DELHI HIGH COURT
SINGLE BENCH
( Before : M.L. Mehta, J )
DEEPAK RASTOGI Vs. M/S FLEXI RESOURCE SOLUTION PVT. LTD.
C.R.P. 201 of 2010
Decided on : 23-07-2012
Civil Procedure Code, 1908 (CPC) – Order 12 Rule 6, Order 39 Rule 6, Section 115
Companies Act, 1956 – Section 51
JUDGMENT
M.L. Mehta, J.—The present revision petition has been filed u/s 115 CPC (CPC) against the order dated 27.11.2010 passed by ld. Civil Judge, whereby the application of the petitioner under Order 12 Rule 6 CPC for decree of possession was dismissed. The brief facts of the case are that the mother of the petitioner, Vijaylaxmi Rastogi executed a lease deed dated 11.09.2004 in favor of the respondent company in respect of her property no. 609, Madhuban, 55, Nehru Place, New Delhi (hereinafter referred as suit premises) for a period of three years. Late Vijaylaxmi Rastogi bequeathed the suit premises to the petitioner by way of Will dated 17.02.2007. Upon expiry of the period of lease in September 2007, the petitioner allegedly sent a legal notice dated 05.12.2007 to the respondent, calling for vacating the suit premises. The petitioner then proceeded to file a suit for possession, mesne profits and damages against the respondent, presently pending in the Court of ld. Civil Judge. The respondent filed the written statement along with various objections regarding the maintainability of the suit and out rightly denied the receipt of legal notice. The petitioner then moved an application under Order 39 Rule 6 of CPC wherein the respondent was directed by the court vide order dated 15.12.2009 to pay the arrears of admitted rent from January 2008 and also the rent on monthly basis till the disposal of the suit.
2. The petitioner then moved an application under Order 12 Rule 6 CPC before the ld. Civil Judge for a decree on admission. It was claimed by the petitioner that although the respondent has denied the receipt of legal notice, but the fact of tenancy has not been denied and based on the presumption which is drawn in regard to delivery of legal notice, the respondent should be deemed to have received the legal notice and prayed for a decree of possession. Dismissing the said application, the ld. Civil Judge observed that there has never been any admission on behalf of the respondent regarding receipt of legal notice. It was concluded by the ld. Civil Judge that admission must be made either orally or in writing and cannot be presumed by mere sending a legal notice without any proof of its service.
3. The said order has been challenged by the learned counsel for petitioner on the ground that the trial Court failed to appreciate that non- filing of certificate from Department of Posts is not fatal as the regd. A.D. and U.P.C. was placed on record by him to prove the fact of service of notice to the respondent. Attention has also been drawn towards Section 51 of the Companies Act to prove that the documents are deemed to be validly served by sending them to the registered office of the company. The learned counsel for the petitioner has relied upon Hill Elliott and Co. Ltd. Vs. Shri Bhupinder Singh, ) and Abhinav Outsourcing Pvt. Ltd. Vs. Sunita Seth, among others, to emphasize the fact that judgment on admission can be passed when a valid notice terminating the tenancy after expiry of the lease period is duly served upon the tenant.
4. On the other hand, the learned counsel for the respondent has urged that nothing has been adduced by the petitioner to prove the service of legal notice and hence no admission regarding termination of tenancy can be presumed to have been made by the respondent. It has been further submitted that admission must be made in unambiguous terms by a party in order to facilitate the passing of judgment under Order 12 Rule 6 CPC, which is absent in the present case and hence the order of the ld. Civil Judge declining the application for judgment on admission, confirms to the legislative intent.
5. I have heard the rival submissions and perused the record.
6. The present case raises a short question of law that whether mere sending of a legal notice, without any proof of its service, can be deemed to constitute valid admission of the fact of termination of tenancy by the defendant? And whether a judgment under Order 12 Rule 6 CPC can be passed on the presumption of service of legal notice in the absence of any oral or written admission by a party?
7. Order 12 Rule 6 CPC is enacted for the purpose of expediting the trials; if there is any admission on behalf of the defendant or an admission can be inferred from the facts and circumstances of the case without any dispute. The said rule is an enabling provision which confers discretion on the Court to deliver a speedy judgment on admission and to the extent of the claim admitted by one of the parties of his opponent’s claim. However, a judgment on admission is not a matter of right and rather is a matter of discretion of the Court and is neither mandatory nor it is peremptory. This rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it, to succeed. Elucidating on the scope of Order 12 Rule 6 CPC, this Court in State Bank of India Vs. Midland Industries and Others, , held thus:
There is no doubt that Rule 6 of Order 12 has been couched in a very wide language. However, before a court can act under Rule 6, admission must be clear, unambiguous, unconditional and unequivocal. Furthermore a judgment on admission by the defendant under Order 12 rule 6 CPC is not a matter of right and rather is a matter of discretion of the court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of or a motion under this rule the court is free to refuse exercising discretion in favor of the party invoking it. It is not in each case where Order 12 rule 6 CPC is invoked that the court would be obliged to pass a decree which case would depend upon its own peculiar facts. Where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the plaintiff. The purpose of Order 12 rule 6 CPC is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of Order 12 rule 6 CPC without proving those issues.
8. Now, let us proceed to examine whether in the light of the facts and circumstances of the present case, the ld. Civil Judge was within its jurisdiction to dismiss the application of the petitioner for a judgment on admission or not. From the perusal of the record, it is evident that there is no admission by the respondent regarding even the receipt of legal notice, let alone its contents. The regd. A.D. and U.P.C. placed on record by the petitioner are no doubt a conclusive proof of sending of notice by the petitioner, but cannot be deemed to be a proof of the respondent receiving the same. There is no endorsement by the postal department to the effect of receipt of the notice by the respondent. The petitioner has sought a decree of eviction on the ground of a legal notice sent by him. Naturally, the procedure laid in the statutes cannot be simplified and moulded to such an extent that would amount to miscarriage of justice. If mere sending of legal notice terminating the tenancy by the landlord would be deemed to be constituted as admission of its receipt and contents by the tenant, then the legislations regulating the eviction procedures are an exercise in vain.
9. Admission cannot be imposed on the parties to a suit and it has to be made without any room for misinterpretation. As stated above, it must be clear, unambiguous, unconditional and unequivocal. In the instant case, there is no admission at all by the respondent. The petitioner has miserably failed to prove the fact that the notice was ever served on the respondent. If the receipt of legal notice by the respondent has not been proved, then how can it be assumed that an admission regarding termination of the tenancy has been made by the respondent? There is no doubt that Section 51 of the Companies Act defines the mode of service of documents on a company, but in the present case, the legal notice has been returned ‘unclaimed’ and hence does not constitute valid service. The petitioner has attempted to elicit a decree of eviction by hoodwinking the Court and twisting the settled legal position in his favor. There is absolutely no iota of evidence to show that any admission regarding the determination of tenancy or receipt of notice has ever been made by the respondent. Undisputedly, the contention of the petitioner that he is entitled to a judgment on admission, is untenable.
10. In the case of Hill Elliott & Co. Ltd. vs. Bhupinder Singh (supra) and Abhinav Outsourcing Pvt. Ltd. vs. Sunita Seth (supra), there was valid service of notice terminating the tenancy, proved by the confirmation given by postal authorities and hence the admission was inferred by the Courts. Clearly, there is absence of any proof of service of the legal notice and hence no presumption can be drawn regarding the admission of determination of tenancy by the respondent. The cases relied upon by the petitioner being distinguishable on facts, are of no help to the petitioner. In view of the above discussion, I am of the considerate opinion that the order passed by the ld. Civil Judge, to which the petitioner has taken an exception, is based on sound reasoning and correct appreciation of material on record and requires no interference. I find no illegality or perversity in the impugned order. Keeping in mind the false and frivolous plea taken up by the petitioner twice in a row, I am of the opinion that ends of justice would be met by imposing a cost of Rs. 5000/- on the petitioner. The petition being without any merit is hereby dismissed.
(2012) 191 DLT 535 : (2012) 6 ILR(Delhi) 693 : (2012) 59 RCR(Civil) 705
