Delhi District Court
Rca No. 66/12 vs Sh. Baldev Singh on 6 November, 2012
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE01(WEST) : DELHI
RCA No. 66/12
Sh. Jugal Kishore,
S/o Sh. Kunwar Bhan,
R/o EL10, Ground Floor,
Eastern Side, LBlock,
Anand Vihar, Hari Nargar,
New Delhi. .....Appellant
Versus
Sh. Baldev Singh,
S/o Late Sh. Shan Singh,
R/o WZ160, Second Floor,
Gali No.8, Shiv Nagar,
Jail Road, New Delhi110058. .....Respondent
Date of Institution : 30.04.2012
Date of Decision : 06.11.2012
J U D G M E N T
By this judgment I propose to dispose of an appeal to set aside the impugned order dated 10.04.2012 passed by Sh. Kapil Kumar, ld. Civil Judge (West), Tis Hazari Courts, Delhi and to dismiss the application under Order 12 Rule 6 read with Section 151 CPC of the respondent.
Sh. Jugal Kishore V/s Sh. Baldev Singh Page 1 of 13
2. The brief facts for the disposal of the appeal are that the respondent/plaintiff has filed a suit for possession and recovery of mesne profits against the appellant in respect of the ground floor of the property bearing No. EL10, LBlock, Anand Vihar, Hari Nagar, New Delhi64, thereby alleging that the appellant is a tenant in respect of the said premises at a monthly rent of Rs.14,000/ in terms of the agreement dated 03.08.2006 which stood extended upto 30.06.2010 on mutual understanding between the parties. As per the respondent, no further extension was granted and that the tenancy of the appellant was terminated by virtue of the notice dated 08.07.2010. The appellant stated to have refused to receive the notice sent by registered post and that the same has been received back with the remarks "refused" and the respondent/ appellant despite the service has not vacated the premises within the stipulated period. The appellant upon being served with the summons filed the written statement and categorically refuted the averments apart from raising the preliminary objections to the effect that no notice of termination was served upon the respondent/appellant prior to filing of the suit and suit of the plaintiff is premature. It was stated that the premises was initially let out in terms of the agreement dated 03.08.2006 at a monthly rent of Rs. 9,000/ for a period of 11 months by mutual Sh. Jugal Kishore V/s Sh. Baldev Singh Page 2 of 13 consent of the parties and the same stood extended upto 30.05.2008 and it was further extended upto 31.12.2008 at the enhanced monthly rent of Rs.10,000/. Thereafter, the tenancy was further extended upto 30.06.2010 at further enhanced rent of Rs.14,000/ per month. The tenancy was lastly renewed/extended upto 30.06.2012 at the enhanced at the rate of Rs. 14,500/ per month. The appellant has also sent the cheques for two months @ Rs.14,500/ per month.
3. During the pendency of the suit, the respondent has disputed the last extension of tenancy upto 30.06.2012 on the ground that there was no written consent on his part and accordingly after filing of the written statement, the respondent filed an application under Order 39 Rule 10 CPC and on the basis of the categorical admission of having received the rent for the months of July and August, 2010 at enhanced rate of rent i.e. Rs.14,500/ by way of two cheques, the ld. Trial Court allowed the said application vide order dated 08.04.2011 thereby directing the appellant to pay the rent @ Rs.14,500/ per month. The matter was listed for P.E. and the respondent has filed the evidence by way of affidavit and the matter was adjourned for crossexamination for 31.01.2012 but the respondent did not come forward for crossexamination and took adjournment on medical grounds and, accordingly, the matter was Sh. Jugal Kishore V/s Sh. Baldev Singh Page 3 of 13 adjourned to 21.04.2012 for crossexamination but the respondent in the meantime moved an application under Order 12 Rule 6 read with Section 151 CPC for judgment on admission and also for preponement of the case. The appellant has filed the detailed reply by submitting that the said application is merely an abuse of process of law in order to escape from the crossexamination. The ld. Trial Court stated to have without appreciating the settled law allowed the said application of the respondent under Order 12 Rule 6 CPC vide impugned order dated 10.04.2012 thereby decreeing the suit of the respondent directing the appellant to handover the vacant, peaceful and physical possession of the suit property within one month from the date of order.
4. Hence, the appellant has preferred this appeal on the grounds that the ld. Trial Court has erred in law and on facts while allowing the application under Order 12 Rule 6 read with Section 151 CPC as there had not been unambiguous and categorical admission on the part of the appellant and in the written statement the appellant has raised substantial questions of law and on facts. The ld. Trial Court has failed to appreciate that on the one hand, the tenancy was lastly extended upto 30.06.2012 which was declined by the ld. Trial Court since there was no written extension after 30.06.2010 but on the Sh. Jugal Kishore V/s Sh. Baldev Singh Page 4 of 13 other hand, the ld. Trial Court while appreciating the fact that the rent stood enhanced from 14,000/ per month to Rs.14,500/ per month, directed the appellant to pay the rent @ Rs.14,500/ per month w.e.f. July, 2010 onwards.
5. The ld. Trial Court stated to have failed to appreciate the settled proposition of law that the admission must be plain, unambiguous and unequivocal and that when a defence is setup, the same requires evidence for determination of the issues, then the provision of Order 12 Rule 6 CPC are not applicable. The appellant has categorically denied and disputed the service of notice and has asserted the extension of tenancy from time to time including last extension/ renewal upto 30.06.2012 at the enhanced rate of rent of Rs.14,500/ per month which could not have been adjudicated upon without leading evidence on the said issue and there is no clear, unconditional, unambiguous or plain admission on the part of the appellant in the written statement. The ld. Trial Court has failed to appreciate the fact that the admission of a fact has to be clear from the record itself and cannot be left to be interpretative determination by the court unless there was a complete trial and such findings could be on the basis of cogent and appropriate evidence on record. It is also settled law that pleadings or a document has to be considered as a Sh. Jugal Kishore V/s Sh. Baldev Singh Page 5 of 13 whole to see its effect and one or two lines cannot be permitted to be taken out of context and used as an admission of a party.
It is, therefore, prayed that this court may setaside the order dated 10.04.2012 passed by Sh. Kapil Kumar, ld. Civil Judge (West), Tis Hazari Courts, Delhi, in Suit No.239/10 and to dismiss the application of the respondent under Order 12 Rule 6 read with Section 151 CPC with costs throughout.
6. On the contrary, the ld. Counsel for the respondent/ plaintiff in the main suit has submitted that as per the application moved by the plaintiff/respondent herein under Order 12 Rule 6 CPC has submitted that the respondent / plaintiff had let out his ground floor of the suit property to the appellant, the agreement of which came to an end on 30.06.2010 and even after the expiry of tenancy agreement, the defendant/appellant herein has not vacated the suit premises and the defendant/appellant is an illegal and unauthorized occupant. The respondent/plaintiff has issued a legal notice upon the defendant/ appellant to vacate the premises but the defendant/appellant has refused to deliver the possession of the suit property and take the delivery of the notice as the the postal acknowledgment of the legal notice. Even thereafter the defendant/appellant has not vacated the suit property. The appellant Sh. Jugal Kishore V/s Sh. Baldev Singh Page 6 of 13 has filed the written statement on 25.09.2010 and has admitted the tenancy, last rent of Rs.14,000/ per month. The three ingredients of passing the decree under Order 12 Rule 6 CPC are that the admission of relationship of landlord and tenant, rent of the premises above Rs.3,500/ per month and the service of legal notice of terminating the tenancy of defendant. If the aforesaid three ingredients are fulfilled then the plaintiff is entitled to the decree of possession. The ld. Trial Court vide order dated 10.04.2012 has partly allowed the application as all the three ingredients of passing the decree under Order 12 Rule 6 CPC are fulfilled. The respondent/ plaintiff submits that on 08.07.2010, he had served a legal notice to the defendant/ appellant but the defendant/appellant refused to take the delivery which is deemed to be the service of the defendant/appellant and which is proved by the postal acknowledgment. The ld. counsel for the respondent/plaintiff has also fortified his arguments by citing a judgment i.e. M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) wherein the Hon'ble Supreme Court of India has held that "the tenancy would stand terminated under general law on filing of a suit for eviction". In view of the aforesaid findings of the Hon'ble Supreme Court of India even assuming that the notice terminating of tenancy was not served upon the appellant (though it Sh. Jugal Kishore V/s Sh. Baldev Singh Page 7 of 13 has been served upon the defendant/appellant), the tenancy would stand terminated on filing of the suit against the appellant/defendant. It is the established law of land that "the technical objections should not be permitted to defeat substantial ends of justice". The last extension of tenancy was upto 30.06.2010 and it was mentioned in the extension of agreement that it was a final extension and there will be no further extension. The contention of the defendant/appellant that the agreement was extended for two years i.e. upto 30.06.2012 by oral agreement, the extension of oral agreement for two years do not sound good in fact as well as in law because a lease agreement of more than one year should be in writing and registered according to the Indian Registration Act. The application under Order 12 Rule 6 CPC can be moved at any stage of proceedings and there is no bar of moving the application during evidence of the plaintiff. The plaintiff is a senior citizen and has been suffering from various old age ailments as he had been undergone a severe surgery, the doctors have advised him not to climb the stairs and the appellant/defendant is adopting the delatory tactics to defeat the justice and delaying the possession of the premises which is not permissible in law. Hence, it is prayed that the appeal may be dismissed as the same is having no merits.
Sh. Jugal Kishore V/s Sh. Baldev Singh Page 8 of 13
7. I have heard ld. Counsel for the parties and perused the material on record carefully including the ld. Trial Court record.
Ld. Counsel for the appellant has relied upon the following case laws :
i) AIR 2010 Supreme Court 1890 entitled M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr.;
ii) 191 (2012) Delhi Law Times 535 entitled Deepak Rastogi Vs. Flexi Resourses Solution Pvt. Ltd.;
iii) 192 (2012) Delhi Law Times 86 entitled Lubeman Additives (P) Ltd. & Ors. Vs. Lubrioil Worldwide Inc.;
iv) 1971 (1) Supreme Court Cases 623 entitled Shri Chhote Lal Vs. Shri Kewal Krishan Mehta;
v) 2006 (1) RCJ 285 entitled Prof. Ram Prakash Vs. D.N. Srivastava;
vi) 2004 (1) RCR entitled Vishwant Kumar Vs. Madan Lal Sharma and another;
vii) AIR 2001 Supreme Court 3580 entitled M/s Ambalal Sarabhai Enerprises Ltd.
Vs. M/s Amrit Lal & Co. and another;
Sh. Jugal Kishore V/s Sh. Baldev Singh Page 9 of 13 Ld. Counsel for the respondent has also relied upon the following case laws :
i) (2008) 2 Supreme Court Cases 728 entitled Nopany Investment (P) Ltd.
Vs. Santokh Singh (HUF); and I have perused the same also.
8. After hearing arguments and on the perusal of the material on record including the ld. Trial Court record, this court is of the considered opinion that the present appeal is liable to be dismissed and the order of the ld. Trial Court dated 10.04.2012 is liable to be uphold as the ld. Trial Court has allowed the application under Order 12 Rule 6 CPC by passing very detailed and reasoned order leaving no scope for interference. The ld. Trial Court has very elaborately discussed the settled law with regard to the passing of decree of possession under Order 12 Rule 6 CPC and the ingredients required for ejectment i.e. relationship of landlord and tenant, the rate of rent of the premises above Rs.3,500/ per month and the notice of service of termination of tenancy under Section 106 of TP Act.
9. The relationship of landlord and tenant and the rate of rent of the premises of Rs. 3,500/ per month are admitted between the parties but the service of notice of termination of tenancy is disputed Sh. Jugal Kishore V/s Sh. Baldev Singh Page 10 of 13 by the parties. As per the submissions of the respondent/plaintiff, he has served a legal notice upon the appellant/defendant on 08.07.2010 to vacate the property but the defendant/appellant has refused to take the delivery of the notice as per the postal acknowledgment. Whereas the submission of the appellant/ defendant is that the appellant/defendant has not been served with legal notice regarding the termination of tenancy as the tenancy was lastly renewed/extended upto 30.06.2012 at the enhanced rate of rent of Rs. 14,500/ per month. The appellant/ defendant has also sent two cheques @ Rs.14,500/ as per the verbal agreement regarding the extension of tenancy but as per the submission of the respondent/ plaintiff, he has not accepted the alleged enhanced rent @ Rs.14,500/ and the said 2 cheques sent by the appellant/ defendant of Rs.14,500/ each has not been encashed by the respondent/ plaintiff and the same are on record with the main file. The case law on the aspect is also crystal clear as the Hon'ble Supreme Court of India in M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr., AIR 2010 Supreme Court 1890 has categorically ruled that the tenancy would stand terminated under the general law on the filing of a suit for eviction. Since the plaintiff/respondent has filed a suit for eviction in the court and in view of the aforesaid judgment, Sh. Jugal Kishore V/s Sh. Baldev Singh Page 11 of 13 even if the issuance of notice is disputed, the tenancy would stand terminated on filing of the suit for eviction by the plaintiff. The submission of the appellant/defendant to the effect that since the tenancy was lastly extended upto 30.06.2012 for two years on oral agreement, do not hold good in law as the tenancy for more than 11 months required to be registered under the laws of Indian Registration Act. Even if it is assumed for a moment though not admitting that the tenancy was extended for two years i.e upto 30.06.2012 and now 30.06.2012 has already been over as today is 06.11.2012. Hence, as per the own submission of the appellant/defendant, the tenancy is over and the appellant/ defendant is liable to vacate the demised premises.
10. Since the ld. Trial Court while deciding the application under Order 12 Rule 6 CPC has taken care of all the ingredients meant for the same and has passed a very detailed and speaking order leaving no scope for this court to interfere with the order dated 10.04.2012, the appeal is liable to be dismissed and accordingly dismissed with no orders as to costs.
11. However, since the appellant/defendant has filed this appeal hoping for getting relief and now since his appeal has been dismissed, it may take some time for the appellant to search the Sh. Jugal Kishore V/s Sh. Baldev Singh Page 12 of 13 alternative accommodation, some reasonable period is liable to be given on this count. Hence, the appellant/defendant is directed to vacate the demised premises on or before 31.12.2012 subject to payment of the agreed rent. The decree sheet be prepared accordingly.
12. A copy of this judgment alongwith ld. Trial Court Record be sent back to the ld. Trial Court for necessary information and record.
13. The appeal file be consigned to Record Room.
Announced in Open Court
on 06th September, 2012 ( R. B SINGH )
Additional District Judge01(West)
Delhi.
Sh. Jugal Kishore V/s Sh. Baldev Singh Page 13 of 13