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  

7

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