Vinay Kumar v. Sushil Kumar Jain

order dated

2.2.2009 disbelieved defence of the appellant.

¶11Learned counsel for the appellant Mr. Nalin Tripathi argues that in the absence of any clear, unequivocal unconditional admission on the part appellant, lower courts erred in passing a decree on an application under Order 12 Rule 6 CPC and the order of the appellate court is unmindful as it is based upon non-application of mind.

¶12He has referred to Kalavakruti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy -

(1999) 7 see 114 to emphasise that appellant is entitled to an opportunity to prove his defence, even on a contract based upon an oral agreement and even if it is assumed that appellant was not able to succeed in obtaining a decree of specific performance, he is entitled to prove the payment of advance to the respondent so as to get the refund or claim adjustment.

¶13I do not find any force in these submissions in view Page 5 of8 of the admitted facts of the parties.

¶14Learned counsel submits respondent has to prove his own case to obtain a decree even though the appellant is proceeded ex-parte or has no defence and therefore, according to him the suit for possession filed by the respondent was not maintainable in the absence of declaration of title.

¶15The trial court as well as the appellate court were right in taking note of clear, unequivocal unconditional admission on part of appellant. As already pointed out above, relationship of landlord and tenant between parties is admitted. The rate of rent of Rs.6500/- as agreed between parties from date of tenancy i.e. August 2003 is also an admitted fact. It is also not disputed after January, 2006, had stopped making payment of rent. There is clear admission on the part the appellant he received a notice of termination of his tenancy on 5.6.2007. This notice was duly replied by him on 7.7.2007. Under these circumstances, Page 6 of8 Kalavakruti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy (supra) is of no help.

¶16The second limb of argument about appellant being ex-parte is irrelevant as application under Order 12 Rule 6 CPC was duly contested by the appellant.

¶17The only defence which was raised by the appellant was that he entered into an oral agreement to sell on 30.1.2006 and paid a sum of Rs.3 lacs as Bayana in cash and agreed to pay remaining amount of Rs.25 lacs subsequently.

¶18It is pertinent that suit of the appellant for specific performance of the oral agreement to sell was dismissed by this Court. In the said suit, his statement under Order CPC recorded wherein he made the above narrated admissions. The trial took into consideration said statement as well. The courts below also took into consideration the judgment and order of this Court passed in the suit for specific performance, which was dismissed. Under these circumstances, I do not find any error committed by the trial court or the first appellate court, in law. Page 7 of8

¶19As regards claim of the appellant for Rs.3 lacs paid as Bayana, the case of the respondent for recovery of arrears of rent and damages/mesne profits is still pending adjudication. For that purpose, therefore, the appellant is entitled to lead his evidence to prove that he paid Rs.3 lacs as Bayana money and can claim adjustment of the same.

¶20Under these circumstances, the questions of law as formulated in para 4 of the appeal do not arise. In fact no substantial question of law is involved.

¶21Hence, I find no merits in the appeal. The same is accordingly dismissed. August 18, 2009 jk (ARUNA SURESH) JUDGE Page 8 of8

* HIGH COURT OF DELHI AT NEW DELHI + Date of decision : August 12, 2009 VINAY KUIVIAR Appellant Through : Mr. Nalin Tripathi, Adv. Versus DR. SUSHIL KUMARJAIN Respondent Through : Mr. Sanjeev Sabharwal, Adv. with Mr. Alok Singh, Adv. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? I U D G M E N T ARUNA SURESH. I. (Oral) CM 11141/2009 (exemption) Exemption allowed, subject to just exceptions. Application stands disposed of. & CM 11140/2009 1. Notice of the appeal be issued to the respondent. Page 1 of8 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 2. Mr. Sanjeev Sabharwal, Advocate accepts notice on behalf of the respondent. 3. Arguments heard on formulation of substantial question of law and admission of appeal. 4. Impugned in this appeal is the judgment and decree of the learned ADJ dated 16.7.2009 whereby appeal of the appellant against the judgment decree trial whereby a decree possession under Order 12 Rule 6 CPC was passed against the appellant, was dismissed. 5. Respondent being owner landlord of property bearing No.186, Pocket C, 2"'' Floor, Sidharth Extension, New Delhi, admeasuring 75.86 sq. metres, rented out the said property to the by way of an oral tenancy @6500/- per month in August 2003, tenancy being month to month tenancy. Since appellant was in arrears of rent after January 2006, the respondent terminated his tenancy, vide notice of termination dated 4.6.2007. This notice duly replied by the on 7.7.2007. Since failed to vacate premises, respondent filed a suit Page 2 of8 z Sv possession as well as for arrears of rent/dannages against the appellant. 6. Appellant contested the said suit claiming himself to be the purchaser of the said property by way of an oral agreement to sell dated 30.1.2006 a consideration amount of Rs.28 lacs, out of which, he claimed he paid Rs.3 lacs as Bayana therefore, he stopped making payment of rent to the respondent as agreed between them. The trial taking into consideration admission that he was inducted as a tenant in the suit premises by way of an oral tenancy @6500/- per month also that he received notice of termination of tenancy replied by him, pleased to grant a decree for possession on an application on the respondent filed under Order 12 Rule 6 CPC. Appellant filed an appeal against the order of the civil judge dated 22.4.2009. The said appeal was also dismissed. 7. Assailing the judgment and decree of the appellate court dated 16.7.2009, this appeal has been filed. 8. Appellant had filed a suit for specific performance of Page 3 of8 V the oral agreement to sell In this Court. However, said suit dismissed by Court on 2.2.2009 with the observations that no plea of oral agreement and payment of cash without a receipt as a part consideration for transfer of immovable property could be accepted. 9. Appellant claims that he has filed an appeal against the judgment and decree of this Court whereby his suit for specific performance was dismissed. Be as it may, cannot be a basis consideration of this appeal, as relationship of landlord tenant between parties is admitted. 10. The appellate while dismissing appeal noted three relevant facts. They are: "1) The had admitted the relationship of landlord and tenant along with the fact that he had received the notice of termination of tenancy had paid rent up to January 2006 in its written statement. 2) That as the trial was competent to pass a decree of possession without any trial, even without asking plaintiff to lead evidence, simply on the basis of the pleading, document other admission. There no defence available with which Page 4 of8 goes to the root of the matter requires trial. 3) Considering there categorical, unequivocal and specific admission on the part of appellant