LAWS(DLH)-2000-5-100

VED PARKASH Vs. MARUDHAR SERVICES LIMITED

Decided On May 26, 2000
VED PRAKASH Appellant
V/S
MARUDHAR SERVICES LIMITED Respondents

JUDGEMENT

(1.) The plaint contains several prayers, inter alia, for the passing of a decree ofpossession of the property in suit. This prayer is available to the Plaintiff if the monthlyrent of the suit premises is in excess of Rs. 3500.00. and if the tenancy has been validlyterminated. The allegations in the plaint are that the period of lease had expired on31.8.1995 but that Defendant No.2 continued to occupy the premises even thereafter.Hence the tenancy of the Defendants had been terminated vide notice dated 2.3.1998,the receipt of which is admitted by the Defendants. In para 8 of the its WrittenStatement the Defendants have pleaded inter alia, as follows:

(2.) With regard to the prayer for a decree of possession, on a holistic reading of theWritten Statement, it would be fair to hold the Defendant had made an admission withregard io the receipt of notice as well as its legality. Two defences have been putforward, (a) that the lease had been renewed and (b) that the notice had beenwaived. Learned counsel for the Plaintiff has vehemently and vociferously argued theprayer for the passing of a decree of possession under Order XII, Rule 6 ismisconceived because no admissions have been made which would warrant orjustify the grant of this relief. He has submitted that a detailed denial of thesestatements has not been made by the Plaintiff in its Replication. On this failure,Sections 17 and 31 of the Evidence Act are attracted and this being so a trial isnecessary. It is his submission that the estoppel which has come into effect could onlybe dispelled by the Plaintiff leading and adducing evidence to controvert the standadopted by the Defendant. Learned counsel further argues that the details furnishedby the Plaintiff in its Rejoinder to the Defendant's Reply cannot be taken intoconsideration since these details should have been incorporated in the Replicationitself. Learned counsel further submits that a discretion is vested in the Court underOrder X l l Rule 6 and it is not an automatic progression that a Decree will follow evenwhere admission have been made.Order XII Rule 6 reads as under :-

(3.) These provisions make it abundantly clear that if admission of facts have beenmade, the Court can pass such orders and give such judgment as it may think fit.having regard to the admissions. In granting the decree for possession what isexpected to be proved by the Plaintiff? Where the tenancy is governed by theprovisions of Transfer of Property Act, a tenancy come to an end either by efflux oftime or by the issuance of notice to quit if the circumstances so allow. Even if thereceipt of a notice is not in dispute, it is open to the Defendant/tenant to show that it isnot in consonance with the provisions of Transfer of Property Act. Where no suchobjections have been taken, the legitimacy and legality of the notice to quit wouldstand admitted. In the present case this is the admission which the plaintiff seeks torely on, and in my view rightly so. The only illegality which is sought to be broughtforward by the Defendant is that the lease was renewed "for further period with effectfrom August 1997". Taken at its face value this pleading amounts to an admissionthat post August 1997 a tenancy from month to month had come into effect. Thelegality of the notice to quit could have been assailed if it had been pleaded that therenewal was for a period which would have expired after the issuance of the legalnotice to quit. In such a case unless there was a breach of any of the covenantsbetween the party, thereby enabling and empowering the landlord to determine andterminate the lease, which breach was cifically dealt with in the notice to quit, it wouldnot be open to the landlord/Plaintiff to rely on such notice. There is no pleading to thiseffect and, therefore, I am satisfied that an admission as to the legality of the notice toquit must be read into the Written Statement. It would be too pedantic an approach tomaintain that an admission can only be considered to have been made where aparticular party specifically agrees to the correctness of a statement made in pleadingsby the opposite party. The admission must be drawn from the totality of thecircumstances of the case; the Court is not powerless to review the entire defencepresented in the written Statement. It is only in those instances where, from otherattendant facts the Court is of the view that despite the existence of admissionstriable issue have arisen, that its discretion should be exercised. There would be nojustified for the exercise of discretionary powers' where no triable issues havearisen.