KARAM KAPAHI Vs M/S LAL CHAND PUBLIC CHARITABL TRUS.&ANR
Bench: G.S. SINGHVI,ASOK KUMAR GANGULY, , ,
Case number: C.A. No.-003048-003048 / 2010
Diary number: 9108 / 2009
Advocates: S. NARAIN & CO. Vs
B. VIJAYALAKSHMI MENON
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3048 OF 2010 (Arising out of SLP(C) No.9080/2009)
Karam Kapahi & Others ..Appellant(s)
Versus
M/s Lal Chand Public Charitable ..Respondent(s) Trust & Another
WITH CIVIL APPEAL NO.3049 OF 2010
(Arising out of SLP(C) No.9091/2009)
J U D G M E N T
GANGULY, J.
1. Leave granted in both the petitions, being
SLP(C) No. 9080/2009 filed by Karam Kapahi
and three others and SLP(C) No.9091 of 2009
filed by M/s South Delhi Club Ltd.
1
2. Both the appeals impugn the judgment and
order dated 9.1.2009 passed by a Division
Bench of Delhi High Court in RFA (OS) No.
34/2002.
3. In the appeal filed by Karam Kapahi, Sujit
Madaan, Anup Malik and Neeraj Girotra, it is
asserted that as members of the M/s South
Delhi Club Ltd. (hereinafter referred to as
the ‘Club’) they are directly affected by the
judgment and decree passed in Suit (Suit
No.518 of 1999) filed by the respondent
Trust. Challenging the judgment and decree in
the suit, Appeal RFA (OS) No. 34 of 2002 was
filed by the Club. Their main contention in
the SLP is that they were not parties to the
Suit but they may be affected by the orders
passed therein. On such representation a
Bench of this Court by an order dated
9.4.2009 permitted them to file a special
leave petition and also issued notice and
2
stayed further proceedings for the execution
of the judgment and decree of the High Court.
4. About a fortnight thereafter, the Club filed
another Special leave petition (C) No.
9091/2009 challenging the same judgment of
the Appellate Bench of the High Court and a
Bench of this Court on 24.4.2009 in view of
the previous notice already against the same
judgment issued notice in that special leave
petition filed by the Club and directed it to
be tagged with the earlier special leave
petition (C) No. 9080/2009 filed by the
members. Both the matters were heard together
in view of common questions of fact and law
in these matters.
5. The material facts are as under.
6. Respondent No.1 – M/s Lal Chand Public
Charitable Trust and Anr., a registered
charitable trust (hereinafter, ‘the Trust’)
was the lessor and the Club was the lessee.
3
On or about 16.12.1998 the Trust and some of
its members filed a Suit, being Suit No.
518/1999, before the Delhi High Court against
the Club in view of termination of club’s
lease for non-payment of lease rent by the
Club. The suit was for possession in respect
of its land and building situated at Central
Park, Greater Kailash-I, New Delhi and also
for recovery of an amount of Rs. 11,60,000/-
as damages and mesne profit and also for
future damages.
7. In the said plaint the stand of the
plaintiff-trust was that by a sub-lease dated
4.11.1965 property in question (fully
described in the plan attached to the plaint)
was leased to the Club for 25 years.
Thereafter, Supplementary deed of Sub-lease
dated 25.7.1979 was also executed between the
parties and the same was duly registered. As
the supplementary lease dated 25.7.1979
expired on 3.11.1990, the Club requested the
4
Trust for a further renewal and further
renewal was given for a period of 25 years
from 4.11.1990 on the terms and conditions as
stipulated in the Agreement and the said
lease was also duly registered.
8. In terms of the sub-lease, the Club undertook
to pay quarterly to the Trust on account of
monthly lease rent by the 10th of the
beginning of each quarter month, and a sum
equivalent to 14% of the monthly subscription
paid or payable by the members of the Club.
It is also averred in the plaint that it is
agreed between the parties that in case of
default in payment of lease rent for two
consecutive quarters, the Trust will be
entitled to terminate the said sub-lease.
9. The case of the respondent-Trust is that the
Club defaulted in payment of rent and before
the filing of the Suit the Trust issued
several letters dated 25.12.1996, 14.1.1997
and 18.6.1997 calling upon the Club to pay
5
the rent but as the Club failed to pay the
amount, the respondent-Trust served a legal
notice dated 25.7.1997, again calling upon
the Club to pay the entire lease rent failing
which, it was made clear, that the Trust will
take legal action. The exact averment in the
plaint is as follows:
“…thus compelling the plaintiff to serve a legal notice dated 25.7.1997 and by the said notice, the defendant was called upon to pay the entire lease money failing which the defendant was informed that the plaintiff shall be left with no option but to terminate the sub-lease and take further legal action in the matter. The said notice was duly received by the defendant and despite receipt of the notice; the defendant did not pay the amount.”
10. In the Written Statement filed by the Club,
paragraph (9) of the plaint was dealt with in
paragraph (9) of the Written Statement but
the aforesaid fact was not denied.
11. Prior to suit another legal notice dated
28.10.1997 was issued by the Advocate on
6
behalf of the Trust to the Club wherein it
was expressly stated that the Club has
deliberately committed default in making
payment for the quarters ending September
1996, December, 1996, March 1997, June 1997,
September 1997, December 1997, March 1998,
June, 1998 despite service of previous
notices.
12. It appears that the Club did not respond to
the said notice. This has been stated in
paragraph 10 of the plaint and it has been
further averred that the said notice dated
28.10.1997 sent by the Advocate on behalf of
the trust was received by the Club but the
Club did not give any reply. This fact was
not denied in paragraph (10) of the Written
Statement filed by the Club.
13. Thereafter a legal notice dated 2.12.1997 was
sent on behalf of the Trust terminating the
tenancy of the Club in view of non-payment of
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lease rent and the arrears and calling upon
the Club to hand over the peaceful vacant
possession. The said notice has been
disclosed by the Club in its special leave
petition before this Court.
14. After the Trust terminated the tenancy of the
Club by its notice dated 2.12.1997, a reply
was sent by the Club on 6.12.1997 with a plea
that the Trust is not the lessor of the suit
premises and has no right to let out the same
to the Club and thus inter alia the title of
the Trust over the suit premises was
challenged. In the said reply, the Club
pointed out to a suit filed by it, namely,
Suit No. 1605 of 1997 (South Delhi Club
Limited v. DLF Housing and Construction and
others). However, prior thereto the Trust
gave its notice dated 25.7.1997 demanding
rent.
8
15. The main contention in Club’s suit, inter
alia, is that the Trust has divested itself
from its ownership over the suit property and
has ceased to be its owner and as such is not
entitled to any beneficiary interest. In the
suit a declaration was sought to the effect
that the Trust has no right, title and
interest in the suit premises and also for
cancellation and revocation of the sub-lease
dated 23.09.1992 and with a further prayer to
restrain the Trust from claiming and
demanding any lease rent from the Club.
16. To that suit, being 1605 of 1997, the Trust
filed a written statement on 17.08.1998 and
also filed an application for rejection of
plaint (I.A. No. 7294 of 1998). The Club was
to file its replication to the written
statement filed by the Trust. The matter was
repeatedly adjourned on 18.3.1995, 15.9.1999
and 19.1.2000 but the Club did not file its
replication nor did it take steps to effect
service on defendant no.5. Under those
9
circumstances, the Court declined the prayer
of the Club for further adjournment to file
their replication and directed the matter to
be listed on 21.2.2002. It appears that the
Club was not taking any step and the matter
was adjourned from time to time. On
10.12.2001, the matter again appeared and it
was recorded that there was no appearance on
behalf of the plaintiff i.e. the Club and the
matter was directed to be listed on 8.4.2002.
Nobody appeared for the Club on 8.4.2002, and
the Court was pleased to pass the following
order:-
“There is no appearance on behalf of the plaintiff. On the last date also, nobody had turned up on his behalf.
In the circumstances, the application as well as suit are dismissed for default.”
17. Then on 8.5.2002 the Club filed its
application for restoration of the suit and
the restoration application was listed for
disposal on 1.10.2002. Then again by an
10
order dated 11.12.2002 the restoration
application was ordered to be listed on
6.2.2003.
18. In the course of hearing of the matter before
this Court nothing was produced to show that
the said suit has been restored. It appears
that the said application for restoration was
kept pending and the last order for its
listing was passed on 16.5.2006.
19. Now coming beck to the suit filed by the
Trust, it appears that in that suit (No. 518
of 1999) the Club filed its written statement
on 14.2.2000.
20. On a perusal of the written statement of the
Club, the following position will emerge:
(a) The club has admitted that there was an
execution of sub-lease dated 4.11.1965
between the parties though the title of the
11
trust over the suit property was disputed.
It was also admitted in paragraph 8 that
the Club withheld the payment or rent and
was ready to deposit the same before the
Registrar of the High Court. In paragraph
15 of the written statement the arrears of
rent were worked out. In paragraph 10 of
the written statement non-payment has been
admitted but the Club gave its reasons for
such non-payment. In paragraph 11, 12 and
13 the notice of termination of the lease
was acknowledged.
(b) In the said suit the Club filed an I.A.
being 1724 of 2000 inter alia praying that
the Trust be restrained from receiving the
lease money.
(c) The said I.A. came up for hearing on
24.07.2000 and a learned Judge of the Delhi
High Court inter alia held since the Club
admitted that it was inducted as a tenant
in the suit premises under the lease deed,
it cannot withhold the payment of
12
rent/damages inter alia on the ground that
the suit premises belong to MCD who had
never demanded any rent. The I.A. was thus
dismissed and the Club was directed to pay
the arrears of rent from July 1996 till the
date of the said order within a month from
the date of the order. The operative
portion of High Court’s order dated
24.7.2000 is set out below:-
“...It is pertinent to note that under Section 116 of the Indian Evidence Act, a tenant is estopped from denying the title of the lessor to the tenanted premises during the continuane of lease. The Defendant having admitted that it was inducted as a tenant in the Suit premises by the Plaintiff under aforesaid two registered lease deeds, can not now withhold the payment of rent/damages on the ground of premises allegedly belonging to MCD who has not demanded any rent. I.A. 1724/2000 is, therefore, liable to be dismissed and in I.A.2281/99 an Order under Rule 10 of Order 39 CPC deserves to be passed against the Defendant directing it to pay the arrears of rent/damages since July 1996 and future rent/damages at the last paid rate which the Defendant’s counsel had also undertaken to pay as is manifest from the Order dated 15th December, 1999.
Accordingly, I.A. 1724/2000 is dismissed. In I.A.2281/99 the Defendant is directed to pay
13
arrears of rent/damages since July 1996 till date at the last paid rate within one month from today and it will also continue to make payment thereof for the subsequent period, month by month at the same rate to the Plaintiff Trust.”
21. Prior to that order dated 24.7.2000 in the
suit filed by the Trust (Suit No. 518 of
1999) an order was passed on 15.12.1999
wherein it was recorded by the High Court
that the counsel for the Club undertook to
pay rent and clear all damages on or before
the next date of hearing. The exact order
passed by the High Court is set out below:-
“Ld. Counsel for defendant submit that defendants would make the payment of the rent/damages at the “last paid rate” and clear all arrears on or before the next date of hearing. It is made clear that payments made towards rent/damages would be without prejudice to the rights and contentions raised by the defendants assailing the right of the plaintiff to receive payment of rent/damages.”
22. Challenging the Single Bench order dated
24.7.2000, the Club filed an appeal being FAO
14
(OS) No. 272 of 2000 before the Division
Bench and one of the contentions of the Club
was that the learned Single Judge was in
error in holding that under Section 116 of
the Indian Evidence Act, a tenant is estopped
from denying the title of the lessor to the
tenanted premises during the continuance of
the lease. However, the said appeal with all
those contentions of the Club was dismissed
in-limine by a Division Bench of the Delhi
High Court by an order dated 19.9.2000 which
reads as under:
“A copy of the order dated 15th December, 1999 passed in this very suit has been brought to our notice. In view of the said order, in our view it is not even open to the appellant to raise this issue of payment of rent/damages to the respondents again. The said order has been passed protecting the rights and contentions of the respective parties. In view of the said order, this appeal is dismissed in limine.”
23. It appears that the said order of the High
Court dated 19.9.2000 was never challenged by
15
the Club and it became final. However, the
direction which was given by the learned
Single Judge in its order dated 24.7.2000
referred to hereinabove was not complied with
by the Club.
24. Then on 8.5.2001, the Club filed an
application under Section 114 of the Transfer
of Property Act in the suit filed by the
Trust (Suit No.518 of 1999).
25. In the said application the stand of the Club
is that the controversy between the parties,
namely, the Trust and the Club has been
resolved and the Club has no objection to pay
the rent reserved under the said sub-lease
dated 23.9.1992. In paragraphs (7) and (8),
the Club made this categorical statement:
“7. That with the disclosure of the said documents the controversy between the parties stands resolved and the Defendant can have no objection to paying the rent reserved under the said sub-lease Deed dated 23.9.1992.
16
8. That the Defendant has paid a portion of the arrears of rent and undertakes to pay all future rent in accordance with the terms of the said sub-lease Deed dated 23.9.1992”.
26. In that application a prayer was made for
relieving the Club against forfeiture
resulting from the non-payment of rent and to
declare that the Club holds the suit property
as if the forfeiture has not occurred on the
Club’s undertaking to honour all its
obligations under the sub-lease dated
23.9.1992.
27. Sometime in May 2000, the Trust, in its Suit,
filed an application under Order 12 Rule 6 of
the Code of Civil Procedure for passing a
judgment on admission. In the said
application in paragraph 4, the Trust
asserted that on a perusal of the written
statement filed by the Club following things
are admitted; (i) relationship of Lessor and
Lessee (ii) Rent being above Rs.3500/- p.m.
17
and (iii) a notice of termination of lease of
the Club has been duly served on the Club and
(iv) non-payment of rent by the Club.
28. To that application a reply was filed by the
Club. While replying the averments made in
paragraph 4 of that application, the Club
only referred to the suit filed by the Club
stating that the lease in question is
fraudulent and is under challenge, but
specific averments made in paragraph 4 of
Trust’s application were not denied. In
answer to the averment made in paragraph 6 of
the Trust’s application about the monthly
rent of the suit premises, no specific denial
was given by the Club except urging that the
lease deed is void ab-initio.
29. The suit filed by the Trust then came up for
hearing and by a judgment and order dated
22.10.2002 the learned Trial Judge refused to
grant relief under Section 114 of the
Transfer of Property Act. The Court also held
18
that since there is clear admission by the
club about non-payment of rent the plaintiff
is entitled to a decree for possession in
respect of the entire suit property.
30. Then an appeal was filed by the Club
impugning the said judgment which was
dismissed by a Division Bench of the Delhi
High Court by judgment and order dated
9.1.2009.
31. The Division Bench also held that the conduct
of the Club disentitles it from the equitable
relief under Section 114.
32. The Division Bench after dismissing the
appeal directed the Club to hand over vacant
possession in respect of the suit property to
the Trust by 31.3.2009.
33. It is interesting to note that even though in
its petition under Section 114 of the
19
Transfer of Property Act, the Club took a
stand that it has no objection of paying the
rent reserved under the sub-lease dated
23.9.1992, in the appeal which was filed by
the Club being RFA (OS) No.34 of 2002 against
the order of Single Judge dated 22.10.2002,
the Club took a totally contrary stand that
the Trust has no right or title over the suit
premises and it cannot demand the rent.
34. It appears that in the course of the appeal,
the Club took various contrary stands and
adopted various dilatory tactics. From the order passed by the Division Bench of the
High Court, it appears that it has been noted
that the appellant took various adjournments
before concluding its arguments and sought
adjournments on 21.7.2003, 11.12.2003,
12.4.2004, 13.10.2004, 23.11.2004 11.1.2005,
7.2.2005, 2.8.2005, 16.9.2005 and as a result
of which the appeal was dismissed for non-
20
prosecution on 18.10.2005 by the Division
Bench.
35. Thereafter, the Club again filed an
application for restoration of the appeal and
the appeal was restored by the Division Bench
on 16.1.2006 wherein the Court commented upon
the dilatory tactics resorted to by the Club
and restored the appeal by imposing a cost of
Rs.10,000/- on the Club.
36. As the Division Bench refused to grant any
stay of the order dated 30.11.2005 in respect
of the execution proceeding, the Club filed a
special leave petition being SLP (C) No.
25261 before this Court. The said Special
Leave Petition was disposed of by this Court
by an order dated 6.7.2006. While disposing
of the said petition, this Court was pleased
to observe that the appeal filed by the Club
should be disposed of within a reasonable
time and all dilatory tactics adopted by the
21
tenant-Club should be defeated. After
observing that this Court ordered that the
High Court should dispose of the appeal with
utmost expedition preferably within six
months and made it clear that in case the
tenant-Club adopts dilatory tactics in the
disposal of the appeal within the time
schedule, the High Court shall record an
order to that effect that the interim order
passed by this Court shall stand vacated and
the decree may be executed, if necessary, by
deputation of armed forces.
37. Even though this Court by its order dated
6.7.2006 directed the disposal of the appeal
within six months, it was disposed of, as
stated above, only in the month of January,
2009.
38. Even after the disposal of the appeal,
several steps were taken delaying the
execution of the decree. Some Members of the
22
Club filed a petition praying for extension
of time for handing over possession beyond
31st March, 2009 as that was the deadline to
hand over possession by the Club to the
trust. The Members prayed for extension of
time of eight weeks from 31.3.2009. The
application by the members was dismissed by
the Division Bench of the High Court by an
order dated 24.3.2009.
39. Thereafter, another set of Members filed a
suit being CS(OS) No. 509/2009 before the
Delhi High Court with a prayer to set aside
the judgment of the learned Single Judge
dated 22.10.2002 which was affirmed by the
Division Bench by its judgment dated
9.1.2009.
40. I.A. No. 3583/2009 was also filed in the said
suit for staying the operation of the order
dated 22.10.2002 passed by the Single Judge.
The said application was also dismissed by a
23
detailed order of the Delhi High Court on
30.3.2009. While doing so the Court observed
that the Club and its members were fully
aware about the pendency of the suit, the
passing of the judgment and decree as well as
of the appeal filed against the judgment
otherwise resolution could not have been
passed on 23.10.2002 in favour of Mr.
Bhandari to file the appeal against the
judgment and decree of the High Court.
41. The said judgment dated 30.3.2009 passed in
the I.A. was not challenged.
42. In the earlier part of this judgment, this
Court noted that the first special leave
petition against the Division Bench Judgment
was filed by some members of the Club, inter
alia, on the ground that they are affected by
the judgment and decree of the High Court to
which they were not made parties and on such
representation, this Court issued notice and
24
stayed the operation of the High Court’s
judgment dated 9.1.2009. About a fortnight
thereafter the Club filed its special leave
petition and took advantage of the previous
order of stay which was passed by this Court
and got its special leave petition tagged
with the petition filed by the Club members.
Now this Court is hearing both the petitions
together.
43. In the background of these facts, Mr. Ravi
Shankar Prasad, learned Senior Counsel for
the appellant-Club highlighted the following
points in support of his submission that the
appeal should be allowed:
(a) The High Court erred by applying the
principles of Order 12 Rule 6 of Civil
Procedure Code in the facts and
circumstances of this case as there was
no clear admission by the Club of case
of the Trust in its plaint.
25
(b) The principles of Section 114 of the
Transfer of Property Act are
independent of the provision of Order
12 Rule 6. Section 114 of the Transfer
of Property Act is an equitable remedy
for a lessee in a given case and the
stand taken in a proceeding under
Section 114 cannot be taken into
consideration to reach a finding under
Order 12 Rule 6 of the Code.
(c) Assuming there is failure to deny case
in the plaint that does not necessarily
amount to proof and the Court before
granting decree ought to have
considered the proviso to Order 8 Rule
5 of the Code.
(d) The overall conduct of a litigant in
pursuing the case at various stages
cannot be considered for the purpose of
disentitling it from getting an
equitable relief in a proceeding under
26
Section 114 of the Transfer of property
Act.
(e) In the facts of this case, bar of
estoppel under Section 116 of the
Evidence Act does not operate on the
Club from questioning the title of the
Trust.
44. On the other hand, Mr. Soli J. Sorabjee,
learned Senior Counsel appearing on behalf of
the Trust advanced the following
submissions:-
(a) The object of Order 12 Rule 6 is to
enable a party to obtain speedy
judgment and the application of the
Rule cannot be narrowed down.
According to the learned counsel,
certain relevant and vital facts in the
plaint of the Trust have been admitted
by the Club.
(b) The learned Counsel further submitted
that in the instant case, the Club
27
cannot question the title of the
landlord i.e. the Trust, and the suit
(Suit No. 1605 of 1997) which it filed
questioning the title of the Trust was
dismissed and there is nothing on
record to show that it has been
restored.
(c) The contentions which the Club raised
in its petition for relief under
Section 114 of the Transfer of Property
Act were not taken without prejudice to
its stand in the written statement.
Club’s admissions in the written
statement and in its petition under
Section 114 of the Transfer of Property
Act are clear and the Court can take
both into consideration.
(d) The stand of the Club in its suit and
in its application filed in the Trust’s
suit for restraining the Trust from
receiving the rent is inconsistent with
the Club’s stand in its application
28
under Section 114 of the Transfer of
Property Act. The Club thus approbates
and reprobates which it legally cannot
do.
(e) The Club did not accept the order dated
24.7.2000 passed by the learned Single
Judge directing it to pay arrears from
July 1996 but it was challenged by the
Club by way of appeal, which was
dismissed. Assuming subsequent payments
were made pursuant to the said order
dated 24.7.2000 that does not efface
the consequences of non-payment in the
past.
(f) Reliance on the first proviso to Order
8 Rule 5 of the Code is misconceived
and in the instant case both the
learned Single Judge and the Division
Bench on appreciation of the pleading
held that there were clear admissions.
(g) In the facts and circumstances of the
case and on its overall conduct, the
29
Club is not entitled to obtain the
discretionary relief from this Court
under Article 136 of the Constitution
of India.
45. Considering the aforesaid rival contentions
of the parties, this Court is unable to
accept the stand of the appellant and is
inclined to dismiss both the appeals for the
reasons discussed hereinbelow.
46. The principles behind Order 12 Rule 6 are to
give the plaintiff a right to speedy
judgment. Under this Rule either party may
get rid of so much of the rival claims about
‘which there is no controversy’ [See the
dictum of Lord Jessel, the Master of Rolls,
in Thorp versus Holdsworth in (1876) 3 Chancery Division 637 at 640]. In this
connection, it may be noted that order 12
Rule 6 was amended by the Amendment Act of
1976.
30
47. Prior to amendment the Rule read thus:-
“6. Judgment on admissions. – Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just.”
48. In the 54th Law Commission Report, an
amendment was suggested to enable the Court
to give a judgment not only on the
application of a party but on its own motion.
It is thus clear that the amendment was
brought about to further the ends of justice
and give these provisions a wider sweep by
empowering judges to use it ‘ex debito
justitial, a Latin term, meaning a debt of
justice. In our opinion the thrust of the
amendment is that in an appropriate case, a
party, on the admission of the other party,
31
can press for judgment, as a matter of legal
right. However, the Court always retains its
discretion in the matter of pronouncing
judgment.
49. If the provision of order 12 Rule 1 is
compared with Order 12 Rule 6, it becomes
clear that the provision of Order 12 Rule 6
is wider in as much as the provision of order
12 Rule 1 is limited to admission by
‘pleading or otherwise in writing’ but in
Order 12 Rule 6 the expression ‘or otherwise’
is much wider in view of the words used
therein namely: ‘admission of fact………either
in the pleading or otherwise, whether orally
or in writing’.
50. Keeping the width of this provision in mind
this Court held that under this rule
admissions can be inferred from facts and
circumstances of the case [See Charanjit Lal Mehra and others v. Kamal Saroj Mahajan
32
(Smt.) and another, (2005) 11 SCC 279 at page 285 (para 8)]. Admissions in answer to
interrogatories are also covered under this
Rule [See Mullas’s commentary on the Code,
16th Edition, Volume II, page 2177].
51. In the case of Uttam Singh Duggal & Co. Ltd., v. United Bank of India and others, (2000) 7 SCC 120, this Court, while construing this
provision, held that the Court should not
unduly narrow down its application as the
object is to enable a party to obtain speedy
judgment.
52. In that case it was contended on behalf of
the appellant, Uttam Singh Duggal, that:
(a) Admissions under Order 12 Rule 6 should
only be those which are made in the
pleadings.
(b) The admissions would in any case have
to be read along with the first proviso
to Order 8 Rule 5 (1) of the Code and
33
the Court may call upon the party
relying on such admission to prove its
case independently.
(c) The expression ‘either in pleadings or
otherwise’ should be interpreted
ejusdem generis. [See para 11, pages
126-127 of the report]
53. Almost similar contentions have been raised
on behalf of the Club. In Uttam Singh (supra) those contentions were rejected and this
Court opined no effort should be made to
narrow down the ambit of Order 12 Rule 6.
54. In Uttam Singh (supra) this Court made a distinction between a suit just between the
parties and a suit relating to Specific
Relief Act where a declaration of status is
given which not only binds the parties but
also binds generations. The Court held such a
declaration may be given merely on admission
(para 16, page 128 of the report).
34
55. But in a situation like the present one where
the controversy is between the parties on an
admission of non-payment of rent, judgment
can be rendered on admission by Court.
56. Order 12 Rule 6 of the Code has been very
lucidly discussed and succinctly interpreted
in a Division Bench judgment of Madhya
Pradesh High Court in the case of
Shikharchand and others Vs. Mst. Bari Bai and others reported in AIR 1974 Madhya Pradesh 75. Justice G.P. Singh (as His Lordship then
was) in a concurring judgment explained the
aforesaid rule, if we may say so, very
authoritatively at page 79 of the report.
His Lordship held:-
“... I will only add a few words of my own. Rule 6 of Order 12 of the Code of civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now rule 3 of Order 27, and is almost identically worded (see Annual Practice 1965 edition Part I. p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen (1914) Ch 904. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of
35
covenant against sub-letting. Lessee’s solicitors wrote to the plaintiff’s solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that rule. Sargant, J. rejected the argument that the rule is confined to admissions made in pleadings or under rules 1 to 4 in the same order (same as ours) and said:
“The 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.” Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargent, J. The words “either on the pleadings or otherwise” in rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial.”
(Emphasis added)
57. This Court expresses its approval of the
aforesaid interpretation of Order 12 Rule 6
by Justice G.P. Singh (as His Lordship then
was). Mulla in his commentary on the Code
has also relied on ratio in Shikharchand (supra) for explaining these provisions.
58. Therefore, in the instant case even though
statement made by the Club in its petition
36
under Section 114 of the Transfer of Property
Act does not come within the definition of
the word ‘pleading’ under Order 6 Rule 1 of
the Code, but in Order 12 Rule 6 of the Code,
the word ‘pleading’ has been suffixed by the
expression ‘or otherwise’. Therefore, a wider
interpretation of the word ‘pleading’ is
warranted in understanding the implication of
this rule. Thus the stand of the Club in its
petition under Section 114 of the Transfer of
Property Act can be considered by the Court
in pronouncing judgment on admission under
Order 12 Rule 6 in view of clear words
‘pleading or otherwise’ used therein
especially when that petition was in the suit
filed by the Trust.
59. However, the provision under Order 12 Rule 6
of the Code is enabling, discretionary and
permissive and is neither mandatory nor it is
peremptory since the word “may” has been
used.
37
60. But in the given situation, as in the instant
case, the said provision can be applied in
rendering the judgment.
61. The contentions of the Club cannot be
accepted on another legal ground also. It is
clear that the Club has taken inconsistent
pleas. On the one hand the Club alleged that
the Trust is not its Lessor and has no right
to receive the lease rent and it questions
the title of the Trust. On the other hand the
Club is seeking the equitable remedy against
forfeiture under Section 114 of the Transfer
of Property Act where it has proceeded on the
basis that the Trust is its Lessor and the
Club is the Lessee and as a Lessee it has to
pay the lease rent to the Trust. Therefore,
the Club seeks to approbate and reprobate.
62. The phrase ‘approbate and reprobate’ is
borrowed from Scots Law where it is used to
38
express the Common law principles of
Election, namely, that no party can accept
and reject the same instrument.
63. In the instant case while filing its Suit and
questioning the title of the Trust, the Club
seeks to reject the lease deed. At the same
time while seeking the equitable remedy under
Section 114 of the Transfer of Property Act,
the Club is relying on the same instrument of
lease. Legally this is not permissible. {See
the observation of Scrutton, L.J., in
Verschures Creameries Ltd. Vs. Hull and Netherlands Steamship Co. Ltd.,- 1921-2 KB 608, which has been approved by a
Constitution Bench of this Court in Bhau Ram Vs. Baij Nath Singh and Ors. – AIR 1961 SC 1327]
64. The principle of Election has been very
felicitously expressed in the treatise
‘Equity – A course of lectures’ by F.W.
Maitland, Cambridge University, 1947. The
39
learned author has explained the principle
thus:
“The doctrine of Election may be thus stated: That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it…..”
65. In the old equity case of Streatfield Vs. Streatfield (White and Tudor’s Leading Cases in Equity, 9th Edition, Volume I, 1928) this
principle has been discussed in words which are
so apt and elegant that I better quote them:
”Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both (f). The principle is stated thus in Jarman on Wills (g): “That he who accepts a benefit under a deed or will must adopt the whole contents of the
40
instrument, conforming to all its provisions, and renouncing every right inconsistent with it” (h). The principle of the doctrine of election is now well settled.”
66. This principle has also been explained by
this Court in Nagubai Ammal and Ors. Vs. B. Shama Rao and Ors.- AIR 1956 SC 593. Speaking for a three-Judge Bench of this Court, Justice
Venkatarama Ayyar stated in para 23 at page 602
of the report:
“The doctrine of election is not however confined to instruments. A person cannot say at time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction. ________________________
(f) Story (3rd ed.), p.452; Dillon v. Parker, 1 Swans.394, note (b); Thellusson v. Woodford, 13 V. 220.
(g) (6th ed.), 532; and see Farwell on Powers (3rd ed.), p.429.
(h) See Walpole v. Conway, Barn. C. 159; Kirkham v. Smith, 1 Ves. Sen. 258; Macnamara v. Jones, 1 Bro. Ch. 481; Blake v. Bunbury, 4 Bro. Ch. 21; Wintour v. Clifton, 21 B. 447; 8 De G. M. & G. 641; Codrington v. C., L.R. 7 H.L. 854, 861; Pitman v. Crum Ewing, [1911) A.C., at pp.228, 233; Brown v. Gregson, [1920] A.C. 860, 868. It is clear from the above observations that the maxim that a person cannot ‘approbate and reprobate’ is only one application of the doctrine of election.”
41
67. On the doctrine of election the learned Judge has
also referred to Halsbury’s Laws of England,
(Volume XIII page 454 para 512) in which this
principle of ‘approbate and reprobate’ has been
described as a species of estoppel which seems to
be ‘intermediate between estoppel by record and
estoppel in pais’ (Page 602 of the report).
68. The said principle has also been accepted by this
Court in C. Beepathuma and Ors. Vs. Velasari Shankaranarayana Kadambolithaya and Ors. – AIR 1965 SC 241, paragraphs 17-18.
69. Therefore, the common law doctrine of Election is a
part of our jurisprudence and squarely applies in
this case inasmuch as the Club has advanced
inconsistent pleas as noted hereinabove.
70. In so far as non-payment of lease rent is
concerned, the Club has admitted it in its written
statement in paragraphs (8) and (10). The Club has
also admitted it in its reply to the Trust’s
42
petition under Order 12 Rule 6 referred to
hereinabove. The Club has also admitted non-payment
of rent in its petition under Section 114 of the
Transfer of Property Act where it sought the
equitable remedy of forfeiture and which has been
denied to it by the High Court for valid reasons.
71. From the pleadings between the parties in this case
the following things are admitted:
(a) the Club has admitted in its written
statement that the Trust is its Lessor;
(b) the Club has also admitted that it has not
paid the lease rent;
(c) the Club has also admitted that the lease
rent is more than Rs.3500/- per month in
its reply to the Trust’s petition under
Order 12 Rule 6;
(d) the Club has also admitted the receipt of
notice of termination of lease issued by
the Trust on the ground of non-payment of
lease rent.
43
72. The Suit filed by the Club questioning the title of
the Trust as its Lessor has been dismissed and
nothing has been shown to this Court that it has
been restored as on date. Such a plea is prima
facie not acceptable in view of the provisions
under Section 116 of the Evidence Act. However, in
support of its case that the Club is not estopped
under Section 116 of the Evidence Act to challenge
the title of the lessor, learned Counsel for the
Club relied on a judgment of this Court in D. Satyanarayana Vs. P. Jagadish – (1987) 4 SCC 424. The principle laid down in that decision is not
attracted in the facts of this case.
73. In D. Satyanarayana (supra) the tenant was a sub- tenant of the tenant-respondent. The sub-tenant was
threatened with eviction by the superior landlord.
Being threatened with such eviction, the sub-tenant
started paying monthly rent directly to the
superior landlord. In such a situation the Court
held that an exception to the rule of estoppel
under Section 116 of the Evidence Act can be made
44
since title of the landlord came to an end as he
was evicted by the title paramount. The Court held
even if there is a threat of eviction by the title
paramount, the tenant can attorn to the title
paramount and a new jural relationship of landlord
and tenant may come into existence. In such a
situation, a sub-tenant can question the title of
the tenant and the bar under Section 116 of the
Evidence Act cannot apply. Here the fact situation
is totally different. Here the Club was not facing
threat of eviction from anybody excepting the Trust
and there is no question of a superior landlord. In
the instant case Section 116 prima facie applies
and the Club is prima facie stopped from
challenging the title of the Trust.
74. Apart from the reasons discussed above, in our
opinion the Club is not entitled to any equitable
relief under Article 136 of the Constitution having
regard to its conduct. From the facts discussed
above it is clear that the Club was very negligent
in pursuing its case. Its case was dismissed on
several occasions. The Club also adopted dilatory
45
tactics in prolonging the litigation. Even after
losing the appeal before the High Court, the Club,
through its members initiated several proceedings
to stall the execution of the decree and in those
proceedings the High Court held that with knowledge
of the Club those proceedings by the members were
initiated. Even while filing the Special Leave
Petition before this Court, initially the members
of Club came with the usual plea of not being aware
of the eviction proceeding against the Club as they
were not parties to the same. On that plea the
members initially obtained a stay of the execution
proceedings. Thereafter, the Club taking advantage
of the existing stay order, filed its SLP.
75. In the backdrop of these facts one thing is clear
that the conduct of the Club is such as to
disentitle it to any discretionary remedy.
76. The jurisdiction of this Court under Article 136 of
the Constitution is basically one of conscience.
The jurisdiction is plenary and residuary in
nature. It is unfettered and not confined within
46
definite bounds. Discretion to be exercised here is
subject to only one limitation and that is the
wisdom and sense of justice of the judges (See
Kunhayammed and others vs. State of Kerala and another – (2000) 6 SCC 359 at 371). This jurisdiction has to be exercised only in suitable
cases and vary sparingly as opined by the
Constitution Bench of this Court in the case of
Preetam Singh vs. The State reported in AIR 1950 SC 169, at paragraph 9.
77. Over the years this view has been repeated in
several cases and some of which are noticed
hereunder.
78. In Municipal Board, Pratabgarh and another vs. Mahendra Singh Chawla and others reported in (1982) 3 SCC 331, a two Judge Bench of this Court held
that in exercising the discretionary jurisdiction
under Article 136 law is to be tempered with equity
and if the equitable situation so demands the
47
Supreme Court should mould the final order (See
paragraph 6).
79. Subsequently in Transmission Corpn. of A.P. Ltd. Vs. Lanco Kondapalli Power (P) Ltd. reported in (2006) 1 SCC 540 this Court held that while
exercising jurisdiction under Article 136 the
conduct of the party is a relevant factor and in a
given situation this Court may refuse its
discretionary jurisdiction under Article 136 (See
paragraphs 54, 55 and 56). Similar views have been
expressed in the case of Jagraj Singh vs. Birpal Kaur reported in (2007) 2 SCC 564 wherein this Court held that the conduct of the parties is
relevant when the Court is exercising its
jurisdiction under Article 136 (See paragraph 30).
In Tanna & Modi vs. CIT, Mumbai XXV and others reported in (2007) 7 SCC 434 this Court held it
does not exercise its discretionary jurisdiction
under Article 136 just because it is lawful to do
so (See paragraph 23). In the case of Prestige Lights Ltd. vs. State Bank of India reported in
48
(2007) 8 SCC 449 the Court refused to exercise
jurisdiction under Article 136 of the Constitution
having regard to the conduct of the parties.
80. For the reasons aforesaid this Court is not
inclined to interfere in exercise of its
jurisdiction under Article 136. Both the appeals,
the one filed by Karam Kapahi & Others and the next
one filed by the M/s. South Delhi Club Ltd. are
dismissed with costs assessed at Rs.25,000/-
(Rupees Twenty-five thousand) to be paid by M/s
South Delhi Club to M/s. Lal Chand Public
Charitable Trust within four weeks from date. The
Judgment of the High Court is affirmed.
.....................J. (G.S. SINGHVI)
.....................J. (ASOK KUMAR GANGULY)
New Delhi April 07, 2010
49