant was in possession under the Lease Agreement astenant. The document Annexure P-1 (Advance Receipt-cum AgreementGto Sale & Purchase) produced alongwith the paperbook of appeal is adocument which has not been produced before the lower Court. Thus,vide order dated 07.10.2021, it was made clear by this Court that thesaid document be deleted from the paperbook of this case. In view ofthe said distinction drawn it was urged that judgment of R. KanthimathiH(supra) is of no help to the Appellant.

22. Be that as it may, the arguments advanced by both the sides,in our view can be appreciated by the Trial Court by affording opportunityto them to lead evidence. As per the pleadings, there may be admissionto the extent of execution of the Lease Agreement, rate of rent andmonthly payment but simultaneously the defense taken by the Defendantis also based on ATS-I, II and III. In view of the contents of thoseagreements and terms specified therein, the defense as taken by theAppellant/Defendant is plausible or not is a matter of trial which may beappreciated by the Court after granting opportunity to lead evidence bythe respective parties. There may be admission with respect to tenancyas per lease agreements but the defense as taken is also required to belooked into by the Court and there is need to decide justiciability of defenseby 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 discretionby the Court without dealing with the defense as taken by Defendant.As we are conscious that any observation made by this Court may affectthe merit of either side, therefore, we are not recording any finding eitheron the issue of tenancy or with respect to the defense as taken by theDefendant. We are only inclined to say whether the judgment and decreepassed in exercise of the power under Order XII Rule 6 of CPC isbased on clear and categorical admission. In our view, the facts of thecase in hand and the judgment in S.M. Asif (supra) are altogether similar,therefore, the ratio of the said judgment rightly applies to the presentcase. Consequently, the judgment and decree passed by the Trial Court,as confirmed by the High Court, only on admission of fact withoutconsidering the defense in exercise of power under Order XII Rule 6 ofCPC is hereby set-aside. The matter is remitted back to the Trial Courtto decide the suit as expeditiously as possible affording due opportunityto the parties to record evidence that shall be appreciated by the Courton merit.

23. In the present case, the tenant has not paid any amount ofrent 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 theorder of the Court. The said view is fortified by the judgment of S.M.Asif (supra). As the Lease Agreement dated 07.08.2011 and theextended Lease Agreement dated 07.08.2013, which are not in disputeand by the extended Lease Agreement, which was for one year, the rentwas increased for the year 2013-2014 by 30%. The Defendant has notpaid any rent till date though the period of more than 7 years has already AB

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Apassed. Therefore, we direct that in terms of the admitted fact by extendedLease Agreement and the increase in the percentage of rent, the TrialCourt shall first decide the issue of payment of monthly rent applying thesaid increase on year to year basis and pass appropriate orders forpayment of arrears as well as deposit of regular monthly rent. The saidpayment may be subject to outcome of the decision of the present suitBas well as the suit for specific performance of the agreement filed bythe Appellant.

24. Resultantly, this appeal is allowed to the extent indicatedhereinabove and the order of High Court and Trial Court is set aside andthe matter is remitted back to the Trial Court.

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Ankit Gyan

Appeal allowed.

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