Delhi District Court
Santosh Kumar Suri vs . Santosh Chaudhary & Ors. on 24 December, 2011
IN THE COURT OF SH. BRIJESH KUMAR GARG:
ADDITIONAL DISTRICT JUDGE08, CENTRAL, DELHI.
SUIT No. 243/2011
Santosh Kumar Suri Vs. Santosh Chaudhary & Ors.
O R D E R
This Order shall dispose of the application of the plaintiff, under Order XII Rule 6 CPC, dated 28.4.1998.
2. It has been stated in the application that the plaintiffs have filed the present suit against the defendants for recovery of possession of the suit premises, arrears of rent and permanent injunction, to which the defendants filed their joint written statement, wherein, they have admitted the relationship of landlord and tenant between the parties and the rate of rent and have also admitted the rate of rent @Rs.40,000/ per month. They have also admitted the receipt of notice dated 25.6.1990 for termination of tenancy of the defendants and reply dated 9.7.1990 having been sent to the said notice dated 25.6.1990. It is further stated that from Suit No. 243/2011 Page 1 of 19 the averments as set out in the written statement, it is clear that the notice dated 25.6.1990 was duly served upon the defendants and the tenancy of the defendants was validly terminated and therefore, the defendants have no legal and valid ground to resist the plea of the plaintiffs regarding possession of the suit property. It is further stated that the entire defence of the defendants relates to the claim of the plaintiffs regarding recovery of rent, which is altogether different and independent from the relief of recovery of possession and, therefore, the suit of the plaintiff, regarding the relief of recovery of possession of the suit property, may be decreed.
3. Reply to this application has been filed, wherein, it has been stated that no ground under Order XII Rule 6 CPC is made out in favour of plaintiff no. 2 and as the tenancy in favour of the defendants was created to for a period of five years subject to renewal, at the option of the defendants and any notice of alleged termination of tenancy during the said period was premature and this issue cannot be decided without formal trial. It is further stated that during the pendency of the present Suit No. 243/2011 Page 2 of 19 suit, a fresh registered lease deed was executed between the parties and, therefore, the present application is not maintainable.
4. Shri Manish Sharma, Advocate for the plaintiff and Shri Anil Sapra and Shri Sanjeev Sharma, Senior Advocates for defendant nos. 1 and 2 and Shri Amit Punj for defendant no. 3 have addressed their arguments on the present application.
5. During the arguments, the main contention of learned Counsels for the defendants has remained that a decree can be passed under the provisions of Order XII Rule 6 CPC only on the basis of clear, unambiguous and unequivocal admissions by the defendants and there is no such admission by the defendants, therefore, no decree can be passed in favour of the plaintiffs. The second contention of the learned Counsels for the defendants has remained that on 6.8.1988, an unregistered lease deed was executed between the parties and the same was allegedly terminated by the plaintiffs by serving a legal notice dated 26.6.1990. The said legal notice was replied by the defendants vide reply Suit No. 243/2011 Page 3 of 19 dated 9.7.1990 and, thereafter, another lease deed was executed between the parties and the same was duly registered in the year 1991 for a period of 5 years w. e. f. 6.8.1988 and therefore, the notice dated 26.6.1990 has been waived off, as per the provisions of Section 113 of the Transfer of Property Act, 1862, and therefore, there is no valid termination of the tenancy and therefore, no decree can be passed under the provisions of Order 12 Rule 6 CPC. The third contention of the learned Counsels for the defendants has remained that the tenancy of the defendants has been extended and the extension and the renewal of the deed is to be proved only during the trial and therefore, no decree can be passed under the provisions of Order 12 Rule 6 CPC. He has also argued that the defendants have already purchased the undivided 50% share in the suit property from defendant nos. 1 and 2 and defendant nos. 1 and 2 have executed a fresh lease deed in the year 2009, in favour of the defendants and after creating fresh lease deed in the year 2009, the defendant nos. 1 and 2 are not interested in taking possession of the suit property and Suit No. 243/2011 Page 4 of 19 therefore, the application be dismissed with heavy costs.
6. Learned Counsels for the defendants has relied upon the following judgments in support of his contentions:
(i) M/s. Jeevan Diesels & Electricals Vs. Jasbir Singh Chadha, AIR 2010 SC 1890,
(ii) Saket Cultural Club Vs. Oriental Bank of Commerce, 2002 AIHC 3637 (Del)
(iii) Bhanu Mehra Vs. Dato Brij Kishore & Others, 2001(60) DRJ 1 (DB)
(iv) Manisha Commercial Limited Vs. NR Dongre, AIR 2000 Del 176 (DB),
(v) Parivar Sewa Sansthan Vs. Dr. Mrs. Veena Kalra, AIR 2000 Del 349 (DB),
(vi) State Bank of India Vs. Jasbir Singh Chadha AIR 1988 Del 153,
(vii) Naresh JainVs. Krishna Rani, 2002 VAD (Delhi) 459,
(viii) In re Wright Kirka Vs. North [1895] 2 Ch 747 and
(ix) Shipping Corporation of India Limited Vs. Machado Brothers (2004) 11 SCC 168.
7. On the other hand, the learned Counsel for the plaintiff has argued that the defendants have admitted the relationship of the landlord and tenant between the parties and the service of the legal notice dated 26.6.1990 is also admitted by the defendants and even after execution of Suit No. 243/2011 Page 5 of 19 the registered lease deed in the year 1991, there is no waiver of the notice, as prescribed under the provisions of The Transfer of Property Act, 1882. He has further argued that the first unregistered lease deed was duly and validly terminated on 26.6.1990 and the second registered lease deed, which was executed in 1991 w. e. f. 6.8.1988 has also come to an end by efflux of time and no notice is required for termination of tenancy by efflux of time. He has further argued that there are unequivocal admissions in this regard and, therefore, the suit of the plaintiff for possession of the suit property may be decreed.
8. The Learned Counsel for the plaintiff has relied upon the following judgments in support of his contentions:
(i) P. P. A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal, 166(2010) DLT 84,
(ii) Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. & Ors,
(iii) Charanjit Lal Mehra & Ors. Vs. Kamal aroj Mahant (Smt) & Anr. (2005) 11 SCC 279,
(iv) Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor & Ors., (1988) 3 SCC 44,
(v) Attar Chand Jain Vs. Sudhir Kumar Jain & Ors.Suit No. 243/2011 Page 6 of 19
97(2002) DLT 22,
(vi) Ram Gopal Sawhney Vs. Suraj Balram Sawhney & Sons and ors., 23(1983) DLT 92,
(vii) India Umbrella Manufacturing Company & Ors. Vs. Bhaga Bhagbandei Agarwalla (Dead) & Ors.,
(viii) Surendra Kumar Jain and Anr. Vs. Attar Chand Jain and Ors.,2004 VIII AD (Delhi) 238,
(ix) Ramdas Vs. Sitabai & Ors., 2009(7) SCC 444,
(x) S. N. Sheopuri Vs. Fab India Overseas Pvt. Ltd., Judgment dated 4.7.2011 and
(xi) Uttam Singh Dutal & Co. Ltd. Vs. United Bank of India and Others, 2000 (7) SCC 120.
9. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the learned Counsels for the parties.
10. Perusal of the record shows that it is an admitted case of the parties that the present suit was originally filed by four plaintiffs, who claimed themselves to be the coowners of the suit property in equal undivided shares. During the pendency of the suit, plaintiff P. L. Suri died on 23.11.2003 and vide order dated 8.11.2004, applicant/plaintiff no. 2 was impleaded to the present suit, being the sole legal representative of Suit No. 243/2011 Page 7 of 19 deceased plaintiff P. L. Suri. Thereafter, the original plaintiff nos. 3 and 4 sold their 50% undivided share in the suit property to defendant nos. 3 and defendant no. 3 executed a fresh lease deed on 25.8.2009, in respect of his undivided 50% share in the suit property in favour of defendant nos. 1 and 2. It is already on the record that after sale of 50% undivided share in the suit property, the plaintiff nos. 3 and 4 moved an application for deletion of their names from the array of the parties and the said application was allowed on 21.9.2006 and now only plaintiff no. 2 is the sole and surviving plaintiff in the present suit.
11. Now, to consider the rival contentions, let us first examine the legal position.
It has been held by the Hon'ble High Court of Delhi in case titled as P. P. A. Impex Private Limited Vs. Mangal Sain Mittal (supra) as under:
"9. Bare perusal of the above rule shows, that it confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made Suit No. 243/2011 Page 8 of 19 orally or in writing. The Court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on wellestablished principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying trial being barred by the Sections 91 and 92 of Evidence Act or other statutory provisions, can be ignored. These principles are wellsettled by catena of decisions. Reference on this regard can be made to the decisions in Dudh Nath Pandey v. Suresh Chandra Bhattasali MANU/SC/0382/1986 : AIR 1986 SC 1509; Atma Ram Properties Pvt. Ltd. v. Air India MANU/DE/1151/1996 : 65(1997) DLT 533; Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd. MANU/DE/0883/1997: 1997 II AD(Delhi) 518 : 66 (1997) MANU/DE/0335/1998 : 74(1998) DLT 476; and Lakshmikant Shreekant v. M. N. Dastur and Co. 51(1998) DLT 564.
7. So far as the case relating to Order XII Rule 6 is concerned, the Supreme Court has recommended resort to this provision to bring a quick end wherever a vexatious and false defence has been presented. The following paragraph from Charanjit Lal Mehra v. Kamal Saroj Mahajan MANU/SC/0191/2005 : AIR 2005 SC 2765 is reproduced for facility of reference:
In fact, Order XII Rule 8, C. P. C. is enaced for the purpose of and in order to expedite the trials it thereis any admission on behalf of the defendants or an admission can be interred from the facts and circumstances of the case without any dispute; then in such a case in order to expedite and dispose of the matter such admission can be acted upon, in the present case, looking at the terms of lease deed, Suit No. 243/2011 Page 9 of 19 there can be no two opinions that the tenancy was joint/composite and not individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India and Ors. MANU/SC/0485/2000 : AIR 2000 SC 2740. The Lordships have held as follows:
In the objects and Reasons set out while amending Rule 6 of Order 12 CPC it is stated that "where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on Admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the" relief to which according to the admission of the defendant, the plaintiff is entitled.
The Supreme Court should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment." (emphasis supplied by me)
12. In the present case, there are clear admissions on the part of the defendants, regarding the relationship of landlord and tenant between the parties. However, it has been objected by learned Counsel for the defendants that defendant nos. 3 and 4 have become the owners of undivided 50% share in the suit property as they have purchased the undivided 50% share of plaintiff nos. 3 and 4 and on 25.8.2009, the defendant nos. 3 and 4 had already extended the tenancy of defendant Suit No. 243/2011 Page 10 of 19 nos. 1 and 2, in respect of the said undivided 50% share in the suit property. These contentions of the learned Counsel for the defendants are devoid of any merit in view of the various pronouncements of the Hon'ble Supreme Court of India and the various Hon'ble High Courts in India. It has been held by the Hon'ble High Court of Delhi in case titled as Attar Chand Jain V. Sudhir Kumar Jain, reported as 97(2002) Delhi Law Times 22 as under:
"15. It was highlighted, as already pointed out above, that Nem Chand had let out the property to the objectors being a coowner of the same. Even this contention, in the peculiar facts will have little say in the matter. Firstly, even if it be taken that there is such letting during the pendency of the suit filed by the auction purchaser decree holder, admittedly auction purchaser was one of the coowners of the property. Section 52 of the Transfer of Property Act will apply with all its rigour. Not only that, a coowner will not be in a position to create the tenancy without consent of the other coowners. It is not pleaded or shown that Nem Chand, if at all, had taken permission of the other coowners. The matter in question would be squarely covered by the decision of the Supreme Court in the case of Ram Gopal Sawhney v. Suraj Balram Sawhney and Sons and others, 1983 DLT 92. It was held that a coowner cannot create a tenancy of joint property without the consent of the other coowners if one coowner does so, others are not bound by that act. The result is clear, therefore, that the objectors, in that view of the matter, even on this score, cannot claim a right to be Suit No. 243/2011 Page 11 of 19 a tenant therein." (emphasis supplied)
13. It is held by the Hon'ble High Court of Delhi in case titled as Ram Gopal Sawhney Vs. Suraj Balram Sawhney & Sons and Others, 23 (1983) Delhi Law Times 92 as under:
"Whatever be the collusive nature of these tenancies, the question arises whether one of the coowners who has not been put into management of the property by other coowners, can let out any portion of the property without their consent, and whether such tenancy can bind any of those coowners to whom the property has fallen after partition. This controversy arose before G. C. Jain, J. of this Court in E A. No. 69 of 1979, decided on 2651982 (Nand Lal Patel v. Shiv Saran Lal & Others). The learned Judge has made reference to two Full Bench decisions of the Calcutta and Patna High Courts in the cases Niranjan v. Soudhamini Dasi, (AIR 1926 Calcutta
714) and Bibi Kaniz Fatma v. Sk. Hossainuddin Ahmed and others, (AIR (30) 1943 Patna 194). In the former it was recognised that the general principal is that a cosharer in joint property cannot by dealing with such property affect the interest of the cosharers therein. The question that arose was whether a person to whom a parcel of land had been allotted by a decree for partition took it subject to a permanent lease granted by his former coowners without his concurrence when the land was joint interse them. It was answered in the negative. The Patna High Court too observed that such tenant inducted by a co sharer could certainly not be treated as tenant of the entire body of co sharer. The Delhi High Court as well in a Division Bench decision in Hari Kishan Rathi v. Ranjan Dupatta House & Ors., (EFA (OS) No. Suit No. 243/2011 Page 12 of 19 3/1972, decided on October 30, 1975), took the same view. In the decision it was observed that a cosharer has no right to put a stranger in exclusive possession of the property, and if he does so, the other co sharer can object to it and can seek his dispossession. G. C. Jain, J.
too held that a tenancy created prior or during the pendency of the suit for partition by one of the cosharers cannot bind others and the co sharer to whom the property is allotted on partition, is entitled to dispossess the tenant. However, it was taken note that if there is any element of authorisation or agency created which can show that one of the cosharers had been put into the management of the property by the other cosharers, the lease created prior to the institution of the suit, can be binding on them. This has not been the position in the present case inasmuch as, already noted above, the family had fallen out in 197071 and Krishan Gopal Sawhney too had punished a notice in a newspaper in 1970 that Ram Gopal Sawhney had no authority to induct third persons in the joint properties.
21. The Punjab High Court has also in AIR 1964 Punjab 525 Ram Sarup Sant Ram Aggarwal v. Chanan Singh Arjan Singh & Others) taken the view that a tenant let in by one of the co sharers does not ipso facto become tenant of the other cosharers, and he cannot assert that he is tenant of the whole land by virtue of the lease deed created by one cosharer. (emphasis supplied) It was further observed that it cannot be contended that a partition decree can be executed and satisfied by taking symbolic possession of the property, and that a separate suit is necessary to evict the tenant where the land is leased to him by one of the co sharers. The partition decree binds the landlord as well as the tenant. The tenant derives his title from the landlord and his rights come to an end as soon as the rights of the landlord from whom he derives title come to and end." (emphasis supplied) Suit No. 243/2011 Page 13 of 19
14. It is also held by the Hon'ble Supreme Court of India in case titled as M/s. India Umbrella Manufacturing Company and others, v. Bhagabandei Agarwalla (Dead) by L. R.s and others, AIR 2004 Supreme Court 1321 as under:
"Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. 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. (See Sri Ram Pasricha v. Jagannath and others, (1976) 4 SCC 184; Dhannalal v. Kalawatibai and others, (2002) 6 SCC 16. This principal is based on the doctrine of agency. One coowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as agent of the other co owners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the coowners. One of the coowners cannot withdraw his consent midway the suit so as to prejudice the other coowner. The suit one filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the coowners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of coowners to eject the tenant comes to an end by act of parties or by operation of law." (emphasis supplied) Suit No. 243/2011 Page 14 of 19
15. As regards the main contention of learned Counsel for defendants regarding the waiver of notice as per the provisions of Section 113 of the Transfer of Property Act, it is observed that it is held by the Hon'ble High Court of Andhra Pradesh in case titled as Purohit Lakshmanchandji Vs. Vetcha Venkata Sree Ramachandra Murty, reported as AIR 1976 AP 428, as under:
"7. But even so, it is argued on behalf of the defendant appellant that mere acceptance of rent which has become due after the expiration of the notice would operate as a waiver irrespective of the intention of the party and in supportof this contention reliance is placed upon illustration (a) of Section 112 which has already been set out it is no doubt true that the illustration (a) read by itself would seem to indicate that when the lessor accepts the rent which had become due since the expiration of the notice, the notice to quit is waived. But in my view, the illustration cannot be read in isolation. It has to be read with the main part of the section to which it is an illustration. Under the main section, a notice is waived only by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Reading the illustration together with the main part of the section it will follow that even the acceptance of the rent subsequent to the notice would operate as a waiver only if it shows an intention to treat the lease as subsisting. This is a case where the rent was received after the filing of the suit which was on 1111971. Apart from the plaintiff's Suit No. 243/2011 Page 15 of 19 evidence that he had no intention to treat the lease as subsisting by accepting the rent, it is difficult to accept the contention that when a person filed a suit seeking eviction and thereafter received rent, he still intended to treat the lease as subsisting.
8. The question whether the mere acceptance of rent after a notice to quit and in particular acceptance of rent even after the suit is filed would operate as a waiver has been the subject of several decisions and divergent views have been expressed. The preponderance of authority appears to be in favour of the view which I have taken, viz., that the acceptance of rent subsequent to the filing of the suit will no operate as a waiver in the usual course. All the authorities expressing the different views have been considered and dealt with in an elaborate judgment by the Madras High Court in Saleh Bros v. K. Rajendran, MANU/TN/0111/1970: AIR 1970 Mad 165. After considering all the decisions as also the law in England, it was held that acceptance of rent after the suit in ejectment is not regarded as a waiver, because, one the matter has come to court, the election has become irrevocable. The plain language of Section 113 of the Transfer of Property Act indicates that the act of the lessor must be such as to constitute a clear evidence of his intention to treat the lease as subsisting and the illustration (a) must be understood and applied, in consonance with the principle underlying the action with due reference to the intention of the lessor. There is no warrant for the view that mere receipt of rent, whatevermay be the intention of the lessor, should of its own force, divorced from the circumstances of the case, be regarded as amounting to a waiver. (emphasis supplied) Some of the other decisions which take the same view are:
Motilal v. Basantilal, MANU/UP/0080/1956: AIR 1956 All 175, Harbhajan Singh v. Munshi Ram MANU/PH/0102/1956: Zaffar Hussain v. Mahabir Prasad, MANU/BH/0071/1957 : AIR 1957 Pat Suit No. 243/2011 Page 16 of 19 206; Ram Lal v. Saradari Lal AIR 1968 J & K
22. ................................."
16. It is also held by the Hon'ble High Court of Delhi in case titled as Shri Ram Pistons & Rings Ltd. Vs. Dr. Banwari Lal and Anr., 73(1998) DLT 34 as under:
"The next question is whether the notice to quit was waived by the respondents by accepting rent for periods subsequent to the said notice. Learned Counsel for the appellant has attempted to develop the said plea on the basis of the following statement made by Dr. Banwari Lal (P. W. 1):
"I have continued to receive rent of the premises till date. Volunteered. I have been receiving rent without prejudice to the rights of the parties."
8. In Sardari Lal Vishwar Nath v. Preetam Singh, MANU/SC/0377/1978: [1979] 1 SCR 111, it was held that mere acceptance of rent from a lessee would not manifest the intention of the Lesser to renew the lease. Something more than mere payment and acceptance of rent would be necessary to assert that the Lesser has assented to the lessee continuing in possession and the Lesser intended renewal of the lease. Thus, the real question to be determined in each case is one of the intention of the parties. Let us examine the attending circumstances for establishing the plea of waiver under Section 11 of the Transfer of Property Act."
Suit No. 243/2011 Page 17 of 19
17. When the facts of the present case are analyzed in the light of the above pronouncements, I am of the considered opinion that the contentions of the learned Counsel for the defendants are devoid of any merit. The initial tenancy which was created by virtue of unregistered lease deed dated 6.8.1988 stands validly terminated by legal notice dated 19.6.1990 and the second unregistered lease deed which was executed between the parties in the year 1991 for a period of five years w. e. f. 6.8. 1988 also stands terminated by efflux of time. As discussed above, there is requirement for service of legal notice for termination of tenancy, which had expired by efflux of time. The defendants have not taken any steps for extension/renewal of the lease deed after its expiry by way of efflux of time in the year 1993. It is also clear that the defendant no. 3 might have become the owner of the 50% undivided share in the suit property but the defendant no. 3 was required to execute a fresh lease deed in favour of defendant nos. 1 and 2 in the year 2009 for creating a fresh tenancy in respect of his 50% undivided share in the suit property, Suit No. 243/2011 Page 18 of 19 which he purchased from previous plaintiff nos. 3 and 4 in the year 2003. The fresh lease deed in respect of the suit property could not have been created by defendant no. 3 in favour of defendant nos. 1 and 2 without the express consent of the plaintiff.
18. In these circumstances and the legal position, as discussed, the present application is hereby allowed and the suit of the plaintiff for the relief of possession of the suit property, bearing no. N6, NDSE Part I, New Delhi, is hereby decreed in favour of the plaintiff and against the defendants. Decree sheet be prepared accordingly. Application is disposed off accordingly.
Announced in the open court, on this 24th day of December, 2011.
BRIJESH KUMAR GARG ADDL.DISTRICT JUDGE08 CENTRAL, DELHI.
Suit No. 243/2011 Page 19 of 19