Shri Raghbir Saran Charitable Trust & Ors. vs Shri Arun Kumar Jain & Anr.
- Court
- Delhi High Court
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgment pronounced on: 16.10.2026
# CNR No. DLHC010153752003
CS(OS) 666/2003
+
ARUN KUMAR JAIN & ANR. .....Plaintiffs
Through: Mr. Ankit Jain, Sr. Adv. alongwith
Mr. S.P. Mehta, Advocates.
versus
RAGHUBIR SARAN CHARITABLE TRUST & ORS......Defendants
Through: Ms. Maneesha Dhir, Sr. Adv.
alongwith Ms. Varsha Banerjee and
Mr. Shubham Gupta, Advocates.
# CNR No. DLHC013708962018
CS(OS) 574/2018
+
SHRI RAGHBIR
SARAN CHARITABLE TRUST & ORS. .....Plaintiffs
Through: Ms. Maneesha Dhir, Sr. Adv.
alongwith Ms. Varsha Banerjee and
Mr. Shubham Gupta, Advocates.
versus
SHRI ARUN KUMAR JAIN & ANR. .....Defendants
Through: Mr. Ankit Jain, Sr. Adv. alongwith
Mr. S.P. Mehta, Advocates.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
IA No. 10647/2026 – (seeking to place on record certified copies of orders
in Suit No. 1013/2008) in CS (OS) 574/2018
1. This is an application filed on behalf of the defendants seeking to
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By:ABHISHEK THAKUR
Signing Date:16.10.2026
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place on record the certified copies of the orders passed in Suit No.
1013/2008 from 07.03.2011 to 28.05.2018 and the application under Section
151 CPC filed by the plaintiff dated 05.03.2016 before the learned Trial
Court.
2. Considering the averments made in the application, the same is
allowed. Let the certified copies of the orders in Suit No. 1013/2008 from
07.03.2011 to 28.05.2018 and the application under Section 151 CPC filed
by the plaintiff dated 05.03.2016 before the learned Trial Court, be taken on
record.
3. Application stands disposed of.
IA No. 16434/2025 – (On behalf of plaintiff no.1, seeking a summary
judgment under Order XIII-A CPC) in CS (OS) 574/2018
4. The present application has been filed under Order XIII-A read with
Section 151 CPC by the plaintiff no.1, Shri Raghubir Saran Charitable Trust,
seeking a summary judgment, i.e. a decree for possession and mesne profits
in its favour and against the defendants in respect of the suit premises
(property bearing no. E-9, Inner Circle, Connaught Place, New Delhi,
comprising the basement, ground floor and mezzanine floor, admeasuring
approximately 3,780 sq. ft.). For convenience, plaintiff no.1, Shri Raghubir
Saran Charitable Trust, is hereinafter also referred to as ‘the Trust’. Plaintiff
no.2, Shri Harsh Kumar Agarwal, and plaintiff no.3, Mrs. Kiran Agarwal,
are its trustees. Defendant no.1 is Shri Arun Kumar Jain and defendant no.2
is Shri Tarun Kumar Jain. The application is supported by an affidavit of
Shri O.P. Bhandula, who claims to be the Secretary of the Trust.
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By:ABHISHEK THAKUR
Signing Date:16.10.2026
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FACTUAL AND PROCEDURAL BACKGROUND
5. The suit premises are stated to have been let out by the Trust in the
year 1954 at an initial monthly rent of Rs.585.50. It is submitted that the rent
was subsequently enhanced and by the year 2000, stood at Rs.3,660.25/- per
month. Since the rent exceeded Rs.3,500/- per month, the tenancy ceased to
enjoy the protection of the Delhi Rent Control Act, 1958, and the Trust was
at liberty to determine the tenancy under the Transfer of Property Act, 1882.
6. By a communication dated 07.06.2000, the plaintiff no.1/Trust sought
to terminate what it characterised as a month to month tenancy and
thereafter instituted the present suit for possession and mesne profits. The
suit was initially instituted in this Court on 31.07.2000 and registered as
CS(OS) 1691/2000. On a change in pecuniary jurisdiction, the suit was
transferred to the District Court by order dated 04.11.2003, where it came to
be numbered as Suit No. 1013/2008 and, later, as Suit No. 663/2014. The
defendants contested the said suit. Paragraph 2 of the ‘preliminary
objections’ in the written statement avers as under:
“2. That before filing of the present suit in August 2000 for
possession and mesne profits, the Plaintiff had made an
agreement to sell the property in suit to the Defendants for a
consideration of Rs. 45 lacs and had also accepted an amount of
Rs.5 lacs vide cheque no. 615480 dated 8.5.2000 drawn on city
bank by way of earnest money. The cheque was uncashed [sic]
on 10.05.2000. In May, 2001 the plaintiff further desired to have
Rs. 20 lacs in cash. The Defendant withdrew Rs. 20 lacs from
the bank on 12.5.2001 and gave another sum of Rs. 10 lacs in
cash to the Plaintiff by way of part payment. The Defendants
kept back the remaining amount of Rs. 10 lacs as the Plaintiff
had not completed the necessary documents. Because of the
aforesaid events the suit of the Plaintiff is misconceived and is
liable to be dismissed as such.”
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7. It is also the case of the defendant/s that a letter dated 04.05.2000 was
received by them from M/s Bagolia Associates Pvt. Ltd., the brokers
allegedly engaged by the plaintiff no.1/Trust, recording that at a joint
meeting held on that date, the Trustee, Mr. Harsh Kumar Agarwal (plaintiff
no.2 herein), had agreed to sell the property. A further letter dated
14.05.2001 was sent by the same brokers to defendant no.2, stating as under:
th
“This has reference to our joint meeting on 12 May, 2001 with Mr.
Harsh Aggarwal, Shri Raghubir Saran charitable Trust, at 42,
Janpath, New Delhi. As Mr. Harsh Aggarwal had to proceed urgently
for medical treatment it was agreed that the formalities for sale of the
above property in your favour and / or in favour of your nominee
would be completed as soon as he returns from abroad after medical
st
treatment by 31
December, 2001. The Balance consideration of Rs.
40 lacs will have to be paid by you through demand draft/pay order in
favour of the trust at the time of registration of sale deed. You will be
given one week notice upon arrival of Mr. Harsh Aggarwal to make
the payment and complete the formalities as required.”
8. It is averred in the written statement that the notice dated 07.06.2000,
terminating the lease, stood waived, the Trust having agreed to sell the
premises for Rs.45,00,000/-, out of which Rs.15,00,000/- had already been
paid, namely, Rs.5,00,000/- by cheque no. 615480 dated 08.05.2000 drawn
on Citi Bank (encashed on 10.05.2000) and a further sum of Rs.10,00,000/-
in cash in May 2001. In its replication, the Trust did not dispute the receipt
of the cheque of Rs.5,00,000/-, but explained the same as an amount
tendered by way of deposit in the course of negotiations for an enhancement
of rent commensurate with the prevailing market rent, which, according to
the Trust, was in excess of Rs.5,00,000/- per month. The relevant averments
in the replication are as under:
“2….It is worth taking note of the fact that the suit property is an area
admeasuring 3780 sq. ft. situated on the ground floor in the most
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prime commercial location in New Delhi i.e. Connaught Place, New
Delhi and the defendants are running a premium showroom under the
name and style of M/s Jain Sons in the suit property. The market value
of the suit property even in May 2000 was not less than Rs.5 Crores,
therefore, how it can even be presumed that it could be agreed to be
sold for a consideration of Rs.45 Lacs as falsely projected by
defendants. It is further important to take note of the fact that the
defendants have not filed any Agreement to sell between the parties as
alleged or otherwise before this Hon'ble Court, which itself entirely
demolishes the false and fabricated stand of the defendants.
True and correct facts have been stated in the plaint. However, in so
far as the payment of Rs.5 lacs vide cheque No.615480 dated 8.5.2000
by the defendants to the plaintiff is concerned, receipt of the said
cheque is not denied. The true and correct facts relating to payment of
said amount of Rs.5 Lacs are that ever since the rent of the suit
property had crossed the figure of Rs.3,500/- per month, the plaintiff
had been telling the defendants that since the tenancy of the suit
property was no longer covered under the Delhi Rent Control Act,
therefore, the plaintiff was fully entitled to terminate the monthly
tenancy of the defendants and recover the possession thereof under
the transfer of property Act. The defendants were also quite conscious
of this legal position that their monthly tenancy was no longer
protected under the Delhi Rent Control Act and the plaintiff can
recover vacant possession of the suit property. Keeping these facts in
mind the defendants themselves assured the plaintiff that they would
negotiate with the plaintiff to increase the rent of the suit property
commensurate to the market rental, which is more then [sic] Rs.5
Lacs per month as market rental of the similar properties in
Connaught Place is not less than Rs.150/- per sq ft per month and in
order to show their bonafide regarding increasing rent of the suit
property to the market rent, the defendants gave a sum of Rs.5 lacs
vide cheque No.615480 dated 08.05.2000 to the plaintiff and
requested the plaintiff to keep the said amount in deposit till the actual
amount of market rent of suit property is negotiated and finalized
between the parties. However after making deposit of the said amount
of Rs.5 Lacs the defendants did not come forward to negotiate the
market rent of the suit property despite repeated oral requests on
behalf of the plaintiff to the defendants. Consequently, the plaintiff
was left with no other option except to exercise its legal rights under
the Transfer of Properties Act and by way a legal notice dated
07.06.2000, the plaintiff terminated the monthly tenancy of the
defendants and called upon the defendants to vacate the suit premises
and hand over its peaceful physical possession to the plaintiff on
expiry of the notice period. Thus the concocted and fabricated story
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created by the defendants regarding alleged Agreement to sell
between the parties is absolutely false, bogus and baseless and
without any merits whatsoever. The plaintiff has always been ready
and willing to refund the said amount of Rs.5 Lacs to the defendants
which was kept by the defendants as a deposit with the plaintiff as
stated above. However, since the defendants themselves are now
liable to pay damages and mesne profits relating to the suit property
which are much more than Rs.5 Lacs, accordingly, the said amount of
Rs.5 Lacs of the defendants would be adjusted towards the damages/
mesne profits subject to orders of this Hon'ble Court. The allegations
of the defendants that the plaintiff had received a cash payment of
Rs.10 Lacs is absolutely baseless, false and emphatically denied, no
such payment was ever received by the plaintiff.”
9. It has been submitted by the plaintiff no.1/Trust, in their written
synopsis, that the Trust filed an application under Order XII Rule 6, CPC
whereupon the learned Additional District Judge passed a decree for
possession on 11.05.2004. However, the record, as borne out by the Division
Bench of this Court in RFA No. 299/2004 vide judgement dated 21.09.2007
(in the appeal preferred by the defendants), does not bear this out. The said
decree was set aside by the Division Bench and the suit was remanded for de
novo consideration, with liberty to the Trust to file a fresh application under
Order XII Rule 6, CPC. It may be noticed that the Division Bench recorded
that no application under Order XII Rule 6 CPC was in fact on the record of
the Trial Court at the time the said decree came to be passed. The Division
Bench noticed that the decree had been passed purportedly upon an
application under Order VIII Rule 10 read with Order XII Rule 6 CPC, and
that the learned Additional District Judge had neither any such application
before her nor had she exercised suo motu jurisdiction.
10. During the pendency of the said appeal, the Trust challenged an
interim order dated 28.05.2004 passed in the aforementioned RFA No.
299/2004, by way of SLP (C) Nos. 15363-15364/2004. The said petitions
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were dismissed by the Supreme Court on 16.11.2004. The said order reads
as under:
11. Pursuant to the liberty granted by the Division Bench in RFA No.
299/2004, the Trust filed a fresh application under Order XII Rule 6, CPC
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on 25.01.2008, once again praying for a decree of possession. The said
application was dismissed by the learned Additional District Judge (Central-
03), Delhi, by order dated 30.03.2012, on the ground that the respondents
had raised triable issues (in particular, the alleged agreement to sell) which
required examination by evidence, whereupon the suit was directed to be
listed for framing of issues on 17.05.2012. The relevant portion of the said
order reads as under:
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12. In the said order, on the Trust's explanation for the Rs.5,00,000/-
payment, the learned Additional District Judge categorically observed that
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the plea does not appeal to reason “as it is next to impossible that any tenant
would agree to such an astronomical increase in the rent of the premises
from 3660.50 to Rs. 5 lacs per month at one go, which is almost around 150
times the existing rent of the premises” .
13. The Trust assailed the said order by way of a petition under Article
227 of the Constitution, being C.M.(M) No. 514/2012, which was dismissed
by this Court (M.L. Mehta, J.) by judgment dated 27.09.2012, holding that
there was no infirmity or illegality in the impugned order and that the
respondents were entitled to an opportunity to prove their case. The relevant
observations in the said order are as under:
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14. Thereafter, the Trust preferred SLP (C) No. 5311/2013 against the
above judgment and order dated 27.09.2012 passed by this Court in
C.M.(M) No. 514/2012, and the same was dismissed by the Supreme Court
on 16.12.2013. The order of the Supreme Court reads as under:
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15. Thereafter, on 30.04.2014, the learned Additional District Judge,
Central-14, Tis Hazari Courts, Delhi framed the following issues on the
basis of the pleadings in Suit No. 663/2014, which read as under:
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16. By order dated 16.09.2014, the learned Additional District Judge
recorded that the affidavits of evidence of the Trust were not ready despite
five months’ time having been granted, imposed costs of Rs.3,000/- upon
the Trust, and directed that if the entire evidence was not led on the next
date the evidence of the Trust shall be deemed to be closed. The suit was
thereafter adjourned sine die with liberty granted to the Trust to seek revival
as and when it is in a position to pursue the same.
17. After the suit was adjourned sine die , the Trust applied for its revival
by an application under Section 151 CPC dated 05.03.2016, and the suit was
revived by order dated 30.07.2016 subject to payment of costs of Rs.5,000/-.
Crucially, in the said application seeking revival of the suit, it was averred as
under:
18. It bears emphasis that the said application was affirmed by Shri O.P.
Bhandula, the very deponent who has affirmed the affidavit in support of the
present application, and that it stated in terms that ‘Issues in the suit were
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framed on 30.04.2014’, that the issues were so framed ‘in the presence of
proxy counsel’, and that ‘the matter is at pre-trial stage’.
19. It is also relevant to notice that, whilst both suits were pending before
the District Courts, they came to be consolidated by an order dated
07.10.2016.
20. On the application of the Trust for amendment under Order VI Rule
17 read with Section 151 CPC, enhancing the valuation of the relief of
possession to Rs.2,40,00,000/- and the valuation of the suit as a whole to
Rs.2,45,67,000/-, the plaint was, vide order dated 28.05.2018 passed by the
learned Additional District Judge-05, New Delhi District, Patiala House
Courts, New Delhi, returned for presentation before the Court of competent
pecuniary jurisdiction. The said order, inter alia , directs as under:
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21. It is relevant to notice that the learned Additional District Judge, while
returning the plaint, placed reliance upon the judgment of this Court
in Vogel Media International GmbH v. Jasu Shah , 115 (2004) DLT 679,
and observed that upon such return the plaint is to be represented before the
Court of competent jurisdiction and “such a suit will be tried de novo in
accordance with the provisions of CPC”. It bears notice that the said
judgment was invoked suo motu , the learned Additional District Judge
having recorded that it was not referred to or relied upon by either side. The
consequences which the plaintiff no.1 seeks to draw from the aforesaid
direction are considered hereinafter.
22. Consequent upon the said return, the plaint was re-presented before
this Court and came to be registered as CS(OS) 574/2018. Fresh summons
were issued on 14.11.2018 and the suit thereafter passed afresh through the
stages of pleadings, culminating in the order dated 21.05.2019 of the learned
Joint Registrar (Judicial) recording that the pleadings in the suit were
complete. These proceedings are adverted to in greater detail in paragraphs
54 to 57 hereinafter.
23. In the meanwhile, on the transfer petition filed by the Trust being
TR.P.(C.) No. 225/2018, CS(OS) 666/2003 (which had by then stood
transferred to the District Court and been renumbered as CS No.
57679/2016) was also brought to this Court vide order dated 03.12.2018
passed by this Court, whereby it was further directed that CS(OS) 574/2018
shall be treated as the lead suit. The two suits have been listed together since
then.
24. On 03.09.2019, this Court (presided over by Hon’ble Mr. Justice V.
Kameswar Rao) in the presence of counsel for the respective parties
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recorded as under:
25. The said order dated 03.09.2019 was not challenged and has attained
finality.
26. The Trust, however, neither filed its affidavit of evidence nor paid its
share of the Local Commissioner’s fee. On account of the said default, and
upon the erstwhile counsel for the Trust ceasing to appear without seeking a
discharge, notice was issued by this Court on 11.11.2024 to the Trust as well
as to its counsel. On 27.02.2025, fresh counsel for the Trust entered
appearance and was granted liberty in the following terms:
“Counsel for the trust seeks to place on record, an appropriate
application for a summary judgment to be passed against the
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defendant, Arun Kumar Jain, based on documents. She is at liberty
to do so. The same will be considered as and when it is placed on
record.”
The present application was filed thereafter.
27. In the meantime, CS(OS) 666/2003 was dismissed for non-
prosecution on 15.07.2025 and was restored to its original number vide order
dated 17.10.2025, subject to payment of costs of Rs.25,000/-. The said order
reads as under:
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28. On 12.02.2026, the following order was passed, whereby this Court
itself posed a query as to whether an application under Order XIII-A CPC is
maintainable in a suit which is not a commercial suit:
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29. In the above backdrop, the matter was listed on 20.04.2026 and
adjourned at the request of the plaintiffs. Thereafter, the arguments in the
instant application were advanced in considerable detail on 08.09.2026.
SUBMISSIONS ON BEHALF OF THE PARTIES
30. Ms. Maneesha Dhir, learned senior counsel for the applicant/plaintiff
no.1 has submitted that the relationship of landlord and tenant, the rate of
rent and the receipt of the notice dated 07.06.2000, stand admitted. It is
further submitted that the two documents on which the defence rests viz. the
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Agreement to Sell and the alleged letters of the brokers, are both unsigned
and that on this basis, it is, ex-facie , apparent that there is no concluded
contract capable of resisting a decree for possession.
31. As regards the receipt of the cheque of Rs.5,00,000/- by the Trust, it
was submitted that the amount was received in the course of negotiating an
increase in rent, about a year before the date borne on the Agreement to Sell.
It was further submitted that, taking the defence at its highest, a
consideration of Rs.45,00,000/- was far below the property’s value in the
year 2000-01, which, as pleaded in the application, was not less than
Rs.5,00,00,000/-. She submits that the defence lacks credibility and there is
no real prospect of the defendants successfully defending the claim at trial.
She further submits that the defence amounts to an inherently glaring abuse
of process warranting summary judgment for possession and mesne profits
without trial.
32. It was further submitted that the suit ought to be treated as a
commercial suit in substance. It is further submitted that the issues were
never framed in the present suit and as such, the bar in the proviso to Rule 2
of Order XIII-A does not apply. She submits that after the original plaint
was returned and represented, the same must be treated as a fresh, de novo
suit requiring pleadings to be filed afresh followed by framing of issues. It
is, thus, contended that the order dated 30.04.2014 cannot be relied upon by
the defendants to contend that the issues already stand framed inasmuch as
the said exercise is required to be carried out afresh after the plaint was
returned.
33. Mr. Ankit Jain, learned senior counsel for the defendants has
submitted that Order XIII-A is not applicable to the present suit inasmuch as
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the instant suit was never instituted/registered or treated as a commercial suit
at any point of time. It is further submitted that the application is barred by
the proviso to Rule 2 of Order XIII-A inasmuch as issues were framed on
30.04.2014. He submits that the Trust’s own application dated 05.03.2016
admits as much. He also relies upon the order dated 03.09.2019 passed in
the present suit by the predecessor Bench (presided over by Hon’ble Mr.
Justice V. Kameswar Rao) which records that issues stand framed.
34. On merits, he submits that the present application is the third attempt
on the part of the Trust to obtain a decree without trial on pleas already
found to raise triable issues. It is further submitted that the receipt and
encashment of the cheque of Rs.5,00,000/- is admitted and that the Trial
Court’s findings while disposing of the earlier application under Order XII
Rule 6, to the effect that the explanation offered by the Trust in this regard
“does not appeal to reason”, undermine the present application as well.
Reliance has been placed by the learned senior counsel for the defendants on
Hari Steel and General Industries Limited v. Daljit Singh , (2019) 20 SCC
425. The relevant observations therein are as under:
“26. In the judgment in S.M. Asif v. Virender Kumar Bajaj, this
Court has held that the power under Order 12 Rule 6 CPC is
discretionary and cannot be claimed as a right. It is further held in
the aforesaid case that where the defendants have raised
objections, which go to the root of the case, it would not be
appropriate to exercise discretion under Order 12 Rule 6 CPC.
…..
29. By applying the ratio laid down by this Court in the aforesaid
judgments, it is to be held that there are no categorical and
unconditional admissions, as claimed by the respondent-plaintiffs.
In view of the stand of the appellants that, pp. 3 and 4 of the
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agreement dated 3-5-2005 are tampered and their signatures are
fabricated, when specific issue is already framed, it cannot be said
that there are categorical and unconditional admissions by the
appellants. Mere admission of entering into arrangement/contract
on 7-4-2005 and 3-5-2005 itself cannot be considered in isolation,
without considering the further objections of the appellants that
certain pages in the agreement are fabricated. In case the
appellants prove that the agreement is fabricated as claimed, post-
trial it goes to the root of the case on the claim of the respondent-
plaintiffs.”
THE STATUTORY SCHEME
35. Order XIII-A was introduced by the Schedule to the Commercial
Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015 (now the Commercial Courts Act, 2015). Its scope is fixed
by Section 16 of that Act, which reads as under:
“16. Amendments to the Code of Civil Procedure, 1908 in its
application to commercial disputes.—(1) The provisions of the Code
of Civil Procedure, 1908 shall, in their application to any suit in
respect of a commercial dispute of a Specified Value, stand amended
in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow the
provisions of the Code of Civil Procedure, 1908, as amended by this
Act, in the trial of a suit in respect of a commercial dispute of a
Specified Value.
(3) Where any provision of any Rule of the jurisdictional High Court
or any amendment to the Code of Civil Procedure, 1908, by the State
Government is in conflict with the provisions of the Code of Civil
Procedure, 1908, as amended by this Act, the provisions of the Code
of Civil Procedure, 1908, as amended by this Act shall prevail.”
36. Rule 1(1) of Order XIII-A confines the said Order to the very same
field, inasmuch as it provides that “This Order sets out the procedure by
which Courts may decide a claim pertaining to any Commercial Dispute
without recording oral evidence”. Rule 2 fixes the stage at which an
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application may be made, and reads as under:
“2. Stage for application for summary judgment.—An applicant may
apply for summary judgment at any time after summons has been
served on the defendant:
Provided that no application for summary judgment may be made by
such applicant after the Court has framed the issues in respect of the
suit.”
37. Rule 3 sets out the grounds upon which such a judgment may be
rendered, and reads as under:
“3. Grounds for summary judgment.—The Court may give a summary
judgment against a plaintiff or defendant on a claim if it considers
that—
(a) the plaintiff has no real prospect of succeeding on the claim or the
defendant has no real prospect of successfully defending the claim, as
the case may be; and
(b) there is no other compelling reason why the claim should not be
disposed of before recording of oral evidence.”
38. In Reliance Eminent Trading & Commercial Private Limited v.
Delhi Development Authority , 2026 SCC OnLine SC 744, the Supreme
Court has observed as under:
“42. Rule 2 of Order XIII-A of the CPC observes that
application for summary judgment is time bound and can be
made any time after the summons has been served on the
defendant and before the issues are framed.
*
59. Therefore, while considering an application for summary
judgment under Order XIII-A of the CPC, the following non-
exhaustive guidelines have to be complied-
(i) That the procedural mandate under Order XIII-A, CPC
be strictly complied.
(ii) The Court should consider,
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(a) Whether Plaintiff has no real prospect of succeeding on
the claim or issue; or
(b) Whether the defendant has no real prospect of
successfully defending the claim or issue; and
(iii) The Court should also consider whether there is no
other reason why the case or issue(s) should be allowed to
go to trial.
(iv) While ascertaining above, the Court does not have to
take everything on the face value, but it must also not
conduct a mini trial at the same time.
(v) That the Court has to differentiate between a cause of
action/defence respectively, which is real as opposed to
fanciful prospect.
(vi) That the Court ought to grasp the nettle, when dealing
with the summary judgment applications to decide short
points of law and interpretations.
(vii) The Court must take into account not only the
evidence before it but also the evidence that can
reasonably be expected to be led/available at the trial.
(viii) That the Court's usage of power under Order XIII-A,
CPC is exceptional as it cuts short the process of trial and
ought to be exercised where oral evidence and full trial is
not required.
(ix) In order to ascertain the need for full trial over
summary judgment, the Court has to see whether, in the
interest of justice, it is more suited to conduct trial to -
(a) Weigh the evidence,
(b) Evaluate the credibility of a deponents,
(c) Draw reasonable inferences from the evidence.”
39. A Division Bench of this Court in Bright Enterprises Private Limited
v. MJ Bizcraft LLP &Anr. , 2017 SCC OnLine Del 6394, has held as under:
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“20. We may also point out that there is a clear distinction between
‘return of a plaint’, ‘rejection of a plaint’ and ‘dismissal of a suit’.
These three concepts have different consequences. A dismissal of a
suit would necessarily result in a subsequent suit being barred by the
principles of res judicata, whereas this would not be the case
involving ‘return of a plaint’ or ‘rejection of a plaint’. What the
learned Single Judge has done is to have dismissed the suit of the
appellants/plaintiffs at the admission stage itself without issuance of
summons and this, we are afraid, is contrary to the provisions of the
statute.
21. Apart from this, we are of the view that the learned Single Judge
has gone wrong in invoking the provisions of Order XIIIA CPC for
rendering a summary judgment. It is true that Rule 3 of Order XIIIA
CPC empowers the Court to give a summary judgment against a
plaintiff or defendant on a claim if it considers that - (a) the plaintiff
has no real prospect of succeeding on the claim or the defendant has
no real prospect of successfully defending the claim, as the case may
be; and (b) there is no other compelling reason why the claim should
not be disposed of before recording of oral evidence. But, in our view,
this power can only be exercised upon an application at any date only
after summons have been served on the defendant and not after the
Court has framed issues in the suit. In other words, Order XIIIA Rule
2 makes a clear stipulation with regard to the stage for application for
summary judgment. The window for summary judgment is after the
service of summons on the defendant and prior to the Court framing
issues in the suit.”
REASONING AND CONCLUSION
Order XIII-A Cannot Be Invoked In The Present Suit
40. Admittedly, Order XIII-A does not form part of the Code of Civil
Procedure, 1908 as ordinarily applicable. It was inserted by the Schedule to
the Commercial Courts Act, 2015; and by virtue of Section 16(1) of that
Act, the provisions of the CPC stand amended in the manner specified in the
Schedule only “in their application to any suit in respect of a commercial
dispute of a Specified Value”. In relation to a suit of any other description,
the CPC applies unamended, and the unamended CPC does not contain
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Order XIII-A at all. Rule 1(1) of Order XIII-A is to precisely the same
effect, providing in terms that the said Order “sets out the procedure by
which Courts may decide a claim pertaining to any Commercial Dispute
without recording oral evidence” .
41. In the above backdrop, it is evident that the provisions of Order XIII-
A are not applicable at all and that it is, thus, impermissible for plaintiff
no.1/Trust to invoke the same. The present suit was instituted on
31.07.2000, i.e. more than fifteen years before the Commercial Courts Act,
2015 came into force, and it has never been instituted, registered, numbered
or treated as a commercial suit at any stage. No application under Section 15
of the Commercial Courts Act, 2015 seeking transfer of the suit to the
Commercial Division of this Court has ever been made. Even the application
does not plead that the suit is in respect of any commercial dispute of a
specified value within the meaning of Sections 2(1)(c) read with 2(1)(i) of
the said Act.
42. In the written submissions filed on behalf of plaintiff no.1/Trust, it is
contended that the provisions of the Commercial Courts Act, 2015 apply
“from the date of transfer of the suit to the Commercial Division”, and that
“the suit was transferred pursuant to order dated 03.02.2018”.
43. The aforesaid submission of the plaintiff proceeds upon a
misunderstanding. The only order of transfer on the record of either suit is
the order dated 03.12.2018 passed in TR.P.(C.) 225/2018, upon a petition
presented by plaintiff no.1/Trust itself. By that order, this Court transferred
Civil Suit No. 57679/2016 (that is to say, the connected suit for specific
performance) from the Court of the learned Additional District Judge-05,
Patiala House Courts, New Delhi to this Court to be tried along with CS(OS)
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No.574/2018, further directing that the latter suit shall be treated as the lead
suit. The transfer so effected was to the ordinary original civil jurisdiction of
this Court. The order makes no reference to the Commercial Division, nor
was Section 15 of the Commercial Courts Act, 2015 invoked before or
applied by this Court. It may be noticed that the relief sought by plaintiff
no.1/Trust in the said transfer petition was itself in those very terms, namely
that the suit be transferred to this Court and be tried in this Court with
CS(OS) No.574/2018. Learned counsel for both sides thereupon informed
the Court that one suit was for specific performance and the other for
possession; neither suggested that either suit be treated as a commercial
dispute.
44. Reliance placed in the said written submissions upon the Notification
dated 24.11.2015 is equally misconceived. It is contended that the said
notification directs that all suits valued above the prescribed threshold,
whether pending or instituted on the Original Side of this Court, shall stand
transferred to and be adjudicated by the Commercial Division. Notification
No. 27187/DHC/Orgl. dated 24.11.2015 does nothing of the kind. It was
issued under Section 4 of the Delhi High Court (Amendment) Act, 2015
(Act 23 of 2015), and concerns the ordinary original civil pecuniary
jurisdiction of this Court. It does not direct the transfer of any suit to the
Commercial Division. It was, inter alia , pursuant to that very notification
that CS(OS) 666/2003 came to be transferred out of this Court to the District
Court by order dated 09.12.2015.
45. Whatever be the character of the underlying dispute, the amendments
effected to the CPC by the Schedule to the Commercial Courts Act, 2015
have never been attracted to this suit. A suit does not become subject to the
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amended CPC by reason only of the nature of the dispute it raises; it
becomes so subject when it is instituted in, or transferred to and registered
in, the Commercial Division. Until that occurs, the suit continues as an
ordinary civil suit governed by the unamended Code, and no remedy created
by the Schedule, including the remedy of summary judgment under Order
XIII-A, is available in it.
46. It is unnecessary, in this view of the matter, to enter upon the question
whether the dispute raised in the present suit answers the description
contained in Section 2(1)(c)(vii) of the Commercial Courts Act, 2015, which
brings within the definition only disputes arising out of “agreements
relating to immovable property used exclusively in trade or commerce” .
That question does not arise for determination, and nothing stated herein
shall be construed as an expression of opinion upon it.
47. It is, in any event, not open to the Trust to shift its position at this
distance of time. Paragraph 12 of the plaint in CS(OS) 574/2018, as verified
by Shri O.P. Bhandula (the very deponent who has affirmed the affidavit in
support of the present application) states in terms: “This is not a commercial
matter” . The Trust having itself pleaded, on affidavit, that the suit is not a
commercial matter, and the suit having been entertained, registered and
prosecuted on that footing for close to eight years, it is not open to the Trust
to now contend that the suit ought to be treated as a commercial suit in
substance for the limited purpose of attracting Order XIII-A. The law does
not permit a person to both approbate and reprobate; a party cannot say at
one time that a matter is of one description in order to obtain an advantage
available only on that footing, and at another time say that it is of a different
description for the purpose of securing some further advantage.
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48. In the above circumstances, it is evident that the present application
under Order XIII-A CPC is not maintainable and is liable to be dismissed on
this ground alone.
Application is even otherwise impermissible in terms of Rule 2 of Order
XIII-A
49. Rule 2 of Order XIII-A confines an application for summary
judgment to the period after the service of summons and before the framing
of issues. The Division Bench in Bright Enterprises (supra) held that this
window is a clear stipulation which must be followed scrupulously. The
relevant observations are as under:
“20. We may also point out that there is a clear distinction between
‘return of a plaint’, ‘rejection of a plaint’ and ‘dismissal of a suit’.
These three concepts have different consequences. A dismissal of a
suit would necessarily result in a subsequent suit being barred by the
principles of res judicata, whereas this would not be the case
involving ‘return of a plaint’ or ‘rejection of a plaint’. What the
learned Single Judge has done is to have dismissed the suit of the
appellants/plaintiffs at the admission stage itself without issuance of
summons and this, we are afraid, is contrary to the provisions of the
statute.
21. Apart from this, we are of the view that the learned Single Judge
has gone wrong in invoking the provisions of Order XIIIA CPC for
rendering a summary judgment. It is true that Rule 3 of Order XIIIA
CPC empowers the Court to give a summary judgment against a
plaintiff or defendant on a claim if it considers that - (a) the plaintiff
has no real prospect of succeeding on the claim or the defendant has
no real prospect of successfully defending the claim, as the case may
be; and (b) there is no other compelling reason why the claim should
not be disposed of before recording of oral evidence. But, in our view,
this power can only be exercised upon an application at any date only
after summons have been served on the defendant and not after the
Court has framed issues in the suit. In other words, Order XIIIA Rule
2 makes a clear stipulation with regard to the stage for application for
summary judgment. The window for summary judgment is after the
service of summons on the defendant and prior to the Court framing
issues in the suit.”
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50. In Reliance Eminent (supra), the Supreme Court has clearly held that
an application under Order XIII-A is “time bound” and has directed that the
procedural mandate of the said Order is required to be strictly complied
with. The proviso to Rule 2 is thus a condition upon the very maintainability
of such an application, and not a matter of discretion.
51. In the present case, issues were framed on 30.04.2014, as is evident
from a perusal of the said order, a certified copy whereof has been placed on
record by the defendants along with IA No. 10647/2026. The same is also
evident from the averments made in the Trust’s own application dated
05.03.2016 seeking revival of the suit after it had been adjourned sine die ,
wherein it was stated in terms that ‘Issues in the suit were framed on
30.04.2014’ and that ‘the matter is at pre-trial stage’.
52. The significance of that averment can hardly be overemphasized. In
the very application by which it sought, (and on 30.07.2016 obtained), the
revival of its suit, the Trust stated in terms, and as the opening averments of
that application, that “Issues in the suit were framed on 30.04.2014” , that
“affidavits of evidence are yet to be filed in the matter and examination of
witnesses has not yet commenced” , and that “the matter is at pre-trial
stage” . It now seeks a decree without trial upon the diametrically opposite
plea that issues were never framed at all. Having placed one position before
a Court in categorical terms, the Trust cannot be heard to assert the contrary.
53. In any event, the question is as to whether the issues stand framed or
not. The law on the effect of return of a plaint under Order VII Rule 10 CPC
was settled by a Three-Judge Bench in M/s. EXL Careers v. Frankfinn
Aviation Services Private Limited , (2020) 12 SCC 667, which approved Oil
and Natural Gas Corporation Ltd. v. M/s. Modern Construction and Co. ,
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(2014) 1 SCC 648. The relevant observations therein are as under:
“15. Modern Construction (supra), referred to the consistent
position in law by reference to Ramdutt Ramkissen Dass v. E.D.
Sassoon & Co., Amar Chand Inani v. Union of
India, Hanamanthappa v. Chandrashekharappa, (1997) 9 SCC
688, Harshad Chimanlal Modi (II) (supra) and after also
noticing Joginder Tuli (supra), arrived at the conclusion as
follows:
“17. Thus, in view of the above, the law on the issue can be
summarised to the effect that if the court where the suit is
instituted, is of the view that it has no jurisdiction, the
plaint is to be returned in view of the provisions of Order 7
Rule 10 CPC and the plaintiff can present it before the
court having competent jurisdiction. … However, after
presentation before the court of competent jurisdiction, the
plaint is to be considered as a fresh plaint and the trial is to
be conducted de novo even if it stood concluded before the
court having no competence to try the same.”
20. The statutory scheme now becomes clear. In cases dealing
with transfer of proceedings from a Court having jurisdiction to
another Court, the discretion vested in the Court by Sections
24(2) and 25(3) either to retry the proceedings or proceed from
the point at which such proceeding was transferred or
withdrawn, is in marked contrast to the scheme under Order VII
Rule 10 read with Rule 10-A where no such discretion is given
and the proceeding has to commence de novo.”
54. However, the conclusion that the Trust seeks to draw from the dicta
laid down in the aforesaid judgment, to the effect that no issues have ever
been framed in the present suit, does not follow, because the record shows
that this Court has taken the present suit through every stage that a fresh suit
passes through, up to and including the framing of issues. On 14.11.2018,
fresh summons were issued to the defendants. The said order, inter alia ,
reads as under:
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55. On 20.12.2018, the defendants were granted time to file their written
statement, which was filed on 05.01.2019; the Trust filed its replication and
on 11.04.2019, the written statement and the defendants’ affidavit of
admission/denial were taken on record. On 21.05.2019, the learned Joint
Registrar recorded that pleadings in the suit were complete, and, upon the
joint submission of the parties, directed that the matter be placed before the
Court for framing of issues/further directions. The said order reads as under:
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56. Thus, the matter was placed before the Court for framing of
issues/further directions on 16.07.2019. The matter was adjourned on
16.07.2019 at the request of the Trust and taken up on 03.09.2019. The order
dated 03.09.2019 records, in terms, that “Issues have been framed in both
the suits on February 04, 2010 and April 13, 2014 respectively” (that is to
say, in CS(OS) 666/2003 by this Court by order dated 04.02.2010, and in the
present suit by the learned Trial Court by order dated 30.04.2014 upon
pleadings which are, in substance, identical). It was further recorded that “no
further developments have taken place”. The Trust was directed to file its
evidence by way of an affidavit within a period of 4 weeks and a Local
Commissioner was appointed, by consent, for recording of evidence.
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57. Thus, the Court adopted the issues which had already been framed on
identical pleadings and paved the way for the recording of evidence. It may
be noted that Order XIV Rule 1(5) of the CPC requires the Court, upon
reading the plaint and the written statement, to ascertain the material
propositions of fact or of law on which the parties are at variance, and
thereupon to frame and record the issues. Order XIV prescribes no particular
form or manner in which that exercise is to be performed; and by virtue of
Order XIV Rule 5, the Court retains the power to amend, frame additional,
or strike out issues at any time before passing a decree. The order dated
03.09.2019 effectively did so. The Trust was duly represented at the hearing
on 03.09.2019 and also consented to the appointment of a Local
Commissioner. It neither objected that issues had not been framed, nor took
recourse to filing of any review/appeal in respect of the order dated
03.09.2019.
58. That the framing of issues on 03.09.2019 took the form of an adoption
of the issues already settled on identical pleadings, rather than a fresh
verbatim recital of them, is of no consequence. It is well settled that the form
in which issues are framed is not decisive; what matters is whether the
parties went to trial knowing the rival case which each had to meet. In
Nedunuri Kameswaramma v. Sampati Subba Rao ,1962 SCC OnLine SC
41, the Supreme Court observed that where the parties went to trial fully
knowing the rival case and led all the evidence not only in support of their
contentions but in refutation of those of the other side, it cannot be said that
the absence of an issue was fatal to the case, or that there was that mistrial
which vitiates proceedings. The relevant portion is reproduced hereunder:
“5. ….Though the appellant had not mentioned a Karnikam service
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inam, parties well understood that the two cases opposed to each
other were of Dharmila Sarvadumbalainam as against a Karnikam
service inam. The evidence which has been led in the case clearly
showed that the respondent attempted to prove that this was a
Dharmila inam and to refute that this was a Karnikam service
inam. No doubt, no issue was framed, and the one, which was
framed, could have been more elaborate; but since the parties went
to trial fully knowing the rival case and led all the evidence not
only in support of their contentions but in refutation of those of the
other side, it cannot be said that the absence of an issue was fatal
to the case, or that there was that mistrial which vitiates
proceedings.”
If the complete absence of an issue is not fatal where the parties are alive to
the controversy, it must follow a fortiori that the adoption, by a judicial
order passed in the presence of both sides, of issues already framed on
identical pleadings in the connected suit is a valid discharge of the
obligation cast by Order XIV. The submission to the contrary would elevate
form over substance in a manner which the Code does not countenance.
59. The rule in EXL Careers (supra) is that upon return of a plaint the
proceeding must commence de novo . That is precisely what occurred here.
Fresh summons issued on 14.11.2018; a fresh written statement was filed on
05.01.2019; a replication followed; admission/denial was completed on
11.04.2019; pleadings were declared complete on 21.05.2019; and the
matter was thereupon placed before the Court for framing of issues. The de
novo mandate was therefore fully worked out, and it culminated in the order
dated 03.09.2019. The Trust cannot invoke the de novo rule in order to
obtain the benefit of a fresh trial and simultaneously contend that the stage
which that fresh trial had reached by 03.09.2019 never arrived at all. Every
antecedent stage was gone through afresh, and it was only upon reaching, in
the fresh proceeding, the stage contemplated by Order XIV that the Court
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settled the issues arising upon the pleadings then before it. That those issues
were identical in substance to the ones earlier framed is a consequence of the
pleadings being identical, and not of any stage having been carried over.
60. The judgment in Vogel Media International GmbH (supra), upon
which the learned Additional District Judge founded the direction contained
in the order dated 28.05.2018 (whereby, as noticed in paragraph 20 above,
the plaint then pending as Suit No. 1013/2008 was returned for presentation
before the Court of competent pecuniary jurisdiction, consequent upon the
Trust’s own application enhancing the valuation of the suit) does not carry
the case of the plaintiff no.1/Trust any further. That judgment was invoked
for the limited proposition that upon such return the plaint is to be re-
presented before the Court of competent jurisdiction and the suit thereafter
tried de novo . It is not concerned with, and says nothing as to, the stage
which the re-presented suit may legitimately reach before the Court of
competent jurisdiction. In the present case, the suit traversed the stage of
pleadings, admission/denial and the framing of issues before this Court. The
order dated 03.09.2019 also appoints a Local Commissioner for recording of
evidence.
61. A party which has conducted itself for nearly seven years on the
footing that the suit stands at the stage of evidence, cannot, at the same time,
for the purpose of this application, assert that the suit stands at the stage of
pleadings.
62. The window under Rule 2 therefore closed at the latest on 03.09.2019
viz. nearly six years before the instant application was filed on 11.07.2025.
Thus, even if Order XIII-A were otherwise available, the application is
outside the stage at which it can be made.
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Dismissal of the earlier Applications under Order-XII Rule 6 and the
findings rendered therein
63. Quite apart from the threshold non-maintainability on account of the
aforementioned circumstances, even otherwise, the application under Order
XIII-A is completely devoid of merits. In this regard, two distinct aspects
arise for consideration. The first is whether the dismissal of the Trust’s
application under Order XII Rule 6 CPC itself bars a later application under
Order XIII-A. The second is as to what bearing the findings recorded in that
dismissal have on the present application.
64. On the first aspect, it is well settled that an application under Order-
XII Rule 6 is required to be founded on an admission which is “clear,
unambiguous and unconditional” . On the other hand, Rule 3 of Order XIII-
A is predicated on whether the defendant has any “real prospect” of success
and whether there is any “compelling reason” for trial. As held by this
Court in Su-Kam Power Systems Ltd. v. Kunwer Sachdev & Anr. , 2019
SCC OnLine Del 10764, the remedy under Order XIII-A is a remedy
1
independent, separate and distinct from a judgment on admissions.
65. Necessarily, the nature of the inquiry for the purpose of an application
under Order-XII Rule 6 is different from the inquiry for the purpose of an
application under Order XIII-A. To that extent, the earlier dismissal of the
plaintiff no.1/Trust’s application under Order XII-Rule 6, does not
necessarily preclude a subsequent application under Order XIII-A. However,
in the factual conspectus of the present case, what is relevant is the import of
1
Su-Kam Power Systems Ltd. v. Kunwer Sachdev &Anr. , 2019 SCC OnLine Del 10764, paragraph 50. “In
fact, the legislative intent behind introducing summary judgment under Order XIIIA of CPC is to provide a
remedy independent, separate and distinct from judgment on admissions and summary judgment under
Order XXXVII of CPC.”
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the findings recorded while dismissing the plaintiff no.1/Trust’s earlier
application under Order-XII Rule 6.
66. While dismissing the application under Order-XII Rule 6 vide order
dated 30.03.2012, the Court did not stop at holding that the admissions were
not unequivocal; the Court went on to observe affirmatively that the
defendants’ pleas gave rise to triable issues: (i) as to whether the plaintiff
had entered into an agreement to sell; (ii) as to whether, upon part payment,
the relationship of landlord and tenant between the parties came to an end;
and (iii) whether the notice of termination survived. It was categorically
observed that these were issues which could not be decided without the
leading of evidence and trial. It was further observed that if the defendants
succeed in proving such issues, the same would disentitle the plaintiff to
obtain a decree of possession. The Court also dealt with the explanation
offered by the Trust for the Rs.5,00,000/- it admittedly received and
observed that the same “does not appeal to reason”.
67. This Court in subsequent proceedings under Article 227 of the
Constitution of India (in CM(M) 514/2012), vide order dated 27.09.2012,
approved the findings rendered by learned ADJ while disposing of the
application under Order-XII Rule 6, holding that the defendants had raised a
triable issue and that no infirmity or illegality attached to the order under
challenge. The Supreme Court, by its order dated 16.12.2013 in SLP (C) No.
5311/2013, also declined to interfere.
68. The above findings result in an irresistible inference that in the
present case, the defence is real and not illusory, and that the case requires
evidence. A determination by a competent court, between the same parties
and in the same suit, affirmed by this Court and left undisturbed by the
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Supreme Court, that the defence raises issues, which cannot be decided
without evidence, clearly negates the very premise of the present
application.
69. In view of the said findings, it is untenable to hold that the defendants
do not have any real prospect of succeeding. It is impermissible for the Trust
to escape the consequences of the findings rendered while adjudicating the
application under Order-XII Rule 6 (affirmed by this Court and left
undisturbed by the Supreme Court), by attaching a different label to the very
same pleas.
70. The decision of the Supreme Court relied upon by the defendants
lends further support to this conclusion. In Hari Steel (supra), on facts
materially similar, it was observed that even an admission, in order to
sustain a judgment without trial, must be clear and categorical, and that
where issues have been framed and the suit has reached the stage of trial, it
is desirable that the contentious issues be adjudicated on merits upon an
appreciation of evidence rather than summarily. The relevant portion reads
as under:
“29. By applying the ratio laid down by this Court in the aforesaid
judgments, it is to be held that there are no categorical and
unconditional admissions, as claimed by the respondent-plaintiffs.
In view of the stand of the appellants that, pp. 3 and 4 of the
agreement dated 3-5-2005 are tampered and their signatures are
fabricated, when specific issue is already framed, it cannot be said
that there are categorical and unconditional admissions by the
appellants. Mere admission of entering into arrangement/contract
on 7-4-2005 and 3-5-2005 itself cannot be considered in isolation,
without considering the further objections of the appellants that
certain pages in the agreement are fabricated. In case the
appellants prove that the agreement is fabricated as claimed, post-
trial it goes to the root of the case on the claim of the respondent-
plaintiffs. Hence, we are of the view that the aforesaid judgments
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fully support the case of the appellants.”
XXX XXX XXX
33. In this case it is to be noted that the suit was filed on 1-11-2006
and written statement was filed on 25-1-2007 and the application
under Order 12 Rule 6 was filed on 9-2-2007. In the year 2010
issues and additional issues were framed and trial is also
commenced. In that view of the matter, there is no reason to pass
the impugned order now for decreeing the suit on claimed
admissions, in exercise of power under Order 12 Rule 6 CPC at
this stage. In view of the serious factual disputes and the defence of
the appellants in the suit, it is not permissible for making roving
inquiry for disposal of the application filed under Order 12 Rule 6
CPC. When the trial is already commenced, it is desirable to record
findings on various contentious issues and disputes in the suit on
merits by appreciating evidence but at the same time there is no
reason or justification to decree the suit at this stage. For the
aforesaid reasons, we are of the view that the impugned judgment
of the High Court cannot be sustained and is liable to be set aside
on this ground alone.”
These observations apply with full force here.
71. The decision in S.M. Asif v. Virender Kumar Bajaj , (2015) 9 SCC
287, was rendered upon facts which are almost indistinguishable from the
present. There too, the tenant admitted the relationship of landlord and
tenant and the terms of the lease, but set up an agreement of sale of the
tenanted premises coupled with the payment of a substantial part of the sale
consideration, and had instituted a separate suit for specific performance.
The Supreme Court, while rejecting the application under Order-XII Rule 6
CPC, observed as under:
“8. The words in Order 12 Rule 6 CPC "may" and "make such order …"
show that the power under Order 12 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 12 Rule
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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.
9. In the suit for eviction filed by the respondent landlord, the appellant
tenant has admitted the relationship of tenancy and the period of lease
agreement; but resisted the respondent-plaintiff's claim by setting up a
defence plea of agreement for 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 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 12 Rule 6 CPC.”
Thus, in an almost identical context, the Supreme Court observed that
a ‘defence plea of agreement for sale’ was required to be duly considered.
It is noted that the threshold under Order XIII-A is also quite exacting
(“no real prospect of successfully defending the claim”). In view of the
factual conspectus, it cannot be said that there is absence of “any other
compelling reason” for trial.
72. The matter may also be tested against the guidelines laid down in
Reliance Eminent (supra). Guideline (ix) requires the Court to consider
whether, in the interest of justice, the matter is better suited to trial in order
to weigh the evidence, evaluate the credibility of the deponents and draw
reasonable inferences from the evidence. The relevant portion is reproduced
as under:
“(ix) In order to ascertain the need for full trial over summary
judgment, the Court has to see whether, in the interest of justice,
it is more suited to conduct trial to -
(a) Weigh the evidence,
(b) Evaluate the credibility of a deponents,
(c) Draw reasonable inferences from the evidence.”
Guideline (viii) further cautions that the power under Order XIII-A is
exceptional, to be exercised where oral evidence and a full trial are not
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required. This is not such a case.
In the present case, the defence set up by the defendants rests on a
pleaded course of dealing. Whether that course of dealing resulted in a
concluded contract is a question of fact which can only be answered on
evidence to be adduced by the parties.
73. In the facts and circumstances, this Court is unable to reach a
conclusion that the suit be disposed of without recording oral evidence
and/or that there is no compelling reason for a trial. It is also relevant that
same/similar questions are the subject matter of CS(OS) 666/2003, in which
the defendants herein, as plaintiffs, have already filed their affidavit of
evidence, and in which PW-1 has been listed for cross-examination on
several occasions. To decree the instant suit summarily while that suit
proceeds to trial on identical facts could invite inconsistent findings between
the same parties on the same transaction, and would defeat the very object
for which the two suits were consolidated by order dated 03.12.2018 and
were thereafter directed to be tried together, with CS(OS) 574/2018 as the
lead suit.
CONCLUSION
74. For the reasons recorded above, it is held that:
(a) The application under Order XIII-A, CPC in CS (OS) 574/2018
is not maintainable and is also outside the relevant stage prescribed by
Rule 2 of Order XIII-A;
(b) the findings rendered by the Court while disposing of the earlier
applications under Order XII Rule 6, as affirmed by this Court and
left undisturbed by the Supreme Court, negate the very premise of the
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present application;
(c) even otherwise, it cannot be said that the defendants have no
real prospect of successfully defending the claim, and it also cannot
be concluded that there is no other compelling reason for a trial.
75. Accordingly, the present application i.e. I.A. 16434/2025, stands
dismissed.
76. CS(OS) 574/2018 shall proceed to trial along with CS(OS) 666/2003,
in terms of the order dated 03.09.2019. The plaintiffs in CS(OS) 574/2018
are directed to file their affidavits of evidence and pay their share of the
Local Commissioner’s fee, within a period of 4 weeks from today.
77. List both the suits before the Joint Registrar (Judicial) for further
directions on 20.11.2026.
SACHIN DATTA, J
OCTOBER 16, 2026 /at/sd
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