P. Reena vs Usha M.

N. Kumar, J.—This is a defendant''s appeal against the judgment and decree passed by the XII Additional City Civil Judge, Bangalore allowing I.A. No. II filed under Order 12, Rule 6 r/w. Section 151 of CPC and decreeing the suit of the plaintiff as prayed for.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

Plaintiff Smt. Usha M. filed O.S. No. 1084/2013 on the file of the XII Additional City Civil Judge, Bangalore. Her case is that she is the absolute owner of the property bearing No. 471/D, Sanageetha Mansion, 15th Cross, Ideal Homes Township, 1st Stage, Rajarajeshwarinagar, Bangalore-560 098. She got constructed a multistoried residential building consisting of eight apartments on the said site. She has retained five apartments and sold three apartments. Defendant is a good friend of plaintiff. Considering the close relationship, she let out five apartments to the defendant for a total monthly rent of Rs. 75,000/- for five apartments at the rate of Rs. 15,000/- per month and the tenancy commenced from 1st day of June, 2009. Since they were close friends, no security deposit was taken nor was a written lease deed executed, the entire transaction was oral. The defendant failed to pay the monthly rents till August, 2012. After several repeated reminders and several representations, the defendant deposited a sum of Rs. 18,00,000/- into the plaintiffs bank account without the knowledge of the plaintiff. Subsequently, the defendant got issued a very strange notice through her Lawyer making all sorts of vague and false claims, mentioning that she had deposited the said amount of Rs. 18,00,000/- into the plaintiffs account. Plaintiff sent a reply notice to the legal notice sent by the defendant.

Defendant was operating women''s hostel in the rented schedule premises and the occupants were causing lots of noise and nuisance in the building. Other tenants of the building were also objecting to this and they gave a police complaint. The plaintiff requested the defendant to vacate the schedule premises as she had not paid rents for almost a year. She got issued a legal notice terminating the tenancy and gave her time to vacate the premises. The defendant then sent a letter along with a cheque for Rs. 9,000/- claiming that it was the rents for the subsequent month after deduction of the alleged interest on the sum deposited. The said cheque has not been encashed as the claim of the defendant is all false. Therefore, the plaintiff was constrained to file the suit for ejectment and she claimed damages of Rs. 20,000/- per month per apartment i.e., Rs. 1,00,000/- in all from the date of suit till the defendant hands over vacant possession of the schedule premises.

On service of summons, the defendant entered appearance and filed her written statement. She contended that the plaintiff is not the absolute owner of the schedule property. She denied her friendship and disputed the age of the parties. Her specific case is, one Sri Sunil Kumar M.P., who is the relative of the defendant was a tenant under the plaintiff for few years till the month of November, 2009. She came in contact with the plaintiff through him. The plaintiff and her husband offered the schedule premises to run Paying Guest (PG) accommodation for women�s in it, since she was qualified to run the same.

On negotiation, total rent for entire suit schedule property was reached at Rs. 50,000/- per month. She denied the fact that total rent was Rs. 75,000/- per month for five apartments at the rate of Rs. 15,000/- per month per apartment. The tenancy commenced from the month of June, 2009. On that day, the defendant paid a sum of Rs. 1,00,000/- as agreed being the rents for the month of June and July, 2009. The plaintiff handed over the entire suit schedule property to the defendant in the presence of the defendant''s husband Pradeep Kumar P.R. and her relatives M.P. Sunil Kumar and H.C. Sirinivas. No security deposit was paid to the plaintiff and no rent deed was executed in writing, this was the desire of the plaintiff and her husband. Subsequently, the rent was enhanced to Rs. 55,000/- per month with effect from 1st June, 2011. She denied the allegation that she has not paid the rents.

The defendant was regular and punctual in payment of monthly rent, before each respective month of tenancy got expired and accordingly, till August, 2012, she was regularly paying the agreed monthly rents up to the month of October, 2012 personally in cash at defendant''s residence, sometimes either to the hands of the plaintiff or to the husband of the plaintiff and sometimes to the family members without insisting for receipts for having paid the said rents. They were in the habit of collecting rents at a time for more than one month period also as per their family requirement. Later, the plaintiff and her husband started insisting the defendant to convert the monthly oral rent lease of the premises into a new lease for three years period which is in the form of usufructuary mortgage and ultimately offered premises on lease for three years and the lease amount was fixed at Rs. 45,00,000/- with the terms and condition to refund the entire lease amount without interest and the interest payable to be adjusted towards the rent of the premises for a period of three years and to continue such contract thereafter for further period if both the parties desire to do so. It was agreed between the parties that lease amount of Rs. 45,00,000/- has to be paid on or before 31.12.2012. On such payment, it was agreed, they will execute a registered deed. As the plaintiff was in urgent need of the amount, she demanded for at least part payment of the lease amount of Rs. 23,00,000/-. The defendant managed to pay the first installment of Rs. 23,00,000/- with the assistance of P.N. Ramu, H.C. Srinivas, M.P. Chetan Kumar, who agreed to pay Rs. 9,00,000/-, Rs. 9,00,000/- and Rs. 5,00,000/- respectively and thus, the defendant was able to pay a sum of Rs. 23,00,000/-. The said amounts have been transferred from their own bank accounts on 16.08.2012, 18.08.2012, 29.08.2012 and on 05.09.2012 by way of Real Time Gross Settlement (RTGS) and National Electronic Fund Transfer (NEFT) to the plaintiffs family bank account. The details of which are available at Para No. 11 of the written statement.

On payment of the said amount, the defendant proceeded to accommodate the students of RVCE College, Bangalore as paying guests for a period of three years. With great confidence and trust by earlier service of the defendant, the said college has provided total 55 girl students to the defendant''s paying guest hostel. Thereafter, the defendant approached the plaintiff and her husband with the balance cash of Rs. 22,00,000/- and to get the registered lease deed in their favour. After getting over of her financial difficulties, the plaintiffs attitude changed towards the defendant. She went on postponing the execution of the lease deed without receiving the remaining lease amount of Rs. 22,00,000/-. When the trouble arose between the parties, the plaintiff has filed the suit making false allegations on the defendant. Therefore, the defendant wanted the suit to be dismissed.

No evidence was recorded. In the suit, the plaintiff filed I.A. No. II under Order 12, Rule 6 r/w. Section 151 of CPC requesting the Court to decree the suit. The defendant admits the relationship of tenant and landlord and she has received the legal notice and there is no denial of the same in the written statement and there is no embargo to pass decree of ejectment against the defendant. The trial Court without framing the issues took up the said I.A. No. II for consideration. The defendant has admitted the relationship of landlord and tenant. She has acknowledged the notice of termination. The parties have entered into a new agreement. Except the bald plea that the parties have entered into a new agreement of lease of the schedule premises for a total sum of Rs. 45,00,000/- and continued the tenancy on the monthly rent at enhanced rate of Rs. 55,000/-, proceeded to pass a decree for ejectment by allowing the application filed under Order 12, Rule 6 of CPC. The said order is passed on 27.09.2014 and a decree came be drawn up in terms of the judgment. It is submitted that the said decree was put into execution and the plaintiff has taken possession of the schedule premises from the defendant. It is thereafter, the defendant has preferred this appeal.

Sri V.N. Madhava Reddy, learned counsel appearing for the appellant assailing the impugned judgment and decree contended that though there was an admission of relationship of landlord and tenant, the rate of rent was in dispute and the defendant has set up a new plea of usufructuary mortgage. Out of Rs. 45,00,000/- payable, Rs. 23,00,000/- was paid and without receiving the balance amount and executing the lease deed, the suit is filed for ejectment.

Under these circumstances, merely on the ground that the tenancy is admitted, the trial Court could not have passed a decree for possession as well as means profit. Therefore, he submitted that the judgment and decree of the trial Court requires to be set aside.

Per contra, the learned counsel for the plaintiff submits, when the relationship of landlord and tenant is admitted, tenancy is terminated by a valid legal notice, when the defendant has set up a new defence without any substance and admittedly no rents were paid from the day the defendant was put in possession of the property, the trial Court was justified in passing the impugned order.

In the light of the aforesaid facts and the rival contentions of the parties, the point that arises for our consideration in this appeal is as under:

"Whether the trial Court was justified in invoking Order 12, Rule 6 of Civil Procedure Code to pass a decree for ejectment, arrears of rent and means profits?".

Order 12, Rule 6 of Civil Procedure Code reads as under:

"6. Judgment on admissions:--

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

After the pleadings are completed, Order 10 of Civil Procedure Code provides for:

"Ascertainment whether allegations in pleadings are admitted or denied.--At the first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

If the Court undertakes the aforesaid exercise stipulated under Order 10, Rule 1 of CPC and records such admission, then, on consideration of such admission as well as admission of fact made either in the pleading or otherwise whether orally or in writing, the Court without waiting for the determination of any other question between the parties, pronounce judgment on the basis of such admissions. In other words, a partial decree on the basis of the admissions could be made and thereafter, disputed facts could be enquired into. The condition precedent for application of Rule 6 of CPC is there could be admission of a claim at least partially. If the claim is not partially admitted, then the Court has no jurisdiction to proceed under Order 12, Rule 6 of CPC either on the application filed by the party or Suo Motu.

In a suit for ejectment, the claim of the plaintiff would be for a decree of ejectment and arrears of rent. In the instant case, the ownership of the plaintiff with regard to suit schedule property is admitted by the defendant. Further, the defendant admits, she took the premises of plaintiff on lease. The defendant also admits receipt of a legal notice terminating the tenancy and the said notice has been duly replied. In the reply, the defendant has set up altogether a new defence. It is thereafter, the plaintiff has filed the suit.

Defendant has filed the written statement. The facts which are admitted in the written statement are relationship of landlord and tenant and issuance of a legal notice terminating the tenancy. On all other aspects, there is a denial. That apart, the defendant has set up a new tenancy/an agreement to execute a usufructuary mortgage. Therefore, the defendant has denied the plaintiffs entitlement to a decree for ejectment on the basis of the case pleaded by her. In substance, no portion of the plaintiffs claim is admitted by the defendant. Unfortunately, an application is filed under Order 12, Rule 6 of CPC and the Trial Judge has not carefully scrutinized the pleadings of the parties. He has not enquired from the parties or through their counsel whether the parties admit or deny the allegations made in the pleadings and has proceeded on the footing that when relationship of landlord and tenant is admitted, legal notice terminating the tenancy is issued and the defendant has not substantiated his defence by not admitting the plaintiffs claim, he has proceeded to pass a decree purporting to be under Order 12, Rule 6 of CPC contrary to the provisions. It is the case of the defendant that when everything is denied, the Trial Judge ought not to have passed a decree for ejectment. Therefore, the judgment and decree passed by the trial Court is unsustainable and accordingly it is to be set aside.

It is submitted that the decree of ejectment has been executed and possession has been taken, therefore, the plaintiff is not insisting on any restoration of possession. Under these circumstances, the only issue that requires to be enquired into by the trial Court is, what is the rate of rent agreed between the parties, what is the amount paid by the defendant towards discharging of the said rent, the amount of Rs. 18,00,000/- admitted by the plaintiff having been deposited into her account represents what and a sum of Rs. 23,00,000/- said to have been paid is on what basis are matters which requires to be determined by the trial Court after framing appropriate issues and giving opportunity to the parties to adduce evidence thereon.

Therefore, notwithstanding the fact that the decree for ejectment has been executed and it has attained finality, insofar as the decree for means profit and rents are concerned, it is liable to be set aside. Accordingly, it is set aside. Hence, we pass the following:

"i) The judgment and decree of the trial Court insofar as awarding damages of Rs. 75,000/- per month from the date of suit till handing over vacant possession of the suit property to the plaintiff is hereby set aside. The matter is remitted to the trial Court with a direction to frame appropriate issues and post the case for trial and thereafter pass the judgment after hearing the parties.

ii) It is made clear, the trial Court shall decide the case on merits without in any way being influenced by any of the observations made in the impugned order as it is set aside and take note of the pleadings, the evidence to be adduced by the parties, both oral and documents and then decide the case on merits in accordance with law."