MOHAN PRASAD JHA Vs. SHAMBHU PRASAD SINGH

JUDGEMENT

(1.) The present revision petition is filed by the petitioner- plaintiff against the order dated 12.11.1998 passed by the Additional District Judge, Delhi in Suit No. 306/97 dismissing his application filed under Order 12, Rule 6 read with Order 15, Rule I of the Code of Civil Procedure for passing a decree of possession on the basis of admission against the defendant. It is said that the petitioner who is the plaintiff in the suit handed over possession of Flat No. 119, Towar-ll, Supreme Enclave, Mayur Vihar, Phase-1, Delhi to the defendant by an oral agreement on licence fee/ charges for use and occupation @ Rs. 4,500.00 per month exclusive of water and electricity charges. It is alleged in the plaint that the plaintiff failed to pay the aforesaid charges since March, 1996 whereupon the plaintiff served a legal notice dated 21.3.1997 followed by another notice dated 7.5.1997 being notice of demand and notice to quit under Section 106 of the Transfer of Property Act. As the defendant failed to vacate the premises the suit was instituted by the plaintiff for recovery of possession and mesne profit and damages.

(2.) In the written statement filed by the defendant he has given a statement as to how he has come into possession of the aforesaid flat. In the said written statement the defendant has also given the details of the payments made by him to the plaintiff from , time-to-time towards rent and/or charges for use and occupation of the aforesaid premises. According to him the plaintiff accepted rent after issuance the second notice amounting to waiver on the part of the plaintiff. It is also alleged by him that he has made payment towards rent by cash upto June, 2000 and, therefore, the suit is liable to be dismissed. After filing of the aforesaid written statement by the defendant the petitioner-plaintiff filed an application under Order 12, Rule 6 of the Code of Civil Procedure praying for a decree of possession in terms of the admission contained in the written statement. The aforesaid application was put up for arguments and by order dated 12.11.1998 the Additional District Judge dismissed the application holding that there is no clear admission from the side of the defendant in his pleadings. While coming to the aforesaid conclusion the Additional District Judge appears to have been pursuaded by the contention of the defendant that he is challenging the legality of the notice served upon him under Section 106 of the Transfer of Property Act and also by the allegation of the plaintiff that he paid rent to the plaintiff upto June, 2000. Being aggrieved by the aforesaid order passed by the Additional District Judge the plaintiff- petitioner has preferred the present petition.

(3.) I have heard the learned Counsel appearing for the petitioner as also the Counsel appearing for the respondent and propose to dispose of the present petition in the light of the discussion made hereinafter.