Ballygunje Properties Development Corporation vs Shree Shree Anandamoyee Charitable Society

Basudeva Panigrahi, J.—The Plaintiffs in Title Suit No. 230 of 1992 of the Court of the learned 2nd Court, Alipore has challenged the legality, propriety and the validity of the order No. 36 dated August 12, 1994 whereby and whereunder the learned trial court has rejected the petition filed under Order 12 Rule 6 of the Code of Civil Procedure.

The revision Petitioner which is a partnership firm has claimed to be owner of the Premises No. 57/1, Ballygunge Circular Road, Calcutta. The opposite party No. 1 is a society duly registered under the Societies Registration Act, 1860 which has its Head Office on the ground floor over a portion of the eastern building of the premises. It is, inter alia, submitted by the Plaintiff that the registration of the society was cancelled by the Registrar of societies on or about March 28, 1992. Therefore, the parent body of the opposite party No. 1 Shree Shree Anandamayee Sangha has severed all its relation with the opposite party No. 1.

At the request of one Dr. G.N. Mishra, the then Secretary of the opposite party No. 1, in the year 1985 Amar Kr. Jalap, one of the partners of the Petitioners'' firm who is a strong devotee of Shree Shree Anandamayee Maa and happened to be the treasurer of the opposite party No. 1 agreed to spare a portion of the building morefully, described in the schedule to temporarily occupy as a licencee without payment of any rent or licence fee. The Petitioner subsequently, revoked the licence granted to the opposite party No. 1 on expiry of May 31, 1992. Since the opposite party No. 1 failed and/or neglected to vacate the portion of the ground floor, the Petitioner filed the suit under Order 1 Rule 8 of the CPC after taking leave from the Court for passing a decree of declaration that the licence granted to Defendants was revoked, the Defendants are not entitled to continue their wrongful possession of the Schedule ''B'' described in the suit after termination of the licence on May 31, 1992 and for decree of possession by evicting the Defendants along with other ancillary prayers.

The Defendants on the other hand, denied and disputed that the Petitioner granted a licence of the suit premises described in Schedule ''B''. They have, inter alia, stated that the opposite party No. 1 is a tenant on the ground floor of the eastern building of the said premises at a rental of Rs. 800.00 payable according to English calender month. The Plaintiff Amar Kr. Jalan caused advertisements to be published in respect of various concerned in the journal of the opposite party No. 1 viz., ''Ananda varta''. It was understood between the parties that the rent accrued to the premises shall be adjusted towards the advertisement charges. The Plaintiff filed an application under Order 12 Rule 6 of the CPC for passing judgment and decree on the basis of admission purported to have been made by the Defendant No. 1. It has been, inter alia, stated by the Plaintiff that in a letter dated April 25, 1985 written by the President of the Special General Body of the opposite party, it was recorded that the suit premises was given to Defendant No. 1 free of rent. On February 25, 1989 the minutes of the meeting of the Executive Council would clearly indicate that the opposite party No. 1 was a licencee in respect of a portion of the ground floor of the eastern building of the premises without any rent. In the minutes of the meeting, it was further recorded that the Secretary of the opposite party assured the Plaintiff that the opposite party required a few months more to keep in occupation of the premises assuring to vacate it after he gets a suitable accommodation. The opposite party No. 1 filed a writ petition in the Allahabad High Court challenging the order passed by the Registrar of Varanasi cancelling the registration of the opposite party No. 1. It was, however, stated that the Head Office of the society had been located at Calcutta because of availability of free and spacious accommodation. Therefore, these documents would clearly and unequivocally indicate that the Defendant No. 1 was a licencee from the inception whereafter the Plaintiff had issued a notice after termination of licence. In such background, it is unnecessary for the court to direct the parties to trial. Instead of protracted hearing it would be apposite to pass judgment and decree in favour of the Plaintiff on the basis of the admission by the Defendant No. 1.

Mr. Kapoor, the learned senior advocate appearing for the Plaintiff, has taken me through the different document annexed to the revisional application he laid much emphasis on the resolution dated February 25, 1989 wherein it was agreed by the Defendant No. 1 that it would deliver the vacant position of the suit property described in Schedule ''B'' and requested the Plaintiff to allow them a few months time more to enable them to make alternative arrangement. He has contended that the opposite party No. 1 filed a writ petition in the Allahabad High Court where it was unambiguously admitted that the Trust is in occupation of a very very spacious building at Calcutta free of rent. Therefore, if these documents are read in justaposition there will be least doubt that the building was given free o rent as licence and after the same being determined, the opposite party No. 1 has no right to continue it.

Mr. Roy Chowdhury, the learned advocate appearing for the opposite party No. 1, has disputed the same position by stating that the Defendant No. 1 have stated in the written statement that the society being a religious organisation was in search of accommodation for various purposes and ultimately on or about September 15, 1984 took the tenancy of the ground floor of the premises No. 57/1 Ballygunge Circular Road including the courtyard, lawn, garage, staff quarters at a rate of Rs. 800.00 per month payable according to the English calender month. Therefore, whether the premises was given on licence or on tenancy is a matter which requires to be adjudicated upon after taking evidence from both parties. At this stage, no decree can be passed.

After examination of the rival contention, the short question which comes for consideration in this revision is whether the suit could be decreed on the admissions as alleged by the Petitioner under Order 12 Rule 6 of the Code of Civil Procedure. The above provision though confers plenary but the same has to be exercised very carefully and sparingly and only in exceptional circumstances. It is, nonetheless, true that there was a resolution recorded by the Defendant No. 1 but it is stated by the trust in its written statement disputing the genuineness of such resolution. The Defendant No. 1 has claimed to be a tenant at a monthly rate of Rs. 800.00 under the Plaintiff. Whether the trust is a tenant or a licencee is yet to be decided after examination of the evidence. In this regard, the learned advocate appearing for the opposite party has relied Upon a Division Bench of this Court in the case of Manick Chand Jajodia v. Lalchand Agarwal 1995 (1) C.L.J. 236:

Regarding judgment or decree or order on admission in terms of Order 12 Rule 6 of the CPC the legal position is fairly well settled and from the judicial decisions certain principles can be deciphered and, in fact, do emerge, which guide the exercise of discretion of Court in passing a decree or judgment on admission. In the first place, the Court has a discretion to allow a prayer but such a relief cannot be claimed by the Plaintiff as of right. In exercising the discretion the Court has to satisfy it''s judicial conscience alike other instances of exercise of such discretion by the Court. Secondly, the admission must be clear, unequivocal, unconditional and unambiguous so that there may not be necessity for the Court to wait till determination of other questions. In view of such admission the Defendant will have no right of defence at all and there must not be any possibility of success of the Defendant in the suit. Thirdly, the admission must be taken as a whole unless the part of the claim which the Court proposes to allow on admission is severable from other parts of the Plaintiff''s claim.

On a careful reading of the affidavit-in-opposition filed by the opposite party Nos. 1 to 10 I find that they have disputed all such averments of the Petitioner. Therefore, in this background, the suit cannot be disposed of upon the so called admission by the opposite party No. 1. Thus, on a careful cogitation of the entire submission made by the learned Counsel appearing for the parties, on question of law and facts, as embodied in the petition and affidavit-in-support and justification of the prayer, objection respectively of their clients of feel such disputed question of fact regarding the leave licence purported to have been granted to the opposite party No. 1 could not have been accepted at this stage and pass a decree in terms of Order 12 Rule 6 of the Code of Civil Procedure. The trial court having exercised its discretion in a way permissible under law, the revisional court should not lightly disturb such observation unless any gross jurisdictional error appears on the face of it.

I hereby did not notice any factual or legal error so as to arive at a different conclusion. Accordingly, the revisional application having no merits is dismissed but in the circumstances without cost. The trial Court shall, however, expedite the hearing of the suit if it is otherwise ready and to dispose of the same in accordance with law within six months from date.