Mr. V.N. Behal and Another vs Mr. Gurmeet Singh Wadalia

Manmohan Singh, J.—By this order I shall dispose of the application filed by the plaintiffs under Order XII Rule 6 read with Section 151 CPC being I.A. No. 14152/08 for decreeing the suit for possession.

The brief facts are that the plaintiffs filed the present suit against the defendant for possession, permanent injunction, recovery of arrears of rent, mesne profits and damages for future use and occupation of premises comprising of entire basement of property bearing No. 29, Ring Road, Lajpat Nagar-III, New Delhi (hereinafter referred to as "suit premises"). The contention of the plaintiffs is that the tenancy of the defendant was on month to month basis and the same was terminated vide notice dated 19th November, 2004. The receipt of the abovementioned notice is admitted by the defendant vide letter dated 26th December, 2004. The relationship of lessor and lessee is also admitted. The defendant Sh. Gurmeet Singh is the proprietor of the firm M/s. Tania Imports and Exports, a house of Vadala''s. In view of the above averment, the plaintiffs have prayed for passing of a decree in their favour.

This application has been opposed by the defendant on various grounds, namely that (a) the plaintiffs filed the present application with mala fide intention to avoid the trial of the suit as the plaintiffs have suppressed various material facts from this Court; (b) originally the case of the plaintiffs was that the suit premises were leased out to the defendant vide lease deed dated 18th January, 2003 between the plaintiffs and M/s. Tania Imports and Exports, the proprietorship firm of the defendant. Then, as per defendant, the lease deed dated 18th January, 2003 between the plaintiffs and M/s. Tania Imports and Exports was cancelled and another agreement of lease dated 20th February, 2003 was executed between the plaintiffs and the House of Vadala and the same is the subsisting agreement of lease between the parties; (c) that the defendant has filed a counter claim No. 1195/05 for specific performance of lease agreement dated 20th February, 2003. The plaintiffs, however, have denied the execution of the said lease agreement dated 20th February, 2003 and have alleged that they have not signed any other lease deed except the original lease deed dated 18th January, 2003.

The plaintiffs, before the hearing of the present application under Order XII Rule 6 CPC alongwith the suit, filed an application u/s 151 CPC being I.A. No. 4316/2006 for direction to the defendant to pay the rent of the demised premises and to pay a sum of Rs. 1,50,000/- per month including arrears since 1st July, 2008 to the plaintiffs as rent per month for the aforesaid premises in view of the lease deed dated 18th January, 2003.

By order dated 8th December, 2006, I.A. No. 4316/06 was allowed and the defendant was directed to deposit Rs. 1,50,000/- per month till the disposal of the suit. An appeal being FAO(OS) No. 55/07 against the said order was also disposed of on 20th February 2007, inter-alia, observing that "the defence is based solely on the basis of agreement to lease dated 20th February, 2003. The plaintiffs have challenged the genuineness of the said document and, therefore, once the genuineness of the document is examined by the court, all the issues that are raised in defence and the pleas would stand decided in the matter".

Learned Counsel for the defendant states that in view of the above-mentioned Division Bench order, the only issue that arises for consideration in the suit is whether or not the agreement to lease dated 20th February, 2003 is a genuine document. The learned Counsel for the defendant has referred to I.A. No. 2908/07 which was filed for sending of the disputed documents i.e. agreement to lease dated 20th February, 2003, receipts, memorandum of understanding and no objection certificate dated 5th July, 2003 (execution of which have been denied by the plaintiffs) to CFSL with a direction to CFSL to compare the signatures of the plaintiffs and his son Deepak Behl.

In pursuance of the directions of this Court Senior Scientific Officer examined and compared the signatures of the plaintiffs on the disputed documents with the admitted signatures and has opined as follows in the report dated 30th May, 2007/1st June, 2007:

Both the questioned and the standard signatures agree with each other in general writing, characteristics such as movement, slant, spacing, alignment, relative size, proportion of letters. The skill and quality of the questioned signatures are also found consistent with these qualities of the standard signatures.

While referring the said finding of the report, learned senior counsel for the defendant has argued that the plaintiffs have not approached this Court with clean hands and, therefore, they are guilty of suppression of material facts from this Court. It has been stated that the case of the plaintiffs is based upon falsehood and on the other hand defence set up by the defendant has been proved to be correct and in view thereof, the defendant has moved an application being I.A. No. 92/2008 for modification/clarification of orders dated 8th December, 2006 and 26th July, 2007 wherein the defendant was directed to deposit the arrears with effect from 1st July, 2003 till 21st July, 2007 and an order for future rent on or before 7th day of each calendar month respectively. The said application is pending disposal.

Learned Counsel for the defendant has argued that in view of the changed circumstances after the report of CFSL, the bona fide of the defendant is no more in doubt and at the same time the plaintiffs have not filed any objection to the said report of CFSL. In view of the agreement to lease dated 20th February, 2003 the defendant has already paid the following amounts to the plaintiffs:

(i) Security deposit of Rs. 6 lakhs by cheque.

(ii) Advance rent of Rs. 5.40 lakhs (Rs. 4.15 lakhs by cheque and Rs. 90,000/- by cash).

(iii) Other security deposit as per agreement to lease dated 20th February, 2003 (Rs. 65 lakhs). According to the defendant, the total amount paid by him to the plaintiffs is Rs. 76,20,000/-.

Learned Counsel for the defendant has argued that since the suit is based upon the lease deed dated 18th January, 2003 which was novated by another lease deed dated 20th February, 2003 executed between the parties, therefore, the suit itself is not maintainable. Learned Counsel for the defendant has admitted that the lease deed dated 20th February, 2003 is an unregistered lease deed. However, learned Counsel for the defendant has referred to Para 6 of the lease deed wherein it is mentioned that the lease deed would be executed and registered in duplicate and that the lessee shall retain the original set whereas the lessor shall keep a duly attested duplicate copy.

Learned Counsel for the defendant has also referred to the prayer of the counter claim wherein it is prayed that a direction be issued to the plaintiffs to perform their part of the contract in the lease deed dated 20th February, 2003 and get the lease deed registered. It is also argued by the defendant that no admissions have been made by him in written statement, hence, the application is not maintainable.

Learned Senior counsel for the plaintiffs has argued that as far as the report of CFSL is concerned, the said report can only be considered when defendant complies with the orders dated 8th December, 2006 and 27th July, 2007 whereby directions were issued to the defendant to deposit the arrears of rent as well as the future rent respectively as claimed in the application. Learned Counsel for the plaintiffs has argued that since the alleged agreement to lease deed dated 20th February, 2003 is an unregistered document and that as after the expiry of time of registration the tenancy of the suit premises under the said circumstances becomes on month-to-month basis and since the said tenancy has been terminated vide notice dated 19th November, 2004, therefore, this Court can exercise its power to pass a decree in favour of the plaintiffs for possession under the provisions of Order XII Rule 2 CPC on the basis of admissions.

As per well settled law, the court can exercise its discretion by passing a decree on admission under Order XII Rule 6 CPC, 1908 on admission made by the defendant in the pleading or otherwise. However, in the absence of such an admission the said discretion cannot be exercised by the Court.

The question now is as to whether there are admissions made by the defendant in the written statement or not and whether the plaintiffs is entitled to obtain a decree for possession based on the same. In the present case, the defendant in the written statement has specifically stated that the earlier lease deed dated 18th January, 2003 was cancelled and a fresh agreement to lease was executed on 20th February, 2003 between the plaintiffs and the defendant. It is also alleged in the written statement that by virtue of said agreement the plaintiffs have been paid Rs. 65 lac by the defendant in cash towards interest free security deposit. It is already averred in the written statement that the said lease deed was duly signed and executed by all the parties to the suit and is a legally enforceable lease deed and the rent of suit premises is Rs. 1,50,000/-.

The learned Counsel for the plaintiffs has referred to the following judgments in support of his submissions:

(i) Bajaj Auto Limited Vs. Behari Lal Kohli, .

(ii) Uptron Powertronics Ltd. Vs. Shri G.L. Rawal, .

(iii) Satish Chand Makhan and Others Vs. Govardhan Das Byas and Others, .

(iv) Jiwan Dass Vs. Life Insurance Corporation of India and Another, .

(v) K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., .

As far as the proposition of law is concerned, it is not in dispute that the agreement of lease deed dated 20th February, 2003 is an unregistered document and cannot be admitted in evidence although the defendant''s counter claim for specific performance for registering the document in view of para 6 of the deed, but I am of the view that at this stage the said deed can be looked into for collateral purposes. Further, since both the parties are relying upon two separate lease deeds coupled with the fact that the suit is filed on the basis of lease deed dated 18th January, 2003 which is specifically denied by the defendant by alleging that the said lease deed was cancelled by consent, therefore, I feel, it is not case of admissions on the part of defendant and the matter needs a trial.

Issues in the present case were framed on 2nd January, 2007. The evidence of the plaintiffs by way of affidavit was filed on 15th March, 2007 and is already on record. The witnesses of the plaintiffs could not be cross examined due to pendency of various applications. The present application, therefore, is dismissed with the direction that the trial in the matter be expedited.

After considering the facts and circumstances of the present case, this Court is not inclined to exercise its discretion in favour of the plaintiffs under the provisions of Order XII Rule 6 CPC and the plaintiffs are not entitled for the relief claimed in the matter.

C.S. (OS) No. 7/2005

List this matter before the Joint Registrar for direction on 5th October, 2009.

IA No. 5694/2004, IA No. 92/2008 & IA No. 14152/2008

List before the Court on 7th February, 2010 for disposal.