Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6098 OF 2021
Mohd. Raza & Anr. ..Appellant (S)
VERSUS
Geeta @ Geeta Devi ..Respondent (S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 14.11.2019 passed by the High
Court of Delhi at New Delhi in Civil Revision Petition No.175
of 2019, by which the High Court has allowed the said civil
revision petition by quashing and setting aside the order
dated 27.07.2019 passed by the learned Trial Court and
consequently passed a decree of eviction on admission under
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.10.04
16:15:24 IST
Reason:
Order XII Rule 6 of CPC, the original defendants have
preferred the present appeal.
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2. The facts leading to the present appeal in nutshell are as
under:
2.1 That the respondent – original plaintiff had instituted Civil
Suit No.805 of 2018 against the original defendants –
appellants herein in the court of Senior Civil Judge, (East)
Karkardooma, Delhi for possession, mandatory injunction,
permanent injunction and mesne profit with respect to the
property bearing No.246/4, Ground Floor, East School Block,
Mandawali, Delhi (hereinafter referred to as the suit
property). It was averred in the plaint that she is the lawful
owner of the suit property since 15.01.2013 and defendant
No.1 is the tenant vide rent agreement dated 14.03.2016,
who illegally sublet the property to defendant No.2 without
any prior intimation to the plaintiff and thus the tenancy of
defendant No.1 has been revoked/terminated by the plaintiff
on 17.07.2018. Thus the plaintiff claimed the ownership and
claimed that original defendant No.1 is the tenant.
2.2 At this stage, it is required to be noted that the defendants
filed the written statement (the contents of the same shall be
dealt with herein below). After the written statement filed on
behalf of the defendants, the plaintiff filed an application
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before the learned Trial Court to pass a decree on admission
under Order XII Rule 6 of CPC on the ground that in the
written statement the defendants have admitted that the
plaintiff is the owner and defendant No.1 is the tenant of the
suit property. The said application was opposed on behalf of
the defendants. A detailed reply was filed under Order XII
Rule 6 of CPC on behalf of the defendants. That thereafter
the learned Trial Court dismissed the said application vide
order dated 27.07.2019 by observing that from the perusal of
written statement filed by the defendants, it is palpably clear
that defendant No.2 did not make any admission regarding
the ownership of the plaintiff and their tenancy in the suit
property.
3. Feeling aggrieved and dissatisfied with the order passed by
the learned Trial Court dated 27.07.2019, dismissing the
application under Order XII Rule 6 of CPC and refusing to
pass the decree on admission, the plaintiff – respondent
herein preferred the revision petition before the High Court.
By the impugned judgment and order, the High Court has
allowed the said revision application and quashed and set
aside the order passed by the learned Trial Court dismissing
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the application under Order XII Rule 6 of CPC and
consequently passed a decree for eviction in favour of the
plaintiff and against the defendants. At this stage, it is
required to be noted that in the written statement, it was the
specific case on behalf of the defendants – appellants herein
that defendant No.2 is the absolute owner of the suit
property and has paid a sum of Rs.19 lakhs to the plaintiff
and therefore she is in possession of the suit property as an
owner. However, it is to be noted that defendant No.2 had
instituted a suit against the plaintiff for specific performance
of the contract/agreement on the basis of which defendant
No.2 is claiming to be the owner of the suit property and the
said suit is still pending.
4. Feeling aggrieved and dissatisfied with the judgment and
order passed by the High Court, the original defendants have
preferred the present appeal.
5. Shri Sanobar Ali, learned counsel appearing on behalf of the
appellants – original defendants, has vehemently submitted
that in the facts and circumstances of the case the High
Court has materially erred in passing a decree on admission
under Order XII Rule 6 of CPC. It is submitted that the High
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Court has failed to appreciate and consider the fact that as
such there was no clear admission on the part of the
defendants that the plaintiff is the owner and that the
defendants/defendant No.1 is the tenant. It is submitted that
therefore in absence of any clear and unambiguous
admission, the plaintiff shall not be entitled to the decree on
admission. Reliance is placed upon the decision of this court
in the case of Himani Alloys Ltd. v. Tata Steel Ltd. reported in
(2011) 15 SCC 273.
5.1 It is further submitted by the learned counsel appearing on
behalf of the appellants that not only there are no specific
admissions on the part of the defendants that the plaintiff is
the owner of the suit property, but it was the specific case on
behalf of defendant No.2 that she is the absolute owner of the
suit property pursuant to the agreement to sell executed by
the plaintiff and that defendant No.2 has paid a sum of Rs.19
lakhs to the plaintiff and therefore she is in possession of the
suit property as an owner.
5.2 It is further submitted by the learned counsel appearing on
behalf of the appellants that even otherwise the substantive
suit filed by defendant No.2 against the plaintiff for specific
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performance of the contract to sell is pending before the
learned Trial Court and that there is an injunction in favour
of defendant No.2 – plaintiff in that suit.
6. The present appeal is vehemently opposed by Shri Harsh
Kumar, learned counsel appearing on behalf of the
respondent – original plaintiff. It is submitted that in the
facts and circumstances of the case and considering the
averments in the written statement, it can be seen that there
is a clear admission on the part of the defendants that the
plaintiff is the owner. He has taken us to the relevant
averments in the written statement filed on behalf of the
defendants – appellants herein.
6.1 It is submitted that it is the case on behalf of the defendants
more particularly defendant No.2 that she is the owner of the
suit property, therefore she is in possession of the suit
property as an owner. It is submitted that defendant no.2 is
claiming the ownership on the basis of the agreement to sell.
It is submitted that agreement to sell does not confer
ownership at all. A person in whose favour agreement to sell
is executed becomes the owner either pursuant to the sale
deed executed by the executor and/or a decree for specific
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performance of the contract has been passed. It is submitted
that even as per the case of defendant No.2 the suit for
specific performance is pending.
6.2 It is submitted that if the written statement as a whole is
considered, in that case there is an admission on the part of
the defendants that plaintiff is the owner and that even the
tenancy in favour of defendant No.1 also has been admitted.
However, it is the case on behalf of defendant No.2 that she
is the owner and as an owner she is in possession which has
no legal basis. It is submitted that therefore in the facts and
circumstances of the case the High Court has rightly passed
a decree on admission under Order XII Rule 6 of CPC.
7. We have heard the learned counsel appearing on behalf of
the respective parties at length.
8. At the outset, it is required to be noted that as such
respondent herein plaintiff filed the suit for possession,
mandatory injunction, permanent injunction and mesne
profit with respect to the property bearing No.246/4, Ground
Floor, East School Block, Mandawali, Delhi against the
defendants – appellants herein, claiming to be the owner of
the suit property and claiming that defendant No.1 is the
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tenant and defendant No.1 has sublet the suit
property/premises in favour of defendant No.2. In the written
statement, it was the case on behalf of the defendants –
appellants herein that defendants are not ‘now’ the tenant of
the plaintiff but the actual owner of the suit property. In
paragraphs 1 to 3, it is stated in the written statement as
under:
1. “That the present suit is not maintainable as the
answering defendants are not now the tenant of
the plaintiff but the actual owner of the suit
property. The plaintiff sold the suit property in
question to the answering defendants for which
some documents were also executed by the
plaintiff in favour of the answering defendant no.
2/Seema Begum on 15.01.2017 and 29.01.2017,
hence the suit of the plaintiff is liable to be
dismissed with heavy cost.
2. That the plaintiff has filed a false and fabricated
suit by concealing the material and true facts of
the case and the plaintiff wants to harass the
answering defendants and to grab the earnest
money of the answering defendants by filing the
present suit. It is submitted that the suit of the
plaintiff is not maintainable in the eye of law
because this matter is not the suit for
possession, mandatory injunction, permanent
injunction and mesne profit between the parties
but it is the matter of the ownership, cheating
and grabbing the money of Rs. 19 Lakhs of the
answering defendant and it is the matter of
compliance the agreement between the parties
which is executed by the plaintiff on 29.01.2017
hence the suit of the plaintiff is liable to be
dismissed with cost.
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3. That it is submitted that the suit property is
absolutely concerned with the defendants. The
defendant no. 2/Seema Begum is absolute owner
of the suit property and she has every right or
interest in the suit property in question. She has
purchased the suit property in question and
other part of the suit property (measuring area
30 sq. yards and 50 sq. yards) and the
defendants had taken the peaceful possession
both part of the suit property from the plaintiff.
The defendant no. 2 has also filed a case/suit for
specific performance of contract, declaration,
eviction and permanent injunction against the
plaintiff which is pending for adjudication before
the Hon'ble Court of Sh. Sanatan Prasad, Ld.
ADJ, East, KKD Courts, Delhi”
Thus from the aforesaid, it is clear that the defendants are
claiming the ownership of the suit property. The defendant
no.2 is claiming to be in possession as an owner and
claiming to be the owner. It can also be seen that the plaintiff
has filed the suit as an owner. It is not in dispute and even it
is the case on behalf of the defendants that defendant No.2
had instituted the suit for specific performance against the
plaintiff with respect to the suit property, meaning thereby
there is a clear cut admission that the plaintiff is the owner.
9. It is to be noted at this stage that defendant No.2 cannot be
said to be the owner as her suit for specific performance is
yet to be decided by the learned Trial Court. Unless and until
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there is a decree passed in her favour and the decree for
specific performance is passed and/or the sale deed is
executed pursuant to such a decree, she cannot be said to be
the owner of the suit property. Till the suit for specific
performance is decided, the plaintiff – respondent herein
continues to be the owner and defendant No.1 – appellant
herein continues to be the tenant. In the written statement in
paragraph 1, it is specifically stated by the defendants that
the defendants are not ‘ ’ the tenant of the plaintiff but
now
the actual owner of the suit property. As observed
hereinabove, till the suit for specific performance is decided
in favour of the defendants, more particularly defendant
No.2, she cannot be said to be the owner and that therefore
the plaintiff – respondent herein continues to be the owner
and defendant No.1 continues to be the tenant. Therefore,
the aforesaid is rightly treated as an admission on behalf of
the defendants with respect to the ownership of the plaintiff
and that defendant No.1 is a tenant. Therefore, the High
Court as such has rightly passed the decree on admission
under Order XII Rule 6 of CPC which in the facts and
circumstances of the case cannot be said to be erroneous.
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However, at the same time, when the substantive suit filed by
defendant No.2 against the plaintiff for specific performance
is pending, it is to be observed that the decree passed by the
High Court by the impugned judgment and order shall
always be subject to the outcome of the said suit filed by
defendant No.2 against the plaintiff and if ultimately she
succeeds in the suit, and a decree for specific performance is
passed and the learned Trial Court passes the decree for
possession (if prayed), then necessary consequences shall
follow and the plaintiff, subject to filing the appeal, shall have
to abide by the decree that may be passed in the suit for
specific performance. It also goes without saying that any
injunction granted by the learned Trial Court in the suit filed
by defendant No.2 for specific performance of the contract
shall also not be affected unless subsequently the order of
injunction if any in favour of defendant No.2 is modified by
the learned Trial Court.
10. In view of the above and for the reasons stated above, the
present appeal fails and the impugned judgment and order
passed by the High Court is confirmed subject to the
observations made in earlier paragraph No. 9. In the facts
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and circumstances of the case there shall be no order as to
costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(A. S. BOPANNA)
New Delhi,
th
October 4 , 2021
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