Aspects required to be seen in a suit for possession by landlord against tenant as per provision of Order XII rule 6 of Code of Civil Procedure 1908?
If a person comes in possession of any property by any means whether legal or illegal then he does not want to give away the possession. This is the mindset of the people since the life on this planet has evolved.
A tenant who enters into a property after execution of the rent agreement, specifying therein about the fixed time period for which he will be in possession subject to the condition that he pays agreed usage charges or rent to the landlord, even try all the means to be possession of the property for as long as possible after the time fixed in rent agreement elapses.
In this situation when a landlord sues the tenant for seeking possession of the property, tenant adopts every method to delay the suit. When the tenant has appeared in the court and pleads his defence by filing his written statement, landlord can get his suit decreed summarily under order XII rule 6 of Code of civil procedure 1908 if tenant has admitted following three things in his written statement:-
- Relationship of landlord and tenant between the parties,
- The rate of rent being more than Rs 3,500/- per month (if rent of the property situated in Delhi is below this amount then it will be governed by Delhi Rent control act).
- That the lease has been terminated by a notice.
If the tenant has admitted these facts in his defence then court has power to pass decree against the tenant and in favour of the landlord while adopting a summary procedure under order XII rule 6 of the Code of Civil Procedure 1908 either own its own or on the application of the landlord. Relied upon “Abhinav Outsourcing Vs Sunita Seth” Delhi High Court RFA 557/2011 dated 02.12.2011.
Order XII Rule 6 of the Code of Civil Procedure provides that judgments can be passed on admissions of fact without going through the whole procedure of trial. It was held in case titled as Hill Elliott & Co. Ltd., v. Bhupinder Singh 2011 (121) DRJ 438 (DB) that
- The purpose of the enactment of provision of Order 12 Rule 6 CPC is to give the plaintiff a right to speedy judgment. The thrust of 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.
It has now become common practice by the tenants to take the plea that the landlord is not the owner of the property; however, the same is barred by section 116 of the evidence act which creates the estoppels upon the tenant from taking such plea.
It was held by Hon’ble High court of Delhi in “Sky Land International Vs Kavita P Lalwani 191 (2012) DLT 594” while dealing with the similar issue that:-
that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny the title of the landlord meaning thereby that so long as the tenant has not surrendered the possession, he cannot dispute the title of the landlord. Howsoever, defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession of his landlord.
If a person is having possession of the property and wants to continue with the possession then he has to show as to in which capacity he will holds possession of the property and simply cannot deny the claim against him. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 (3) SCALE 550, the Supreme Court RFA No.697/2010.
In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
The law is also settled with regard to notice of termination of tenancy. Plea is also taken by the tenants that they have not received the notice for termination of tenancy, therefore, the case is not maintainable as tenancy has not been terminated. If landlord has filed the suit this itself is a notice for termination of tenancy. The same was held by Hon’ble Supreme Court of India in Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2008 (2) SCC 728.