# Hindustan Petroleum Corporation v. Satish Chandra Jain & Ors

- **Citation:** (2019) 4 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-31
- **Case number:** Second Appeal No. 881 of 2006
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hindustan-petroleum-corporation-v-satish-chandra-jain-ors-44992
- **Pages:** 26

## Headnote

A. Civil Law - Civil Procedure Code (5 of
1908) - Order12 - Rule 6, Order 15 -Rule
5 - „Striking off defence‟ Vis-s-vis
„striking
out
of
the
pleadings‟
-
Difference - Effect on admissions made
in W.S. - Held - Even on striking off the
defence admissions made in the W.S.
could be looked into by the courts below

Striking off the defence would have the effect
of parties being not at issue - material facts
contained in the written statement would not
be considered as denial of the truth or validity
of the material facts contained in the plaint -
Striking off the defence as envisaged in Order
15 Rule 5 cannot be construed to mean as
striking out of the pleadings under Order 6
Rule 16 CPC - It is not as if on striking off the
defence, each and every statement made in
the written statement would be struck off
without reference to the fact whether a
particular statement is in defence or otherwise
- On striking off the defence, it is always open
for the Court to consider those statements of
the written statement other than in defence,
which may include admissions (Para 25 & 26)

B. Civil Law - Civil Procedure Code (5 of
1908) - Order 15, Rule 5 - Striking off
defence - Right of defendant - Held -
Post striking off the defence, defendant
has the right of cross examination of the
plaintiff's witnesses and of addressing
arguments on the basis of the plaintiff's
case - even though the defence of the
defendant is struck off, plaintiff enjoined
to plead and prove their case (Para 44)

C. Civil Law - Civil Procedure Code (5 of
1908) - Order 12, Rule 6- Order 15, Rule
5 - By a composite order the court could
not strike off the defence under Order
15, Rule 5 CPC & simultaneously decree
the suit either under Order 12, Rule 6
CPC or Order 15, Rule 1 -relying on
admission made in the written statement
for
Held - Order of the trial court simultaneously
decreeing the suit of the plaintiff on the basis
of the admission while striking off the defense
cannot be countenanced - trial court ought to
have permitted the counsel for the defendant
to address it on the issue of admission -
defendant ought to have opportunity to cross
examine the plaintiff's witnesses or to address
arguments post striking off its defence. (Para
16)

D. Civil Law - Civil Procedure Code (5 of
1908) - Order 15, Rule 5 - Striking off
defence for failure to deposit admitted
rent - admitted monthly rent was
deposited by the defendant-appellant in
the Court after lapse of more than a
week of its accrual and there was no
representation filed by defendant within
ten days as provided in clause (2) of
Order 15, Rule 5 -
28 INDIAN LAW REPORTS ALLAHABAD SERIES
Held - Trial court was justified in striking
off the defence of the defendant under
Order 15, Rule 5 CPC (Para 24)

E. Civil Law - Rent Control & Eviction -
Term „permanent structure‟ - Test to
determine
„permanent
structure‟
-
"permanent" does not mean that the
structure must last forever - A structure
that lasts till the end of the tenancy can
be treated as a permanent structure. The
intention of the party putting up the
structure is important - Removability of
the
structure
without
causing
any
damage to the building is another test
that can be applied while deciding the
nature of the structure.

Held - The nature of construction permitted by
the lease deed also refers to permanent
constructions being permitted to be made by
the defendant-appellant which could not be
removed except by substantial damage to the
property in dispute and which were meant to
last till determination of the tenancy. Clause 4-
(b) of the lease deed provides for the lessee to
make good any damage which may be caused
to the demised land by such removal. Held - it
is held that the constructions on the property
in dispute were made by the defendantappellant after due consent of the plaintiffrespondents which is evident from the terms
of the lease deed, and, they are permanent in
nature (Para 59)

F. Civil Law - U.P. Urban

## Text

_Characters 0–39,933 of 86,529. This is a partial read: ask again with offset=39933 for what follows._

4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
27
Amount of cost shall be deposited by
Plaintiff-Respondent before Court below
by way of Bank Draft payable to
Defendant-Appellant. Aforesaid deposit
shall be made withing a period of two
months from today, failing which, Court
below shall proceed to recover the same
as a recovery under its own order.
----------

(2019)12 ILR A27
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2019

BEFORE
THE HON'BLE JAYANT BANERJI, J.

Second Appeal No. 881 of 2006

Hindustan Petroleum Corporation
 ...Appellant
Versus
Satish Chandra Jain & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Vikas Budhwar

Counsel for the Respondents:
Sri Vijay Singh, Sri H.P. Sahi, Sri Chandra
Prakash Yadav, Sri Sankalp Narain, Sri
Samarth Singh, Sri M.K. Gupta, Sri Pankaj
Agarwal

A. Civil Law - Civil Procedure Code (5 of
1908) - Order12 - Rule 6, Order 15 -Rule
5 - „Striking off defence‟ Vis-s-vis
„striking
out
of
the
pleadings‟
-
Difference - Effect on admissions made
in W.S. - Held - Even on striking off the
defence admissions made in the W.S.
could be looked into by the courts below

Striking off the defence would have the effect
of parties being not at issue - material facts
contained in the written statement would not
be considered as denial of the truth or validity
of the material facts contained in the plaint -
Striking off the defence as envisaged in Order
15 Rule 5 cannot be construed to mean as
striking out of the pleadings under Order 6
Rule 16 CPC - It is not as if on striking off the
defence, each and every statement made in
the written statement would be struck off
without reference to the fact whether a
particular statement is in defence or otherwise
- On striking off the defence, it is always open
for the Court to consider those statements of
the written statement other than in defence,
which may include admissions (Para 25 & 26)

B. Civil Law - Civil Procedure Code (5 of
1908) - Order 15, Rule 5 - Striking off
defence - Right of defendant - Held -
Post striking off the defence, defendant
has the right of cross examination of the
plaintiff's witnesses and of addressing
arguments on the basis of the plaintiff's
case - even though the defence of the
defendant is struck off, plaintiff enjoined
to plead and prove their case (Para 44)

C. Civil Law - Civil Procedure Code (5 of
1908) - Order 12, Rule 6- Order 15, Rule
5 - By a composite order the court could
not strike off the defence under Order
15, Rule 5 CPC & simultaneously decree
the suit either under Order 12, Rule 6
CPC or Order 15, Rule 1 -relying on
admission made in the written statement
for
Held - Order of the trial court simultaneously
decreeing the suit of the plaintiff on the basis
of the admission while striking off the defense
cannot be countenanced - trial court ought to
have permitted the counsel for the defendant
to address it on the issue of admission -
defendant ought to have opportunity to cross
examine the plaintiff's witnesses or to address
arguments post striking off its defence. (Para
16)

D. Civil Law - Civil Procedure Code (5 of
1908) - Order 15, Rule 5 - Striking off
defence for failure to deposit admitted
rent - admitted monthly rent was
deposited by the defendant-appellant in
the Court after lapse of more than a
week of its accrual and there was no
representation filed by defendant within
ten days as provided in clause (2) of
Order 15, Rule 5 -
28 INDIAN LAW REPORTS ALLAHABAD SERIES
Held - Trial court was justified in striking
off the defence of the defendant under
Order 15, Rule 5 CPC (Para 24)

E. Civil Law - Rent Control & Eviction -
Term „permanent structure‟ - Test to
determine
„permanent
structure‟
-
"permanent" does not mean that the
structure must last forever - A structure
that lasts till the end of the tenancy can
be treated as a permanent structure. The
intention of the party putting up the
structure is important - Removability of
the
structure
without
causing
any
damage to the building is another test
that can be applied while deciding the
nature of the structure.

Held - The nature of construction permitted by
the lease deed also refers to permanent
constructions being permitted to be made by
the defendant-appellant which could not be
removed except by substantial damage to the
property in dispute and which were meant to
last till determination of the tenancy. Clause 4-
(b) of the lease deed provides for the lessee to
make good any damage which may be caused
to the demised land by such removal. Held - it
is held that the constructions on the property
in dispute were made by the defendantappellant after due consent of the plaintiffrespondents which is evident from the terms
of the lease deed, and, they are permanent in
nature (Para 59)

F. Civil Law - U.P. Urban Buildings
(Regulation of Letting Rent and Eviction)
Act 1972 - U.P. Act No. 13 of 1972 -
Section 29 A - Protection against eviction
to certain classes of tenants of land on
which
building
exists
-
„with
the
landlord's
consent
has
erected
any
permanent structure‟ - Applicability in
present case

Held - It was held that the constructions on
the property in dispute were made by the
defendant-appellant after due consent of the
plaintiff & they are permanent in nature. -
Defendant-appellant
became
a
statutory
tenant u/s 29A and the benefit of Section 29A
would be available to the defendant-appellant,
thereby barring the suit for eviction of the
defendant-appellant except on the ground
specified in Section 20 of the U.P. Act No. 13
of 1972. The tenancy of the defendantappellant is protected from termination by
efflux of time.

Second Appeal allowed. (E-5)

List of cases cited: -

1. Syeda Rahimunnisa Vs Malan Bi 2016 (10)
SCC 315

2. Sunder Lal Bhatia Vs Onkar Nath Saxena
and others 2013 (4) AWC 4072

3. Rameshwar Dayal Agarwal Vs Pawan Kumar
2012 (2) ADJ 357

4. Himani Alloys Limited Vs Tata Steel Limited
(2011) 15 SCC 273

5. Payal Vision Limited Vs Radhika Chodhary
(2012) 11 SCC 405

6. M/s Bharat Petroleum Corporation Ltd & anr
Vs Smt. Indira Pandey & anr 2013 (6) ADJ 653

7. Hindustan Petroleum Corporation Ltd Vs
Diwan Bahadur Visheshwar Nath Trust, Civil
Appeal No. 5414 of 2000 26.8.2008

8. S.M. Asif Vs Virendra Kumar Bajaj (2015) 9
SCC 287

9. Bharat Petroleum Corporation Limited Vs
Ramavati Devi 2007(1) AWC 679

10. Rameshwar Dayal Agarwal Vs Pawan
Kumar 2012 (2) ADJ 357

11. Modula India Vs Kamakshya Singh Deo
(1988) 4 SCC 619

12. Karam Kapahi and others Vs Lal Chand
Public Charitable Trust and another (2010) 4
SCC 753

(Delivered by Hon'ble Jayant Banerji, J.)

1. This second appeal has been filed
by the defendant-appellant against the
4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
29
judgement and decree dated 1.8.2006,
passed by the Additional District Judge,
Court No. 6, Bareilly in Civil Appeal No.
222 of 1998 arising out of O.S. No. 203 of
1988 from the Court of Additional Civil
Judge (Senior Division), Bareilly.

2. In this appeal the following
substantial questions of law were framed:

"A. Whether in the facts and
circumstances of the case the trial court
was justified in striking off the defence of
the defendant under Order 15 Rule 5
CPC?

B. Whether by a composite
order the court could have struck off the
defence under Order 15 Rule 5 CPC and
simultaneously decree the suit either
under Order 15 Rule 1 or Order 12 Rule 6
CPC?

C. Whether after framing as
many as 13 contentious issues including
the availability of the protection of U.P.
Act No. 13 of 1972 to the defendant, as
well as the jurisdiction of the court, the
courts were justified in law by taking
recourse to the provisions of Order 15
Rule 1 and Order 12 Rule 6 CPC for
decreeing the suit without recording of
evidence?

D. Whether it is permissible for
the court to rely on an alleged admission
made in the written statement for the
purpose of decreeing the suit under Order
12 Rule 6 CPC particularly when the
defence has already been struck off under
Order 15 Rule 5 CPC?

E. Whether from the own case
of the plaintiff coupled with the registered
lease deed, the provisions of Section 29-A
of the U.P. Act No. 13 of 1972 were
attracted thereby protecting the tenancy
from termination of efflux of time?

F. Whether for purpose of
determining the applicability of U.P. Act
No. 13 of 1972 in view of Section 29-A,
the lower appellate court was justified in
holding that the constructions on the suit
property were temporary, only on the
basis of the clause in the lease deed that
provides that the lessee shall remove the
constructions
made
by
him
on
determination of the lease, without
recording a categorical finding that the
constructions actually existing on the suit
property were temporary or permanent in
nature?"

BACKGROUND
OF
THE
CASE.

3. The plaint case is that by means
of a lease deed dated 20.8.1969 between
the plaintiffs and Smt. Darshan Devi Jain
(the lessors of the one part) and Caltex
India Limited,(the lessee of the other
part), lease was granted in respect of suit
property to Caltex India Limited on the
terms and conditions mentioned in the
lease deed. A few years after execution of
the lease deed, the Caltex India Limited
was merged and vested in the defendant,
Hindustan
Petroleum
Corporation
Limited1 and the identity of the Caltex
India Limited got extinct. It is alleged that
after the aforesaid merger, the tenancy
came to an end but to avoid any conflict
the plaintiffs accepted the defendantappellant as month to month tenant and
the tenancy period of ten years granted to
M/s Caltex India Limited expired at the
end of February, 1978 and the defendantappellant continued to be a month to
month tenant.

4. It is stated that one option
regarding renewal of lease was granted in
the year 1978 and the defendant-appellant
30 INDIAN LAW REPORTS ALLAHABAD SERIES
was not entitled to any further option of
renewal and thus the defendant-appellant
remained a month to month tenant only.
After
defendant-appellant's
tenancy
expired at the end of February, 1988, it
was liable to be evicted but to avoid any
dispute, a notice for termination of
tenancy was given by the plaintiffrespondent to the defendant-appellant
treating it to be a month to month tenant
and was informed that its tenancy would
stand terminated on the expiry of 30 days
from the date of receipt of the notice.
Though the defendant-appellant's tenancy
was terminated through registered notice
dated 10.2.1988, the defendant-appellant
did not vacate the land. To this notice, the
defendant-appellant gave a reply to the
notice
that
the
defendant-appellant's
tenancy is protected by U.P. Act No. 13 of
1972 and it is entitled to renewal of lease
for a further term.

5. It is further stated that the lease
granted to Caltex India Limited was in
respect of a piece of land measuring 150
X 120 X 93 X 105 feet for the purpose of
running a Petrol Pump and all the
constructions, fittings and fixtures which
have been made by the defendantappellant are liable to be removed and the
defendant-appellant cannot claim any
benefit from the constructions whether
permanent or temporary. It is mentioned
that only land was given on lease hence
the provisions of the U.P. Act No. 13 of
1972 were not applicable. Since the
defendant-appellant failed to vacate the
land despite notice of termination of
tenancy, therefore, the suit was filed. It is
alleged that the defendant-appellant had
not paid rent with effect from 1.3.1988.
That land of the plaintiff-respondents is at
important locality in the city of Bareilly
and the existing market value of the
tenanted land would be Rs. 20,000/ per
month. The defendant-appellant is liable
to
pay
compensation
for
use
and
occupation at the rate of Rs. 20,000/ per
month. It is stated that the cause of action
for the suit arose firstly on 10.2.1988
when the notice for termination of
tenancy was given to the defendantappellant and, thereafter on or about
15.2.1988 when the notice of termination
of tenancy was served and finally on
15.3.1988 when the period of notice of
termination of tenancy expired and on the
defendant-appellant's failure to vacate the
land. Therefore, decrees for ejectment,
recovery of arrears of rent, compensation
and mesne profit were sought.

6. In the written statement, the
allegations levelled by the plaintiffrespondents are denied. It is stated that
Caltex India Limited was the original
lessee of the demised land which
subsequently merged in the defendantappellant by Act No. 13 of 1977 and the
Company Law Board Order No. S.O.
312(E) dated 9 May 1978. The allegation
of the plaintiff-respondents that on merger
of Caltex India Limited, tenancy came to
an end was denied. It was stated that the
defendant-appellant had exercised his
option for renewal of lease after ten years
from 1.3.1988 and the tenancy was
renewed for a further ten years with effect
from 1.3.1988. The renewal was granted
pursuant to the registered lease deed. The
receipt of notice dated 10.2.1988 was
admitted but it was denied that such a
notice could be deemed as a notice for
termination of tenancy. Reply to the
notice by the defendant-appellant was
admitted. It was denied that the provisions
of U.P. Act No. 13 of 1972 were not
applicable. It was stated that the tenancy
of the defendant-appellant was continued
4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
31
and stood renewed. In paragraph No. 25
of the written statement, it was stated that
the predecessor of the defendant-appellant
had erected permanent structure and
construction and incurred expenses in
connection thereto with the consent of the
then landlords hence also provisions of
Section 20 of the U.P. Act No. 13 of 1972
apply and suit was barred by the
provisions of Section 20 read with Section
29A of the U.P. Act No. 13 of 1972. The
termination of tenancy was denied.

7. The trial court framed 13 issues
on 5.9.1988 and 28.2.1990 as under:-

1. Whether the U.P. Act 13 of
1972 is applicable over land/ premises in
suit, if so its effect?

2. Whether this Court has court
has no jurisdiction to try the suit?

3. Whether the tenancy in
question stands terminated as alleged in
plaint?

4. Whether the plaintiff is
entitled to any compensation or mesne
profit, if so at what rate?

5. Whether the suit is barred by
the
principle
of
estoppel
and
acquiescence?

6. Whether the defendant is
protected under Section 20 read with
Section 29 of U.P. Act 13 of 1972?

7. To what relief , if any, the
plaintiff is entitled?

8. Whether the suit is not
properly valued and court fee is also
insufficient?

9. Whether the daughter of late
Shri Heera Lal Jain became co-owner of
the disputed property in dispute on the
death of Shri Heera Lal Jain, if so its
effect?

10. Whether the plaintiffs are
sole owner of the disputed property?

11. Whether plaintiff's lease
stand renewed upto the period of
29.2.1998 as per term of registered lease
deed dated 20.8.69?

12. Whether the suit is bad for
non-joinder of necessary parties?

13.
Whether
the
suit
is
misconceived and not properly framed?"

8.

However,
thereafter,
an
application bearing paper No. 84-Ga was
filed by the plaintiff-respondents to the
effect that in view of the admission made
by the defendant-appellant in its written
statement, the suit for eviction be decreed
under Order 15 Rule 1 of the Code of
civil Procedure, 19082 keeping in view
the determination of the tenancy. The
defendants-appellants filed an objection
paper No. 86-Ga. Another application
paper No. 85-Ga was filed by the
plaintiff-respondent to the effect that since
the defendant-appellant has not deposited
the rent in the court under the provisions
of order 15 Rule 5 CPC, therefore, his
defence be struck off. The defendantappellant filed his objection 87-Ga.

9. After hearing the counsel for the
parties on the aforesaid two applications (
84-ga and 85-Ga), by means of the order
dated 9.10.1998, the trial court directed
striking off the defence of the defendantappellant. The trial court, simultaneously,
relying on paragraph nos. 6 and 20 of the
written statement of the defendantappellant observed that the defendantappellant had admitted that the tenancy
was extended upto 28.2.1998 and as such
till 28.2.1998 they cannot be evicted.
Therefore, the trial court under the
provisions of Order 15 Rule 1 CPC held
that since the defendant-appellant had no
right to continue in possession over the
disputed premises after 28.2.1998, it is
32 INDIAN LAW REPORTS ALLAHABAD SERIES
liable to be evicted and directed the
defendant-appellant to hand over peaceful
possession to the plaintiffs-respondents
alongwith outstanding rent and damages.

10. Challenging the decision of the
trial court, an appeal under section 96 of
the CPC was filed by the defendantappellant before the lower appellate court.
In the appeal, while noticing that the
defence of the defendant-appellant had
been struck off, the lower appellate court
observed that it was open for the
defendant to make his submissions and to
cross examine the plaintiff. However, the
lower appellate court held that when the
defendant-appellant admitted the facts in
any manner, then the court had authority
to proceed under Order 12 Rule 6 CPC to
dispose of the suit on the basis of
admitted facts.

11. The lower appellate court
observed
that
any
such
kind
of
construction which is to be removed after
determination of tenancy would come
under
the
meaning
of
temporary
construction
and
by
making
such
construction, the premises would not
come within the definition of word
'building'. As such, the lower appellate
court observed that the provision of
Section 29A of the U.P. Act No. 13 of
1972 would not be applicable. It held the
after striking
off the defence, the
defendant-appellant had opportunity to
make their submissions. The lower
appellate court further observed that the
lease was renewed for a period of ten
years twice and if during the period of
lease, the tenancy was not renewed, the
termination of tenancy would be deemed
and, therefore, the conclusion drawn by
the trial court were in accordance with
law. The lower appellate court also
observed that the notice for termination of
tenancy was correctly given to the
defendant.

SUBMISSIONS
OF
THE
LEARNED COUNSEL.

12. It is contended by Sri Vikas
Budhwar,
learned
counsel
for
the
defendant-appellant, that though the trial
court had decreed the suit only on the
alleged admission made by the defendant
in its written statement, the lower
appellate court went a step further and
entered into the merits of the case. He
referred to paragraph number 7 of the
plaint that the lease was granted to the
predecessor-in-interest of the defendantappellant in respect of a piece of land for
purpose of running a petrol pump and that
all construction, fittings and fixtures
which were made by the defendantappellant, which were of the time of its
predecessor-in- interest, Caltex India
Limited, were to be removed and the
allegation was that the defendant cannot
claim any benefit from the construction
whether permanent or temporary. It is
contended that there is no averment in the
plaint that the constructions were illegal
or without consent. Learned counsel has
referred to the lease deed (paper No.
17Ga), and stated that in terms of
paragraph no.2 thereof, open land was
given to the predecessor-in-interest of the
defendant-appellant together with right to
the lessee to install, erect and maintain
permanent constructions in and upon the
said piece of land.

13. It is, therefore, contended that
the lower appellate court ought to have
recorded a finding about the nature of the
constructions actually existing over the
land in dispute in order to ascertain the
4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
33
applicability of the U.P. Act No. 13 of
1972. Learned counsel has referred to
various paragraphs of the plaint to
demonstrate that the issue of applicability
of provision of U.P. Act No. 13 of 1972
was clear from a reading of the plaint
itself and, therefore, the lower appellate
court was bound to record a finding
regarding the nature of the constructions
actually existing on the land in dispute,
with reference to the provisions of Section
29-A (2) read with Section 20 of the U.P.
Act No. 13 of 1972.

14. The learned counsel has stated
that specific and serious objections also
with regard to jurisdiction were taken in
the
written
statement
and
several
contentious
issues
were
framed
on
15.9.1998 and 28.2.1990 and therefore, it
was incumbent on the court below to have
permitted proper cross examination of the
plaintiff witness after the defense was
struck off. The learned counsel relied
upon the judgements of the Supreme
Court
rendered
in
Himani
Alloys
Limited Vs. Tata Steel Limited3, Payal
Vision
Limited
Vs.
Radhika
Chodhary4, M/s Bharat Petroleum
Corporation Ltd and another Vs. Smt.
Indira Pandey and another5 and an
unreported decision dated 26.8.2008 of
the Supreme Court in the case of
Hindustan Petroleum Corporation Ltd
Vs. Diwan Bahadur Visheshwar Nath
Trust, in Civil Appeal No. 5414 of 2000
and also a judgement in the case of S.M.
Asif Vs. Virendra Kumar Bajaj6.

15. Sri V.K.Singh, learned Senior
Advocate appearing for the plaintiffrespondents has rebutted the contention of
the learned counsel for the appellant and
has referred to paragraph no. 6 and 20 of
the written statement to contend that
admissions were made by the defendant
which have been justifiably relied upon
by the courts below. He stated that a
condition precedent for applicability of
section 29A of U.P. Act No. 13 of 1972 is
the consent of the landlord with regard to
making any permanent construction over
the land in dispute, but no such consent is
on record. Learned counsel has stated that
the defendant-appellant was required to
remove the constructions at the site on
determination of the tenancy and thus, it
is clear that the constructions were
temporary in nature. It is contended that
the tenancy lease was of open land and,
therefore, the provision of the U.P. Act
No. 13 of 1972 will not apply.

16. Learned counsel for the plaintiffrespondents, in support of his contentions,
has relied upon two judgements of this
Court in the case of Bharat Petroleum
Corporation Limited Vs. Ramavati
Devi7 and Rameshwar Dayal Agarwal
Vs. Pawan Kumar8.

DISCUSSION
&
ANALYSIS

17. Two applications bearing paper
No. 84Ga and 85Ga, both dated 25.7.1998
were filed on behalf of the plaintiffsrespondents. Paper No. 84Ga is an
application filed with a prayer that the
extremely old suit be disposed of and
decided immediately, and, on the basis of
admission of the defendant-appellant, the
tenancy of the defendant-appellant having
determined, the suit be decreed under the
provision of Order 15 Rule 1 CPC.

18. The application paper No. 85-Ga
was filed with a prayer that the suit be
heard on a day to day basis in compliance
34 INDIAN LAW REPORTS ALLAHABAD SERIES
of a direction of the High Court,
Allahabad and the defence of the
defendant-appellant be struck off for nondeposit of rent. (This order of the High
Court does not appear to be on record.)

19. Two objections were filed by the
defendant-appellant in respect of the
aforesaid two applications bearing paper
No. 87-Ga and 86-Ga respectively both
dated 7.9.1998. In the objections, it is
stated that the property in dispute is an
accommodation which is protected under
the Act No. 13 of 1972 and the suit is
barred by the said Act. That the
contractual tenancy of the defendantappellant stood renewed till 28.2.1998
and it is wrong to say that the plaintiffsrespondents has any right to evict the
defendant-appellant after expiry of the
period
of
renewal.
The
defendantappellant cannot be evicted, as provided
for under the Act 13 of 1972. It is stated
that the rights of the parties are to be
decided on the date of filing of the suit
and the plaintiffs-respondents is not
entitled to evict the defendant-appellant
even now. It is denied that the defendantappellant had not deposited the admitted
rent under Order 15 Rule 5 CPC. It is
stated that up to date rent had been
deposited in court which is a matter of
record of the court.

20. With regard to the issue of
striking off the defence of defendantappellant, the trial court observed that the
defendant-appellant was bound to prove
that it had deposited the rent as per rule
upto date which it failed to do. The trial
court held that the defendant-appellant
cannot participate in the proceedings of
the suit and the application (paper No. 85Ga) was allowed. The trial court, further,
relied upon the averments contained in
paragraph No. 6 and 20 of the written
statement
of
the
defendant-appellant
which, as per the trial court, amounted to
an admission that the period of tenancy of
the
defendant-appellant
would
automatically come to an end in February
1998. It was held that after 28.2.1998, the
defendant-appellant had no right to retain
possession of the property in dispute.

21. The lower appellate court, while
referring to the provisions of Order 12
Rule 6 CPC, held that the tenancy having
terminated on 28.2.1998 was admitted by
the defendant-appellant and that if in any
manner, an admission is made, the court is
competent to dispose of the suit on the
basis of admitted facts. While considering
the applicability of provision of U.P. Act
No. 13 of 1972, the lower appellate court
held that in terms of original lease deed
(Paper No. 17-Ga), the construction made
by the defendant-appellant were not
permanent in nature inasmuch as it was
mentioned that after termination of
tenancy, the tenant would remove the
construction and would give possession of
the vacant land. Such kind of construction
would not come within the definition of
word 'building' and as such the provisions
of Section 29A of U.P. Act No. 13 of 1972
would not apply. However, the lower
appellate court held that in view of the
judgement of the Supreme Court in the
matter of Modula India V. Kamakshya
Singh Deo9, the defendant-appellant is
not rendered helpless after his defence is
struck off but is entitled to challenge the
validity and legality of the notice and is
entitled to cross examine the witness. The
lower appellate court observed that
9.10.1998 was not the first date of hearing
and, therefore, the application ( paper No.
84-Ga) was an application actually under
Order 12 Rule 6 CPC. The lower
appellate court held that in case there was
4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
35
only an application under Order 15 Rule 5
CPC then definitely the trial court was
required to give time to the defendantappellant to challenge the evidence of the
plaintiffs-respondents and point out its
falsity and weakness. However, the
submission of the learned counsel that the
order dated 9.10.1998 was passed without
hearing him, was brushed aside by the
lower appellate court on the ground that
the decision of the trial court was made
after hearing both the applications. While
considering the deposit of rent made by
the
defendant-appellant,
the
lower
appellate court held that there were
several instances where the rent was
deposited after the due date without there
being any application/representation filed
within ten days. The lower appellate court
observed that the original lease deed was
registered and the case was instituted on
the basis of its not being renewed which
proved that the lease was never renewed.
Since, the defendant-appellant itself stated
that the term was extended once for ten
years and the extended terms of 10 years
each came to an end during the pendency
of the suit and, therefore, there was no
necessity for giving another notice of
termination of tenancy. Once a notice was
given for termination of the tenancy and
admittedly,
the
defendant-appellant's
extended term of tenancy of ten years
came to an end during the pendency of the
suit, there was no ground or necessity for
giving a separate notice. Accordingly, the
summary order of the trial court was
upheld, it being under the provision of
Order 12 Rule 6 CPC.

Question 'A':

22. So far as the question that
whether in the facts and circumstances of
the case, the trial court was justified in
striking off the defence of the defendant
under Order 15 Rule 5 CPC, no
arguments have been advanced by the
learned
counsel
for
the
defendantappellant in this regard. It is also observed
from the finding of fact recorded by the
lower appellate court that there was
default in payment of rent by the
defendant-appellant and there was no
representation filed by it within ten days
as provided in clause (2) of Order 15 Rule
5 ( U.P. Amendment).

23. Order 15 Rule 5 was inserted by
U.P. Act No. 57 of 1976. Under this
provision, the defendant is mandated to
deposit the entire amount admitted by him
to be due along with the specified interest
in a suit by a lessor for the eviction of a
lessee after the determination of his lease
and for the recovery from him of rent or
compensation for use and occupation and
the defendant is required throughout the
continuation of the suit to regularly
deposit monthly amount due within a
week from the date of its accrual and in
the event of any default in making the
deposit of the entire amount admitted by
him to be due or the monthly amount due
as aforesaid, the court may, subject to the
provisions of sub-rule (2) strike off his
defence. Sub-rule (2) provides that before
making an order for striking off the
defence, the Court may consider any
representation made by the defendant in
that behalf provided such representation is
made within 10 days of the first hearing
or, of the expiry of the week referred to in
sub-section (1) as the case may be.

24. A perusal of the record reveals
that the monthly rent was being deposited
in the Court after lapse of more than a
week of its accrual. Admittedly, no
representations were filed. Such deposit
36 INDIAN LAW REPORTS ALLAHABAD SERIES
of rent cannot be said to be rent deposited
in terms of Order 15 Rule 5(1) CPC.
Therefore, striking off the defence of the
defendant-appellant by the trial court
under Order 15 Rule 5 CPC was justified.

Questions 'B' and 'D':

25. Striking off the defence would
have the effect of parties being not at
issue. That is to say, the material facts
contained in the written statement would
not be considered as denial of the truth or
validity of the material facts contained in
the plaint. In Wharton's Law Lexicon
(Sixteenth Edition), the word 'defence' is
defined as:

"popularly
a
justification,
protection, or guard; in law, a denial by
the defendant of the truth or validity of
the plaintiff's complaint.

In civil matters, a defence
(which is always in writing or printed) is
either (1) by statement of defence, which
may be a denial of the plaintiff's right, or
may be an allegation of a set off or
counter claim by the defendant which will
cover wholly or in part the claim of the
plaintiff; or (2) by a statement of defence
raising a point of law, so as to show that
the facts alleged by the plaintiff do not
disclose any cause of action to which
effect can be given by the Court."

26. Striking off the defence as
envisaged in Order 15 Rule 5 of the CPC
(U.P. Amendment) or for that matter, in
Order 11 Rule 21, cannot be construed to
mean as striking out of the pleadings in
the manner referred to under Order 6 Rule
16 CPC. Therefore, it is not as if on
striking off the defence, each and every
statement made in the written statement
would be struck off without reference to
the fact whether a particular statement is
in defence or otherwise. Thus, on striking
off the defence, it is always open for the
Court to consider those statements of the
written statement other than in defence,
which may include admissions. So the
admissions made in the written statement
could be looked into by the courts below.

27. Order 15 Rule 1 CPC and Order
12 Rule 6 CPC operate in distinguishable
areas, borders of which may overlap.
While proceeding to pass judgement on
an admission under Order 12 Rule 6 CPC,
the Court is guided by the provisions of
Section 17 and onwards of the Indian
Evidence Act. A combined reading of
Section 31 and Section 58 of the Evidence
Act cast a duty on the Courts to exercise
discretion, in appropriate cases, in the
matter of passing judgements on such
admissions of fact to be proved otherwise
than by such admissions.

28. The word 'admission' is defined
under Section 17 of the Indian Evidence
Act, 1972 which is as follows:-

"17.
An
admission
is
a
statement,
oral
or
documentary
or
contained in electronic form, which
suggests any inference as to any fact in
issue or relevant fact, and which is made
by any of the persons, and under the
circumstances, hereinafter mentioned".

Sections 31 and 58 of the Indian
Evidence Act read as follows:

"31.
Admissions
not
conclusive proof, but may estop.-
Admissions are not conclusive proof of
the matters admitted, but they may
operate as estoppels under the provisions
hereinafter contained."
4 All. Hindustan Petroleum Corporation Vs. Satish Chandra Jain & Ors.
37

"58. Facts admitted need not
be proved.- No fact need to be proved in
any proceeding which the parties thereto
or their agents agree to admit at the
hearing, or which, before the hearing,
they agree to admit by any writing under
their hands, or which by any rule of
pleading in force at the time they are
deemed to have admitted by their
pleadings:

Provided that the Court may, in
its discretion, require the facts admitted to
be proved otherwise than by such
admissions."

29. Thus, the first requirement of
admission is a statement whether oral or
documentary which is made by any of the
person and under the circumstances
provided
in
sections
subsequent
to
Section 17 of the Indian Evidence Act. In
the present case, the statement of
admission of the defendant-appellant is
stated to be in its written statement.

Rule 6 of Order 12 of CPC
reads as under:-

"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 judgement 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
judgment
was
pronounced".

30. Rule 6 of Order 12 CPC,
therefore, is referable to any admission of
fact made either in pleading or otherwise
whether oral or in writing. It also vests a
discretion in the Court, by usage of the
word 'may', to make or not to make such
order or give such judgement, having
regard to such admissions.

Rule 1 of Order 15 CPC reads
as follows:

"1. Parties not at issue.- Where at
the first hearing of a suit it appears that
the parties are not at issue on any question
of law or of fact, the Court may at once
pronounce judgement."

31. Parties may not be at issue for
want of denial or in view of clear,
categorical and unequivocal admissions.
Where there is want of specific denial or
an allegation of fact in the plaint is stated
to be not admitted in the written
statement, it shall be taken to be admitted,
but even in such a case, the court has
discretion to require any fact so admitted
to be proved otherwise than by such
admission (Order 8 Rule 5 CPC). Order
15 Rule 1 CPC vests in the Court the
discretion
to
pronounce
judgement
forthwith at the first hearing of the suit
where it appears that the parties are not at
issue on any question of law or of fact.

32. However, while looking into an
admission under Order 12 Rule 6 CPC the
court is required to be more careful. The
lower
appellate
court
has
correctly
observed that 9.10.1998 was not the first
date of hearing and that the application,
paper no. 84-Ga, was an application under
Order 12 Rule 6 CPC and not under Order
15 Rule 1 CPC. That having been said, in
the present case before the trial court, on
9.10.1998, not only were the alleged
38 INDIAN LAW REPORTS ALLAHABAD SERIES
admissions of the defendant-appellant in
the written statement being considered,
but the defence itself was struck off. The
defendant-appellant was visited by these
twin consequences simultaneously, albeit
after hearing. But there is no gainsaying
the fact that prior to passing of the
impugned order dated 9.10.1998, there
was no clue what decision would visit
each of the applications, paper nos. 84-Ga
and 85-Ga.

33. The so-called admission of the
defendant-appellant as referred to by the
courts below is stated to be in paragraph
Nos. 6 and 20 of the written statement.
Paragraph Nos. 6 and 20 of the written
statement are as follows:

"6. With regard to Para 6 of the
plaint it is stated that there is a provision
of 2 firm renewals of 10 years each in the
Lease Deed dated 20.8.1969 and lease
was renewed firstly for 10 years on
1.3.1978 to 29.2.1988 and stands renewed
for a further period of 10 years from
1.3.1988 to 28.2.1998 as defendant has
exercised his option for renewal orally
and amongst other through registered
letter dated 15.12.87 duly received by the
plaintiff. It is not admitted that the
plaintiff (sic defendant) is not entitled to
further renewal. It is also not admitted
that renewal which was granted to the
defendant in 1978 was through registered
document hence defendant was month to
month tenant. It is also not admitted that
the defendant tenancy has been rightly or
in any way terminated through notice
dated 10.2.88."

"20. That the lease renewed
firstly upto 28.2.88 and thereafter upto
28.2.98 in pursuance of the registered
lease deed mentioned earlier. In fact
plaintiffs and their predecessors accepted
and have been accepting this preposition
and acting upon the same".

34. In light of above facts and law, it
is to be considered whether the statements
made in paragraphs 6 and 20 of the
written statement are admissions and if
so, whether they are clear, unconditional
and unequivocal. The courts below have
held that the averments in the aforesaid
two paragraphs of the written statement
that the lease stood renewed up till
28.2.1998 is an admission by the
defendant-appellant that the term of the
lease expired on 28.2.1998.

35. The averment in paragraph no. 6
of the written statement, that the lease was
renewed upto 28.2.1998 is a reply to
paragraph no. 6 of the plaint which is as
follows:

"6. That the facts are that one
renewal was permitted as per the lease
deed dated 20.8.1969 which has already
been granted to the defendant and now the
defendant was and is not entitled to any
further renewal and as the renewal which
was given to the defendant in the year
1978 was not through a registered
document, hence the defendant was
month to month tenant and the defendant's
tenancy was rightly terminated through
notice dated 10.2.1988."

36. The admission referred to by the
courts below made in paragraphs 6 and 20
of the written statement, in the facts and
circumstances of the present case, ought
not to be read in isolation for purpose of
exercise of power under O.12 R.6 CPC,
but having regard to the plaint as well as
the written statement. The Court has to
consider the admissions made by a party
in any proceeding and exercise its
discretion whether or not the facts
4 All. Hindustan Petroleum Corporation Vs.