TMI Blog2010 (4) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 u/s 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. 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 petition under Order 12 Rule 6 referred to hereinabove. The Club has also admitted non-payment of rent in its petition u/s 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. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.7.1997 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent being above ₹ 3500/- p.m. 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 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 dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The phrase `approbate and reprobate' is borrowed from Scots Law where it is used to 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only one application of the doctrine of election. 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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