1 IN THE COURT OF SH. HASAN ANZAR, LD ADJ-06 WEST DISTRICT,TIS HAZARI COURTS, DELHI RCA No. 134/18 Smt. [ENTITY] W/o Sh Aslam R/o NA-207, Ground Floor, Vishnu Garden, New Delhi-110018 Appellant Versus Smt. [ENTITY] W/o Late Sh Gurmeet Singh R/o NA-207, Ground Floor, Vishnu Garden, New Delhi-110018 Respondent Date of Institution: 15.12.2017 Date reserved for Order: 29.10.2018 Date of Order: 31.10.2018 JUDGMENT
1. Appellant/defendant has assailed the judgment and decree dated 20.11.2017 whereby Ld Civil Judge has allowed the application under [SECTION] [ACT] filed by plaintiff by decreeing the suit for possession filed by Plaintiff. Appellant has also impugned separate order dated 20.11.2017 passed in respect of an application under [SECTION] [ACT] whereby application filed by defendant was dismissed.
2. Dismissal of an application under [SECTION] [ACT] does not result into passing of any decree and thus same cannot be challenged under [SECTION] [ACT] read with [SECTION] [ACT] as the appeal is a remedy provided by a statute and [SECTION] [ACT] only provides for an appeal arising out of original decree. [SECTION] [ACT] provides for filing of an appeal in respect of interim order/interlocutory order before an appellate court and rejection of an application under [SECTION] [ACT] does not fall under [SECTION] [ACT]. Hence, challenge to an order dismissing an application for rejection of plaint is not appealable order and thus, appeal filed by Defendant/Appellant against order dated 20.11.2017 whereby application for rejection of plaint is dismissed is not maintainable and thus, appeal to this extent stands dismissed.
3. Plaintiff/Respondent has instituted suit for possession, recovery of arrears of rent and damages (however on 09.12.2015, plaintiff gave up the prayer for recovery of arrears of rent). It is the case of the plaintiff that she is the owner of the property bearing no. NA-207, Vishnu Garden, New Delhi-18. The defendant was inducted as a tenant in the ground floor of the said property (hereinafter referred to as 'suit property') at a monthly rent of Rs. 4000/- p.m including water charges @ Rs. 200/-. The defendant initially used to pay the rent regularly but suddenly from month of February 2015, defendant stopped paying rent on one or other pretext. The plaintiff reminded defendant to pay the rent but defendant instead of paying rent started quarrelling with plaintiff and threatened to implicate plaintiff in false and fabricated case. It is further averred that defendant has not paid rent from February, 2015 till date and even did vacate the suit property despite request and legal notice.
4. In her written statement, defendant averred that plaintiff has suppressed the material facts and has tried to mislead the court. Suit was filed without cause of action. It is averred that the plaintiff used to collect rent from defendant from the inception but did issue any rent receipt to defendant. It is further contended that plaintiff has taken a sum of Rs. 3 lakhs in two instalments as security deposit from defendant but did not repay the same. The defendant has also lodged a complaint in this regard with the concerned PS. The defendant denied that she has stopped paying rent to plaintiff from February 2015. Defendant denied the receipt/issuance of notice under [SECTION] of [ACT] by the plaintiff to defendant. It is averred that it was defendant who requested plaintiff to repay the amount of Rs. 3lakhs which was taken by the plaintiff as security deposit and written statement denied the contents of plaint.
5. Plaintiff/respondent has filed an application under [SECTION] [ACT] contending that defendant has admitted the tenancy. Secondly, rent is more than Rs. 3500/- and tenancy of defendant was terminated by service of notice u/[SECTION] of [ACT].
6. Ld Trial Court has decreed the suit by observing that admittedly there is a relationship of landlord and tenant. It was also observed that notice u/[SECTION] of [ACT], although, denied by defendant yet service of copy of notice alongwith plaint would amount to service of notice under [SECTION] of [ACT]. Ld Trial Court has referred the judgment of [PRECEDENT] and [PRECEDENT].
7. I have heard Ld. Counsel for Appellant and Ld. Counsel for respondent and perused the case file.
8. I have perused the ground in the memo of appeal. Ld counsel for appellant had contended that opportunity of heard was not provided to the defendant/appellant. Secondly, Ld Trial Court has passed the judgment in great hurry. It was also contended that no balance of rent is payable and other contention can be proved only during pendency of the suit. Ld counsel for defendant/appellant has contended that order was passed with pre-set mind. It was also argued that the fact that premises was residential or commercial need to be adjudicated by the Ld Trial Court.
9. Before dwelling into the controversy, it would be appropriate to refer to [SECTION] [ACT] reads as hereunder:-
Judgment on admissions:-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without making for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under [SECTION], a decree shall be drawn up in accordance with the judgment and decree shall bear the date on which the judgment was pronounced.
Thus, [SECTION] [ACT] provides for the speedy delivery of judgment or judgment at any stage when admission of facts have been made either in pleading or otherwise as the court deems fit. Thus discretion vest with the court to pass a judgment in light of the admission made by the parties. Discretion, as often said is not to be exercised in capricious manner but in judicious manner.
10. Trial Court record was called and from the perusal of record, it is reflected that Ld. Trial Court has provided ample opportunity to both plaintiff and defendant. The written statement filed after thirty days by defendant was taken on record by Ld. Trial Court. On 5.5.17, plaintiff filed an application under [SECTION] [ACT] and thereafter on 4.7.2017, defendant filed the reply to application under [SECTION] [ACT]. The matter was kept for orders for 11.8.2017 and on 11.8.2017, Ld. Civil Judge adjourned the case for 23.10.2017 as she was transferred and 23.10.2017, arguments were heard and application was kept for orders for 20.11.2017 and on the said day, impugned order was passed. The list of dates and perusal of proceedings clearly demonstrated that contention of Appellant that she was not provided with any opportunity of being heard is devoid of merits. The appellant was provided with all opportunity by Ld Civil Judge.
11. In a case where ejectment has been sought on the ground of landlord and tenant relationship, the point of determination is whether a landlord/tenant relationship exist, rate of rent and service of notice under [SECTION] of [ACT]. In paragraph no.2 and 3, the factum of tenancy and rate of rent was pleaded by the plaintiff and which fact was not denied by the defendant and in paragraph 2 of parawise reply on merits, defendant has raised the objection that plaintiff did not disclose when she was inducted in the suit property. In paragraph 8 of parawise reply on merits, defendant has averred that plaintiff wants to take her advantage as being that of landlord. Therefore, there exist no dispute with regard to the rate of rent and relation of landlord and tenant as recorded by Ld. Civil Judge, Delhi.
12. The defendant although denied that receipt of legal notice dated 26.9.2015 however postal receipts on record indicates that such a notice was sent to the defendant and moresoever. In Jindal Dyechem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd., (2010) ILR 1 Delhi 245, it was held by Hon'ble Delhi High Court that a notice dispatched to the defendant by registered post is presumed to be served under [SECTION] of the [ACT] and a denial of the said notice by the defendant has no value and it can be used for the purposes of [SECTION] [ACT]. The same view was also affirmed in [PRECEDENT]. Furthermore, as rightly observed by Ld. Trial Court service of summon would also amount to notice under [SECTION] [ACT] and this view is in consonance with the judgment of [PRECEDENT] & [PRECEDENT].
13. It would be worthwhile to refer to the judgment of Hon'ble Delhi High Court in [PRECEDENT] where in it was held that object of [SECTION] [ACT] is to enable the court to pronounce the judgment when the judgment admission are sufficient to entitle a a decree as the intention of the statute is render speedy judgment. It was further held that:
"The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specic or expressive which can be inferred from the vague and evasive denial in the written statement while answering specic pleas raised by the plainti. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualied and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecic denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."
14. Considering, the unequivocal, unambiguous, and clear admission made by defendant in the written statement as discussed above, in my opinion, Ld. Civil Judge, has rightly decreed the suit filed the plaintiff.
15. There is no infirmity in the impugned order decreeing the suit by exercising its power under [SECTION] [ACT] and thus same is hereby confirmed.
16. As held in paragraph 2 of this judgment that an appeal arising out of dismissal of an application under [SECTION] [ACT] is not maintainable before this Court and thus, appeal arising out of the same is dismissed as not maintainable.
17. The appeal lacks merit and is thus dismissed.
18. Copy of this judgment alongwith trial court record be sent to Ld. Trial Court. Appeal file be consigned to record room after due formalities.
Announced in the Open Court on 31.10.2018 ([ENTITY]) Additional District Judge-06 West District, THC