Vijender Jain, J.
1. The suit was filed by the plaintiffs against the defendants for possession, arrears of rent and mesne profits in respect of the ground floor of property bearing No. G-6, N.D.S.E., Part-I, New Delhi. Issues had been framed in this matter and the matter was listed in the category of 'Finals'. Applicants/plaintiffs filed an application under the provisions of Order 12, Rule 6 read with Section 151 of the Code of Civil Procedure (in short 'CPC') stating, inter alia, that the defendants have relied upon the documents purporting to be a lease deed dated 2.12.1986, though, the plaintiffs have denied the execution or legal validity of said lease deed. In para-2 of the 'Reply on Merit' in the written statement, the defendants have also admitted that the rate of rent was Rs.6,000/- per month. In the aforesaid lease deed dated 2.12.1986, Clause-2 thereof reads as under :
'2. That the period of this lease has been fixed at 119 months beginning from 2.12.1986 and ending on 1.11.1996. As such, the present lease deed shall expire by efflux of time on 2.11.1996. '
2. On the basis of this clause of the lease deed put up by the defendants, Mr. Mukul Rohtagi, learned Counsel appearing for the plaintiffs, has argued that the defendants have made an admission that their tenancy will expire by efflux of time on 2.11.1996 and having admitted the rent of the premises in question, nothing more is required for the parties to argue the matter and judgment on admission may be passed under Order 12, Rule 6 of the CPC directing the defendants to vacate the premises and the matters regarding the arrears of rent and mesne profits may be decided after hearing final arguments. Learned Counsel for the plaintiffs/applicants has also contended that the provisions contained in Order 12, Rule 6 of the CPC is to enable the parties to obtain speedy judgment at least to the extent of relief on which unambiguous and unequivocal admission has been made by the opposite party. Mr. Rohtagi has also contended that even though the lease deed which was propounded by the defendants was an unregistered document and as per Section 49 of the Registration Act, documents, which are not registered, are inadmissible as evidence of a transaction affecting the party, however, when the said document was put forward by the defendants themselves that document can be looked into by the Court for passing a judgment regarding the possession.
3. Lengthy arguments were advanced by late Dr. Shankar Ghose and later on by Mr. P. Chidambaram on behalf of defendants, inter alia, that issues were framed on 6.11.1992 and the parties have led their evidence and the matter is listed in the 'Finals', thereforee, the present application has been made malafidely. It has been contended by non applicants/defendants that in such circumstances, it would be appropriate to decide the suit by adjudicating all the issues that have been framed and in support of his contentions, has cited Punjab National Bank & Anr. Vs . S. Kartar Singh, : 66(1997)DLT857 , which was later on followed by Kanti Singh & Ors. v. Project & Equipment Corporation of India Limited, 1997 6 AD (Delhi) 153. Another submissions advanced by the learned Counsel for the defendants was that the written statement has to be read as a whole, thereforee, taking into totality the defense taken by the defendants, it could not be said that there was an admission which warrants a judgment amounting to decree of possession in favor of the plaintiffs. In support of his arguments, he has cited the case of Dudh Nath Pandey (Dead by LRs.) Vs . Suresh Chandra Bhattasali (Dead by LRs., : AIR1986SC1509 .
4. It was contended by Mr. Chidambaram that no admission has been made in the written statement that lease expired by efflux of time on 2.11.1996. In the alternative, he has contended that even in the application filed by the plaintiff, the plaintiff has denied the execution as well as the validity of the lease deed dated 2.12.1986 and, thereforee, the plaintiff cannot invoke in their aid provisions of Order 12 Rule 6 of the CPC. It was further contended by the defendants in view of Issue No. 7, which read as under:
'Whether a Lease Deed dated 2nd December,1986 was executed between the plaintiff in favor of defendants? OPD
If yes, whether it can be given effect to even though it is not registered under the Indian Registration Act? OPD
If yes, whether in terms of the alleged Lease Deed dated 2nd December,1986, a tenancy of permanent nature is created in favor of the defendants in respect of the said premises? OPD '
That there is no admission in written statement, which is unequivocal and unambiguous which is sine qua non for invoking the provisions of Order 12, Rule 6 of the CPC.
5. It was further contended by the defendants that in any case the lease deed dated 2.12.1986 admittedly was not a registered document and, thereforee, cannot be looked into in accordance with the law laid down by the Supreme Court and in support of his arguments has cited Bajaj Auto Limited v. Beharilal Kohli 1989 RLR 386:39 (1989) DLT 55. It has also been contended by the defendants that the lease under Section 107 of the Transfer of Property Act would be a lease on month to month basis and, lease having not been terminated by a legally valid notice under Section 106 of Transfer of Property Act no relief of possession could be granted in favor of applicant.
6. It was also contended by the learned Counsel for the defendants that judgment on admission under Order 12, Rule 6 of the CPC is a matter of discretion which has to be judiciously exercised. In support of his contentions, he has cited M/s. Simla Wholesale Mart Vs . M/s. Baishnodas Kishore Lal Bhalla & Ors., and State Bank of India Vs . M/s. Midland Industries, : AIR1988Delhi153 wherein it has been held that:
'....Rule 6 of Order 12 has been couched in a very wide language. However, before a Court can act under Rule 6, admission must be clear, unambiguous, unconditional and unequivocal. Further more a judgment on admission by the defendant under Order 12, Rule 6, CPC is not a matter of right and rather is a matter of discretion of the Court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of on a motion under this rule the Court is free to refuse exercising discretion in favor of the party invoking it. It is not in each case where Order 12, Rule 6, CPC is invoked that the Court would be obliged to pass a decree which case would depend upon its own peculiar facts. Where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the plaintiff. The rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provisions of Order 12, Rule 6, C.P.C. without proving those issues.'
7. Learned Counsel for the applicant has contended that present application has been moved in the year 1997. It has been further contended that the plaintiff has committed surgery by denying the very execution of the lease agreement dated 2.12.1986 and in that regard the defendants have moved an application, which has been registered as Crl. M. 261/1992 and till that application is decided the plaintiff is debarred from getting any indulgence from this Court.
8. The defendants also sought protection under Section 53A of the Transfer of Property Act and argued that the application is misconceived and be dismissed.
9. Let me first deal with the submission of learned Counsel appearing for the defendants with regard to the admissibility of an unregistered document. In Sarat Chandra Das alias Sachidananda Das v. Smt. Sarajini Rudra ja, 1924 Cal 135, a Division Bench of Calcutta High Court held:
'Where a compulsorily registrable agreement is not registered but has been acted upon, it is binding on the parties though the agreement is inadmissible in evidence.'
10. When the defendants themselves have stated in the written statement that the tenancy is of permanent character and has taken shelter for that proposition to the lease deed dated 2.12.1986 in general and Clause 2 of the said lease in particular, Court can look to the document which has been relied upon by the defendants along with the written statement for the purpose of denoting defendants' right to possession in terms of the said lease deed. Supreme Court in Maneklal Mansukhbai Vs . Hormusji Jamshedji Ginwala & Sons, : [1950]1SCR75 , held that it may also be observed that agreement of lease creating a present demise but not registered is admissible under Sec. 49, Registration Act as evidence of part performance. Plaintiffs could not have relied upon an unregistered document under Section 49 of the Registration Act but to say that the defendants having taken shelter under the provision of Section 53A of the Transfer of Property Act can now turn around and say that unregistered document of lease cannot be looked into by the Court, is totally misconceived. In all fairness, the defendants cannot be allowed to approbate and reprobate.
11. There is no force in the arguments of the learned Counsel for the defendants that in the written statement Clause-2 of the aforesaid lease agreement has not been pleaded, thereforee, it cannot be construed as an admission by the defendants. In para-1 of the written statement filed by the defendants on 14.2.1990 in this Court, it has specifically been mentioned as follows:
'....This fact is not denied that the answering defendants Along with defendants No. 2 and 6 were inducted as tenants of the ground floor of premises No. G-4, New Delhi South Extension, Part-l, New Delhi on certain terms and conditions as contained in a Lease Deed dated 2.12.1986 duly signed and executed in between the parties to the suit.'
12. From the bare perusal of the lease deed filed by the defendants on record, it is seen there from that the lease deed is for 119 months. In para-2 of the said lease deed, it has been mentioned that lease was for 119 months beginning from 2.12.1986 and thereafter the lease was to expire by efflux of time on 2.11.1996. The averments made in the written statement read with the documents filed and relied by the defendants makes it clear in unequivocal and unambiguous terms that the lease was to expire on 2.11.1996. It is well settled proposition of law that the relief under Order 12, Rule 6 of the CPC is a discretionary relief and is not a matter of right. However, in the case before me where the defendants themselves have admitted the execution of the lease deed, which is filed on record by them stipulating that lease shall expire by efflux of time on 2.11.1996, having taken that stand in the year 1990 when the written statement was filed, why should plaintiff wait for final hearing of the matter which may take years in this Court. To my mind, the essence of justice is expeditious judgment if can be given on the admission of the defendants, why Court should allow the defendants to remain in possession after such a clear and unequivocal stand taken by the defendants on its free Will. In somewhat similar circumstances, in S.L. Associates Pvt. Ltd. Vs . Karnataka Handloom Development, : 62(1996)DLT386 this Court held:
'Even assuming in favor of the plaintiff that the lease was to be further extended for a period of three years without the consent of the plaintiff as per the terms of the said agreement. That period of three years has also now come to an end during the pendency of the suit. No doubt, a suit must be practical in all stages on the cause of action as it existed on its date of commencement. But the Court may however in suitable cases take notice of the events which have happened since the institution of the suit and afford relief to the parties on the basis of altered conditions. This must be done by the Court by giving relief to the parties on the basis of altered circumstances in order to shorten litigation and get complete justice between the parties.
The facts of the case before me are exactly similar with the facts of the case before the Division Bench of the Madhya Pradesh High Court in the case of Sikar Chand and Others Vs . Mast Bari Bai and Others : AIR1974MP75 and in that case also a decree for eviction who passed in favor of the plaintiff under the provisions of Rule 6, Order 12 of CPC.'
13. In Sikar Chand and Others's case (supra) the Court held:
'Where in a suit for eviction after the expiry of a lease on the defense being taken that under a compromise the term of the lease was extended by 10 years the plaintiff made an application (without admitting the agreement) that even under Order 12, Rule 6 since the extended term had also expired, it was open to the Court to base a judgment under Order 12, Rule 6 against the defendant on the basis of his own admissions because it is clear from the case as set up by him that he was not entitled to continue in possession of any case after the expiry of the fresh term of 10 years.....
It is no doubt true that ordinarily the plaintiff is entitled to a relief only on the basis of the cause of action stated in the plaint but it is open to the Court in suitable cases to afford a relief on the basis of the case as set up by the defendant. In such a case there is no prejudice to the defendant because the relief legitimately springs from the case as set up by him.'
14. A Division Bench of this Court in Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd., 1997 2 AD 518 held as under:
'The question now is that whether there is any admission or not so as to entitle the plaintiff to have a decree for possession. The factors which deserve to be taken into consideration in order to enable the Court to pass a decree in plaintiff's favor as regards possession of the suit property by defendant as a tenancy; and (b) determination of such relation in any of the contingency as envisaged in Section 111 of the Transfer of Property Act. One of the modes stated therein is by efflux of time limited by the lease. Only on unequivocal admission of the above two factors will entitle the plaintiff to a decree on admission. Admission need not be made expressly in the pleadings. Even on constructive admissions Court can proceed to pass a decree in plaintiff's favour.'
15. This Court in Lakshmikant Shreekant (HUF) through its Karta Vs . M.N. Dastur & Company Pvt. Ltd. : 71(1998)DLT564 took the similar view. In K. Kishore & Construction (HUF) Vs . Allahabad Bank, 1998 : 71(1998)DLT581 , a learned Single Judge of this Court held:
'A plaintiff may move for judgment under this provision at any stage. This can obviously be availed even after he has joined issues on the defense. The admission may be made either in pleadings or otherwise which means that the admissions contained in documents written or executed between the parties before the action is brought are also sufficient for the purpose of this rule.'
16. Similar view was taken by another learned Single Judge of this Court in Atma Ram Properties Pvt. Ltd. v. Air India, 1991 1 AD 641. Even in Surjit Sachdev's case (supra), Division Bench of this Court held that after the expiry of lease coming to an end defendants had no right to continue in possession and admission need not be made in the pleadings even constructive admission can form the basis of a decree passed under Order 12, Rule 6.
17. Disapproving the arguments that under the provisions of Section 116 of the Transfer of Property Act holding over possession by tenant after the expiry of period of lease, the Division Bench in Surjit Sachdev's case (supra) held that:
'For holding over of tenancy is it absolutely necessary that the lease is allowed to continue to remain in possession of the property after expiry of the period of lease.'
18. It has not even been argued by the defendants that the plaintiffs have allowed the defendants to continue in possession of the property in question after expiry of lease period on 2.11.1996. In any event of the matter holding over is an act of expiration of the term which does not necessarily create a tenancy of any kind.
19. The intent and object of incorporating Rule 6 of Order 12 by the Parliament in the Code of Civil Procedure is to enable a party to obtain speedy judgment to the extent of the relief which according to the admission of other party, he is entitled to. If a relief emanates on the basis of case set up by the defendants, no prejudice is caused to the defendants because the relief springs from the case set up by the defendants. What is important to know that unlike prior to the Amending Act, 1977 the filing of formal application under Order 12, Rule 6 is not required now. Now amended provisions of Order 12, Rule 6 of the CPC, judgment on admissions, the Court may at any stage of the suit either on the application of any party or on its own motion, make such order or give such judgment as it may think fit having regard to such admissions. thereforee, I have no hesitation in holding that in view of the specific stand of defendants in para-1 of written statement read with lease deed filed by the defendants themselves, there is an unequivocal and unambiguous admission made by the defendants that lease would expire by efflux of time on 2.11.1996. That being so, no other issue with regard to possession has to be taken into consideration and aforesaid admission on the part of defendants will entitle the plaintiffs for a judgment/decree on admission.
20. Coming to the arguments advanced by the learned Counsel for the defendants that judgment on admission under Order 12, Rule 6 of the CPC is a matter of discretion and written statement was to be read as a whole and, thereforee, provisions of Order 12, Rule 6 of the CPC would not be applicable and the provisions of Order 12, Rule 6 be interpreted in restricted manner. I may quote the following dictum of Jessel M.R. in Mellor v. Sidebottom, (1877) 5 Ch.342, interpreting Rules and Orders of the Supreme Court, Order XXXII, Rule 6 which is in pari materia with the said rule. The learned Judge declined to interpret Order Xll, Rule 6 so as to restrict its operation stating:
'In my opinion, it would be lamentable if the discretion, which, for the best of reasons, has been left free and untrammelled by the Legislature, were to be crystallized by judicial decisions, as it would become in course of time, by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion which must be applied with due regard to the varying circumstances of each particular case. I must consequently decline to interpret Order XII, Rule 6, so as to restrict its operation to cases where the plaintiff accepts the admission of the defendant in its entirety or where the claim is server able into distinct portions and the defendant admits his liability in respect of one such fragment of the claim. I do not also feel pressed by the argument that if a decree is made first on admission in respect of one portion of the claim and then on investigation as to the remainder, there may ultimately be two decrees in same suit. I see nothing objectionable in principle to such a result.'
21. It would thus appear that the powers under Order XII, Rule 6 must be left free and untrammelled which cannot be crystallized into any rigid rule of universal application but the discretionary powers there under must be applied with due regard to the varying circumstances of each particular case.
22. There is no force in the arguments of the learned Counsel for the defendants that no fresh notice of termination of lease was given by the plaintiff after expiry of lease period i.e. 2.11.1996 and, thereforee, the defendants will be holding over the tenancy on month to month basis and it would be necessary to have a notice under Section 106 of the Transfer of Property Act and there will be no question for determination of holding over of tenancy by efflux of time under Section 111 of the Transfer of Property Act. No plea of holding over has been made by the defendants. In Smt. Shanti Devi v. Amal Kumar Banerjee AIR 1981 SC 1550, it was held that after expiration of the period of lease by efflux of time there was no requirement of issuing notice for determination of the lease.
23. It has been contended by the defendants that issues were framed initially on 6.11.1992 and thereafter on 1.12.1993 on the basis of amended written statement. I will not deal with the Issues No. 8-A and 1-A, which were framed by this Court on 1.12.1993 on the basis of the amended written statement as the amended written statement having been allowed by this Court on 16.11.1993 to be taken on record, an appeal bearing FAO (OS) No. 37 of 1994 was preferred by the plaintiff aggrieved by the order of the learned Single Judge, which was decided on 17.10.1994, the Division Bench of this Court held:
24. In the present case, even by the time the written statement was initially filed in 1989, the Rent Control Law stood amended in December,1988, taking buildings with rental income above Rs. 3,500/- p.m. out of the Act but even so plea of eight separate undivided tenancies each for Rs. 750/- was not raised and in fact, it was admitted that it was a single tenancy given in 1986 to 8 persons under a single lease. It was also pleaded that two of the defendants surrendered their rights of tenancy to other cotenants. That would mean that it was admitted that it was a single tenancy and the Rent Control Act did not apply. The present plea of 8 tenancies is thereforee clearly inconsistent. We are of the view that in such a situation, discretion has to be exercised according to well settled principles. If the amendment takes away a valuable right accrued to the appellant to rely on the admission of the defendants or it affects a right to evict the respondents through the Civil Court uninhibited by the limited grounds available under the Rent Control Act and is belated by four years, it is also not bona fide. It causes serious prejudice to the plaintiff and is obviously intended to delay the disposal of the suit. We are thereforee of the view that, having regard to well settled principles, the amendment ought not to have been allowed. We thereforee set aside the order allowing the amendment under this IA, Point 3 is decided accordingly.
In the result, the appeal is allowed and the order of the learned Single Judge is set aside.
25. Issue No. 7, as stated above, on the basis of the pleadings made in the written statement, was whether the lease deed was executed on 2.12.1986 by the plaintiffs in favor of the defendants and even if it is assumed that Issue is decided in favor of defendant, same came to an end by efflux of time on 2.11.1996, what more is required for trial in the suit. Other Issues except Issue of damages for use and occupation are not relevant for deciding the application under Order 12, Rule 6 of CPC. Issues regarding damages for use and occupation can be decided separately but why the plaintiffs should suffer the right of possession if they are otherwise entitled on account of admission on the part of the defendants.
26. Let us take the argument of the learned Counsel for the defendants about the applicability of Section 53A of the Transfer of Property Act. Although, lease is defined under Section 105 of the Transfer of Property Act as transfer of right to enjoy the property which is distinguishable from the transfer of interest in the property. Assuming that Section 53A of the Act was applicable, the defendants cannot take the plea that although the lease was to expire by efflux of time on 2.11.1996 yet he will be protected, as a matter of right, to have the lease for a permanent period in view of Section 53A of the Transfer of Property Act. Provisions of Section 53A of the Act would be available only as a defense to protect his possession and at best it can be used to show the nature and character of the possession but it will not create a title in the lease nor confers any right on the basis of which the lessee could claim any rights against the Lesser after 2.11.1996, thereforee, the defendants cannot claim any protection under the said section. In view of the facts and circumstances of the case, the arguments of the defendants regarding applicability of Section 53A of the Transfer of Property Act is devoid of any merit.
27. Defendants should realise that after the amendment to Delhi Rent Control Act tenancies for more than Rs.3,500/- were taken out of the protection of the Delhi Rent Control Act. The ground reality is that after statutory protection of Delhi Rent Control Act is not available to the defendant, the defendant after expiry of its tenancy by efflux of time, which according to them expired on 2.11.1996, ought to have vacated the premises instead of delaying the ultimate decree qua possession, which is to be passed against them. I, thereforee, accordingly allow the application and pass a decree for possession under Order 12, Rule 6 of the Code in favor of the plaintiffs and against the defendants and direct the defendants to hand over the possession of the premises, namely property bearing No. G-6, N.D.S.E., Part-I, New Delhi to the plaintiffs within two months from the date of this order.
Suit No. 2000 of 1989
List this suit for regular hearing in the category of 'Finals'.
Application allowed. Decree for Possession passed.