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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  6106-6108   OF 2015 (Arising out of SLP (C) Nos. 4987-4989 of 2015)

S.M. ASIF                               ...Appellant

Versus

VIRENDER KUMAR BAJAJ                  ...Respondent

J U D G M E N T

R. BANUMATHI, J  .

Leave granted.

2. Challenge  in  these  appeals  is  the  correctness  of

the 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.  Review  Petition  No.499/2014  also  came  to  be

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dismissed by  the  High Court  vide  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 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

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

rent  which  was  fixed  at  Rs.44,000/-.  According  to  the

appellant, during the subsistence 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 respect of the same tenancy premises

for an amount of Rs.1.56 crores. The appellant-tenant is said

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to have advanced a sum of Rs.82.50 lakhs vide six payments

viz.:-

Rs.15,00,000/- on 16.01.2010;  Rs.12,50,000/- on 24.04.2010;  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  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.

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. 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  the  pendency  of  the  suit,  an

application under Order XII  Rule 6 CPC read with Section

151 CPC was filed by the respondent-landlord and the trial

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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  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 to have submitted that the “appeal is

not pressed on merits and he prays for grant of time to vacate

the suit premises. 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 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

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19.11.2014. These appeals assail the correctness 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 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  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 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  appellant-tenant  was  not  present  in  the

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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 for the appellant-tenant has

made  such  a  statement,  the  learned  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 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 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.

8. We have carefully considered the rival contentions

and perused the impugned orders and material on record.

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9. 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 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 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 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 of course is stoutly denied

by  the  respondent-landlord.  The  appellant-defendant  also

filed  the  Suit  for  Specific  Performance,  which of  course  is

contested  by  the  respondent-landlord.  When  such  issues

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arising  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 6 CPC.

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 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  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

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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 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 as possible.  We make it clear that we have not

expressed any opinion on the merits of the matter.  No order

as to costs.

…………………………J.       (T.S. THAKUR)

…………………………J. (V. GOPALA GOWDA)

…………………………J.      (R. BANUMATHI)

New Delhi; August 12, 2015

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