Calcutta High Court (Appellete Side)
Bharat Petroleum Corporation Ltd vs Kaushik Ganguly & Ors on 18 June, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
COMMERCIAL DIVISION
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Smita Das De
FA 55 of 2024
Bharat Petroleum Corporation Ltd.
Vs.
Kaushik Ganguly & Ors.
For the Appellants : Mr. Sanjib Kumar Mal, Adv.,
Mr. Bimalendu Das, Adv.,
Ms. Shomrita Das, Adv.
For the Respondent : Mr. Debdutta Sen, Sr. Adv.,
Mr. Siddhartha Chatterjee Adv.,
Mrs. Suchismita Ghosh Chatterjee Adv.,
Mr. Malay Kumar Seal Adv.
Hearing concluded on : 10th June, 2025
Judgment on : 18th June, 2025
Soumen Sen, J :
1. The appeal is arising out of a decree for eviction passed by the
Commercial Court at Rajarhat on 9th June, 2023 in T.S No.32 of 2021.
2. During the pendency of the suit the plaintiff filed an
application under Order XII Rule 6 CPC praying, inter alia, for judgment
upon admission in view of alleged admission made by the defendant in its
pleading.
2
3. Briefly stated the plaintiff Nos.1 and 2 along with one
Narayan Das Ganguli since deceased were the absolute owners of the suit
premises.
4. Upon the death of said Narayan Das Ganguli his 1/3rd share
in the suit premises devolved upon the plaintiffs/petitioners who are
presently the absolute owners of the said premises. The forefather of the
plaintiffs namely late Paresh Nath Gangopadhyay had executed a
registered deed of lease in favour of Burmah-Shell Company on 7 th
December, 1971 in respect to the suit premises for a period of ten years
commencing from December, 7 1971 at a monthly rent of Rs.325/- with
two options of renewal of ten years each.
5. By virtue of Burmah-Shell Company (acquisition of
undertakings of India) Act, 1976 the right, title and interest of Burmah-
Shell Company were vested in the Government of India and subsequently
it was transferred to and vested in Burmah-Shell Refineries Limited vide a
notification issued under Section 7 of the 1976 Act. Thereafter, the name
of the company was changed to Bharat Refineries Limited and
subsequently to Bharat Petroleum Corporation Limited with effect from 1st
August, 1977. The defendant exercised its right of renewal for the first
term of ten years in terms of the lease deed of 1971 reserving its right of
further renewal of ten years.
6. Prior to the expiry of the tenure of the lease the parties
mutually agreed to execute a fresh deed of lease for a tenure of 34 years 8
months and 6 days in favour of the defendant without an option for
3
renewal and on such of the conditions as would appear from the said
lease deed. Accordingly a registered deed of lease was executed on 21st
January, 1988 commencing with effect from 4 th April, 1987 with expiry on
6th December, 2021.
7. Under the terms of the lease the defendant/respondent was
entitled to utilise the suit premises for storage and sale of petroleum
products, motor accessories, etc. and for such purpose the
defendant/respondent shall be at liberty to make excavations for tanks
and erect and construct buildings or structures, pumping plant and
accessories; and the defendant/respondent is at liberty to remove all
tanks, building or structures, plant and outfit installed, constructed and
brought in by the defendant/respondent notwithstanding that they
comprise of fixtures embedded in or attached to the earth.
8. The said lease expired by efflux of time on 6th December,
2021. The lease deed does not contain any renewal clause or extension of
the period of the lease. Prior to the expiry of the lease, on November 27,
2020, the plaintiffs/petitioners nos. 1 and 2 along with Narayan Das
Ganguli since deceased, through their advocate issued notice informing
the defendant/respondent that they will not grant any extension of lease
and requested the defendant/respondent to handover vacant and peaceful
possession of the suit premises immediately upon completion of the period
of lease.
9. The defendant/respondent by its letter dated January 01,
2021, admitted that the duration of the lease expires on December 06,
4
2021 and expressed its desire to continue its business from the suit
premises for an additional period of 30 years. The plaintiffs/petitioners by
the letter dated January 14, 2021 issued by their advocate, informed the
defendant/respondent that they were unwilling to agree to the
defendant/respondent’s proposal and requested it to handover vacant and
peaceful possession of the suit premises forthwith as the period of lease
had expired. Since the defendant/respondent failed to vacate the suit
premises, the plaintiffs/petitioners through further letters dated July 06,
2021 and December 11, 2021 directed the defendant/respondent to
handover possession of the suit premises to the plaintiffs/petitioners.
10. The suit was in view of the failure on the part of the defendant
to handover possession after the expiry of the lease. Therefore, the
plaintiff filed the suit for recovery of possession and other incidental
reliefs. In the said proceeding the plaintiff filed an application for
judgment upon admission. It was premised on the fact that the period of
lease has admittedly expired on 6th December, 2021 and the plaintiffs
have clearly expressed their unwillingness to execute a fresh lease in
favour of the defendant. Upon the expiry of the lease, the defendant does
not have any right to remain in the said premises and/or carry on
business therefrom. The plaintiff relied upon the communication received
form the respondent dated 1st January, 2021 in which the appellant had
admitted that the lease had expired by efflux of time on 6th December,
2022. The plaintiffs have by their letter dated 27th November, 2020, 6th
December, 2021 and 11th December, 2021 refused to execute a fresh deed
5
of lease and demanded vacant and peaceful possession of the suit
premises from the defendant/respondent. The defendant in their written
statement in paragraph 8 have admitted expiry of the lease by efflux of
time. In view of such unequivocal admission in pleadings or even
otherwise the defendant has no defence in the suit and the plaintiff is
entitled to a decree for eviction based on such admission in the letters as
well as in the plea. The defendant in his written statement has
categorically stated that the defendant is a non-agricultural tenant under
West Bengal Agricultural Tenancy Act, 1949. The subject land is a non-
agricultural land and the plaintiff as landlord allowed pucca (permanent)
structures to be erected on the land held by the defendant under a written
lease. In terms of the lease agreement the defendant was entitled to erect
pucca structures and in fact had erected and constructed pucca
structures on the plot and dug tanks thereon for the purposes of carrying
his business with the knowledge of consent of the landlord. In view
thereof, the defendant cannot be evicted in any manner except as
specifically stipulated in the West Bengal Non-Agricultural Tenancy Act,
1949. The plaintiff has neither made any pleading nor relied on any
documents to show that the defendant is liable to be evicted under the
said Act.
11. Mr. Sanjib Kumar Mal learned Senior Counsel appearing on
behalf of the appellant has submitted that the judgment on admission is
not a matter of right and where the defendant raised an objection which
goes to the root of the case and where there is a need to decide
6
justiciability of defence of a tenant by a full-fledged trial, the court shall
refrain from exercising its jurisdiction under Order XII Rule 6 of the CPC.
Moreover, in the written statement the defendant has taken a specific plea
that its tenancy is protected under the West Bengal Non-Agricultural
Tenancy Act, 1949 and merely because the defendant has made few
communications in an around the expiry of the lease praying for renewal
of the lease would not take care of the right of defendant to raise a plea of
its tenancy to be protected under the West Bengal Non-Agricultural
Tenancy Act, 1949.
12. On the proposition of law that the court in exercising its
jurisdiction to pass a decree under Order XII Rule 6 of the CPC, Mr. Mal
has relied upon to following decisions of the Hon’ble Supreme Court:
i. S.M Asif v. Virender Kumar Bajaj1
ii. Karan Kapoor v. Madhuri Kumar 2
iii. Hari Steel & General Industries Limited & Anr. v.
Daljit Singh & Ors.3
13. Mr. Mal had extensively referred to the provisions of the West
Bengal Non-Agricultural Tenancy Act, 1949 and with specific reference to
Section 7 Sub-Section 5 has argued that having regard to the fact that the
landlord has allowed pucca structures to be erected on the non-
agricultural land the defendant cannot be evicted except on the ground
1
2015 (9) SCC 287
2
(2022) 10 SCC 496
3
AIR 2019 SC 4796
7
that the defendant has used such land in a manner which renders it unfit
for use for the purposes of the tenancy. Further reference is made to
Section 8 of the said Act to show that the tenant holding over the land on
the expiration of the period of lease would be entitled to the option of
successive renewals of such lease on such fair and reasonable conditions
as to rent as may be agreed upon between the landlord and the tenant.
The defendant is ready and willing to pay fair and reasonable rent for
being in possession after the expiry of the lease. Once it is established
that the defendant is covered under the provisions of the Non-Agricultural
Tenancy Act, 1949 the defendant/appellant is entitled to the protection
and the benefits of the said Act.
14. Mr. Debdutta Sen, learned Senior Counsel appearing on
behalf of the petitioner has submitted that the defendant has admitted in
his pleading and communications made from time to time that the lease
would expire on 6th December, 2021 and in fact had made requests for
renewal of the said lease which clearly shows that the defendant was
aware that they are not a tenant under the West Bengal Non-Agricultural
Tenancy Act, 1949 or that the said Act could not have any manner of
application in deciding the jural relationship between the parties. The
parties are governed by the lease agreement. The defendant cannot
dispute the title of the landlord.
15. Mr. Sen has referred to the lease agreement dated 29th
January, 1988 to show that the respondent has in the said agreement
agreed to handover vacant possession of the suit premises by removing
8
tanks, buildings, structures, plants and outfit installed construction upon
the expiry of the lease and in this regard he has relied upon the following
clauses of the lease deed:
AND THE LESSEE DOTH HEREBY COVENANT WITH
THE LESSOR AS FOLLOWS:-
To deliver up vacant possession of the said land to the Lessor upon
the expiration or sonner determination of the said term and to
remove with all reasonable despath therefrom all buildings
structures and plant and all other its property therein and thereon
at its own cost and restore the said land in its original condition.
AND THE LESSOR COVENANTS WITH THE LESSEE AS
FOLLOWS:-
That the Lessee will be at liberty to remove all tanks, buildings or
structures, plant and outfit installed construction and brought in
by it notwithstanding that they comprise fixtures embedded in or
attached to the earth and the Lessor shall have no claim thereto in
any manner whatsoever, the entirety of such tanks, buildings or
structures, plant and outfit as aforesaid being the property of the
Lessee.
PROVIDED ALWAYS AND IT IS HEREBY AGREED AND
DECLARED and these for any lawful purpose.
If the Lessee shall desire to determine the present demise at any
time during the period of the demise and shall have given to the
lessor three months’ notice in writing of its such desire and shall
9upto the time of such determination pay the rent and perform and
observe the covenants on its part hereinbefore contained then
immediately on the expiration of such notice the present demise
and everything herein contained shall cease and determine but
without prejudice to the remedies of either party against the other
in respect of any antecedent claims or breach of covenant. Any
notice to be given hereunder shall be deemed to have been given if
sent by registered post to the last known address of the party
concerned to receive the same.
That in the event of the said land or any part thereof being
acquired or requisitioned by the Government or any legal authority
or public body under any law for the time being in force the terms
hereby granted shall absolutely cease and determine with effect
from the date of such acquisition or requisition unless the lessee
exercises its option to continue the lease for the remaining
unacquired land in which case the rent shall be reduced
proportionately. The lessor shall be entitled to the whole of the
compensation and statutory allowance payable in respect of the
said land or part thereof as the case may be and the lessee will be
entitled to such compensation as may be awarded for buildings or
structures fixtures and fittings constructed fastened or erected by
the Lessee and which the Lessee will be entitled to remove the as
provided herein and also for loss of business.
10
16. It is submitted that the recitals in the said deed would clearly
show that the property is not governed by the provision of 1949 Act and
the said property was not coming within the purview of the Non-
Agricultural Tenancy Act of 1949. It is submitted that the parties with
their eyes wide open had entered into such an agreement and it shall be
presumed that they were conscious of the fact that the provisions of the
said Act is not applicable to the present tenancy. Mr. Sen has submitted
that if it is contended and held that the provisions of the West Bengal
Non-agricultural Tenancy Act, 1949 is applicable then by reason of
Section 3 Sub-Section-2 and Section 3 Sub-Section-3, the appellant
becomes undertenant under the present plaintiff.
17. It is submitted that the amendment to the Section 3(2) in the
definition of tenant was only introduced by West Bengal Act 8 of 1994
whereby the phrase “from a proprietor or a tenure-holder a right to hold
Non-Agricultural land” is replaced by “a right to hold non-agricultural
land directly under the State. If the appellant contends and held to be a
undertenant then the said undertenant can be evicted under Section 20
upon expiry of the term of the lease as clearly prescribed in Section 20(b)
of the aforesaid Act. For the sake of convenience the said Section is
reproduced below:
“20(b) On the ground that the term of his lease has expired when
he holds the non-agricultural land under a written lease:
“Provided that in the case where any non-agricultural land is
held by an under-tenant without a lease in writing or under a
lease in writing but no term is specified in such lease, it shall
11be also lawful for his landlord to eject him from such land
after having given him six months’ notice in writing expiring
with the end of a year of the tenancy, and on payment of
such reasonable compensation as may be agreed upon
between the landlord and the under-tenant, or in the case
where they do not agree, as may be determined by the Court
on the application of the landlord or such under-tenant”.
18. It is submitted that the draft and final publish of records of
rights does not anywhere feature the name of the appellant. In view of the
aforesaid position, the provisions of the Transfer of Property Act, 1882
(hereinafter referred to as “TPA”) would be applicable in deciding the
landlord-tenant relationship, in view of Section 71 of the 1949 Act.
19. Mr. Sen in order to establish that the aforesaid lease
agreement creates an “Estopple by deed” has relied upon the following
passage from a much acclaimed book “Estopple by Conduct and Election
(South Asian Edition, 2013)” by the Hon’ble Mr. Justice K.R Handley to
argue that the defendant having accepted that he is a tenant under the
lease without there being any reference to the provision of 1949 Act and
since 1971 had agreed to be governed by the terms of the lease which
makes no reference to the Non-Agricultural Act 1949. The defendant is
clearly estopped from raising any such plea at this stage:
“9-011 A landlord and the tenant are estopped by
convention, while the tenant is in possession,4 and
thereafter for purposes relevant to his past possession,
from denying that the landlord had an estate which would4
Industrial Properties (Barton Hill) Ltd v. Association Electrical Industries Ltd. [1977]QB 580 CA
12support the lease,5 and that the tenant had a right to
possession as such. The estoppel is a legal incident of all
leases and each party is estopped from setting up a title
which would contradict that of the other,6 and from
denying “one of the ordinary incidents or obligations of the
tenancy on the ground that the landlord had no legal
estate”.7 The Court “is not concerned with the question of
whether the agreement creates an estate or other
proprietary interest which may be binding on third parties
it is the fact that the agreement is a lease which creates
the proprietary interest… it is not the estoppel which
creates the tenancy but the tenancy which creates the
estoppel”.8
20. The estoppel applies even when the defect in the landlord’s
title appears on the face of the lease9 or both parties are otherwise aware
of it.10 The importance of mutuality is illustrated by Otago Harbour
Board v Spedding11 where the landlord, which could not be estopped
from setting up its statute to invalidate the lease, could not estop the
tenant from doing so. The estoppel is eminently fair. As Martin B said12:
“This state of law… tends to maintain right and justice and
the enforcement of contracts which men enter into with
each other (one of the great objects of all law); for so long
as a lessee enjoys everything which his lease purports to5
EH Lewis & Son Ltd v. Morelli [1948] 2 All ER 1021 CA, 1024.
6
Cooke v. Locksley (1792) 5 TR 4; Mackley v. Nutting [1949] 2 KB 55 CA.
7
Bruton v. London & Quadrant Housing Trust [2000] 1 AC 406, 415
8
Ibid; an agreement which confers a right of exclusive possession is a lease notwithstanding any
statements in the document to the contrary: Radaich v. Smith (1959) 101 CLR 209.
9
Duke v. Ashby (1862) 7 H & N 600, 602
10
In Agar v. Young (1841) 1 Car & M 78
11
1886 (4) NZLR 272
12
Cuthbertson v. Irving (1859) 4 H & N 742, 758
13grant, how does it concern him what the title of the lessor,
or the heir or assignee of his lessor, really is?”
21. Further the defendant has paid rent to the plaintiffs as
landlord without any murmur or protest or claiming any protection under
the 1949 Act.
22. It is submitted that the 1949 Act has no manner of
application as would be evident from the provisions of Section 3(1) and (2)
of the said Act which stipulates inter alia that a tenant is a person who
has acquired a right to hold a land directly under State for any of the
purposes provided in this Act and includes also the successors in interest
of persons who have acquired such a right. In the instant case, the
appellant/defendant is holding the land on lease under the
respondents/plaintiffs who are all private individuals.
23. Mr. Sen has argued that in a suit for recovery of possession of
a property from a tenant the plaintiff is required to establish existence of
jural relationship between the parties and termination of tenancy either
by efflux of time or by service of notice under Section 106 of the TPA.
24. Reliance is placed on the basis of the Hon’ble Supreme Court
in Payel Vision Limited v. Radhika Choudhary13 for the proposition
that Order XII Rule 6 CPC sufficiently empowers the court trying the suit
to deliver the judgment based on admissions whenever such admissions
are sufficient for grant of the relief prayed for. “In a suit for recovery of
possession from a tenant whose tenancy is not protected under the
13
2012 (11) SCC 405
14
provision to Rent Control Act all that is required to be established by the
plaintiff/landlord is the existence of the jural relationship between the
parties and a valid termination of the tenancy either by efflux of time or by
notice served by the land lord under Section 106 under the Transfer of
Property Act“. (Ibid, page 410, paragraph 7). It is submitted that by
reason of efflux of time coupled with the fact that the defendant has
admitted in its letters as well as written statement that the lease had
expired the conditions for exercising of jurisdiction under Order XII Rule 6
is firmly established.
25. We have read the impugned judgment carefully. The learned
Commercial Court has proceeded on the basis that the lease had expired
and the defendant has admitted such expiry of lease in its written
communication as well as in the pleadings. However what seems to have
not been considered is the justiciability of the defence urged by the
defendant. If a difficult question of law is raised in a proceeding under
Order XII Rule 6 of the CPC which cannot be conveniently decided in a
summary proceeding without evidence and in answering the question,
factual inquiry is required which can only be conveniently carried out in a
trial the court shall not pass a judgment upon admission merely because
there is a pleading with regard to certain facts. The admission in
paragraph 8 of the written statement cannot be read in isolation to the
clear stand of the defendant in paragraph 3 of the written statement. In
paragraph 3 of the written statement, the defendant had categorically
taken the plea that its tenancy is protected under the West Bengal Non-
15
Agricultural Tenancy Act, 1949. In the event at the trial it is found that
the said provision is applicable to the tenancy in question then the tenant
is entitled to the protection under Section 7(5) of the 1949 Act. In so far as
the renewal of the lease for the successive period is concerned the tenant
would be entitled to the option of the successive renewal on such fair and
reasonable conditions as to them as may be agreed upon between the
landlord and such tenant. In case of any dispute as to whether any
condition for the renewal of a lease under Sub-Section 1 of Section 8 is
fair and reasonable the landlord of the tenant can apply in the prescribed
manner to the court and the court shall thereupon determine the
conditions for renewal of the lease which it considers fair and reasonable
in the circumstances of the case. Moreover, Section 8(3) protects a tenant
from eviction after the tenant has exercised its option of renewal and
during the term of such renewal except on the ground that he has used
such land in a manner which renders it unfit for the use for the purposes
of tenancy. In the event the said provision of law applies, Section 106 or
Section 111(f) would have no manner of application in view of Section 71
of the 1949 Act which reads as follows:
“West Bengal Non Agricultural Tenancy Act
Application of the Transfer of Property Act, 1882, or
other law. –
The provisions of the Transfer of Property Act, 1882,
and of any other law for the time being in force, in so
far as they may be applicable and in so far as they
are not inconsistent with the provisions of this Act,
16shall continue to apply to all tenancies to which the
provisions of this Act apply.”
26. The aforesaid provisions of TPA would be inconsistent with
Section 7(5) read with Section 8(3) of the 1949 Act. Moreover, Payel
Vision Limited (supra) has categorically stated that if the tenancy is not
protected under the provisions of the Rent Control Act, all that would be
required to be established by the plaintiff landlord is the existence of the
jural relationship of landlord and tenant between the parties and the
termination of the tenancy either by lapse of time or by notice served by
the landlord under Section 106 of the TPA. In the instant case if the
provisions of the 1949 Act applies then the Section 106 or Section 111(f)
of TPA cannot be made applicable in view of Section 71 of the said Act. In
this regard, reference is made to Section 81 of the 1949 Act where certain
contracts are not to effect the provisions of the 1949 Act. The said Section
reads as follows:
“Section 81 in The West Bengal Non-Agricultural
Tenancy Act, 1949.
81. Amount paid into Court to prevent sale to be a mortgage-
debt on the tenancy in certain cases. –
(1)When any person whose interests are affected by the sale
of a tenancy of a non-agricultural tenant advertised for sale
in execution of a decree for arrears of rent due in respect
thereof or in execution of a certificate for arrears of rent due
in respect thereof signed under the Bengal Public Demands
Recovery Act, 1913, pays into the Court the amount requisite
to prevent the sale-
17
(a)the amount so paid by him shall be deemed to be a
debt bearing interest at six and a quarter per centum
per annum and secured by a mortgage of such
tenancy to him ;
(b)his mortgage shall take priority over every other
charge on such tenancy other than a charge for
arrears of rent; and
(c)he shall be entitled to possession of the tenancy as
mortgagee of the non-agricultural tenant, and to
retain possession of it as such until the debt, with the
interest due thereon, has been discharged.
(2)Nothing in this section shall affect any other remedy to
which any such person would be entitled.”
27. The reference made by Mr. Mal to the aforesaid section is in
view of the fact that absence of any reference to the 1949 Act may not by
itself prevent a tenant who is otherwise a non-agricultural tenant for not
availing the protection under the 1949 Act. The contract to that extent is
inconsistent with the provisions of the Act, may not be enforceable.
Keeping in mind the quality of the defence raised in the written statement
we are unable to come to a conclusion that there is clear and unequivocal
admission that the appellant could be evicted in a summary manner by
taking recourse to Order XII Rule 6 of the CPC.
28. There cannot be any admission on a question of law. Law is to
be interpreted. A party may in ignorance of law make a statement.
However, if under a statute a party is entitled to certain protection merely
because he made a statement or entered into a contract dehors the
18
statute the party cannot be precluded from raising such defence as may
be available in law whenever it is necessary to do so to protect his right.
To illustrate, if a tenant had entered into an agreement in relation to the
premises that, upon expiry of the duration of the lease he would hand
over possession of the property in question to the landlord and after
expiry, the tenant did not vacate the premises and in a suit for eviction,
such tenant in his pleading had taken a defence that under the Rent Act
the duration of the lease is such that it takes away the tenancy from the
purview of the TPA and would be governed by the local Rent Act the
tenant can only be evicted under the provisions of Rent Act and not under
the provisions of the TPA, irrespective of the fact that the tenant had
entered into an agreement or had made any admission in the agreement
that the lease was for a certain duration. Such a tenant can only be
evicted on the grounds under the Rent Act and not under the TPA.
Similarly an arbitration clause in a tenancy agreement governed by the
Rent Act cannot be enforced by arbitration even if the tenant admits of the
arbitration clause in the agreement as such dispute is non-arbitrable [see
Vidya Drolia v. Durga Trading Corporation 14 paragraphs 79 and 80).
The scope and ambit of Order XII Rule 6 has been recently lucidely
explained by the Hon’ble Supreme Court in Rajesh Mitra @ Rajesh
Kumar Mitra & Anr. v. Karnani Properties Ltd. 15 in Paragraph 3 in the
context of landlord- tenant relationship, it is held:
14
2021 (2) SCC 1
15
2024 (4) ICC 564 (SC)
19“3. At the outset, we must state that both, the learned
single judge bench and to some extent even the Division
Bench of the High Court, in the present case, ought not to
have decreed the suit of the landlord on the basis of
alleged “admission” by the appellant no.1 which was
made in another unconnected matter, as to our mind, it
does not pass muster the test of “admission” visualised in
Order XII Rule 6 CPC. It is not that a court cannot pass a
judgment on the basis of an admission made in some other
case. All the same, what has to be kept in mind is that
Order XII Rule 6 is an enabling provision conferring wide
discretionary powers on the courts which cannot be
claimed by any party as a matter of right. Courts can
invoke Order XII Rule 6 only in cases where admissions
are unconditional, unequivocal and unambiguous or when
admission is based upon undisputed inferences. (See:
Charanjit Lal Mehra & Ors. v. Kamal Saroj Mahajan (Smt)
And Anr. (2005) 11 SCC 279: [2005 (3) ICC (S.C.) 177],
Raveesh Chand Jain v. Raj Rani Jain (2015) 8 SCC 428:
[2015 (2) ICC (S.C.) 420], Uttam Singh Duggal & Co. Ltd. v.
United Bank of India And Ors. (2000) 7 SCC 120)We have perused the examination-in-chief and cross
examination of appellant no.1 made in that ‘other case’
where this statement was made. Such questions and their
answers are common place in depositions before courts,
but every such statement cannot be considered as an
‘admission’ to invoke Order XII Rule 6 of CPC. It is for the
courts to see whether any statement in the pleadings or
otherwise amounts to an admission of such a nature as to
inspire the confidence of the court to pass judgment on
admission under Order XII Rule 6 of CPC. It will depend
upon the content and kind of statement/admission which
20may vary from case to case. In other words, it would
depend upon the totality of facts and circumstances of a
particular given case. In the present case, here, it is not a
‘clear admission’ as is being made out. Moreover, where
the question and its answer are both a mixed question of
fact and law, as in the present case, a so called
‘admission’ against the law can never be an “admission”
as visualised under Order XII Rule 6. However, more on
this later.
Order XII Rule 6 is meant for speedy disposal of the suits
in some cases but on the risk of repetition, we would like
to caution that unless there is a clear, unambiguous,
unequivocal and unconditional admission, courts should
not exercise their discretion under the Rule because
judgment on admissions is without a trial which may even
preclude a party to challenge the matter on merits in the
court of appeal. The provision of law, which is meant for
the expeditious disposal of appropriate cases, should
therefore be cautiously exercised and it should never come
in the way of any defendant denying him the valuable
right of contesting the claim. (See: Himani Alloys Ltd. v.
Tata Steel Ltd. (2011) 15 SCC 273, Hari Steel & General
Industries Ltd. v. Diljit Singh (2019) 20 SCC 425 : [2019 (3)
ICC (S.C.) 83)” (emphasis supplied)
29. The impugned judgment although has made a cursory
reference to the 1949 Act did not decide the applicability of the said Act
insofar as the present tenancy is concerned. It cannot be said merely on
the basis of the pleading that there is an admission with regard to the
applicability of Section 106 TPA for determination of the lease.
21
30. The provision of Order XII Rule 6 of the code is enabling,
discretionary and permissive. The said provision is engrafted to expedite
trials and enable the party to obtain an equal and speedy relief on the
basis of the admission of the defendant. The admission has to be clear
and unequivocal. The purpose of this Rule is for either party to get rid of
so much of the rival claims about “which there is no controversy”. (per,
Lord Jessel in Throp and Holdsworth (1876) 3 Ch D 637.) Basically,
the Rule permits the Court to shift through unworthy defences and leave the
Court to spend time only on such aspects of the claim which call for an
adjudication. The spirit and object of the Rule cannot be whittled down to
suggest that every denial of the factum of admission or every dispute of the
consequent liability on merits is to be pushed to trial (see Adhunik Ispat
Ltd. vs. Triveni Infrastructure Development Co. Ltd). 16.
31. The purpose of exercising such jurisdiction is to put an end to
false claims and false defence as observed in Maria Margarida Sequeria
Fernandes v. Erasmo Jack de Sequeria17 where the Supreme Court has
held as follows:
“False claims and false defences
False claims and defences are really serious problems
with real estate litigation, predominantly because of ever
escalating prices of the real estate. Litigation pertaining to
valuable real estate properties is dragged on by
unscrupulous litigants in the hope that the other party will
tire out and ultimately would settle with them by paying a16
2011 (2) CHN 527)
17
2012 (5) SCC 370
22huge amount. This happens because of the enormous
delay in adjudication of cases in our Courts. If a pragmatic
approach is adopted, then this problem can be minimized
to a large extent.”
32. The admission can also be inferred from the facts of the case
and conduct of the parties without requiring a prolong and expensive trial.
33. Even on constructive admissions or what follows as a natural
corollary the Court can proceed to pass a decree in the plaintiff’s favour.
[Charanjit Lal Mehra vs. Kamal Saroj Mahajan (Smt)18 at paragraph 8,
Pradeep Khanna vs Renu Khetarpal19 at paragraph 28, Sirijit
Sachdev vs. Kazakhastan Investment Services Pvt. Ltd. & Others 20
at paragraphs 12 and 17, Rajgopal (HUF) vs. the State Bank of India21
at paragraphs 8 and 9, H.K. Taneja vs. Bipin Ganatra22 at paragraph
20, Concrete Developers vs. State Bank of India23 at paragraphs 11
and 22 , Pooja Sharma vs. Garmeet Kaur24 at paragraphs 17-19,
Deepak Thiruwani & Anr. vs. Lalman Das Mansharmani 25 at
paragraph 12 referred in E.D. Enterprise Private Limited v. Kaiser
Begum & Anr.26 decided on 28th July, 2022.]
34. However, when a question arises with regard to applicability
of a statute as is being raised here, the pleadings are to be assessed on
18
(2005) 11 SCC 279
19
(2015) 219 DLT 417
20
66 (1997) DLJ 54
21
1999(49) DRJ 285
22
2013(1) Mh. L.J.783
23
(2022) 3 BomCR 636
24
2013 SCC OnLine 4730
25
(2013) 203 DLJ 391
26
IA No. GA 1 of 2021 in CS No. 105 of 2021
23
the basis of the rights claimed by the parties under relevant statutes. The
Trial Court has not even gone into the issue as to whether the 1949 Act
would be applicable and provides a protection to the appellant who has
expended huge amount and made investments for construction of a petrol
pump with all kinds of facilities. If the 1949 Act is reviewed it can be seen
that the purpose of the said Act is to protect a lessee with a rider that the
lessor would have the right to claim enhancement of rent at successive
periods. An arguable case on merit and a difficult question of law raised
cannot be decided in a summary manner. On such consideration we are
of the view that this is not a fit case where the learned Trial Court has
exercised its discretion and enabling power to evict the appellant
judiciously.
35. The defence raised cannot be said to be a false defence or that
claims of the defendant can be brushed aside on the ground that there is
no real controversy between the parties. It is not a sham defence.
36. However, at the same time we cannot lose sight of the fact
that the appellant is presently occupying a prime area besides the
national highway and on the main road covering 30,023 Sq. Ft. more or
less and was paying a meagre sum towards lease rentals. During the
pendency of the appeal the appellant was directed to pay occupational
charges at Rs.40,000/- per month on and from February 2024 as per
order dated 5th February, 2024.
37. Mr. Mal has clearly submitted that the occupational charges
could be fairly assessed in an appropriate proceeding. In fact if the
24
appellant is taking the refuge of the 1949 Act, Section 8 provides for
successive renewals subject to fair and reasonable conditions as to rent. A
fair and reasonable rent even on a conservative estimate would not be less
than a sum of Rs.3 lakhs per month. In view of the aforesaid we direct the
appellant to pay a sum of Rs.3 lakhs per month on and from 1 st July,
2025 as occupational charges till the disposal of the suit. The
occupational charges shall be paid on or before 7th of each month, in
default, the impugned decree shall revive and the plaintiff shall be entitled
to execute the decree passed by the learned Trial Court. We reiterate that
the instalment for the month of July, 2025 shall be paid on or before 7 th
July, 2025 and all future occupational charges shall be paid on or before
7th of each succeeding month. The direction for payment of occupational
charges shall abide by the result of the suit. We request the learned Trial
Court to expedite the trial. With the aforesaid direction the appeal is
disposed of.
38. The appeal succeeds. However, there shall be no order as to
costs.
I agree (Soumen Sen, J.)
(Smita Das De, J.)