Delhi District Court
Smt. Jatinder Kaur vs Ms. Priti Sharma on 31 May, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS. 206777/2016
Smt. Jatinder Kaur
W/o. Late Sh. Raminder Singh
R/o. 92, National Park
Lajpat NagarIV
New Delhi - 110024. ............Plaintiff
VERSUS
Ms. Priti Sharma
W/o. Sh. Salesh Sharma
R/o. A81, Ground Floor
Malviya Nagar, New Delhi.
Also At :
93, Second Floor
Amritpuri, East of Kailash
New Delhi - 110065. .........Defendant
Date of Institution : 02.12.2016
Date of Arguments : 25.05.2017
Date of Order : 31.05.2017
ON APPLICATION U/O XII R 6 R/W SECTION 151 OF THE
CODE OF CIVIL PROCEDURE IN SUIT FOR
CS -206777/16 Jatinder Kaur Vs. Priti sharma page 1 of 19
POSSESSION/EJECTMENT, MESNE PROFITS/DAMAGES
AND PERMANENT INJUNCTION
JUDGMENT
1. An application u/O XII Rule 6 r/w Sec. 151 of the Code of Civil Procedure (in short CPC) was filed by plaintiff on 26.10.2016.
2. I have heard the Ld. Counsel for the parties, perused the record including the aforesaid application under consideration, its reply, pleadings of parties and other material on record.
3. Factual matrix of case of plaintiff is that this suit was filed by the plaintiff for possession/ejectment, mesne profit/damages and permanent injunction with respect to suit property i.e. second floor of property bearing no. 93, situated at Amritpuri, East of Kailash, New Delhi - 110065, specifically shown in red colour in the site plan annexed with the plaint, given Ex. P1 on 11.08.2016 in admission of the same by defendant through counsel. It is the case of the plaintiff that the suit property was given on lease to defendant by husband of plaintiff vide registered lease deed dated 16.05.2011 registered on 21.05.2011 for period of 60 months i.e. 5 years commencing from 21.05.2011 and expiring on 20.05.2016. Monthly rent of Rs. 90,662/ excluding electricity consumption charges and service charges for suit property was payable in advance after deduction of TDS. Suit property was let out for commercial purposes, for CS -206777/16 Jatinder Kaur Vs. Priti sharma page 2 of 19 opening of an institute for performing arts and imparting education. Inter alia, it was agreed that there would be an increase of 4% of last paid rent by defendant on expiry of every year. The husband of plaintiff expired on 24.09.2011 after which the defendant continued paying rent to plaintiff. Allegedly, on account of default in payment of rent w.e.f. August 2015, the plaintiff terminated tenancy of defendant vide legal notice dated 14.12.2015 sent vide registered/speed post and courier. Defendant did not comply with the demand of the legal notice inter alia of delivery of possession of suit property. Resultant was this suit.
4. In the filed written statement, the defendant admitted of having obtained the suit property on lease vide registered lease deed dated 16.05.2011 registered on 21.05.2011. In the course of admission/denial, the said registered lease deed was admitted by defendant and its certified copy is Ex. P2. It is the version inter alia of defendant that at the time of lease, the suit property was in pathetic condition with broken toilet seats, broken toilet accessories, broken wash basins, floors and scatting were broken, seepage all over the walls, not even a single electricity points, switches and wire ring were over there. Allegedly, husband of plaintiff ensured defendant of getting the basic things done at own cost of lessor and the lessor to get the premises white washed and polished after the expiry of first CS -206777/16 Jatinder Kaur Vs. Priti sharma page 3 of 19 three years. Despite the assurances, the premises were made habitable or to use for commercial nature, so as to start the business, only by defendant. Allegedly, husband of plaintiff requested defendant that he was not in a position to bear the expenses of renovation of raw hall assuring that such expenses be borne by defendant which will be adjusted by landlord/plaintiff towards future rental payment. Defendant spent about Rs. 10,89,000/ for renovation of suit premises after availing loan. Instead of providing clear passage to clients of defendant, the plaintiff created hindrances, obstructions by blocking the main entrance by parking of vehicles there, due to which and also for the reason of open sewer hole, lack of cleanliness and overall maintenance of building, defendant suffered losses to the tune of Rs. 15 lakhs to her business and number of students left the institute of defendant. Defendant paid rent from 21.05.2011 till July 2015 and when she approached the plaintiff to settle the amount paid by the defendant on the renovation, the plaintiff refused to adjust the same. Defendant stated of having suffered to the tune of Rs. 25 lakhs. Defendant denied of service of legal notice dated 14.12.2015.
5. In the application under consideration, the applicant/plaintiff has sought judgment on admissions for the relief of recovery of possession of suit property submitting relationship of landlord CS -206777/16 Jatinder Kaur Vs. Priti sharma page 4 of 19 and tenant interse parties is admitted. Lease deed Ex. P2 is admitted. In the pendency of the case, the term of lease had expired and by mere notice of suit, there is sufficient notice for termination of tenancy, even if the defendant disputes service of notice of termination of tenancy whereas even otherwise, the tenancy stands expired by efflux of time under section 111(a) of the Transfer of Property Act on 20.05.2016 during the pendency of the suit.
6. In reply to the application under order XII Rule 6 CPC r/w Sec. 151 CPC, the defendant controverted the averments of plaintiff in the application under consideration reiterating the averments of the written statement alleging of defendant having spent Rs. 10,89,000/ for renovation of raw hall and of suffering of business losses of Rs. 15 lakhs as plaintiff did not adhere to the terms of lease. Defendant prayed for dismissal of the application.
7. Ld. Counsel for plaintiff relied upon the following precedents:
(i) 2015 (1) RLR 438, W.N. Gujral Vs. Smt. Kavita Chhibber
(ii) 191 (2012) DLT 594, Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani
(iii) 2000 (86) DLT 817, Parivar Seva Sansthan Vs. Veena Kalra
(iv) (2004) 3 SCC 178, M/s. India Umbrella Manufacturing CS -206777/16 Jatinder Kaur Vs. Priti sharma page 5 of 19 Co. Vs. Bhagabandei Agarwalla
8. In the case of Chittraroopa Palit Vs. Global Health Pvt. Ltd.
& Anr., CRP No. 21/2012 & CM No. 2628/2012, Hon'ble Mr. Justice Manmohan Singh, held in paras 17 to 20 on 06/08/2013 as follows : "17. The Supreme Court in the case of Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), 2008 (2) SCC 728 held that the filing of the eviction suit under general law itself was notice to quit upon the respondents and thus even as per the alleged claim of the respondent No. 2 of a separate tenancy, the same being a month to month tenancy, the same stood terminated on the filing of the suit and service of summons, plaint and documents thereof upon him.
18. As rightly held by esteemed brother J.R. Midha, J. in the case of Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani, 191 (2012) DLT 594 wherein the court has dealt with similar aspect of issue in great details in para 26.7 to 26.12 and 26.17 which read as under :
'26.7 The pleadings are the foundation of litigation and must setforth sufficient factual details. Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a suit for ejectment, it is necessary for the defendant to plead specifically as to the basis on which he is claiming a right to continue in possession. A defendant has to show a subsisting right to continue as a lessee. No issue arises on vague pleadings. A vague denial of the receipt of a notice to quit is not sufficient to raise an issue. To rebut the presumption of service of a notice to quit, the defendant has to plead material particulars in the written statement such as where after receiving the plaint and the documents, the CS -206777/16 Jatinder Kaur Vs. Priti sharma page 6 of 19 defendant has checkedup with the PostOffice and has obtained a certificate that the postal receipt filed by the plaintiff was forged and was not issued by the concerned Post Office.
26.8 A selfserving denial by the defendant and more so in these types of cases, cannot hold back the Court from exercising its jurisdiction to decree a suit under Order XII Rule 6 of the Code of Civil Procedure.
Raising a plea of nonreceipt of notice to quit and seeking an issue on it is obviously to drag on the litigation and kept on holding to the suit property without having to pay the current market rentals, is not sufficient to raise an issue and, therefore, liable to be rejected.
26.9 If such a plea of denial of notice is treated as sufficient to nonsuit the plaintiff, the plaintiff will have serve a fresh notice to quit and then bring a fresh suit where again the defendant would deny the receipt of notice to seek an issue and trial. The process would go on repeating itself with another notice, in fact, repeat adinfinitum and in this manner, the defendant will be able to effectively stay indefinitely till the plaintiff settles with him for a price. The Court cannot remain a silent spectator and allow the abuse of process of law. The eyes of the Courts are wide enough to see the truth and do justice so that the faith of the people in the institution of Court is not lost.
26.10 In view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003, no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat the decree for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.
CS -206777/16 Jatinder Kaur Vs. Priti sharma page 7 of 19 26.11 Therefore, even if the notice of termination is held to be invalid, service of summons of the suit for possession can be taken as notice under Section 106 of the Transfer of Property Act read with Order VII Rule 7 of the Code of Civil Procedure but in that event the landlord would be entitled to mesne profits after the expiry of 15 days from the date of the receipt of summons and not from the date of notice of termination.
26.12 The purpose of Order XII Rule 6 CPC is to give to plaintiff a right to speedy judgment. The thrust of amendment of Order XII Rule 6 is that in an appropriate case a party on the admission of the other party can press for judgment as a matter of legal right. If a dishonest litigant is permitted to delay the judgment on the ground that he would show during the trial that he had not received the notice, the very purpose of the amendment would be frustrated.
26.17 In the last 40 years, a new creed of litigants have cropped up who do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream justice or who touches the pure foundation of justice with tainted hands, is not entitled to any relief, interim or final.'
19. The Hon'ble Judge in para 13.1 to 13.7 of the abovementioned judgment has discussed various judgment on this aspect. The same are :
'13.1 In M/s Raptakos Brett & Co. Ltd. V. Ganesh Property, VII (1998) SLT 472 = IV (1998) CLT 11 (SC) = AIR 1998 SC 3085, the Supreme Court held that when a lease comes to an end by efflux of time, or by notice of termination, or if there be a breach and the lessee's rights are forfeited, the lessee becomes a tenant CS -206777/16 Jatinder Kaur Vs. Priti sharma page 8 of 19 at sufferance, and it becomes the duty of the lessee under Section 108 (q) of the Transfer of Property Act to restore possession to the lessor forthwith. The Supreme Court held as under : "22. ....Under law the erstwhile landlord is entitled to restoration of possession by enforcement of statutory obligation of the erstwhile tenant as statutorily imposed on him under Section 108 (q) read with Section 111
(a) of the Property Act...'.
13.2 In C. Albert Morris V. K. Chandrasekaran, VIII (2005) SLT 247 = (2006) 1 SCC 228, the Supreme Court held as under : "26. ...Much argument was advanced on the receipt of the rent by the landlord after the cancellation of the lease. The consensus of judicial opinion in this country is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession...' "32. ...We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. (Emphasis supplied) 13.3 In Delhi Jal Board V. Surendra P. Malik, 104 (2003) DLT 151 (DB), the Division Bench of this court held as under : CS -206777/16 Jatinder Kaur Vs. Priti sharma page 9 of 19 "12. It is no longer a grey area that where a tenancy had otherwise expired by efflux of time but the tenant continued in possession of the premises, mere acceptance of rent by the landlord could neither renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties...."
"13. ...In any case, this aspect does not assume any importance as no notice under Section 106 was required to be served on appellant due to the expiry of the Lease between the parties by efflux of time." (Emphasis supplied) 13.4 In Usha Rani Jain Vs. Nirulas Corner House Private Limited, ILR (2005) II Delhi 349, this Court held as under : "17. Though a plea was taken in written statement about non determination of the lease because no notice to quit as envisaged under Section 106 of the Transfer of Property Act has been served on the defendants before filing of the present suit, but this aspect was not pressed at the hearing. Even otherwise, it is a well settled proposition of law that when the term of the lease has expired by efflux of time, there is no need for a landlord to determine the lease by serving quit notice. (Emphasis supplied) 13.5 In Inmacs Limited V. Prema Sinha, 153 (2008) DLT 311 (DB), the Division Bench of this court held as under : "13. ...If a lease is evidence by a contract, as CS -206777/16 Jatinder Kaur Vs. Priti sharma page 10 of 19 in the instant case, the duration of the lease would be as per the contract and at the expiry of the lease period as per contract the lease expires by efflux of time. Expiry of lease by efflux of time results in the determination of the relationship between the lessor and the lessee and since the lease expires under the contract by efflux of time, no notice of determination of the lease is required."
(Emphasis supplied) 13.6 In Ashok Chopra V. Syndicate Bank, 169 (2010) DLT 361, this Court held as under : "17. It is clear that the tenancy had come to an end by a efflux of time. Admittedly, there was no document executed between the parties renewing the lease. Tenancy having expired by efflux of time; no notice was required to terminate the lease...."
13.7 In Pakistan International Airlines V. Abaskar Constructions Private Limited, MANU/DE/4394/2011, this Court held as under : "21. Law is clear. If a lease is evidence by a contract in writing, as in the instant case, the duration of the lease would be as per the contract and at the expiry of the lease period, as per contract the lease expires by efflux of time. Expiry of lease by efflux of time results in the determination of the relationship between the lessor and the lessee and since the lease expires under the contract by efflux of time, no notice of determination of the lease is required."
20. Recently in the judgment reported as M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh CS -206777/16 Jatinder Kaur Vs. Priti sharma page 11 of 19 Chadha (HUF) & Anr., 2011 (182) DLT 402 and against which S.L.P. No. 15740/2011 has been dismissed on 7th July, 2011, a very similar issue was considered. Though in that case the facts were different from the present case, however the ratio of that case applies in the present case also. Para 7 of that judgment reads as under :
"7. The second argument that the legal notice dated 15.7.2006 was not received by the Appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows :
(i) The Respondents/Plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.07.2006 as Ex. PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex. PW1/4 to Ex. PW1/6.
The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the Respondents/Plaintiffs led evidence and duly proved the service of legal notice, the Appellant/Defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address.
Admittedly, the Appellant/Defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the Appellant would not have ordinarily helped the Appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.07.2006 was duly served upon the Appellant resulting in CS -206777/16 Jatinder Kaur Vs. Priti sharma page 12 of 19 termination of the tenancy.
(ii) The Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the Appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the Appellant/Defendant.
(iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate CS -206777/16 Jatinder Kaur Vs. Priti sharma page 13 of 19 notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the Appellant/Defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 Code of Civil Procedure can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rational ought to apply because after all the only object of giving a notice under section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy months, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.
CS -206777/16 Jatinder Kaur Vs. Priti sharma page 14 of 19
(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex PW1/3 is that the Respondents/Plaintiffs admittedly filed a copy of this notice alongwith the suit way back in the year 2007. Once the summons in the suit alongwith documents were served upon the Appellant/tenant, the Appellant/tenant would obviously have received such notice. Even if we take this date when the Appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the Appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the Appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court."
9. In the case of W.N. Gujral (supra), Hon'ble Mr. Justice Valmiki J. Mehta after relying upon the law laid in case of M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) & Anr., (2011) 183 DLT 712, held that service of summons in a suit can also be taken as service of notice under CS -206777/16 Jatinder Kaur Vs. Priti sharma page 15 of 19 section 106 of The Transfer of Property Act, 1882 for termination of the tenancy by the landlord.
10. In the case of Sky Land International Pvt. Ltd. (supra) , it was inter alia held that presumption of service of notice of termination is embodied in Section 27 of General Clauses Act, 1897 whereby service of notice shall be deemed to be effected by properly addressing, prepaying and posting the notice by registered post.
11. In the case of Parivar Seva Sansthan (supra), it had been held that for invocation of Order XII Rule 6 CPC, the admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on part of admission ignoring the other part. Also was held that aforesaid provision of law confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings.
12. In the case of India Umbrella Manufacturing company (supra), it had been inter alia held that it is well settled that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the coowners.
13. In the course of arguments, it was submitted that the husband of the plaintiff is survived also by two major daughters of age 30 and 33 years who are married and residing in their matrimonial homes.
CS -206777/16 Jatinder Kaur Vs. Priti sharma page 16 of 19
14. The elicited averments of the pleadings of the parties makes it crystal clear that defendant admits of existence of relationship of landlord and tenant between the parties to the suit in respect of suit property; execution of lease deed Ex. P2 which embodies the lease term of five years, which expired on 20.05.2016 during the pendency of the suit besides the rate of monthly rent of Rs. 90,662/ at the time of inception of lease. The lease expired by efflux of time on 20.05.2016 during the pendency of the suit. The suit was filed on 01.02.2016 and defendant was served with summons for settlement of issues under order V Rules 1 and 5 of CPC on 06.04.2016. Ld. Counsel for the defendant appeared on 03.05.2016 and filed the power of attorney. These are unequivocal, clear and categorical admission made by defendant in the written statement. The disputed fact interse parties, as asserted by defendant is of oral agreement of husband of plaintiff with defendant asking and ensuring defendant to reimburse/adjust the cost of major repairs/renovation of suit premises incurred by defendant from payable rent and the quantum of such costs and /or losses, if any, incurred by defendant and /or quantum of such losses of business by defendant.
15. In registered lease deed Ex. P2, there is no covenant agreed between the parties entitling defendant, lessee to withhold possession of premises after termination of lease, either by CS -206777/16 Jatinder Kaur Vs. Priti sharma page 17 of 19 efflux of time or by notice, in case of default of terms of agreement by the lessor or his successor - in - interest. Even assuming for sake of arguments that notice terminating the tenancy was not served upon the defendant, though it is alleged to be served upon the defendant, the tenancy would stand terminated by service of summons of suit on defendant on 06.04.2016 in terms of law laid in the case of Nopani Investments Pvt. Ltd. (supra). The defendant had with her 15 days clear and reasonable time in terms of Section 106 of Transfer of Property Act after service of summons of the suit on 06.04.2016 for handing over the possession of the suit property to plaintiff. Having not done so, in view of law elicited in the case of Chittraroopa Palit (Supra), the plaintiff is entitled for judgment on clear and unambiguous admissions of defendant in respect of claimed relief of possession of the suit property. Also in terms of law laid in the case of India Umbrella Manufacturing company (supra), one of coowners can file a suit for eviction of the tenant in the property generally owned by the coowners.
16. I accordingly hold plaintiff entitled for recovery of possession of the suit property i.e. second floor of property bearing no. 93, situated at Amritpuri, East of Kailash, New Delhi - 110065 as described and shown in red colour; in the site plan Ex. P1 from the defendant, for which the judgment on admissions under CS -206777/16 Jatinder Kaur Vs. Priti sharma page 18 of 19 order XII Rule 6 of CPC is passed. The defendant is directed to handover the possession of the suit property to the plaintiff within a period of one month from the date of this judgment, failing which plaintiff would be at liberty to seek execution. The application under order XII rule 6 CPC stands disposed off. Decree sheet be drawn accordingly. For further claimed reliefs, the suit would continue and would be decided on the basis of evidence.
Announced in the open (GURVINDER PAL SINGH) Court on 31.05.2017. Additional District Judge 01(SE), Saket Courts, New Delhi.
(This judgment contains 19 pages and each page bears my signatures) CS -206777/16 Jatinder Kaur Vs. Priti sharma page 19 of 19