Delhi District Court
Mrs. Punam Anand Kumar vs . Dr. Pravesh Miglani on 12 August, 2011
Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani
IN THE COURT OF DR. NEERA BHARIHOKE, ADJI (SOUTH)
SAKET COURTS, NEW DLEHI
In the matter of :
SUIT NO. 430/11
Mrs. Punam Anand Kumar
...... Plaintiff
versus
Dr. Pravesh Miglani
...... Defendant
12.08.2011
ORDER
Vide this order I shall dispose of the present application filed by the plaintiff under Order XII Rule 6 CPC.
Plaintiff has filed the present suit for ejectment, recovery of money, use and occupation charges/mesne profits and interest. It is submitted by the plaintiff that mother of the plaintiff Mrs. Veena Paintal, CS No. 430/2011 Page 1 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani prior to her death, was the owner of portion basement area, ad measuring 550 sq. feet in the building of property bearing no. 71, Paschimi Marg, Vasant Vihar, New Delhi and she had executed and had left behind a Registered Will dated 06.10.2006, in which Mrs. Veena Paintal had bequeathed and exclusively given the suit premises to her daughter i.e. plaintiff herein. It is further submitted by the plaintiff that during her life time late Mrs. Veena Paintal had let out the suit premises to the defendant for residential purposes only in respect of which defendant had been paying a monthly rent @ Rs. 4000/ to Late Mrs. Veena Paintal by virtue of lease deed dated 31.12.1996, which was for the period of 6 months and the said lease deed expired on 30.06. 1997 and thereafter there was no renewal of lease deed, though rent was paid from month to month.
It is further submitted by the plaintiff that Late Mrs. Veena Paintal had terminated the tenancy of the defendant vide legal notice dated 10.11.2001, as the defendant failed to vacate the suit premises, Late Mrs. Veena Paintal had filed a suit for ejectment against the defendant which was decided in her favour, to which defendant CS No. 430/2011 Page 2 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani preferred an appeal which was allowed and the suit of the Late Mrs. Veena Paintal was dismissed by the Appellate court dated 18.01.2010 on the ground that notice of termination dated 10.11.2001 could not be proved to have been served upon the defendant. Thereafter, Late Mrs. Veena Paintal terminated the tenancy of the defendant again vide legal notice dated 24.02.2010 by registered AD, however, despite receipt of legal notice dated 24.02.2010, defendant failed to vacate the suit premises and before Late Mrs. Veena Paintal could initiate legal proceedings for eviction of the defendant she passed away on 04.04.2010.
It is further submitted by the plaintiff that in terms of Registered will dated 06.10.2006, plaintiff has become the sole and exclusive owner of the suit premise as the tenancy has already been terminated vide legal notice dated 24.02.2010 and no lease deed after lease deed dated 31.1.1996 was executed nor the plaintiff renewed the tenancy of the defendant. Plaintiff submitted that she issued a fresh legal notice dated 06.05.2010 to the defendant terminating the tenancy of the defendant which was served upon the defendant on 10.05.2010 CS No. 430/2011 Page 3 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani by one Sh. Arun Kumar on behalf of the defendant. However, defendant failed to vacate or handover the peaceful possession of the suit premises and defendant continues to unauthorized and illegally use and occupy and retain the suit premises.
Plaintiff has averred that the defendant in his W/S has denied the receipt of legal notice, which is contrary to the documents placed on record and the defendant has not raised any other legal tenable or valid defence in the W/S and accordingly, prayed that decree of ejectment of defendant from the suit premises be passed in favour of the plaintiff.
Reply to the application of the plaintiff has been filed by the defendant wherein it is submitted by the defendant that as no admission has been made by him in the W/S, application of the plaintiff under Order 12 Rule 6 CPC is not maintainable and is liable to be dismissed. It is further submitted by the defendant that to invoke the provisions of Order 12 Rule 6 CPC, admission must be unequivocal, clear and unambiguous, but the defendant has not admitted any fact so as to CS No. 430/2011 Page 4 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani pass a decree under Order 12 Rule 6 CPC.
It is further submitted by the defendant that there is an agreement between the predecessorininterest of the plaintiff and the defendant by which the predecessorininterest of the plaintiff had agreed to sell the suit property in favour of the defendant for which a suit for specific performance is pending adjudication and also after entering into the said agreement, possession of the defendant is protected under Section 53A of the Transfer of Property Act, as such present application of the plaintiff is not maintainable.
It is vehemently denied by the defendant that Late Mrs. Veena Paintal had executed alleged registered will dated 06.10.2006. Defendant further submitted that till date the plaintiff has not filed the original in the court and even otherwise the will has not been probated and the plaintiff has also not impleaded other legal heirs of Late Mrs. Veena Paintal in the present suit. Defendant has also denied that Late Mrs. Veena Paintal had bequeathed the suit property exclusively to her daughter i.e. plaintiff herein.
CS No. 430/2011 Page 5 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani Defendant has not disputed that suit property was taken on monthly rent of Rs. 4000/, however defendant has submitted that the plaintiff has not filed original lease agreement and even otherwise Late Mrs. Veena Paintal had executed a receipt thereby agreeing to sell the suit property along with adjacent basement to the defendant and the lease deed has become redundant.
Further it is also denied by the defendant that Late Mrs. Veena Paintal had terminated the tenancy of the defendant vide legal notice dated 10.11.2001. Defendant has submitted that no legal notice was ever served upon the defendant which was also clarified vide appeal preferred by the defendant which was allowed by Ld. ADJ and the plaintiff accepted the said order and has never challenged the said order. The legal notice dated 24.02.2010 is also denied by the defendant and it is submitted by the defendant as he never received any notice, the question of vacating the suit property does not arise. It is further submitted by the defendant that he does not know any person by the name of Arun Kumar and also the address mentioned in the alleged notice has not been correctly mentioned. All the other averments of the CS No. 430/2011 Page 6 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani plaintiff have been denied by the defendant and it is prayed by the defendant that application of the plaintiff is misconceived and not tenable and is liable to be rejected.
Ld. Counsel for defendant argued that the son of the Smt. Veena Paintal, namely, Sh. Karanjit Singh Paintal, needed a sum of Rs. 2, 00,000/ in the year 2000 and both Smt. Veena Paintal and Sh. Karanjit Singh Paintal requested the defendant to give a sum of Rs. 2, 00,000/ as loan to Sh. Karanjit Singh Paintal. It is however, submitted that during that time, the defendant was not having a sum of Rs. 2,00,000/ but at the request of Smt. Veena Paintal and Sh. Karanjit Singh Paintal, the defendant had given a sum of Rs. 1,00,000/ to said Sh. Karanjit Singh Paintal as loan. It is further submitted that during that time, Sh. Karanjit Singh Paintal and Smt. Veena Paintal had deposited the original documents of their property bearing khasra no. 80/10, situated at Morni Hills with the defendant herein and an undertaking was also given by the said Sh. Karanjit Singh Paintal to the defendant herein.
CS No. 430/2011 Page 7 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani It was further argued by the Ld. counsel for the defendant that even after the death of Sh. Karanjit Singh Paintal, his mother Smt. Veena Paintal acknowledged the said liability and had also accepted that a sum of Rs. 1, 00,000 is to be repaid to the defendant herein and also acknowledged that the original title deeds in respect of the property situated at Morni Hills are lying with the defendant. Ld. Counsel for defendant argued that Smt. Veena Paintal had taken a further sum of Rs. 2,00,000 and executed a receipt in favour of the defendant and had also accepted and acknowledged the said sum of Rs. 1, 00,000 and adjusted the said amount towards sale consideration while taking a further sum of Rs. 2,00,000 on 5.03.2010. Ld. Counsel for defendant argued that there existed no relationship of landlord and tenant between the parties after execution of the receipt dated 05.03.2010. Ld. counsel for defendant also argued that Smt. Veena Paintal predecessorin interest of the plaintiff had agreed to sell the portion mentioned as A and B in the site plan in favour of defendant for a sum of Rs19, 50,000/. The portion mentioned as A and B in the site plan includes the suit property. Ld. Counsel for defendant argued that before the sale deed could be executed Smt. Veena Paintal expired on 04.04.2010. Ld. CS No. 430/2011 Page 8 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani Counsel for defendant also argued that in view of the said agreement to sell/ receipt, possession of the defendant is protected under Section 53 A of the Transfer of Property Act and the present suit for possession is also not maintainable.
Ld. Counsel for defendant further argued that the will on which reliance is placed by the plaintiff is a photocopy and further no probate has been obtained on that will and therefore it cannot be relied upon. Ld. Counsel for defendant argued that therefore plaintiff cannot be said to be the sole owner of the suit property.
Ld. Counsel for defendant also argued that no notice was ever served upon the defendant as the address of the defendant is B71, whereas the notice has allegedly been sent at 71, Paschimi Marg, Vasant Vihar, New Delhi. It is also submitted by the Ld. Counsel for defendant that AD card placed on record by the plaintiff has allegedly been received by one Mr. Arun Kumar, but defendant does not know any person by the name of Mr. Arun Kumar. He also argued that defendant is in possession of basement portion of property which is CS No. 430/2011 Page 9 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani situated at the rear side of the building and there are other occupants of the building, who are occupying other floors and other portion of the building, who might have received the said notice.
Ld. Counsel for defendant denied all the documents placed on record in support of the service of the notice by the plaintiff.
Ld. Counsel for plaintiff referred to paragraph 4 of the W/S wherein it is written "It is however not disputed that a portion of the basement was let out to defendant for residential cum commercial purposes at a monthly rent of Rs. 4000/".
Ld. counsel for the plaintiff argued that said statement establishes that there is existence of relationship of landlord and tenant between the plaintiff and the defendant and the amount of rent is more than Rs. 3500/. Ld. Counsel for plaintiff also argued that defendant was properly served at the correct address. In respect of the said argument, Ld. Counsel for plaintiff argued that the defendant had filed a suit for permanent injunction against the plaintiff wherein he had CS No. 430/2011 Page 10 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani mentioned his address as property no. 71 and not B71. The attention of this court was drawn to the Order of Ld. ADJ, Tis Hazari Courts dated 18.01.2010 in support of his arguments. As regards the receipt of the notice, Ld. Counsel for plaintiff argued that plaintiff has duly served the defendant and relied on postal receipt, UPC receipts and print out taken from website Indian Posts, Speed Posts Tracking. Two AD cards and office copy of letter written by postal authority to the plaintiff confirming delivery of the said notice by registered AD.
Arguments advanced by both the Ld. counsels for the parties. Heard. Record perused carefully.
There are a few preliminary objections taken by the defendant. Defendant has submitted that there does not exist any will in favour of the plaintiff. Even if it does, no probate has been obtained by the plaintiff in lieu of the same and hence plaintiff cannot file the present suit alone and impleadment of other legal heirs of Smt. Veena Paintal is necessary.
CS No. 430/2011 Page 11 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani Ld. predecessor court has already given her findings in regard to the said objections vide order dated 15.12.2010 while disposing of application of the defendant filed under Section 151 CPC wherein the defendant had raised the similar objections in regard to depositing of arrears of rent which he was directed to pay to the plaintiff vide order dated 24.11.2010.
Ld. Predecessor Court vide order dated 15.12.2010 has held that "It is also the defendant's apprehension that the plaintiff is not the only legal heir of the deceased lessor and therefore since the other legal heirs are not party to the lis, he wishes to deposit the rent in court. The apprehension of the defendant is ill founded. His liquidating the liability towards arrears of rent to any one of the legal heirs of the deceased would absolve him from any further liability to pay rent to any other claimant. It would remain a matter inter se the legal heirs to recover the same from the plaintiff herein, should that be the case. It is not disputed by the defendant that the plaintiff is one of the legal heirs of the deceased lessor".
The said finding has not been challenged by the defendant neither through a review application nor through appeal. The said finding has therefore achieved finality and hence cannot be allowed to be disputed again by the defendant. Even otherwise, will does not CS No. 430/2011 Page 12 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani require probate. Apex court has held in Commissioner, Jalandar Division & Ors. vs. Mohan Krishan Abrol & Anr., Civil Appeal No. 1257/1999 with Mohan Krishan Abrol vs. State of Punjab, Civil Appeal No. 1265/1999, that "A reading of Section 211 [of Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973] shows that the property vests in the executors by virtue of the Will and not by virtue of probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will."
Accepting for the sake of arguments that will in the present matter requires probate, the defendant has himself, in various paragraphs of written statement has accepted that in the absence of will, the plaintiff is not the sole owner but there are other legal heirs left behind by Mrs. Veena Paintal, the predecessorininterest of the suit property. Defendant has submitted that present suit is not maintainable in their absence. Defendant has also submitted in various paragraphs that the plaintiff is also bound to execute sale deed in his favour along with other legal heirs of the said Mrs. Veena Paintal. Thus admittedly, the defendant has accepted the present plaintiff to be coowner of the CS No. 430/2011 Page 13 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani suit property and it is settled position of law that an eviction or possession suit by one of the coowners is maintainable without involving or impleading the other coowners in the suit for eviction / possession.
In the case titled as Kanta Goel vs. B. P. Pathak, AIR 1997 SC 1599, it has been held that "Jurisprudentially, it is not correct to say that a coowner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and coowner of the premises, is not the owner of the premises within the meaning of S.13 (1) (f) {of Delhi Rent Control Act}. It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13 (1) (f) as long as he is a coowner of the property, being at the same time, acknowledged landlord of the defendants.
In view of the same, even if it be held that the defendant CS No. 430/2011 Page 14 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani was paying the rent and the plaintiff was accepting the rent without prejudice to their rights, in view of the law laid down in Kanta Goel Vs. B. P. Pathak (Supra), the present suit is maintainable even if it has been filed by the plaintiff alone as plaintiff is admittedly the coowner of the suit property as per averments of defendant.
For passing a judgment on admissions in the facts of the present matter, admission required to have been made by the defendant to the effect of three essential requirements are :
(1) There must be a landlord and tenant relationship between the parties;
(2) The rent of the suit property must be above Rs. 3,500/;
and (3) Valid termination of tenancy.
Defendant in paragraph no. 4 of reply on merits in Written Statement has accepted that he was inducted as a tenant in the suit property at a monthly rent of Rs. 4,000/ in June 1992. CS No. 430/2011 Page 15 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani Thus the rent of the suit property was admittedly more than Rs. 3,500/. In paragraph 4 of reply on merits in Written Statement, the defendant has accepted that he was inducted as a tenant in the suit property. In paragraph 8 of preliminary objections in written statement, the defendant has submitted that "that since there existed no relationship of landlord and tenant between the parties after the execution of the receipt dated 5.03.2010."
A plain reading of this paragraph establishes that the defendant is not denying the relationship of landlord and tenant between the parties till the date of execution of the alleged receipt dated 5.03.2010. In paragraph 8 of reply on merits in Written Statement, the defendant has submitted that "the question of terminating the tenancy does not arise as after the execution of the receipt, possession of the defendant is protected under Section 53 A of the Transfer of Property Act and as such the question of issuing legal notice does not arise."
The said submission reveals that the defendant is seeking CS No. 430/2011 Page 16 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani protection of his possession under Section 53A of Transfer of Property Act on the basis of the said receipt.
The arguments of defendant and the judgments relied upon by the defendant rest on the premise that judgment on admission cannot be passed in the absence of unequivocal admission.
In the matter of Charanjit Singh vs. Kehar Singh, 2006 V AD (Delhi) 66, Hon'ble High Court of Delhi held that :
"Written statement has to be read and construed as composite document and court cannot pick up a single line and treat it as admission out of context in which it is written. The essential feature of admission is that it should be 'concise and deliberate act'. It must not be something which was not intended and was not the intention of the party. Prerequisites to admission are unconditional, unambiguous and intend the same to be read as admission."
In the matter of Puran Chand Packaging Ind. P. Ltd. vs. Sona Devi and others, 154 (2008) DLT 111 (DB), Hon'ble High Court of Delhi held as :
''Before passing judgment on admission, document to be read as a whole and court is not to take out one or two sentences so as to treat it as admission."CS No. 430/2011 Page 17 of 31
Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani In view of the law laid down in Charanjit Singh vs. Kehar Singh(supra) and Puran Chand Packaging Ind. P. Ltd. vs. Sona Devi and others (supra), a perusal of the whole written statement needs to establish the admissions on part of the defendant. The defendant, in his whole Written statement, has averred that his possession in the suit premises is not illegal or unauthorized and the plaintiff or any of the legal heirs of the said Mrs. Veena Birbal has got no right to issue any legal notice in view of the subsisting agreement to sell with respect to the suit property and other portion of the property entered into between the plaintiff's predecessor and him. Defendant has also averred that protection of his possession in the suit property is protected under Section 53 A of Transfer of Property Act.
Therefore, defendant has relied on the receipt executed on 5.03.2010, wherein he has alleged that Mrs. Veena Paintal acknowledged that a sum of Rs. 1,00,000/ is to be repaid to the defendant and also acknowledged that the original title deeds in respect of the property situated at Morni Hills are lying with the defendant as CS No. 430/2011 Page 18 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani per undertaking of her son K.S. Paintal, dated 1.12.2010.
A perusal of the said receipt, allegedly executed by the predecessorininterest of the plaintiff, (although denied by plaintiff), does support the averments of the defendant. However, the said receipt, even if the defendant will be able to prove its due execution, is inadmissible in evidence as it is unregistered. Defendant, in his whole Written Statement has alleged the said receipt amounts to agreement to sell and has also sought protection of his possession in the suit property under Section 53 A of Transfer of Property Act.
The said receipt is not and cannot amount to agreement to sell. Allegedly, it has been executed by Mrs.Veena Paintal alone and agreement necessarily involves two parties and meeting of their minds. However, in the said receipt, there is only one executant. Even if it be held, for the sake of arguments that the said receipt amounts to agreement to sell, the said receipt is hit by Section 17 (1A) and Section 49 of Registration Act as well as under the provisions of Stamp Act and consequently is of no avail even under the provision of Section 53 A of CS No. 430/2011 Page 19 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani Transfer of Property Act.
In the matter of Sunil Kapoor vs. Himmat Singh and others, 167 (2010) DLT 806, in the similar facts and wherein also the suit for specific performance was also filed by the defendant, Hon'ble High Court of Delhi has held that :
"Agreement to sell of immovable property where under possession is delivered in part performance can only be by registered documentplea of part performance cannot be taken by petitionereven if petitioner succeeds in suit for specific performance till execution of conveyance deed, in his favour, he has no ground in law to save possessiondefence of agreement to sell not available in suit for ejectment."
"Mere agreement to sell of immovable property does not create any right in property save right to enforce said agreement."
"A purchaser of immovable property, who in pursuance of an agreement to sell in writing has been put into possession of the suit property, is entitled to so remain in possession. However, in the present case, there is no agreement to sell in writing. Plea of part performance in absence of registered instrument cannot be taken".
"With effect from 24th September, 2001, an agreement to sell of immovable property where under the possession is delivered in part performance can only be by a registered instrument bearing the prescribed stamp duty, i.e. on 90% of the total agreed sale consideration."
"Defence of the petitioner/defendant in the suit for ejectment that CS No. 430/2011 Page 20 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani the relationship of landlord and tenant had come to an end on 8th July, 2004 and thus the determination of tenancy vide notice of 22 nd July, 2004 is of no avail suffers from a fallacy. The said relationship is pleaded to have come to an end owing to the agreement of delivery of possession, part performance and which by law was required to be registered. It has admittedly not been registered. The relationship of landlord and tenant thus cannot be said to have come to an end."
"...., the defence of an agreement to sell is not a legal defence available to the petitioner in the suit for ejectment."
"The jurisdiction, if any, to stay eviction pending a suit for specific performance is of the court where the suit for specific performance is pending and the court where the suit for ejectment / possession is pending ought not to restrain its hands merely because the suit for specific performance is pending."
In view of the law discussed in the matter of Sunil Kapoor vs. Himmat Singh and others (Supra), the relationship of landlord and tenant, in the facts of the present matter, continues between the parties till execution of conveyance deed or till the same is terminated by notice of termination under Section 106 of Transfer of Property Act.
Similar are the observations of Hon'ble High Court of Patna in the matter of Ashok Goenka vs. Chandra Bhushan Singh, 2010 (1)PLJR3317, wherein it has been held that CS No. 430/2011 Page 21 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani "20. It is evident from the impugned orders that the court below has not at all taken into account the effect of Section 17 (1A) of the Registration Act,1908 as inserted by the amending Act 48 of 2001. The said provision is quoted below :
Section 17 (1a) The documents containing contracts to transfer for consideration any immovable property for the purpose of Section 53 A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A.
21. It is evident from the said provision that any document containing contracts to transfer for consideration, any immovable property for deriving the benefit under Section 53 A of the Transfer of Property Act, must be registered if it has been executed after the commencement of the Amending Act of 2001 and in case, such document is not registered on or after such commencement, it will have no effect for the purpose of invoking the doctrine of partperformance under Section 53 A. The doctrine of part performance protects the rights of a transferee of an agreement for sale, if he has been put in possession or continues in possession in part performance of the contract or has done in furtherance of the contract. Prior to the Amending Act of 2001, a party could claim the benefit of such possession on the basis of the doctrine of partperformance even if the agreement for sale was not registered but the same has now been specifically debarred by the Amending Act. That being the position, it is not open to the courts of law to permit any such plea of possession on the basis of any unregistered document. In the present matter, despite the legal provision being to the contrary by the impugned orders of injunction, the court below has put a stamp of legality over the alleged possession claimed CS No. 430/2011 Page 22 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani by the plaintiffs on the basis of an unregistered agreement for sale dated 27.3.2002. The same is clearly not permissible under the law."
In the present case also the receipt which has been claimed by the defendant to be agreement to sell has been executed after the commencement of the Amending Act of 2001. The law laid down in Sunil Kapoor vs. Himmat Singh and others (Supra) makes it abundantly clear that plea of part performance cannot be taken by defendant no. 1, even if defendant no. 1 succeeds in suit for specific performance till execution of conveyance deed, in his favour. As per the law laid down in Ashok Goenka vs. Chandra Bhushan Singh (Supra) and Sunil Kapoor vs. Himmat Singh and others (Supra), defendant has no ground in law to save his possession and the defence of an agreement to sell is not a legal defence available to the petitioner in the suit for ejectment.
Thus the receipt dated 3.05. 2010 is of no consequence to save the possession of the defendant and the relationship between the plaintiff and defendant continues to be of landlord and tenant even after execution of the said receipt as per the law laid down in Sunil Kapoor CS No. 430/2011 Page 23 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani vs. Himmat Singh and others (Supra). There is admission on part of the defendant of the relationship of landlord and tenant in paragraph 8 of preliminary objections in written statement till 5.03.2010 as in that paragraph defendant has submitted that there existed no relationship of landlord and tenant between the parties after execution of the receipt dated 05.03.2010. After 5.03.2010 also the relation between the plaintiff and landlord, as observed earlier, continues to be of landlord and tenant even after execution of the said receipt as per the law laid down in Sunil Kapoor vs. Himmat Singh and others (Supra).
In the matter of Surjit Sachdev vs. K I S Pvt. Ltd. and Others, 66 (1997) DLT54 (DB), Hon'ble High Court of Delhi held that :
"Admission need not be made expressly in the pleadings. Even on constructive admissions, court can proceed to pass a decree in plaintiff's favour."
Thus there is an admission on part of the defendant that there existed relationship of landlord and tenant between the plaintiff and defendant on combined reading of paragraph 8 of preliminary objections in written statement and the law laid down in Sunil Kapoor vs. Himmat Singh and others (Supra).
CS No. 430/2011 Page 24 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani The defendant has denied the receipt of legal notice of termination of tenancy, dated May 6, 2010. The defendant has taken the objection that the address of the defendant mentioned on the legal notice is wrong and his address is also wrong on the postal receipts and other modes through which the notice of termination was sent to him. Defendant has submitted that address of the suit property is B71 while the notice has been sent at 71.
The said objection is not tenable in view of the observations of Ld. ADJ in the appeal titled Dr. Pravesh Miglani vs. Mrs. Veena Paintal, RCA No.19/09 and Dr. Pravesh Miglani vs. Mrs. Veena Paintal, RCA No. 20/09 in the order dated 18.01.2010. On page 3 of the said order, Ld.ADJ has specifically observed that "Defendant has unnecessarily raised dispute about actual number of suit property whether it is 71 or 71B. Defendant had filed a suit for permanent injunction against the plaintiff, the certified copy of which is filed by him on Trial Court record in which he had mentioned the address of the suit property bearing no. 71 not 71B. Vakalatnama of two different counsels engaged by the defendant on Trial Court Record also gives his address as property no. 71 and not 71B. Hence now CS No. 430/2011 Page 25 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani ground taken in the appeal that actual number of property is 71B, Paschimi Marg, Vasant Vihar, New Delhi cannot be accepted and is liable to be rejected."
On plain reading of the order reveals that defendant had filed a suit for permanent injunction against the plaintiff wherein he had mentioned his address as property no. 71 and not B71. In view of the same, the objection of the defendant of wrong mentioning of his address on the notice to quit or notice of termination and on the postal receipts and on other documents/modes of sending the notice to quit/notice to terminate is not tenable and is rejected, more so in view of the fact that the defendant did not challenge the above quoted observations of Ld. ADJ.
Defendant has denied the submission of the plaintiff that tenancy has already been terminated vide legal notice dated 24.02.2010 and no lease deed after lease deed dated 31.1.1996 was not executed nor the plaintiff renewed the tenancy of the defendant. Plaintiff has submitted that she issued a fresh legal notice dated 06.05.2010 to the defendant terminating the tenancy of the defendant which was served CS No. 430/2011 Page 26 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani upon the defendant on 10.05.2010 by one Sh. Arun Kumar on behalf of the defendant.
Defendant has controverted the averment and has submitted that he had never received any such notice dated 6.05.2010 roof any other date. Defendant has contended that AD card placed on record by the plaintiff has allegedly been received by one Mr. Arun Kumar, but defendant does not know any person by the name of Mr. Arun Kumar. Defendant has also averred that he is in possession of basement portion of property which is situated at the rear side of the building and there are other occupants of the building, who are occupying other floors and other portion of the building, who might have received the said notice. Defendant has also contended that the plaintiff has no right to serve any legal notice to quit in view of agreement to sell executed in his favour by Mrs. Veena Birbal. This contention holds no water in view of the observations made in the earlier part of this judgment that the receipt is not an agreement to sell. Even if it is accepted to an agreement to sell for sake of arguments, it is unregistered and hit by the provisions of Registration Act and Stamp CS No. 430/2011 Page 27 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani Act. And it is a settled law that any of the coowners can file a suit for eviction without impleading all the coowners.
Plaintiff has placed on record copy of the notice to quit. The documents placed on record in proof of service of the defendant by plaintiff are registered AD post, speed post and UPC. Plaintiff has also placed on record the original acknowledgment received back which is addressed to the defendant. Plaintiff has also placed on record print out taken by him from the website of the Indian Speed post. Even if the version of defendant that he does not know any person by name of Arun Kumar is taken to be true, he was duly served with the notice of termination by other means as is supported by the original postal receipts on record. Defendant has also denied the print out taken by the plaintiff from website of the Indian Speed Post. There is also placed on record a letter addressed to advocate of plaintiff by the Department of Post dated 15.11.2010 which specifically states that the registered letter with acknowledgment dated 6.05.2010 was delivered on 10.05.2010. It is also specifically mentioned in the address of the defendant 'Basement (Rear Block)'. Thus the denial by the defendant of receiving CS No. 430/2011 Page 28 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani the said notices is an evasive denial and is hit by the provisions of Order 8 Rules 3, 4 and 5 of CPC.
It has been observed by Hon'ble High Court of Delhi in Atma Ram Properties(P) Ltd. vs. Pal Properties(India) Pvt. Ltd. and others, 91(2001)DLT438, "coming to the service of the notice, the plaintiff has placed on record the copy of the notice sent to the defendants under section 1060f Transfer of Property Act. The plaintiff has also placed on record the postal receipts in original by which notice were sent by registered post to the defendants. The plaintiff has also produced on record the original acknowledgement received back which is addressed to Pal Properties (India) Pvt. Ltd...Address is rightly mentioned as H72, Connaught Circus, New Delhi. It bears stamp and is signed by some person acknowledging the receipt of the letter. In view of these documents on record, it cannot be said that the notice was not received by the defendants. Bare denial will not serve any purpose."
As per Section 27 of General Clauses Act, if the notice is addressed at the correct address then the same is deemed to have been duly served/delivered to the addressee. Thus since the notice was CS No. 430/2011 Page 29 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani received by the defendant on 10.05.2010, his tenancy terminated on 26.05.2010 and the defendant became unauthorized occupant of the suit property.
In Pooja Aggarwal vs.Sakata Inx (India) Ltd., 2008 X AD (Delhi) 846, Hon'ble High Court of Delhi has held that in order to invoke the provisions of Order 12 Rule 6 CPC, the court has to scrutinize the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of the notice or as to the nature of tenancy.
After careful perusal and examination of the documents placed on record, I am of the considered opinion that all the ingredients of Order 12 Rule 6 are satisfied and accordingly a decree of possession in favour of plaintiff and against defendant is passed and defendant is directed to handover peaceful vacant possession of the suit property to st the plaintiff by 31 August, 2011.
However, in the matter titled Dr. Pravesh Miglani Vs. Smt. Tara Batra & Ors., civil suit No. 232/11, pending in this court, CS No. 430/2011 Page 30 of 31 Mrs. Punam Anand Kumar vs. Dr. Pravesh Miglani the suit filed by the defendant against Tara Batra & Ors wherein plaintiff herein is defendant No.4, an interim order dated 14/01/2009 is in operation. As per the interim order, defendants, including plaintiff herein, has been restrained from alienating, transferring or creating third party interest in the suit property till further orders. In view of the said order, plaintiff is restrained from alienating, transferring or creating third party interest in the suit property till the interim order is vacated in that matter.
Announced in the Open Court (DR. NEERA BHARIHOKE) on 12 August, 2011 th ADJI (South), Saket Courts New Delhi CS No. 430/2011 Page 31 of 31