Sanjoy Kumar Sett v. Dharamraj Prasad & Anr.

IN THE HIGH COURT AT CALCUTTA

ORDINARY ORIGINAL CIVIL JURISDICTION

ORIGINAL SIDE

G.A. 739 of 2016 With

C.S. 346 of 2014 Sanjoy Kumar Sett -VS-

Dharamraj Prasad & Anr.

CORAM: HON'BLE MR. JUSTICE HARISH TANDON

For the Petitioner Ms. Sutapa Sanyal, Adv. For the Respondents Mr. Chayan Gupta, Adv. Judgment on

13.06.2016

The Court:

The present controversies invite the Court not only to narrate the scope of the provisions contained in Order XII Rule 6 of the Code of Civil Procedure but also a distinction to be drawn between the said provision and the provisions contained in Rule 6 of Chapter XIIIA of the Original Side Rules of Calcutta High Court.

Before proceeding to address the issue as indicated above, the salient features of facts involved in this case are required to be adumbrated herein below.

The plaint case simply proceeds that the plaintiff promoted a company by the name of Globe Forex and Travel Limited with the

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registered office at 100, Ho Chi Minh Sarani, Kolkata - 700 071, and employed various persons including the defendant Nos. 1 & 2 in the said company. The said premises is owned by an official trustee, Govt. of West Bengal and let out the upper flat, east suite along with two garages, one kitchen and five godowns to be used for sevants at a monthly rent which was enhanced from time to time and at the time of filing the suit the plaintiff was paying a rent of Rs. 2662.00 per month according to the English calendar. Though the rent receipt does not indicate the godowns but it was all along used for the purpose of residence of the servants having located at the backside of the said premises. Since, the defendants did not have a place of residence and having employed by the plaintiff in the said company, permitted them to stay in one of such godowns primarily used as servant's quarter purely on permissive occupation. On 9^th April, 2013 the plaintiff sold his controlling block of shares in the said company to one Ramkrishna Forgings Limited who subsequently transferred the registered office of the said company from the said premises to another premises and duly notified the same with the Registrar of Companies.

On October 30, 2013 the plaintiff asked the defendants to vacate the said servant's quarter as they were no longer in employment of the plaintiff and an assurance was given to him that they would vacate it shortly. Since they failed to honour such assurance a General Diary was

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lodged with the local police station and subsequently a notice was issued terminating the license which was duly received by the defendants. It is averred in the plaint that the defendants have no right to remain in occupation after the withdrawal of the permission and having failed to do so the present suit is filed not only for recovery of possession but also for mesne profit.

After entering appearance, the defendants filed the written statement denying the jural or contractual relationship with the plaintiff. It is a specific stand taken therein that they were accommodated in the said suit premises by the said company on the backside of the said premises in the servant's quarter which is accessible by a narrow lane of 3 ft. wide. It is further averred that the letter of appointment would discern that they were allowed the house rent allowances but subsequently a procedural was adopted by the company that the house rent allowances would be paid at the first instance but is returned in cash because of such accommodation being provided to them by the company. It is categorically stated that the plaintiff is not a tenant in respect of a portion in their occupation and therefore have no semblance of right, title and interest therein. On a notice terminating the license, the defendant says that such notice is invalid, illegal as they were not permitted to occupy the said servant quarter by the plaintiff but by a company where they are employed.

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The plaintiff took out an application under Order XII Rule 6 of the Code of Civil Procedure for a judgment on admission as the defendants in a petition under Section 144(2) of the Code of Criminal Procedure admitted that they were inducted by the plaintiff and therefore the subsequent stand that they were inducted by the company in lieu of their employment is concocted, afterthought and have no semblance of truth in it. Indubitably the identical defence is taken in an opposition to the said application filed by the defence and therefore the question hinges on an issue whether the statement made in an application under Section 144(2) of the Code of Criminal Procedure would be sufficient for the purpose of passing a judgment on admission.

To address such point it would be profitable and relevant to quote the provisions contained under Order XII Rule 6 of the Code and Rule 1 of Chapter XIIIA of the Original Side Rules of this Court which runs thus:--

"Order XII:

R.6. Judgment on admissions.--- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the said judgment was pronounced."

"Chapter XIIIA:

1. Nature of cases in which applicable.- The provisions of this Chapter shall not be applicable save to suits,--

(A) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant with or without interest arising--

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(i) on a contract express or implied; or

(ii) on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee where the claim against the principal is in respect of a debt or a liquidated demand only; or

(iv) on a trust; or

(B) for the recovery of immovable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non- payment of rent or against persons claiming under such tenant." It is evident from Order XII Rule 6 of the Code that the Court may at any stage of the suit either on an application of any party or suo-motu make such order or give such judgment whether the admissions of fact have been made either in pleading or otherwise whether orally or in writing. Rule 1 of Chapter XIIIA operates on a different field as it imbibed within itself the power of the Court to pass a summary judgment on an application after refusing a leave to defend provided the Court is satisfied that the defendant has no good defence to the claim on its merit. There is no difficulty in saying that both the provisions has its applicability in a different eventualities or situations though achieves the same purposes i.e. passing a judgment or a summary judgment without waiting the parties to adduce evidence. Chapter XIIIA can be invoked in absence of any clear and express admission of facts as the language employed therein clearly indicates that if the Court is satisfied that the defendant have no plausible or good defence to the claim of the plaintiff on merit the leave to defend can be refused and the judgment may follow. The aforesaid principles cannot be borrowed and / or infused under Order

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XII Rule 6 of the Code which is specific in the sense that if the Court is satisfied that there is a clear, unequivocal and unconditional admission of facts touching the merit of the plaint case it may pass a judgment on such admission without waiting for trial. The word "may" appearing in Order XII Rule 6 of the Code manifest the legislative intent that it is discretionary and in deserving cases the Court may refuse to pass a judgment on admission. Prior to the amendment act of 1976, Order XII Rule 6 as it stood has a restricted applicability but subsequently the scope has been widened by incorporating the expression "or otherwise". There is a clear distinction between an admission under Rule 1 of Order XII and Rule 6 as in case of former it is restricted to an admission in the pleading or otherwise in writing whereas in case of later such admission can also be taken into account if made orally and the power of the Court to pass such judgment is not restricted to an application taken out by any of the parties but such power can be exercised by the Court suo- motu.

The said provision receives a sea change on a recommendation of the 54^thLaw Commission Report and it is evident and apparent from the amendments having brought by an amendment act of 1976 that to ensure the ends of justice and empowering the Judge to use it 'ex debito justitiae' a Latin term meaning a debt of justice. In case of Uttam Singh Duggal & Co. Ltd vs United Bank of India & Ors. reported in (2000)7

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SCC 120 the Supreme Court summarized the provisions of Order XII Rule 6 as :-

1. admission under Order XII Rule 6 should only be those which are made in the pleadings;

2. the admission would be in any case has to be read along with first proviso of Order VIII Rule 5(1) of the Code and the Court may call upon the party relying on such admission to prove its case independent;

3. the expression "either in pleading or otherwise" should be interpreted ejusdem generis.

The said rule therefore applies whenever and wherever there is a clear admission of facts on the face of it, which it is impossible for the party making it to succeed. The expressions "pleading" and "or otherwise" have been lucidly and succinctly interpreted by the Supreme Court in its later decision rendered in case of Karam Kapahi & Ors. -Vs- Lal Chand Public Charitable Trust & Anr. reported in (2010)4 SCC 753 in the following words:-

"47. Therefore, in the instant case even though statement made by the Club in its petition 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 the 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.

48. 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

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word "may" has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment."

Therefore there is no hesitation in my mind that by incorporation of the expression "or otherwise" and "whether orally or in writing" widens the scope of Order XII Rule 6 of the Court and therefore an admission can be sufficiently culled out other than the pleadings provided the Court is satisfied that such admission is explicit, clear, unconditional and unqualified and the plaintiff may succeed in and the defendant cannot wriggle out from such admission.

On the conspectus of the ratio laid down in the above noted reports it is to be seen whether the present case can be brought within the ambit of Order XII Rule 6 of the Court. It is a specific case of the plaintiff that the defendants were permitted to occupy the servant's quarter by the plaintiff though they were employed in the company which was fully owned by him. In an application under Section 144(2) of the Code of Criminal Procedure more particularly in Paragraph 5 thereof the defendant No. 1 had stated that in year 1987 the plaintiff made arrangement for his stay at premises No. 11, Ho Chi Minh Sarani, Kolkata - 700 071. It is, therefore, admitted therein that the plaintiff being the erstwhile Managing Director of the plaintiff company also had his residence in the same property under lease. The relevant excerpts from the said paragraph is quotes herein below:--

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"The petitioner states that the company previously used to have its registered office at 11, Ho Chi Minh Sarani, Kolkata-700071, an Armenian Property. The opposite party, erstwhile Managing Director of the petitioner company, also had his resident in the same property under lease. In the year 1987 the opposite party made arrangement for his stay in 11, Ho Chi Minh Sarani, Kolkata - 700071. The petitioner herein is still working with the aforesaid company and he has been associated with the company for the last 25 years. during his stay in the aforesaid property the petitioner had obtained his PAN Card, Voter Identity Card, Andhar Card, and Gas Cylinder connections in the aforesaid address. The Opposite Party being a tenant/lessee himself is not in control and/or possession of the room where the petitioner is residing." One can safely proceed on the basis of the aforesaid statements that the opposite party was a Managing Director of the company at one point of time and have made an arrangement for the stay of the defendant No. 1 for stay at premises No. 11, Ho Chi Minh Sarani, Kolkata-700 071. At the same breath it is stated that the plaintiff is not in control or in possession of the room where the petition resides. In support of the aforesaid statement it is contended on behalf of the defendants that the rent receipts issued by the official trustee of the Govt. of West Bengal do not depict the godowns but five garage for servant's quarter. The desperate argument is advanced on the word 'garage' to impress upon the Court once the plaintiff has stated in the plaint that the accommodation was provided in a godown it is apparent therefrom that the godowns do not form part of the tenancy held by the plaintiff. In my view, the aforesaid argument has no substance for the simple reason that though the word 'garage' is used in the rent receipt but it is followed by the words 'for servant'. The mere misdescription in the rent receipt cannot act as a deterrent to the plaintiff when there is clear and unequivocal admission of the defendant that the plaintiff

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arranged their stay at the said premises. There is no whisper either in the opposition or in the written statement that the subject property belongs to any other person than the plaintiff or the said portion was under an exclusive possession of the company where they are in employment. A person can give possession to another person if he is in possession of the immovable property and not otherwise. An attempt is sought to be made to deny the title of the plaintiff in respect of the suit premises which in my view is impermissible because of Section 116 of Evidence Act. It is pertinent to state that the defendants have not denied the service of the notice terminating the license but have raised a point as to the validity thereof on the pretext that there is no privity of contract between the plaintiff and them. Even otherwise this Court does not find that the aforesaid fact can stand against the plaintiff as the suit itself is a notice signifying the intention of the plaintiff in terminating the license granted to the defendants.

As a last gasping resort the defendant says that the defence set up in the written statement speaks otherwise and there is no admission in regard to the permission having granted by the plaintiff to occupy the said premises and therefore the application under Order XII Rule 6 should be dismissed. As indicated above the applicability of Order XII Rule 6 is not restricted to the pleading but by insertion of expression "or otherwise" followed by "whether orally or in writing" expands its horizon and the admission can be traced apart from the pleading. Since there is a

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clear admission on the part of the defendant in an application under Section 144(2) of the Code of Criminal Procedure and such admission is found to be clear, unambiguous and unconditional, this Court, therefore, does not agree with the submissions advanced by the defendants. The application is thus allowed.

There shall be an order in terms of prayer (a) to the petition subject however that the defendants are allowed 2 (two) months time to vacate the said premises.

However, there shall be not order as to costs.

(Harish Tandon, J.)

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