Delhi District Court
Ms. Rama Arora vs Sh. Ombir Singh Yadav on 22 March, 2014
IN THE C OURT OF SHRI M. P. SINGH: SENIOR CIVIL JUDGE : RENT
CONTROLLER: KARKARDOOMA COURTS (EAST), DELHI
CS No. 334/12
Unique case ID No 02402C0311942012
1. Ms. Rama Arora
R/o House no. 133, 1st Floor
Humayunpur, Safdarjung Enclave, Delhi29
2. Ms. Ranjana Arora
(Through Plaintiff no. 1, her attorney)
R/o Apartment no. 211, 10525
British Columbia, Canada
3. Ms. Sushma Arora
1/77, G. F. Subhash Nagar
Delhi110027 ........... Plaintiffs
Versus
Sh. Ombir Singh Yadav
R/o J57, Gali No. 4
Laxmi Nagar, Delhi110092 ......... Defendant
JUDGMENT
(on plaintiffs' application under Order XII Rule 6 read with section 151, CPC)
1. This is a suit against a tenant seeking possession of the tenanted premises along with a decree for mesne profits/damages and interest thereon.
2. Plaintiffs no. 1 & 2, real sisters, are stated to be coowners of property/shop bearing no. 4, ground floor, Laxmi Nagar, Delhi92 (for short the 'premises'). Plaintiff no. 3 is their mother. Plaintiffs no. 1 & 2 asked their mother to let out the premises. Plaintiff no. 3 accordingly let out the same to the defendant at monthly Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 1/13 rental of Rs. 5,000/. A lease deed dt. 08.09.2010 was executed between plaintiff no. 3 and the defendant. It was got registered with the SubRegistrar. The lease was for 11 months commencing on 03.09.2010. As per written text of the lease deed after expiry of lease period of 11 months, the lease could be renewed by a fresh lease deed only. It also enjoined upon the tenant to vacate the premises and hand over the actual, physical and quite possession thereof to the landlord on expiry of the lease period.
3. On termination of tenancy on 02.08.2011 by efflux of time, defendant did not vacate the premises. Relevant would it be to note that plaintiffs' claim to mesne profits from the defendant is Rs. 7,500/ per month.
4. It is averred that in August, 2011 defendant sued the plaintiff no. 3 for specific performance of an Agreement to Sell qua the premises on false and frivolous pleas. It is averred that plaintiff no. 3 is not its owner and that at no point of time did she enter into any Agreement to Sell with the defendant. The Agreement to Sell is termed as forged, fabricated and a sham document. Taking any earnest money from the defendant is vehemently denied. Plaintiffs go on to state that the Agreement to Sell, being relied upon by the defendant, suffers from legal lacunas inasmuch as the same is unregistered and not duly unstamped. On these averments the instant suit was filed.
5. Defendant's stand, as culled out from his written statement, is that the rent agreement executed in September, 2010 on basis whereof he was inducted into the tenancy is not in existence any more for the reason that an Agreement to Sell dt. 03.12.2010 stands executed by plaintiff no. 3 Ms. Sushma Arora in his favour, whereby and whereunder she agreed to sell the premises to him for a consideration of Rs. 9.21 lacs and for which he has already filed a suit for specific performance. He Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 2/13 avers that 20.07.2011 was the date fixed for finalization of the deal and that plaintiff no. 3 received earnest money of Rs. 4 lacs from him. He accuses her of backtracking from the terms and conditions of the Agreement to Sell and refusing to accept the balance consideration amount. He asserts that he is in possession of the premises not by virtue of the lease deed but by virtue of the Agreement to Sell. He invokes section 10, CPC to urge that the instant suit is liable to be stayed inasmuch as his suit for specific performance of contract on the basis of same cause of action, between the same parties and qua the same premises is sub judice. Suit is also stated to be barred by section 106, Transfer of Property Act.
6. Defendant does not dispute that plaintiffs no. 1 & 2 are coowners of the premises. He, however, adds that at the time of letting out and entering into the Agreement to Sell plaintiff no. 3 represented herself to be the sole and exclusive owner/landlady of the premises. The fact that he had taken the premises on monthly rental of Rs. 5,000/ in terms of the registered lease deed dt. 08.09.2010 is not denied. He, however, asserts that the lease deed stands superseded by Agreement to Sell. Defendant states that in view of execution of Agreement to Sell, which has the effect of superseding the rent deed, there is no question of termination of lease by efflux of time. It is stated that the Agreement to Sell requires no compulsory registration. Defendant submits that he is not liable to pay mesne profits. He seeks dismissal of the suit.
7. Plaintiffs filed their replication wherein averments made in the plaint were reiterated.
8. Now to the application under Order XII Rule 6 read with section 151, CPC. Plaintiffs submit that on the basis of admissions made by the defendant in his written Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 3/13 statement, they are entitled to a judgment and decree forthwith qua the relief of possession of the premises under defendant's occupation. Plaintiffs also invoke the Stamp Act and Registration Act to contend that the Agreement to Sell, which is unregistered and not duly stamped, would not suffice to confer any right, title and interest qua the premises upon the defendant.
9. Defendant, in his reply to the application, states that the suit involves triable issues and that he made no unequivocal and unambiguous admissions so as to suffer a decree under Order XII Rule 6, CPC. He adds that the application is defective as plaintiffs no. 1 & 2 did not file their supporting affidavits and that plaintiff no. 3 being not the owner of the premises is not entitled to the relief. It is stated that issue regarding ownership of premises requires trial. Denying other averments, he seeks dismissal of the application.
10. I have heard arguments at Bar and perused records of the case.
11. Under Order XII Rule 6 CPC, admissions on which the court wishes to pass a decree have to be unambiguous, clear and unconditional. Certainly, no fault can be found with this line of contention of defendant's counsel. It would be apt to take a note of the object behind this provision. Whole object of incorporating the procedure of Order XII Rule 6 CPC is to grant a quick relief to litigants whenever the court finds any legally enforceable admission and that in such situations the court will help the litigations to get quick relief. (Prabitra Kumar Basu & Anr. vs. Calcutta Municipal Corporation, 2000 AIHC 2101). In the case of Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr. (2010) 4 SCC 753 it was held that the object behind Order XII Rule 6 CPC is to give the plaintiff a speedy judgment. Further, in the case of Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India, Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 4/13 AIR 2000 SC 2740, Apex Court made the following observations: 'We should not unduly narrow down the meaning of this rule, as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also whereever there is a clear admission of fact in the face of which it is impossible for the party making such admission to succeed."
12. Defendant's argument is that he is no longer the tenant in the premises inasmuch as plaintiff no. 3 entered into an Agreement to Sell with him for a valid consideration. He thus urges that on account of the Agreement to Sell, the rent deed ceases to have any effect whatsoever and that he stands in the position of an agreement purchaser and as such he is not liable to be evicted. Plaintiffs vehemently deny execution of the Agreement to Sell. They term the Agreement to Sell as forged, fabricated and a sham document. They also vehemently deny taking any earnest money from the defendant. Let this issue be looked at entirely from the point of view of what the defendant states. Let his averment about execution of Agreement to Sell and advancement of earnest money be accepted as the truth. Accepting this standpoint of the defendant, this court proceeds to discover the truth about his status qua the premises. The moot question which therefore arises is whether execution of Agreement to Sell qua the premises, wherein the defendant was inducted as a tenant, would alter his status. The answer is emphatically in the negative. There are many judicial rulings to negate this contention of the defendant. The law is well settled that status of a tenant would not alter even if he enters into an Agreement to Sell qua the tenanted premises; so much so that he cannot avoid his ejectment even if a decree for specific performance stands passed in his favour. I have not come across any Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 5/13 judgment, neither was any pointed out at Bar during the course of arguments, which takes a contrary position.
13. I shall first take note of a judgment reported as Sunil Kapoor vs. Himmat Singh & Ors., 167 (2010) DLT 806 = MANU/DE/0203/2010. This was a suit with similar facts as in the present one. The tenant sued the landlord for specific performance of an unregistered Agreement to Sell. The landlord thereafter filed a suit for his ejectment. The tenant's plea that he could not be ejected in view of the Agreement to Sell was negatived by observing, "10. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as purchaser. This court in Jiwan Dass Rawal Vs. Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereof is executed. Thus, in law the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour."
14. This was followed by judgment dated 06th August, 2013 of Hon'ble Delhi High Court in RFA No. 324/2013 titled as Sanjiv Pathak vs. Somnath, the facts whereof were exactly similar to the instant case. The landlords sued the tenant for his eviction, but the defendanttenant on the strength of an Agreement to Sell pleaded that the landlords had agreed to sell the tenanted premises to him and his possession was thus as an agreement purchaser. This contention was negatived. It was observed, "9. The only point addressed by the senior counsel for the appellant is that the respondents landlords had agreed to sell the tenanted premises to the appellant and the possession of the appellant is thus as an agreement purchaser.
Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 6/13
10. It is not as if the learned ADJ has not dealt with the said aspect. Relying on Section 17(1A) of the Registration Act, 1908 and several judgments of this Court, it has been held that since the Agreement of Sale is not registered, the benefit of Section 53A of the Transfer of Property Act, 1882 is not available to the appellant.
11. The senior counsel for the appellant has sought to carve out a distinction. He has contended that the possession of the premises has not been delivered by the respondents to the appellant in pursuance to the Agreement to Sell but the Agreement to Sell records that the appellant has been in possession of the premises as a tenant since the year 2000. He has thus contended that Section 17(1A) of the Registration Act would not apply.
12. I am unable to agree. The possession of the appellant of the premises can either be as a tenant or as an agreement purchaser. If the possession is as a tenant, then the tenancy has been determined and the appellant has to go out of the possession. On the contrary, if the possession is as the agreement purchaser, an agreement purchaser can protect such possession only under Section 53A of the Transfer of Property Act and not otherwise. The benefit of Section 53A is not available to the appellant for the reason of the Agreement to Sell under Section 17(1A) being required to be compulsorily registered and the agreement claimed by the appellant being not registered. This Court in Jiwan Dass Rawal Vs. Narain Das AIR 1981 Delhi 291 has held that an agreement purchaser has no right in the premises, not only till a decree for specific performance of the said agreement is passed but also till the Conveyance Deed in pursuance thereto is executed. Thus, the rights of the appellant if any, as an agreement purchaser without the benefit of Section 53A, cannot be intertwined with the ejectment of the appellant from the premises as a tenant and the appellant if in the proceedings for specific performance of the Agreement of Sale is found to have a prima facie case, the appellant can obtain the relief therein of restraining the respondents from dealing with the premises. "
15. The next judgment in this context is that of Sanjay Singh vs. M/s Corporate Warranties Pvt. Ltd. 204 (2013) DLT 12: MANU/DE/3099/ 2013. It was observed therein, "17. Thus the status of the appellant/ defendant even if the execution of Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 7/13 Agreement to Sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. The only rights of an agreement purchaser (as discussed by me in detail in the recent judgment dated 06th August, 2013 in RFA No. 324/2013 titled Sanjiv Pathak vs. Somnath and attention to which of the appellant/defendant was drawn during the hearing on 26.08.2013 and which the counsel for the appellant/defendant has failed to distinguish) are of specific performance of the said agreement. ............. I have enquired from the counsel for the appellant/defendant whether the appellant/defendant has taken any steps for specific performance. The counsel fairly admits that no steps have been taken. A tenant in the property, even if he enters into an agreement for purchase thereof, cannot avoid his/her ejectment therefrom as a tenant and only has a remedy of specific performance of the agreement to sell in his favour."
16. To similar effect is the decision reported as Dr. N. P Tripathi vs. Dayamanti Devi & Anr., AIR 1988 Pat 123, wherein it was observed:
"So far the suit for specific performance of the contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale. Merely filing a suit for specific performance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale."
17. In the case of K. V. Narayanan Murti vs. Thankamma Sebastian, RC Rev No. 48 of 2005 (dt. of decision - 19.05.2005) a Division Bench of Kerala High Court comprising Hon'ble Mr. Justice R. Bhaskaran and Hon'ble Mr. Justice K. T. Shankaran observed, "The further question is when the tenant raises a contention that there was an agreement between the landlord and the tenant to sell the building to the tenant, whether it would constitute denial of title of the landlord within the meaning of section 11(1) of the Act. When the landlordtenant Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 8/13 relationship is admitted or proved, the question whether there was an agreement to sell the building to the tenant becomes irrelevant. An agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. The title would pass to the proposed transferee only on execution of the sale deed. The agreement to sell by itself would not terminate the landlord - tenant relationship. Even if a suit for specific performance filed by the tenanttransferee is pending, that by itself would not be a ground to oust the jurisdiction of the Rent Control Court. So long as the tenant has not shed his character as a tenant, he cannot take shelter under the agreement for sale and contend that the Rent Control Court has no jurisdiction. Of course, in a case where Section 53A of the Transfer of Property Act applies, the position may be different.
18. Therefore, the legal position that emerges is that the status of defendant Ombir Singh Yadav, even if execution of Agreement to Sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. The question of an agreement to sell the property to the tenant becomes irrelevant in a suit for his ejectment. Agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. Consequently, defendant Ombir's contention that he is longer the tenant in view of Agreement to Sell in his favour is liable to be rejected outrightly.
19. Next, section 54, Transfer of Property Act mandates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property.
20. Furthermore, defendant Ombir does not have the benefit of section 53A of Transfer of Property Act inasmuch as the Agreement to Sell which he relies upon is admittedly unregistered. Reason being that under section 17(1A) of Registration Act on the strength of an unregistered Agreement to Sell, an agreement purchaser cannot Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 9/13 seek to protect his possession on the basis of doctrine of part performance of contract as provided under section 53A, Transfer of Property Act.
21. There is another angle from which this issue can be looked at. Defendant contends that the Agreement to Sell superseded his tenancy. Determination of lease by merger is provided under section 111 (d) of Transfer of Property Act, which reads as follows, "A lease of immovable property determines - (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right." It is clear that merger takes place when tenant himself becomes the absolute owner of tenanted premises, which is not the case here (see Arun Kumar Tandon vs. Akash Telecom Private Limited & Anr., MANU/DE/0545/2010).
22. Therefore, what transpires is that the defendant continues to be the tenant in the premises. It is an undisputed case that there exists relationship of landlady and tenant between the parties. He was inducted into the tenancy by the plaintiff no. 3 by way of an registered rent agreement. A tenant cannot question the title of his landlord, howsoever, defective it may be, in view of section 116 of Evidence Act. The Privy Council had way back in the year 1915 in the matter of Bilas Kunwar vs. Desraj Ranjit Singh, AIR 1915 PC 98 observed as follows:
"A tenant who has been let into possession cannot deny his landlord's title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord."
23. Similar view has been expressed by Apex Court in Atyam Veerraju & Ors. vs. Pechetti Venkanna and Others AIR 1966 SC 629. It has been further reiterated in Tej Bhan Madan vs. II Additional District Judge and Others AIR 1988 SC Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 10/13 2413 in which it was held that a tenant was precluded from denying the title of the landlady on the general principles of estoppel between landlord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Furthermore, the plaintiffs no. 1 & 2 very much aver that they had authorised their mother (plaintiff no. 3) to let out the premises. Plaintiffs no. 1 & 2 have not raised any protest nor they have raised any banner of revolt to the act of inducting defendant Ombir as a tenant.
24. It was the argument of the defendant that the issue regarding title of the premises is to be settled and therefore the aspect of possession should be decided only after a full fledged trial. It would be very much evident from a discussion in the preceding paragraph that the issue of title is wholly irrelevant in the present proceedings where the parties admittedly stand in the relation of landlordtenant and the plaintiffs no. 1 & 2, as per their own averment, authorised their mother to let out the premises. That apart, in this suit for ejectment of a tenant, this court cannot venture to return a finding and decide the title of the parties qua the premises. Therefore, this contention of the defendant is turned down.
25. It is also undisputed that the tenancy is not covered within the ambit of Delhi Rent Control Act, monthly rent being more than Rs. 3,500/. That is to say, it is none of the case of the defendanttenant that he has the protection of Delhi Rent Control Act.
26. Now comes the question of termination of tenancy. It is an admitted case that tenancy was by way of a registered instrument for 11 months. The tenancy came to an end by efflux of time on 02.08.2011 on completion of 11 months (section 111 (a) Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 11/13 of Transfer of Property Act). In any event of the matter, this question is not of much relevance in view of ratio decidendi of Apex Court in Nopany Investments (P) Ltd. vs. Santokh Singh (2008)2 SCC 728 and followed by Shrif Ram Pistons & Rings Vs. C.B. Agarwal, MANU/DE/2381/2008, Jeevan Diesels & Electricals Ltd. vs. M/s Jasbir Singh Chaddha (HUF) 182 (2011) DLT 402, Rabindra Nath Saha vs. Sushma Jain 182 (2011) DLT 456, Shri Radhakrishan Temple Trust Maithan, Agra vs. M/s Hindalco Rotatron Pvt. Ltd. (2012)II AD (Delhi) 429 and Sky Land International Pvt. Ltd. vs. Kavita P. Lalwani 191 (2012) DLT 594 .
27. It was lastly the contention that the suit is liable to be stayed under section 10 CPC. This contention is noted only to be rejected. A suit for specific performance of contract and a suit for ejectment of tenant do not involve issues which are directly and substantially the same.
28. The other contention was that plaintiff no. 1 & 2 had not filed their affidavits with the application under consideration. This contention is perfunctory at best. The application does not become bad in law and the tenant cannot avoid his ejectment merely because one of the plaintiffs did not filed a supporting affidavit with the application. It is to be remembered that procedure is the handmaid of justice.
29. All the necessary ingredients for the grant of relief of possession qua the premises into which the defendant was inducted as a tenant exist. The defence of the defendant that he is no longer the tenant in view of the Agreement to Sell in his favour is no legal defence in the light of the settled legal position as taken note of hereinabove.
30. Having considered the case at hand, I am satisfied that on a complete and Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 12/13 meaningful reading of the written statement in the backdrop of the extant law as propounded in various cases noted hereinabove, there is an unqualified, unambiguous and clear cut admission of liability qua the relief of possession. The defence of the defendant visavis the Agreement to Sell superseding the the rent agreement is no legal defence. Therefore, it is my view that it is a fit case for this court to invoke its jurisdiction under Order XII Rule 6 CPC coupled with that under section 151 CPC. Therefore, under the exercise of powers under Order XII Rule 6 read with section 151 CPC this court directs the defendant to vacate the premises property/shop bearing no. 4, ground floor, Laxmi Nagar, Delhi92 (as shown bounded in red colour in the site plan). This suit of the plaintiff qua the relief of possession stands decreed. Decree sheet be prepared.
31. Conclusion - This court directs the defendant to vacate the premises property/shop bearing no. 4, ground floor, Laxmi Nagar, Delhi92 (as shown bounded in red colour in the site plan) of which he came under occupation as a tenant. This suit of the plaintiffs qua the relief of possession of the premises stands decreed. Decree sheet be prepared.
Announced in the open court on 22.03.2014 (M. P. Singh)
SCJ/RC(EAST)
Karkardooma Court, Delhi
Rama Arora & Ors. vs. Ombir Singh Yadav CS no. 334/12 Page 13/13