INTHECOURTOFSHRIM.R.SETHI:ADDL.

DISTRICTJUDGE:
DELHI.
SuitNo.74/08

Col.A.S.Butalia&Others
Versus
M/sSuperiorFilmsPvt.Ltd.

ORDER:

This order shall dispose off an

applicationU/O12Rule6CPCmovedonbehalfof
plaintiffs.

Succinctlystated,factsofthecasearethata

suit for recovery of possession, damages/mesne

profit,mandatoryaswellaspermanentinjunction
wasfiledbytheplaintiffsagainstthedefendantin
respectofFlatNo.403,SatyamCinemaBuilding,

Patel Nagar, New Delhi. It was case of the

plaintiffsbeforethiscourtthattheplaintiffshad
letoutthesuitpropertytodefendantforaperiod
of five years w.e.f. 1.2.03 till 31.1.08 vide lease
deeddated21.1.03executedbetweentheparties.
Itwasclaimedthataspertermsandconditionsof
the said lease deed the lease could be extended
onceforafurtherperiodofonetermoffouryears
forwhichpurposethedefendantshallberequired
to inform the plaintiffs one month in advance
before expiry of period of the earlier lease
expressing intention for renewal and in such
eventuality,freshleasedeedshallbeexecutedand
duly registered with the Sub Registrar for the
extended period. As per case of plaintiffs before
this court, the defendant did not inform the
plaintiffs in time for extension of the lease deed
and hence the earlier lease expired by efflux of
time on 31.1.08. Plaintiffs were also claimed to
2

have reminded the defendant vide their letter

dated17.1.08regardingexpiryofleaseon31.1.08
andrequiringthedefendanttohandovervacant
andpeacefulpossessionofthesuitpropertytothe
plaintiff. As per case of the plaintiff, the
defendantdidnotgiveanyreplytothesaidletter
andhencew.e.f.1.2.08possessionofdefendantin
respectofthesuitpropertywasunauthorisedand
illegal. It was claimed that even after 31.1.08
plaintiffs had sent a letter dated 4.2.08 to the
defendant calling upon defendant to hand over
possessionofthesuitproperty.

In the written statement filed on behalf of

defendant, a preliminary objection was raised to

theeffectthatthepersonsigningandverifyingthe
plaintwasnotdulyauthorisedbyotherplaintiffs
and that the document of authority did not
adequately empower himto institute the suit. It
3

wasfurtherclaimedthattheplaintiffshadfailed
todisclosethefactthatthedefendanthadalready
expressed its intention to renew the lease for a
further period of four years. The said intention
wasclaimedtohavebeenexpressedinDecember,
2007. On basis thereof, it was claimed that the
leasedeedhadbeenrenewedforafurtherperiod
of four years w.e.f. February, 2008 and the
defendant was legally entitled to retain
possession. It was further claimed that the
defendant had sent a letter dated 6.2.08 to the
plaintiffreiteratingthesaidfactbuttheplaintiff
deliberately not mentioned the said fact in the
plaint.

Inthepresentapplicationunderdisposal,it

wasclaimedonbehalfofplaintiffsthatdefendant
hadadmittedexecutionofleasedeedwhichwasto
expireon31.1.08andhadalsoadmittedthatrent
4

wasRs.15,000/PMwhichhadbeenincreasedto
Rs.18,000/ PM. It was claimed that as tenancy
hadexpiredbyeffluxoftimeandtheleasehadnot
beenrenewed,asperadmissionofthedefendant,
plaintiff was entitled to decree of possession. It
wasclaimed that the defencesought to be made
out by the defendant was evasive, vague and
frivolous.

In the reply filed on behalf of defendant

averments made in the application were denied.

It was claimed that defendant had not admitted
case of the plaintiff and that no decree on
admissioncouldbepassed.

During course of his arguments it was

submittedbyLd.Counselforplaintiffsthatasper
termsofthelease agreementthedefendantwas
toinformtheplaintiffaboutitsintentiontoextend
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the lease latest by 31.12.07. Ld. Counsel

submittedthatasthedefendanthadnotexercised
thesaidoptionandasthedefendanthadadmitted
relationship of land lord tenant between parties
and as the rent of the suit premises admittedly
was Rs.18,000/ and as tenancy had expired by
efflux of time and all the three facts had been
admittedbythe defendant, plaintiff wasentitled
toadecreeforpossessionintermsoforder12Rule
6 CPC. Ld. Counsel pointed out that all the
aforesaid facts had been admitted by the
defendant in the written statement filed. As
regards defence being raised on behalf of
defendant, Ld. Counsel for plaintiffs submitted
thatavaguedefencewasbeingputuponbehalfof
thedefendantwhoclaimedtohaveorallyinformed
the plaintiff about intention to extend the lease
Ld. Counsel submitted that the same was not
availabletothedefendant.Decreeofpossessionin
6

termsofOrder12Rule6CPCwasprayed.During
courseofhisargumentsLd. Counselforplaintiff
also placed reliance on some judicial
pronouncements in respect of scope and
applicationofOrder12Rule6CPC.

Rebutting the arguments, it was submitted

byLd.Counselfordefendantthatasperthelease
deed, there was no requirement of any written
intimation being given to the plaintiff qua
intention of the defendant to extend the lease
deed. Ld. Counsel submitted that a plausible
defence hadbeenraised bythedefendant inthe
written statement and also by way of its letter
dated 6.2.08 which had earlier been sent to the
plaintiffandforthis,thematterwasrequiredto
proceed on trial. It was submitted that as the
defendanthadraisedatriableissueandcouldbe
calleduponto proveitsdefenceduringcourse of
7

trial, there was no unequivocal admission of

liabilityofthedefendantandhenceplaintiffwas
notentitledtoadecreeofadmission.

Ld. Counsel for defendant also placed

reliance on some judicial pronouncements in

supportofhisaverments.

Ihavegivenmythoughtfulconsiderationto

arguments advanced and have also perused the

records.

10

It is settled principle of law that for

applicabilityofprovisionsofOrder12Rule6CPC
admissionmustbeclear,unequivocalandpositive.

11

In the present case, the defendant has

admitted relationship of land lord and tenant

between the parties and has also admitted that
8

rent of the suit premises was Rs.18,000/ PM.

Whathasnotbeenadmittedbythedefendantis
thattheleasehadexpiredbyeffluxoftime.Itis
case of the defendant that a duly authorised
officerofdefendantcompanygotintouchwiththe
plaintiffsinDecember,2007andclearlyexpressed
intentionofthedefendanttorenewthesaidlease
forafurtherperiodoffouryears.

12

As per Clause 2A of the admitted lease

agreement,theleasewasinitiallyforaperiodof
fiveyearscommencingfrom1.2.03to31.1.08.The
lease however could be extended for a further
period of one term of four years for which the
lessee(presentdefendant)wasrequiredtoinform
thelessor(plaintiff)onemonthinadvancebefore
expiry of period of the earlier lease expressing
intentionforrenewal.Abarereadingofthelease
agreement shows that the defendant could
9

unilaterally call upon the plaintiff to extend the

lease deedforafurtherperiodoffouryearsand
forthisthedefendantwasonlyrequiredtoinform
its intention to the plaintiff. There was no
agreement between the parties that the said
intimation should be given in writing or by any
specific mode. As per case of the defendant as
mentioned in the written statement, the said
intimationhadbeengiventotheplaintiffthrough
anauthorisedofficerofthedefendant.

13

It would be pertinent at this stage to refer

the decision in Madhav Leasing Finance (P)

Ltd.Vs.EroseEducationalInfotechPvt.Ltd.
[68(1997) DLT Page 846] which has been
referred to in Sneh Vaish & Another Vs Filatex
IndiaLtd.[95(2002)DLTPage373].Inthesaid
matterofMadhavLeasingFinance(P)Ltd.there
wasaregisteredleaseagreement.Afterexpiryof
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period of lease, civil suit was filed against the

tenant for handing over the possession. The
defendant therein had taken the plea that the
lease deed as well as the hire agreement were
orallyrenewedforafurtherperiodoftwoyears.
Thesaidfactwascontrovertedbytheplaintiffin
thesaidcase.Inthatregarditwasobservedthat
U/O12Rule 6CPCadecreecanonly bepassed
whereadmissionsareclearandunambiguousand
asitwasnotsointhatcase,Hon'bl
eHighCourtof
Delhididnotdeemitappropriatetopronouncethe
judgmentquapossessionofpremisesU/O12Rule
6CPC.

14

It had been observed in Bharat Taneja&

Another Vs. Sunil Madan & Another (1999

SCCPage396)thatU/O12Rule6thecourtcan
act upon an admission which is shown to be
unequivocal, clearandpositive. Itwasobserved
11

that the Rule empowers the court to pass

judgment anddecree onlyinrespect of admitted
claimspendingadjudicationofthedisputedclaims
inthesuit.

15

Itwasobservedin BaljitKaurVs.United

InsuranceCompanyLtd.[70(1997)DLTPage
742] thatprovisionsofOrder12Rule6CPCare
notintendedtobeputintooperationwherethere
areseriousquestionsoflawandfactinvolved.In
thecasebeforethiscourt,ithasbeenclaimedon
behalfofdefendantthatithadorallyinformedthe
plaintiffaboutitsintentiontoextendthelease.As
already stated, the lease agreement did not
provide for any written intimation to be sent by
defendant to the plaintiff in this regard. The
defendant, in opinion of this court has raised a
triable issue and would be required to prove its
claim during course of trial by leading legally
12

admissible evidence in this regard. However, at

this stage of the proceedings, it cannot be said
thatthereisanyunequivocalclearadmissionby
the defendant of the claim being made by the
plaintiff.

16

Itwouldalsonotbeoutofplacetomention

herein that in the written statement filed on

behalfofdefendant,apleawastakentotheeffect
that the person signing and verifying the plaint
was not duly authorised by other plaintiffs and
thatthedocumentpurportingtobeadocumentof
authority did not adequately empower him to
institutethesuit.Inthisregarditwaspointedout
on behalf of defendant that although there are
threeplaintiffsmentionedintheplaint,theplaint
isonlysignedbyoneandthattheallegedpowerof
attorneys placed on record did not specifically
empower the signing plaintiff to file the suit on
13

behalfofothercoplaintiffs. Atthisstageofthe
proceedings,thiscourtrefrainsitselffrommaking
anyobservationonmeritsregardingthesaidplea
beingtakenonbehalfofthedefendant.

17

Plea of the defendant regarding having

orally informed the plaintiff about intention to

extend the lease is a question which cannot be
determinedwithoutevidence.Inviewthereofand
inviewoffactsmentionedhereinaboveitcannot
besaidthatpresentisacaseofunequivocaland
clearpositiveadmissiononpartofthedefendant
which is an essential requirement of law for a
decree of admission. At this stage, this court
cannot gointo thequestion of plausibility of the
pleabeingraisedbythedefendant.Therebeinga
triable issue raised on behalf of the defendant,
which goes to root of the case, this court is of
considered opinion that the matter ought to be
14

proceededwithandthesuitshouldbetriedfora
return of findings on merits. Accordingly, the
applicationU/O12Rule6CPCfiled onbehalfof
plaintiffsisdismissed.

Announcedinopencourt(M.R.SETHI)
on392008ADDL.DISTRICTJUDGE:
DELHI.

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