The Delhi High Court dismissed an application for summary judgment under Order XIII-A CPC, holding that the suit was not maintainable as issues had been framed earlier and the application was filed outside the permissible stage. The Court emphasized that Order XIII-A cannot be invoked where issues have already been framed, reinforcing the time-bound nature of summary judgment applications under commercial law provisions.
Background & Facts
The Dispute
The suit pertains to property bearing No. E-9, Inner Circle, Connaught Place, New Delhi (basement, ground floor and mezzanine floor, admeasuring approximately 3,780 sq. ft.). The Trust (plaintiff no.1) let out the premises 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.
Key Facts
- 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.
- Paragraph 2 of the ‘preliminary objections’ in the written statement avers: “That before filing of the present suit in August 2000 for possession and mesne profits, the Plaintiff had made an agreement to sell the property in suit to the Defendants for a consideration of Rs. 45 lacs and had also accepted an amount of Rs.5 lacs vide cheque no. 615480 dated 8.5.2000 drawn on city bank by way of earnest money. The cheque was uncashed [sic] on 10.05.2000. In May, 2001 the plaintiff further desired to have Rs. 20 lacs in cash. The Defendant withdrew Rs. 20 lacs from the bank on 12.5.2001 and gave another sum of Rs. 10 lacs in cash to the Plaintiff by way of part payment. The Defendants kept back the remaining amount of Rs. 10 lacs as the Plaintiff had not completed the necessary documents.”
- 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.
- 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 Trust further submitted that the Balance consideration of Rs. 40 lacs will have to be paid by you through demand draft/pay order in favour of the trust at the time of registration of sale deed. You will be given one week notice upon arrival of Mr. Harsh Aggarwal to make the payment and complete the formalities as required.
- It is worth taking note of the fact that the suit property is an area admeasuring 3780 sq. ft. situated on the ground floor in the most prime commercial location in New Delhi i.e. Connaught Place, New Delhi and the defendants are running a premium showroom under the name and style of M/s Jain Sons in the suit property. The market value of the suit property even in May 2000 was not less than Rs.5 Crores, therefore, how it can even be presumed that it could be agreed to be sold for a consideration of Rs.45 Lacs as falsely projected by defendants.
- The defendants have not filed any Agreement to sell between the parties as alleged or otherwise before this Hon'ble Court, which itself entirely demolishes the false and fabricated stand of the defendants.
- True and correct facts have been stated in the plaint. However, in so far as the payment of Rs.5 lacs vide cheque No.615480 dated 8.5.2000 by the defendants to the plaintiff is concerned, receipt of the said cheque is not denied. The true and correct facts relating to payment of said amount of Rs.5 Lacs are that ever since the rent of the suit property had crossed the figure of Rs.3,500/- per month, the plaintiff had been telling the defendants that since the tenancy of the suit property was no longer covered under the Delhi Rent Control Act, therefore, the plaintiff was fully entitled to terminate the monthly tenancy of the defendants and recover the possession thereof under the transfer of property Act. The defendants were also quite conscious of this legal position that their monthly tenancy was no longer protected under the Delhi Rent Control Act and the plaintiff can recover vacant possession of the suit property. Keeping these facts in mind the defendants themselves assured the plaintiff that they would negotiate with the plaintiff to increase the rent of the suit property commensurate to the market rental, which is more then [sic] Rs.5 Lacs per month as market rental of the similar properties in Connaught Place is not less than Rs.150/- per sq ft per month and in order to show their bonafide regarding increasing rent of the suit property to the market rent, the defendants gave a sum of Rs.5 lacs vide cheque No.615480 dated 08.05.2000 to the plaintiff and requested the plaintiff to keep the said amount in deposit till the actual amount of market rent of suit property is negotiated and finalized between the parties. However after making deposit of the said amount of Rs.5 Lacs the defendants did not come forward to negotiate the market rent of the suit property despite repeated oral requests on behalf of the plaintiff to the defendants. Consequently, the plaintiff was left with no other option except to exercise its legal rights under the Transfer of Properties Act and by way a legal notice dated 07.06.2000, the plaintiff terminated the monthly tenancy of the defendants and called upon the defendants to vacate the suit premises and hand over its peaceful physical possession to the plaintiff on expiry of the notice period.
Procedural History
- 31.07.2000: Original suit instituted as CS(OS) 1691/2000
- 04.11.2003: Transferred to District Court as Suit No. 1013/2008 (later renumbered 663/2014)
- 30.04.2014: Learned Additional District Judge framed issues in Suit No. 663/2014
- 16.09.2014: Affidavits of evidence not ready despite five months’ time; costs imposed Rs. 3,000/-; evidence deemed closed if not led next date; suit adjourned sine die
- 05.03.2016: Trust filed application under Section 151 CPC for revival of suit
- 30.07.2016: Suit revived subject to payment of costs Rs. 5,000/-
- 07.10.2016: Suits CS(OS) 574/2018 and CS(OS) 666/2003 consolidated
- 28.05.2018: Learned Additional District Judge -05 returned plaint for presentation before Court of competent pecuniary jurisdiction
- 14.11.2018: Fresh summons issued to defendants
- 05.01.2019: Defendants filed written statement
- 11.04.2019: Trust filed replication
- 21.05.2019: Pleadings declared complete; matter placed before Court for framing of issues
- 03.09.2019: Issues framed (order dated 03.09.2019 recorded issues framed on identical pleadings)
- 11.07.2025: Present application (IA No. 16434/2025) filed seeking summary judgment under Order XIII-A CPC
- 16.10.2026: Judgment pronounced
Relief Sought
The Trust sought a decree for possession and mesne profits via summary judgment under Order XIII-A CPC, without recording oral evidence.
The Legal Issue
The central question was whether an application for summary judgment under Order XIII-A of the Code of Civil Procedure, 1908 is maintainable in a suit where issues had already been framed on 30.04.2014 (and subsequently adopted on 03.09.2019), and where the application was filed on 11.07.2025, significantly after the closure of the window for such applications prescribed by Rule 2 of Order XIII-A.
Arguments Presented
For the Appellant/Petitioner (Trust)
The Trust contended that the Commercial Courts Act, 2015 applies from the date of transfer to the Commercial Division, asserting transfer via order dated 03.02.2018 (though no such order existed on record). It argued that the suit should be treated as a commercial dispute in substance, claiming issues were never framed in the present suit, and that the application under Order XIII-A was maintainable as the Trust sought to place on record certified copies of orders from Suit No. 1013/2008. The Trust relied on its application dated 05.03.2016 seeking revival, which stated "Issues in the suit were framed on 30.04.2014" but now took the diametrically opposite position that issues were never framed.
For the Respondent/State (Defendants)
The defendants submitted that Order XIII-A is not applicable as the suit was never instituted/registered or treated as a commercial suit at any point of time. They argued the application is barred by the proviso to Rule 2 of Order XIII-A inasmuch as issues were framed on 30.04.2014. 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. 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: "26. In the judgment in S.M. Asif v. Virender Kumar Bajaj, this Court has held that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a right. It is further held in the aforesaid case that where the defendants have raised objections, which go to the root of the case, it would not be appropriate to exercise discretion under Order 12 Rule 6 CPC. ….. 29. By applying the ratio laid down by this Court in the aforesaid judgments, it is to be held that there are no categorical and unconditional admissions, as claimed by the respondent -plaintiffs. In view of the stand of the appellants that, pp. 3 and 4 of the agreement dated 3-5-2005 are tampered and their signatures are fabricated, when specific issue is already framed, it cannot be said that there are categorical and unconditional admissions by the appellants. Mere admission of entering into arrangement/contract on 7-4-2005 and 3- 5-2005 itself cannot be considered in isolation, without considering the further objections of the appellants that certain pages in the agreement are fabricated. In case the appellants prove that the agreement is fabricated as claimed, post-trial it goes to the root of the case on the claim of the respondent-plaintiffs."
The Court's Analysis
The Court held that Order XIII-A CPC 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.
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) 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.
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, 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.
Application is even otherwise impermissible in terms of Rule 2 of Order XIII-A.
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: "20. We may also point out that there is a clear distinction between ‘return of a plaint’, ‘rejection of a plaint’ and ‘dismissal of a suit’. These three concepts have different consequences. A dismissal of a suit would necessarily result in a subsequent suit being barred by the principles of res judicata, whereas this would not be the case involving ‘return of a plaint’ or ‘rejection of a plaint’. What the learned Single Judge has done is to have dismissed the suit of the appellants/plaintiffs at the admission stage itself without issuance of summons and this, we are afraid, is contrary to the provisions of the statute. 21. Apart from this, we are of the view that the learned Single Judge has gone wrong in invoking the provisions of Order XIIIA CPC for rendering a summary judgment. It is true that Rule 3 of Order XIIIA CPC empowers the Court to give a summary judgment against a plaintiff or defendant on a claim if it considers that - (a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. But, in our view, this power can only be exercised upon an application at any date only after summons have been served on the defendant and not after the Court has framed issues in the suit. In other words, Order XIIIA Rule 2 makes a clear stipulation with regard to the stage for application for summary judgment. The window for summary judgment is after the service of summons on the defendant and prior to the Court framing issues in the suit."
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 over emphasized. 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: "15. Modern Construction (supra), referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., Amar Chand Inani v. Union of India, Hanamanthappa v. Chandrashekharappa, (1997) 9 SCC 688, Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder Tuli (supra), arrived at the conclusion as follows: ‘17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. … However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.’ 20. The statutory scheme now becomes clear. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.’"
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.
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.
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.
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: "29. By applying the ratio laid down by this Court in the aforesaid judgments, it is to be held that there are no categorical and unconditional admissions, as claimed by the respondent -plaintiffs. In view of the stand of the appellants that, pp. 3 and 4 of the agreement dated 3-5-2005 are tampered and their signatures are fabricated, when specific issue is already framed, it cannot be said that there are categorical and unconditional admissions by the appellants. Mere admission of entering into arrangement/contract on 7-4-2005 and 3-5-2005 itself cannot be considered in isolation, without considering the further objections of the appellants that certain pages in the agreement are fabricated. In case the appellants prove that the agreement is fabricated as claimed, post-trial it goes to the root of the case on the claim of the respondent-plaintiffs. Hence, we are of the view that the aforesaid judgments fully support the case of the appellants."
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: "8. The words in Order 12 Rule 6 CPC 'may' and 'make such order …' show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim. 9. In the suit for eviction filed by the respondent landlord, the appellant tenant has admitted the relationship of tenancy and the period of lease agreement; but resisted the respondent -plaintiff's claim by setting up a defence plea of agreement for sale and that he paid an advance of Rs 82.50 lakhs, which of course is stoutly denied by the respondent landlord. The appellant-defendant also filed the suit for specific performance, which of course is contested by the respondent landlord. When such issues arising between the parties ought to be decided, mere admission of relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit under Order 12 Rule 6 CPC."
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: "(ix) In order to ascertain the need for full trial over summary judgment, the Court has to see whether, in the interest of justice, it is more suited to conduct trial to - (a) Weigh the evidence, (b) Evaluate the credibility of a deponents, (c) Draw reasonable inferences from the evidence."
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: (a) The application under Order XIII-A, CPC in CS (OS) 574/2018 is not maintainable and is also outside the relevant stage prescribed by Rule 2 of Order XIII-A; (b) the findings rendered by the Court while disposing of the earlier applications under Order XII Rule 6, as affirmed by this Court and left undisturbed by the Supreme Court, negate the very premise of the present application; (c) even otherwise, it cannot be said that the defendants have no real prospect of successfully defending the claim, and it also cannot be concluded that there is no other compelling reason for a trial.
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.
The Verdict
The application (IA No. 16434/2025) seeking summary judgment under Order XIII-A CPC was dismissed. The suit 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 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 (16.10.2026). Both suits are to be listed before the Joint Registrar (Judicial) for further directions on 20.11.2026.
What This Means For Similar Cases
Strict Adherence to Procedural Windows
Practitioners must note that applications for summary judgment under Order XIII-A CPC are time-bound and can only be made after service of summons and before framing of issues. Once issues are framed, the window closes irrevocably, regardless of subsequent developments. Filing such applications years after issues have been settled is impermissible.
Binding Effect of Prior Findings
Findings recorded in earlier applications (e.g., under Order XII Rule 6) that triable issues exist have binding effect and cannot be circumvented by reframing the narrative. A party that has taken a position on record (e.g., admitting issues were framed) cannot later assert the contrary to gain procedural advantage.
Commercial Suit Threshold Not Met by Substance Alone
A suit does not become subject to the amended CPC under the Commercial Courts Act, 2015 merely by asserting it is a commercial dispute in substance. The suit must be formally instituted in, or transferred to and registered in, the Commercial Division. Mere allegations of commercial nature without compliance with Section 15 of the Act attract no remedy under Order XIII-A.
Necessity of Evidence Appreciation
Where defendants raise pleas that go to the root of the case (such as alleged agreement to sell), it is impermissible to dispose of the suit summarily without appreciation of evidence. The power under Order XIII-A is exceptional and must be exercised only where oral evidence and full trial are not required - a condition not met when triable issues exist regarding core factual disputes.
Consistency in Pleadings
A party cannot take diametrically opposite positions on the same factual issue (e.g., admitting issues were framed in a revival application but later claiming they were never framed) to manipulate procedural outcomes. Such inconsistency is fatal to the maintainability of summary judgment applications.
