Shri Raghbir Saran Charitable Trust & Ors. vs Shri Arun Kumar Jain & Anr.

This is an application filed on behalf of the defendants seeking to place on record the certified copies of the orders passed in Suit No. 1013/2008 from 07.03.2011 to 28.05.2018 and the application under Section 151 CPC filed by the plaintiff dated 05.03.2016 before the learned Trial Court.

Considering the averments made in the application, the same is allowed. Let the certified copies of the orders in Suit No. 1013/2008 from 07.03.2011 to 28.05.2018 and the application under Section 151 CPC filed by the plaintiff dated 05.03.2016 before the learned Trial Court, be taken on record.

Application stands disposed of.

The present application has been filed under Order XIII-A read with Section 151 CPC by the plaintiff no.1, Shri Raghubir Saran Charitable Trust, seeking a summary judgment, i.e. a decree for possession and mesne profits in its favour and against the defendants in respect of the suit premises (property bearing no. E-9, Inner Circle, Connaught Place, New Delhi, comprising the basement, ground floor and mezzanine floor, admeasuring approximately 3,780 sq. ft.). For convenience, plaintiff no.1, Shri Raghubir Saran Charitable Trust, is hereinafter also referred to as ‘the Trust’. Plaintiff no.2, Shri Harsh Kumar Agarwal, and plaintiff no.3, Mrs. Kiran Agarwal, are its trustees. Defendant no.1 is Shri Arun Kumar Jain and defendant no.2 is Shri Tarun Kumar Jain. The application is supported by an affidavit of Shri O.P. Bhandula, who claims to be the Secretary of the Trust.

The suit premises are stated to have been let out by the Trust in the year 1954 at an initial monthly rent of Rs.585.50. It is submitted that the rent was subsequently enhanced and by the year 2000, stood at Rs.3,660.25/- per month. Since the rent exceeded Rs.3,500/- per month, the tenancy ceased to enjoy the protection of the Delhi Rent Control Act, 1958, and the Trust was at liberty to determine the tenancy under the Transfer of Property Act, 1882.

By a communication dated 07.06.2000, the plaintiff no.1/Trust sought to terminate what it characterised as a month to month tenancy and thereafter instituted the present suit for possession and mesne profits. The suit was initially instituted in this Court on 31.07.2000 and registered as CS(OS) 1691/2000. On a change in pecuniary jurisdiction, the suit was transferred to the District Court by order dated 04.11.2003, where it came to be numbered as Suit No. 1013/2008 and, later, as Suit No. 663/2014. The defendants contested the said suit. Paragraph 2 of the ‘preliminary objections’ in the written statement avers as under:

It is also the case of the defendant/s that a letter dated 04.05.2000 was received by them from M/s Bagolia Associates Pvt. Ltd., the brokers allegedly engaged by the plaintiff no.1/Trust, recording that at a joint meeting held on that date, the Trustee, Mr. Harsh Kumar Agarwal (plaintiff no.2 herein), had agreed to sell the property. A further letter dated 14.05.2001 was sent by the same brokers to defendant no.2, stating as under:

It is averred in the written statement that the notice dated 07.06.2000, terminating the lease, stood waived, the Trust having agreed to sell the premises for Rs.45,00,000/-, out of which Rs.15,00,000/- had already been paid, namely, Rs.5,00,000/- by cheque no. 615480 dated 08.05.2000 drawn on Citi Bank (encashed on 10.05.2000) and a further sum of Rs.10,00,000/-in cash in May 2001. In its replication, the Trust did not dispute the receipt of the cheque of Rs.5,00,000/-, but explained the same as an amount tendered by way of deposit in the course of negotiations for an enhancement of rent commensurate with the prevailing market rent, which, according to the Trust, was in excess of Rs.5,00,000/- per month. The relevant averments in the replication are as under:

It has been submitted by the plaintiff no.1/Trust, in their written synopsis, that the Trust filed an application under Order XII Rule 6, CPC whereupon the learned Additional District Judge passed a decree for possession on 11.05.2004. However, the record, as borne out by the Division Bench of this Court in RFA No. 299/2004 vide judgement dated 21.09.2007 (in the appeal preferred by the defendants), does not bear this out. The said decree was set aside by the Division Bench and the suit was remanded for de novo consideration, with liberty to the Trust to file a fresh application under Order XII Rule 6, CPC. It may be noticed that the Division Bench recorded that no application under Order XII Rule 6 CPC was in fact on the record of the Trial Court at the time the said decree came to be passed. The Division Bench noticed that the decree had been passed purportedly upon an application under Order VIII Rule 10 read with Order XII Rule 6 CPC, and that the learned Additional District Judge had neither any such application before her nor had she exercised suo motu jurisdiction.

During the pendency of the said appeal, the Trust challenged an interim order dated 28.05.2004 passed in the aforementioned RFA No. 299/2004, by way of SLP (C) Nos. 15363-15364/2004. The said petitions were dismissed by the Supreme Court on 16.11.2004. The said order reads as under:

Pursuant to the liberty granted by the Division Bench in RFA No. 299/2004, the Trust filed a fresh application under Order XII Rule 6, CPC on 25.01.2008, once again praying for a decree of possession. The said application was dismissed by the learned Additional District Judge (Central-03), Delhi, by order dated 30.03.2012, on the ground that the respondents had raised triable issues (in particular, the alleged agreement to sell) which required examination by evidence, whereupon the suit was directed to be listed for framing of issues on 17.05.2012. The relevant portion of the said order reads as under:

In the said order, on the Trust's explanation for the Rs.5,00,000/-payment, the learned Additional District Judge categorically observed that the plea does not appeal to reason “as it is next to impossible that any tenant would agree to such an astronomical increase in the rent of the premises from 3660.50 to Rs. 5 lacs per month at one go, which is almost around 150 times the existing rent of the premises”.

The Trust assailed the said order by way of a petition under Article 227 of the Constitution, being C.M.(M) No. 514/2012, which was dismissed by this Court (M.L. Mehta, J.) by judgment dated 27.09.2012, holding that there was no infirmity or illegality in the impugned order and that the respondents were entitled to an opportunity to prove their case. The relevant observations in the said order are as under:

Thereafter, the Trust preferred SLP (C) No. 5311/2013 against the above judgment and order dated 27.09.2012 passed by this Court in C.M.(M) No. 514/2012, and the same was dismissed by the Supreme Court on 16.12.2013. The order of the Supreme Court reads as under:

Thereafter, on 30.04.2014, the learned Additional District Judge, Central-14, Tis Hazari Courts, Delhi framed the following issues on the basis of the pleadings in Suit No. 663/2014, which read as under:

By order dated 16.09.2014, the learned Additional District Judge recorded that the affidavits of evidence of the Trust were not ready despite five months’ time having been granted, imposed costs of Rs.3,000/- upon the Trust, and directed that if the entire evidence was not led on the next date the evidence of the Trust shall be deemed to be closed. The suit was thereafter adjourned sine die with liberty granted to the Trust to seek revival as and when it is in a position to pursue the same.

After the suit was adjourned sine die, the Trust applied for its revival by an application under Section 151 CPC dated 05.03.2016, and the suit was revived by order dated 30.07.2016 subject to payment of costs of Rs.5,000/-. Crucially, in the said application seeking revival of the suit, it was averred as under:

It bears emphasis that the said application was affirmed by Shri O.P. Bhandula, the very deponent who has affirmed the affidavit in support of the present application, and that it stated in terms that ‘Issues in the suit were framed on 30.04.2014’, that the issues were so framed ‘in the presence of proxy counsel’, and that ‘the matter is at pre-trial stage’.

It is also relevant to notice that, whilst both suits were pending before the District Courts, they came to be consolidated by an order dated 07.10.2016.

On the application of the Trust for amendment under Order VI Rule 17 read with Section 151 CPC, enhancing the valuation of the relief of possession to Rs.2,40,00,000/- and the valuation of the suit as a whole to Rs.2,45,67,000/-, the plaint was, vide order dated 28.05.2018 passed by the learned Additional District Judge-05, New Delhi District, Patiala House Courts, New Delhi, returned for presentation before the Court of competent pecuniary jurisdiction. The said order, inter alia, directs as under:

It is relevant to notice that the learned Additional District Judge, while returning the plaint, placed reliance upon the judgment of this Court in Vogel Media International GmbH v. Jasu Shah, 115 (2004) DLT 679, and observed that upon such return the plaint is to be represented before the Court of competent jurisdiction and “such a suit will be tried de novo in accordance with the provisions of CPC”. It bears notice that the said judgment was invoked suo motu, the learned Additional District Judge having recorded that it was not referred to or relied upon by either side. The consequences which the plaintiff no.1 seeks to draw from the aforesaid direction are considered hereinafter.

Consequent upon the said return, the plaint was re-presented before this Court and came to be registered as CS(OS) 574/2018. Fresh summons were issued on 14.11.2018 and the suit thereafter passed afresh through the stages of pleadings, culminating in the order dated 21.05.2019 of the learned Joint Registrar (Judicial) recording that the pleadings in the suit were complete. These proceedings are adverted to in greater detail in paragraphs 54 to 57 hereinafter.

In the meanwhile, on the transfer petition filed by the Trust being TR.P.(C.) No. 225/2018, CS(OS) 666/2003 (which had by then stood transferred to the District Court and been renumbered as CS No. 57679/2016) was also brought to this Court vide order dated 03.12.2018 passed by this Court, whereby it was further directed that CS(OS) 574/2018 shall be treated as the lead suit. The two suits have been listed together since then.

On 03.09.2019, this Court (presided over by Hon’ble Mr. Justice V. Kameswar Rao) in the presence of counsel for the respective parties recorded as under:

The said order dated 03.09.2019 was not challenged and has attained finality.

The Trust, however, neither filed its affidavit of evidence nor paid its share of the Local Commissioner’s fee. On account of the said default, and upon the erstwhile counsel for the Trust ceasing to appear without seeking a discharge, notice was issued by this Court on 11.11.2024 to the Trust as well as to its counsel. On 27.02.2025, fresh counsel for the Trust entered appearance and was granted liberty in the following terms:

The present application was filed thereafter.

In the meantime, CS(OS) 666/2003 was dismissed for non-prosecution on 15.07.2025 and was restored to its original number vide order dated 17.10.2025, subject to payment of costs of Rs.25,000/-. The said order reads as under:

On 12.02.2026, the following order was passed, whereby this Court itself posed a query as to whether an application under Order XIII-A CPC is maintainable in a suit which is not a commercial suit:

In the above backdrop, the matter was listed on 20.04.2026 and adjourned at the request of the plaintiffs. Thereafter, the arguments in the instant application were advanced in considerable detail on 08.09.2026.

Ms. Maneesha Dhir, learned senior counsel for the applicant/plaintiff no.1 has submitted that the relationship of landlord and tenant, the rate of rent and the receipt of the notice dated 07.06.2000, stand admitted. It is further submitted that the two documents on which the defence rests viz. the Agreement to Sell and the alleged letters of the brokers, are both unsigned and that on this basis, it is, ex-facie, apparent that there is no concluded contract capable of resisting a decree for possession.

As regards the receipt of the cheque of Rs.5,00,000/- by the Trust, it was submitted that the amount was received in the course of negotiating an increase in rent, about a year before the date borne on the Agreement to Sell. It was further submitted that, taking the defence at its highest, a consideration of Rs.45,00,000/- was far below the property’s value in the year 2000-01, which, as pleaded in the application, was not less than Rs.5,00,00,000/-. She submits that the defence lacks credibility and there is no real prospect of the defendants successfully defending the claim at trial. She further submits that the defence amounts to an inherently glaring abuse of process warranting summary judgment for possession and mesne profits without trial.

It was further submitted that the suit ought to be treated as a commercial suit in substance. It is further submitted that the issues were never framed in the present suit and as such, the bar in the proviso to Rule 2 of Order XIII-A does not apply. She submits that after the original plaint was returned and represented, the same must be treated as a fresh, de novo suit requiring pleadings to be filed afresh followed by framing of issues. It is, thus, contended that the order dated 30.04.2014 cannot be relied upon by the defendants to contend that the issues already stand framed inasmuch as the said exercise is required to be carried out afresh after the plaint was returned.

Mr. Ankit Jain, learned senior counsel for the defendants has submitted that Order XIII-A is not applicable to the present suit inasmuch as the instant suit was never instituted/registered or treated as a commercial suit at any point of time. It is further submitted that the application is barred by the proviso to Rule 2 of Order XIII-A inasmuch as issues were framed on 30.04.2014. He submits that the Trust’s own application dated 05.03.2016 admits as much. He also relies upon the order dated 03.09.2019 passed in the present suit by the predecessor Bench (presided over by Hon’ble Mr. Justice V. Kameswar Rao) which records that issues stand framed.

On merits, he submits that the present application is the third attempt on the part of the Trust to obtain a decree without trial on pleas already found to raise triable issues. It is further submitted that the receipt and encashment of the cheque of Rs.5,00,000/- is admitted and that the Trial Court’s findings while disposing of the earlier application under Order XII Rule 6, to the effect that the explanation offered by the Trust in this regard “does not appeal to reason”, undermine the present application as well. Reliance has been placed by the learned senior counsel for the defendants on Hari Steel and General Industries Limited v. Daljit Singh, (2019) 20 SCC 425.The relevant observations therein are as under:

Order XIII-A was introduced by the Schedule to the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (now the Commercial Courts Act, 2015). Its scope is fixed by Section 16 of that Act, which reads as under:

Rule 1(1) of Order XIII-A confines the said Order to the very same field, inasmuch as it provides that “This Order sets out the procedure by which Courts may decide a claim pertaining to any Commercial Dispute without recording oral evidence”. Rule 2 fixes the stage at which an application may be made, and reads as under:

Rule 3 sets out the grounds upon which such a judgment may be rendered, and reads as under:

In Reliance Eminent Trading & Commercial Private Limited v. Delhi Development Authority, 2026 SCC OnLine SC 744, the Supreme Court has observed as under:

A Division Bench of this Court in Bright Enterprises Private Limited v. MJ Bizcraft LLP &Anr., 2017 SCC OnLine Del 6394, has held as under:

Admittedly, Order XIII-A does not form part of the Code of Civil Procedure, 1908 as ordinarily applicable. It was inserted by the Schedule to the Commercial Courts Act, 2015; and by virtue of Section 16(1) of that Act, the provisions of the CPC stand amended in the manner specified in the Schedule only “in their application to any suit in respect of a commercial dispute of a Specified Value”. In relation to a suit of any other description, the CPC applies unamended, and the unamended CPC does not contain Order XIII-A at all. Rule 1(1) of Order XIII-A is to precisely the same effect, providing in terms that the said Order “sets out the procedure by which Courts may decide a claim pertaining to any Commercial Dispute without recording oral evidence”.

In the above backdrop, it is evident that the provisions of Order XIII-A are not applicable at all and that it is, thus, impermissible for plaintiff no.1/Trust to invoke the same. The present suit was instituted on 31.07.2000, i.e. more than fifteen years before the Commercial Courts Act, 2015 came into force, and it has never been instituted, registered, numbered or treated as a commercial suit at any stage. No application under Section 15 of the Commercial Courts Act, 2015 seeking transfer of the suit to the Commercial Division of this Court has ever been made. Even the application does not plead that the suit is in respect of any commercial dispute of a specified value within the meaning of Sections 2(1)(c) read with 2(1)(i) of the said Act.

In the written submissions filed on behalf of plaintiff no.1/Trust, it is contended that the provisions of the Commercial Courts Act, 2015 apply “from the date of transfer of the suit to the Commercial Division”, and that “the suit was transferred pursuant to order dated 03.02.2018”.

The aforesaid submission of the plaintiff proceeds upon a misunderstanding. The only order of transfer on the record of either suit is the order dated 03.12.2018 passed in TR.P.(C.) 225/2018, upon a petition presented by plaintiff no.1/Trust itself. By that order, this Court transferred Civil Suit No. 57679/2016 (that is to say, the connected suit for specific performance) from the Court of the learned Additional District Judge-05, Patiala House Courts, New Delhi to this Court to be tried along with CS(OS) No.574/2018, further directing that the latter suit shall be treated as the lead suit. The transfer so effected was to the ordinary original civil jurisdiction of this Court. The order makes no reference to the Commercial Division, nor was Section 15 of the Commercial Courts Act, 2015 invoked before or applied by this Court. It may be noticed that the relief sought by plaintiff no.1/Trust in the said transfer petition was itself in those very terms, namely that the suit be transferred to this Court and be tried in this Court with CS(OS) No.574/2018. Learned counsel for both sides thereupon informed the Court that one suit was for specific performance and the other for possession; neither suggested that either suit be treated as a commercial dispute.

Reliance placed in the said written submissions upon the Notification dated 24.11.2015 is equally misconceived. It is contended that the said notification directs that all suits valued above the prescribed threshold, whether pending or instituted on the Original Side of this Court, shall stand transferred to and be adjudicated by the Commercial Division. Notification No. 27187/DHC/Orgl. dated 24.11.2015 does nothing of the kind. It was issued under Section 4 of the Delhi High Court (Amendment) Act, 2015 (Act 23 of 2015), and concerns the ordinary original civil pecuniary jurisdiction of this Court. It does not direct the transfer of any suit to the Commercial Division. It was, inter alia, pursuant to that very notification that CS(OS) 666/2003 came to be transferred out of this Court to the District Court by order dated 09.12.2015.

Whatever be the character of the underlying dispute, the amendments effected to the CPC by the Schedule to the Commercial Courts Act, 2015 have never been attracted to this suit. A suit does not become subject to the amended CPC by reason only of the nature of the dispute it raises; it becomes so subject when it is instituted in, or transferred to and registered in, the Commercial Division. Until that occurs, the suit continues as an ordinary civil suit governed by the unamended Code, and no remedy created by the Schedule, including the remedy of summary judgment under Order XIII-A, is available in it.

It is unnecessary, in this view of the matter, to enter upon the question whether the dispute raised in the present suit answers the description contained in Section 2(1)(c)(vii) of the Commercial Courts Act, 2015, which brings within the definition only disputes arising out of “agreements relating to immovable property used exclusively in trade or commerce”. That question does not arise for determination, and nothing stated herein shall be construed as an expression of opinion upon it.

It is, in any event, not open to the Trust to shift its position at this distance of time. Paragraph 12 of the plaint in CS(OS) 574/2018, as verified by Shri O.P. Bhandula (the very deponent who has affirmed the affidavit in support of the present application) states in terms: “This is not a commercial matter”. The Trust having itself pleaded, on affidavit, that the suit is not a commercial matter, and the suit having been entertained, registered and prosecuted on that footing for close to eight years, it is not open to the Trust to now contend that the suit ought to be treated as a commercial suit in substance for the limited purpose of attracting Order XIII-A. The law does not permit a person to both approbate and reprobate; a party cannot say at one time that a matter is of one description in order to obtain an advantage available only on that footing, and at another time say that it is of a different description for the purpose of securing some further advantage.

In the above circumstances, it is evident that the present application under Order XIII-A CPC is not maintainable and is liable to be dismissed on this ground alone.

Rule 2 of Order XIII-A confines an application for summary judgment to the period after the service of summons and before the framing of issues. The Division Bench in Bright Enterprises (supra) held that this window is a clear stipulation which must be followed scrupulously. The relevant observations are as under:

In Reliance Eminent (supra), the Supreme Court has clearly held that an application under Order XIII-A is “time bound” and has directed that the procedural mandate of the said Order is required to be strictly complied with. The proviso to Rule 2 is thus a condition upon the very maintainability of such an application, and not a matter of discretion.

In the present case, issues were framed on 30.04.2014, as is evident from a perusal of the said order, a certified copy whereof has been placed on record by the defendants along with IA No. 10647/2026. The same is also evident from the averments made in the Trust’s own application dated 05.03.2016 seeking revival of the suit after it had been adjourned sine die, wherein it was stated in terms that ‘Issues in the suit were framed on 30.04.2014’ and that ‘the matter is at pre-trial stage’.

The significance of that averment can hardly be overemphasized. In the very application by which it sought, (and on 30.07.2016 obtained), the revival of its suit, the Trust stated in terms, and as the opening averments of that application, that “Issues in the suit were framed on 30.04.2014”, that “affidavits of evidence are yet to be filed in the matter and examination of witnesses has not yet commenced”, and that “the matter is at pre-trial stage”. It now seeks a decree without trial upon the diametrically opposite plea that issues were never framed at all. Having placed one position before a Court in categorical terms, the Trust cannot be heard to assert the contrary.

In any event, the question is as to whether the issues stand framed or not. The law on the effect of return of a plaint under Order VII Rule 10 CPC was settled by a Three-Judge Bench in M/s. EXL Careers v. Frankfinn Aviation Services Private Limited, (2020) 12 SCC 667, which approved Oil and Natural Gas Corporation Ltd. v. M/s. Modern Construction and Co., (2014) 1 SCC 648. The relevant observations therein are as under:

However, the conclusion that the Trust seeks to draw from the dicta laid down in the aforesaid judgment, to the effect that no issues have ever been framed in the present suit, does not follow, because the record shows that this Court has taken the present suit through every stage that a fresh suit passes through, up to and including the framing of issues. On 14.11.2018, fresh summons were issued to the defendants. The said order, inter alia, reads as under:

On 20.12.2018, the defendants were granted time to file their written statement, which was filed on 05.01.2019; the Trust filed its replication and on 11.04.2019, the written statement and the defendants’ affidavit of admission/denial were taken on record. On 21.05.2019, the learned Joint Registrar recorded that pleadings in the suit were complete, and, upon the joint submission of the parties, directed that the matter be placed before the Court for framing of issues/further directions. The said order reads as under:

Thus, the matter was placed before the Court for framing of issues/further directions on 16.07.2019. The matter was adjourned on 16.07.2019 at the request of the Trust and taken up on 03.09.2019. The order dated 03.09.2019 records, in terms, that “Issues have been framed in both the suits on February 04, 2010 and April 13, 2014 respectively” (that is to say, in CS(OS) 666/2003 by this Court by order dated 04.02.2010, and in the present suit by the learned Trial Court by order dated 30.04.2014 upon pleadings which are, in substance, identical). It was further recorded that “no further developments have taken place”. The Trust was directed to file its evidence by way of an affidavit within a period of 4 weeks and a Local Commissioner was appointed, by consent, for recording of evidence.

Thus, the Court adopted the issues which had already been framed on identical pleadings and paved the way for the recording of evidence. It may be noted that Order XIV Rule 1(5) of the CPC requires the Court, upon reading the plaint and the written statement, to ascertain the material propositions of fact or of law on which the parties are at variance, and thereupon to frame and record the issues. Order XIV prescribes no particular form or manner in which that exercise is to be performed; and by virtue of Order XIV Rule 5, the Court retains the power to amend, frame additional, or strike out issues at any time before passing a decree. The order dated 03.09.2019 effectively did so. The Trust was duly represented at the hearing on 03.09.2019 and also consented to the appointment of a Local Commissioner. It neither objected that issues had not been framed, nor took recourse to filing of any review/appeal in respect of the order dated 03.09.2019.

That the framing of issues on 03.09.2019 took the form of an adoption of the issues already settled on identical pleadings, rather than a fresh verbatim recital of them, is of no consequence. It is well settled that the form in which issues are framed is not decisive; what matters is whether the parties went to trial knowing the rival case which each had to meet. In Nedunuri Kameswaramma v. Sampati Subba Rao,1962 SCC OnLine SC 41, the Supreme Court observed that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. The relevant portion is reproduced hereunder:

If the complete absence of an issue is not fatal where the parties are alive to the controversy, it must follow a fortiori that the adoption, by a judicial order passed in the presence of both sides, of issues already framed on identical pleadings in the connected suit is a valid discharge of the obligation cast by Order XIV. The submission to the contrary would elevate form over substance in a manner which the Code does not countenance.

The rule in EXL Careers (supra) is that upon return of a plaint the proceeding must commence de novo. That is precisely what occurred here. Fresh summons issued on 14.11.2018; a fresh written statement was filed on 05.01.2019; a replication followed; admission/denial was completed on 11.04.2019; pleadings were declared complete on 21.05.2019; and the matter was thereupon placed before the Court for framing of issues. The de novo mandate was therefore fully worked out, and it culminated in the order dated 03.09.2019. The Trust cannot invoke the de novo rule in order to obtain the benefit of a fresh trial and simultaneously contend that the stage which that fresh trial had reached by 03.09.2019 never arrived at all. Every antecedent stage was gone through afresh, and it was only upon reaching, in the fresh proceeding, the stage contemplated by Order XIV that the Court settled the issues arising upon the pleadings then before it. That those issues were identical in substance to the ones earlier framed is a consequence of the pleadings being identical, and not of any stage having been carried over.

The judgment in Vogel Media International GmbH (supra), upon which the learned Additional District Judge founded the direction contained in the order dated 28.05.2018 (whereby, as noticed in paragraph 20 above, the plaint then pending as Suit No. 1013/2008 was returned for presentation before the Court of competent pecuniary jurisdiction, consequent upon the Trust’s own application enhancing the valuation of the suit) does not carry the case of the plaintiff no.1/Trust any further. That judgment was invoked for the limited proposition that upon such return the plaint is to be re-presented before the Court of competent jurisdiction and the suit thereafter tried de novo. It is not concerned with, and says nothing as to, the stage which the re-presented suit may legitimately reach before the Court of competent jurisdiction. In the present case, the suit traversed the stage of pleadings, admission/denial and the framing of issues before this Court. The order dated 03.09.2019 also appoints a Local Commissioner for recording of evidence.

A party which has conducted itself for nearly seven years on the footing that the suit stands at the stage of evidence, cannot, at the same time, for the purpose of this application, assert that the suit stands at the stage of pleadings.

The window under Rule 2 therefore closed at the latest on 03.09.2019 viz. nearly six years before the instant application was filed on 11.07.2025. Thus, even if Order XIII-A were otherwise available, the application is outside the stage at which it can be made.

Quite apart from the threshold non-maintainability on account of the aforementioned circumstances, even otherwise, the application under Order XIII-A is completely devoid of merits. In this regard, two distinct aspects arise for consideration. The first is whether the dismissal of the Trust’s application under Order XII Rule 6 CPC itself bars a later application under Order XIII-A. The second is as to what bearing the findings recorded in that dismissal have on the present application.

On the first aspect, it is well settled that an application under Order-XII Rule 6 is required to be founded on an admission which is “clear, unambiguous and unconditional”. On the other hand, Rule 3 of Order XIII-A is predicated on whether the defendant has any “real prospect” of success and whether there is any “compelling reason” for trial. As held by this Court in Su-Kam Power Systems Ltd. v. Kunwer Sachdev & Anr., 2019 SCC OnLine Del 10764, the remedy under Order XIII-A is a remedy independent, separate and distinct from a judgment on admissions.^{11.Su-Kam Power Systems Ltd. v. Kunwer Sachdev &Anr., 2019 SCC OnLine Del 10764, paragraph 50. “In fact, the legislative intent behind introducing summary judgment under Order XIIIA of CPC is to provide a remedy independent, separate and distinct from judgment on admissions and summary judgment under Order XXXVII of CPC.”}

Necessarily, the nature of the inquiry for the purpose of an application under Order-XII Rule 6 is different from the inquiry for the purpose of an application under Order XIII-A. To that extent, the earlier dismissal of the plaintiff no.1/Trust’s application under Order XII-Rule 6, does not necessarily preclude a subsequent application under Order XIII-A. However, in the factual conspectus of the present case, what is relevant is the import of the findings recorded while dismissing the plaintiff no.1/Trust’s earlier application under Order-XII Rule 6.

While dismissing the application under Order-XII Rule 6 vide order dated 30.03.2012, the Court did not stop at holding that the admissions were not unequivocal; the Court went on to observe affirmatively that the defendants’ pleas gave rise to triable issues: (i) as to whether the plaintiff had entered into an agreement to sell; (ii) as to whether, upon part payment, the relationship of landlord and tenant between the parties came to an end; and (iii) whether the notice of termination survived. It was categorically observed that these were issues which could not be decided without the leading of evidence and trial. It was further observed that if the defendants succeed in proving such issues, the same would disentitle the plaintiff to obtain a decree of possession. The Court also dealt with the explanation offered by the Trust for the Rs.5,00,000/- it admittedly received and observed that the same “does not appeal to reason”.

This Court in subsequent proceedings under Article 227 of the Constitution of India (in CM(M) 514/2012), vide order dated 27.09.2012, approved the findings rendered by learned ADJ while disposing of the application under Order-XII Rule 6, holding that the defendants had raised a triable issue and that no infirmity or illegality attached to the order under challenge. The Supreme Court, by its order dated 16.12.2013 in SLP (C) No. 5311/2013, also declined to interfere.

The above findings result in an irresistible inference that in the present case, the defence is real and not illusory, and that the case requires evidence. A determination by a competent court, between the same parties and in the same suit, affirmed by this Court and left undisturbed by the Supreme Court, that the defence raises issues, which cannot be decided without evidence, clearly negates the very premise of the present application.

In view of the said findings, it is untenable to hold that the defendants do not have any real prospect of succeeding. It is impermissible for the Trust to escape the consequences of the findings rendered while adjudicating the application under Order-XII Rule 6 (affirmed by this Court and left undisturbed by the Supreme Court), by attaching a different label to the very same pleas.

The decision of the Supreme Court relied upon by the defendants lends further support to this conclusion. In Hari Steel (supra), on facts materially similar, it was observed that even an admission, in order to sustain a judgment without trial, must be clear and categorical, and that where issues have been framed and the suit has reached the stage of trial, it is desirable that the contentious issues be adjudicated on merits upon an appreciation of evidence rather than summarily. The relevant portion reads as under:

These observations apply with full force here.

The decision in S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287, was rendered upon facts which are almost indistinguishable from the present. There too, the tenant admitted the relationship of landlord and tenant and the terms of the lease, but set up an agreement of sale of the tenanted premises coupled with the payment of a substantial part of the sale consideration, and had instituted a separate suit for specific performance. The Supreme Court, while rejecting the application under Order-XII Rule 6 CPC, observed as under:

Thus, in an almost identical context, the Supreme Court observed that a ‘defence plea of agreement for sale’ was required to be duly considered.

It is noted that the threshold under Order XIII-A is also quite exacting (“no real prospect of successfully defending the claim”). In view of the factual conspectus, it cannot be said that there is absence of “any other compelling reason” for trial.

The matter may also be tested against the guidelines laid down in Reliance Eminent (supra). Guideline (ix) requires the Court to consider whether, in the interest of justice, the matter is better suited to trial in order to weigh the evidence, evaluate the credibility of the deponents and draw reasonable inferences from the evidence. The relevant portion is reproduced as under:

Guideline (viii) further cautions that the power under Order XIII-A is exceptional, to be exercised where oral evidence and a full trial are not required. This is not such a case.

In the present case, the defence set up by the defendants rests on a pleaded course of dealing. Whether that course of dealing resulted in a concluded contract is a question of fact which can only be answered on evidence to be adduced by the parties.

In the facts and circumstances, this Court is unable to reach a conclusion that the suit be disposed of without recording oral evidence and/or that there is no compelling reason for a trial. It is also relevant that same/similar questions are the subject matter of CS(OS) 666/2003, in which the defendants herein, as plaintiffs, have already filed their affidavit of evidence, and in which PW-1 has been listed for cross-examination on several occasions. To decree the instant suit summarily while that suit proceeds to trial on identical facts could invite inconsistent findings between the same parties on the same transaction, and would defeat the very object for which the two suits were consolidated by order dated 03.12.2018 and were thereafter directed to be tried together, with CS(OS) 574/2018 as the lead suit.

For the reasons recorded above, it is held that:

Accordingly, the present application i.e. I.A. 16434/2025, stands dismissed.

CS(OS) 574/2018 shall proceed to trial along with CS(OS) 666/2003, in terms of the order dated 03.09.2019. The plaintiffs in CS(OS) 574/2018 are directed to file their affidavits of evidence and pay their share of the Local Commissioner’s fee, within a period of 4 weeks from today.

List both the suits before the Joint Registrar (Judicial) for further directions on 20.11.2026.