Delhi District Court
M/S Modipon Ltd. Having Its vs Mrs. Aruna Kohli on 24 December, 2009
RCA No. 37/2008 1 M/s Modipon Ltd.
Versus
Mrs. Aruna Kohli & Anr.
IN THE COURT OF SH. VINOD KUMAR,
ADDITIONAL DISTRICT JUDGE20, CENTRAL DISTRICT, DELHI
RCA No. 37/2008
M/s Modipon Ltd. having its
Registered Office at
Modi Nagar (UP) and also at
13Amrit Sher Gill Marg
New Delhi. .....Appellant
Versus
1. Mrs. Aruna Kohli
W/o Shri J. B. Kohli
R/o 31 Golf Links
New Delhi 110003.
2. Mrs. Veena Kumar
W/o Sh. Vijay Kumar
R/o 13A,Amrit Sher Gill Marg
New Delhi. .....Respondents
JUDGEMENT
1. This is an appeal filed by the defendant (the appellant herein) directed against the judgement and decree dated 15.2.2008 passed by Sh. Gaurav Rao Ld. Civil Judge, Delhi in suit no.1140/2006.
2. The plaintiffs (the respondents herein) filed a suit for possession and mesne profits in the year 1989 alleging that they leased premises no. 13 Amrita Shergill Marg having total area of 2900 sq. RCA No. 37/2008 2 M/s Modipon Ltd.
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yds. to defendant at the monthly rent of Rs.7000/ per month for residential purposes w.e.f. 1.3.1977 vide an unregistered lease deed to the defendant (appellant herein). Besides this premises the plaintiffs also let out to defendant an open space of 600 sq. yds of license basis of Rs.1/. Two petitions under Section 14(1)(e) and under Section 14(1)(k) of Delhi Rent Control Act were filed by the plaintiffs against the defendant. In the written statement to those petitions the defendant claimed that area of 600 sq. yds, which was given on license basis, formed part and parcel of the tenanted premises in respect of 13 Amrita Shergill Marg. In view of such stand of defendants in petition under Delhi Rent Control Act, the plaintiffs in this plaint in the present suit treated the defendant to be tenant in respect of the entire portion of 3500 sq. yds. inclusive of the 600 sq. yds. and averred that the plaintiffs terminated the tenancy of the defendant vide notice dated 22.2.1989 with the expiry on 31.3.1999. It is alleged that despite the notice duly served upon the defendant, the defendant did not vacate the premises nor sent any reply to the notice. Hence plaintiff prays for possession of the entire suit premises of 3500 sq. yds. i.e. (2900 sq. yds. + 600 sq. yds.) along with the mesne profits at the rate of Rs.5000/ per day.
3. In written statement the defendant took a stand that the defendant had on or about 10th January 1977 deposited with the plaintiffs a sum of Rs.3,84,000/ and it was agreed between the plaintiffs and defendant that the plaintiffs shall have no right to terminate the tenancy of the defendant of the suit premises without first refunding the defendant the said sum of Rs.3,84,000/. The plaintiffs neither before the alleged service of notice dated 22.2.1989 nor even thereafter refunded to the defendant the said sum. Accordingly, the notice of the termination of tenancy is RCA No. 37/2008 3 M/s Modipon Ltd.
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invalid. It is submitted that no notice of termination was, in fact, sent or received and in any event the notice is invalid for the reasons stated.
4. It is further stated in the written statement that at the time of induction of the defendant into the premises, two documents in writing were created. One was the document titled 'Agreement of tenancy' dated 10.1.1977 under which the defendant was inducted as a tenant with respect to all that residential building at 13, Ratendon Road, New Delhi constructed on a plot of land measuring 2900 sq. yds. and on the terms and conditions contained therein. The other document was in the form of a letter dated 28.5.1977 i.e. after nearly five months of the date of agreement of tenancy. The said letter was addressed only by plaintiff no.1 to the defendant and was acknowledged as having been received by the defendant no.1 on 3.6.1977. The plaintiffs themselves have been alleging and averring two separate tenancies and agreements and contracts with the defendant and have, in fact, already filed a suit in the High Court being suit no. 1121 of 1983 for possession of 600 sq. yds. of land.
5. On merits, it is denied that plaintiffs are the owners of the plot no.13 or 13A, Amrita Shergill Marg, New Delhi. It is admitted that a total area of 3500 sq. yds of property no.13 & 13A, Amrita Shergill Marg, New Delhi was let out to the defendant for the purpose of transit facility of its Directors, officers and guests and also for the purposes of holding Board Meetings, conferences and consultations by its Directors, officer and other guests. It is admitted that the rent of the suit property was Rs.7,000/ per month. It is denied that tenancy commenced from 1.3.1977. It is submitted that the premises at the time of taking possession by RCA No. 37/2008 4 M/s Modipon Ltd.
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defendant were not at all in a fit condition for the contemplated use thereof. The defendant has over a period of years spent several lacs of rupees in carrying out additions, alterations and constructions in the premises with the full consent and knowledge of the plaintiffs. It is admitted that petitions for eviction u/s 14(1)(e) and 14(1)(k) of DRC Act, 1958 were filed by the plaintiffs against the defendant. It is admitted that in reply to the said petition the defendant had claimed to be tenant with regard to 600 sq. yds. of the land. It is however, denied that upon the filing of the written statement by the defendant in said petition, the plaintiffs accepted the defendant as tenant in the 600 sq. yds of land. The service, legality and validity of the notice dated 22.2.1989 are controverted and denied and it is submitted that the plaintiffs are not entitled to have the premises vacated from the defendant. Defendant has therefore prayed for dismissal of the suit.
6. Plaintiffs filed the replication reiterating its stand taken in plaint.
7. From the pleadings of the parties, following issues were framed by the Ld. Civil Judge on 7.8.1996.
1. Whether the plaintiff has not been filed in accordance with provisions of Order 7 CPC and is thus liable to be rejected in view of preliminary objections of WS? OPD.
2. Whether the plaintiff are the owners of suit property? OPP.
3. Whether the tenancy of the defendant has been validly terminated in accordance with provisions of Section 106 of TP Act? OPP.
4. Whether the notice for termination, if RCA No. 37/2008 5 M/s Modipon Ltd.
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proved is legal and is invalid in view of preliminary objection no.2 of WS? OPD.
5. Whether there existed agreement between the parties i.e. defendant and the plaintiff as the plaintiff has no right to terminate as mentioned in preliminary objection no.2 of WS? OPD.
6. Whether the suit is liable to be stayed U/s 10 of CPC as alleged in preliminary objection no.3 of WS? OPD.
7. What is the extent of tenanted premises? OP parties.
8. Whether the suit is barred under the provisions of Section 50 of DRC Act and this court has no jurisdiction as mentioned in para 7 in the WS? OPD.
9. Whether the plaintiff is entitled to possession? OPP.
10.Whether the plaintiff is entitled to mesne profits/damages? if so, at what rate and for what period? OPP.
11.Relief.
8. Thereafter additional issues were framed, which are as under : 3(a) Whether there exists two tenancies with respect to suit premises created by two different agreements as mentioned in para no.2(a) of the Amended WS? If its effect?
OPD.
3(b) Whether the suit is maintainable in
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respect of two tenancy as mentioned? OPD.
3(c) Whether the lease in respect of the suit property is to subsist for an indefinite period as long as the defendants co. remains in existence as claimed in the amended WS in additional para (e) and (j)? OPD.
3(d) Whether the lease was intended to be lease meant for building purpose and is inheritable as mentioned in WS? OPD.
3(e) Whether the lessors were not competent to terminate the tenancy of the defendant in respect of the suit property for the reasons mentioned in WS? OPD.
Evidence
9. In order to prove its case plaintiffs examined PW1 Sh. Vijay Kumar, who is also the holder of power of attorney on behalf of the plaintiffs. This witness testified about the lease of the premises to defendant and the termination of the lease vide notice Ex.PW1/2, which was sent through the counsel. He also proved that the copy of the notice was sent through registered post, original postal receipt of which were Ex.PW1/3 and Ex.PW1/4. He testified that the original acknowledgment cards were received back and the same must be on the file.
10. In cross examination PW1 admitted that there was no tender of offer to return the amount of Rs.3,84,000/ in the notice. He testified that the ADs were received by his counsel. Ld. Counsel for defendants cross examined this witness at length assailing his personal knowledge of the facts, assailing dispatch of notice, receiving the ADs. The witness was also cross examined on the RCA No. 37/2008 7 M/s Modipon Ltd.
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question of the suit property, nature of the tenancy etc. apart from putting the questions to the witness from all possible angles.
11. Defendant examined Sh. M.K. Modi, the Managing Director of the Defendant Company as DW1. He testified that in fact the deal between the parties in respect of the suit premises was intended by the parties as purchase by the company. He testified that the defendant had agreed with Ms Guglani, the plaintiff, to purchase the property for Rs.11 lacs but on account of some rules of L & DO, the documentation could not be done. He testified that an agreement was written and Rs.3.84 lacs were paid to plaintiffs as interest free deposit and the balance amount calculating at the rate of 12% i.e. Rs.84,000/ per year. He further testified that an additional document i.e. letter Ex.PW1/D8 was given by the land lady to ensure that the property is not claimed back. He testified that the plaintiff had given permission to defendant to construct the building in the premises. He testified that as per the understanding between the parties the defendant could hold the property for perpetuity. This witness further testified that no quit notice from the land lady was received by the company or at the suit premises.
12. In cross examination, the plaintiff sought clarification from this witness as to why the figure of Rs.11 lacs mentioned by him in his examination in chief, does not find any mention in the written statement. The witness answered that the agreement was finally structured as a lease agreement. Rs.3.84 lacs were shown as deposit interest free. The balance amount was worked out at approximately 12% per annum which has been shown as Rs.7000/ per month or Rs.84,000/ per year. The total of this would come to approximately Rs.11 lacs.
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13. However he also stated that in his written statement, defendant has stated that they were tenants in perpetuity.
14. This witness admitted that the complete postal address of defendant is Modipon Ltd., Modi Nagar, U.P. and that if the mail is addressed at this address, it will reach the registered office of Modipon Ltd. He gave the same answer in respect of the mail sent at the address of suit property.
15. Defendant examined one Sh. Somdutt Sharma as DW2. He was working as the Officer Incharge of Receipt and Dispatch Branch of the defendant company. He produced a Dak register Ex.DW2/1 of the year 1989 to show that no notice/letter has been received by the defendant company at its registered office in Modi Nagar. The plaintiff assailed this register on many counts i.e. that the register does not pertain to the defendant company rather it pertains to Modipon Fibers Company, Modi Nagar.
16. Defendant examined one Krishan Kumar, Junior Assistant, NDMC as DW3. He proved the record of the suit property as well as in respect of the litigation of the plaintiff with the defendant.
17. PW4 Sh. R. L. Haldar, UDC, Land and Development Office from Ministry of Urban Development and Poverty Elimination, Nirman Bhawan, Delhi was examined by the witness partly but he had not brought the relevant record, therefore this witness was abandoned by the defendant and called Sh. Diwan Chand the Section Officer of this department to prove the relevant record.
18. Therefore Sh. Diwan Chand, the Section Officer was examined RCA No. 37/2008 9 M/s Modipon Ltd.
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as DW5. He brought the relevant record and proved an application dated 21.10.1978 written by Smt. Pushpa Guglani as Ex.DW5/A. In cross examination he admitted that their department had sent a demand notice to the plaintiff for unauthorize constructions done on the suit property.
19. Defendant examined DW6 J. D. Jain, a former employee of defendant's company to prove that constructions were made by the defendant company in the suit property and he also proved the expenses incurred by defendant company in constructions and alterations of the suit property.
20. Though the defendant sought some more time to examine further witnesses but vide order dated 16.3.2009, Sh. Parveen Singh, Ld. Civil Judge closed the defendant's evidence by his order.
21. At this stage plaintiff sought an opportunity to lead evidence in rebuttal which was allowed by Ld. Civil Judge vide his order dated 20.4.2007.
22. In rebuttal evidence, plaintiff filed the evidence Ex.PW2/A of Sh. V. K. Makhija, Ld. Senior Advocate for plaintiff. The cross examination of the witness was done by the Local Commissioner.
23. Sh. V. K. Makhija, Senior Advocate testified in his affidavit that prior to his designation as a senior counsel, he was engaged as counsel for plaintiffs in the present matter. Prior to filing of the suit, he has sent a legal notice Ex.PW1/2 dated 22.2.1989 to the defendant addressed to its registered office at Modi Nagar, U.P. and also at the suit premises at the address of 13, Amrita Shergill Marg, New Delhi. He testified that his office had received back the RCA No. 37/2008 10 M/s Modipon Ltd.
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Acknowledgment Due Cards of the aforesaid notice sent by registered post to defendant at both the addresses. The said original AD cards (2 numbers) were filed by him in the High Court along with the documents by a enclosing them with an index Ex.PW2/1. The page numbers of the original AD cards were also written by him as "1718" at point B in the index Ex.PW2/1. The witness specifically testified that the said AD cards were seen by him and were filed in original with index before Hon'ble High Court.
24. This witness was cross examined at great length and the defendants tried to assail his creditworthiness, his memory, and his testimony. The witness testified that he was instructed by all the plaintiffs to send the legal notice to the defendant.
Issue wise findings of Ld. Civil Judge
25. In his detailed judgement, Ld. Civil Judge considered all the factual and legal propositions and his issue wise findings can be summarized as under :
26. Issue no.1 & 7 Both these issues were decided together by Ld. Civil Judge. The defendant had taken a preliminary objection that the suit property was not properly defined and therefore the requirement under Order 7 Rule 3 CPC are not fulfilled. On this objection issue no.1 was framed.
Issue no.7 was concerning the extent of tenanted premises.
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Ld. Civil Judge after considering the
submissions of the parties held that the suit property had been properly described and had been clearly shown in the site plan and are easily identifiable. Ld. Civil Judge decided both the issues against the defendant/appellant.
27. Issue no.2, 3(c) & 3(d) These issues were decided together by Ld. Civil Judge. In respect of issue no.2, Ld. Civil Judge held that plaintiffs were the owners of the suit property.
In respect of issue no.3(c), Ld. Civil Judge discussed the effect of Section 107 and 106 of Transfer of Properties Act as well as Section 49 of Registration Act and opined that a lease of immovable property from year to year or for any term exceeding one year can be made only by a registered instrument and since the lease in question has been made by an unregistered instrument, the same cannot be looked into. Hence Ld. Civil Judge held that the tenancy in question is a month to month lease terminable by a 15 days notice as per Section 106 of Transfer of Properties Act.
Ld. Civil Judge however went a step ahead and read the terms and conditions of the lease deed and opined that even as per RCA No. 37/2008 12 M/s Modipon Ltd.
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the covenants of the lease deed, the suit property was never let out for perpetuity. On issue no.3(d), Ld. Civil Judge opined in para 45 of the impugned judgement that the premises was let out to defendant for residence and not for building purposes.
In view of above findings, these issues were decided against the defendant and in favour of plaintiff.
28. Issue no.3, 3(b), 3(e), 4 and 5.
On issue no.3, Ld. Civil Judge relied upon the language of the legal notice Ex.PW1/1 as well as on the testimonies of PW1 and of Sh. V. K. Makhija, adv. through which the legal notice was sent by the plaintiffs and after considering the case laws cited by both the parties, he held that the quit notice was sent by Sh. V. K. Makhija, adv. on the instruction of all the plaintiffs to the defendant.
Ld. Civil Judge also returned the findings that plaintiff has been able to prove that not only the legal notice was sent to both the addresses of the defendant but the legal notices were actually delivered to the addressee because the ADs of the same were received by the office of Sh. V. K. Makhija, adv. and the same were filed by Sh. V. K. Makhija, adv. with the index of the documents filed along with the present suit.
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Ld. Civil Judge returned the finding on issue no.3 in favour of plaintiff and against the defendant.
29. On issue no.3(b), Ld. Civil Judge observed that there is enough admission by defendant that the defendant treated the entire tenancy as a single tenancy.
Ld. Civil Judge relied upon 1996 V AD (Delhi) 143 wherein it was held that with passage of time two tenancies were considered as one tenancy and one suit could be maintainable in respect of two premises.
30. While deciding issue no.3(e), Ld. Civil Judge considered the stance of defendant taken in written statement, wherein it is stated that the plaintiffs have no right to terminate the tenancy, without refunding the sum of Rs3,84,000/. Ld. Civil Judge considered the submissions of the parties and held that refund of the said amount was not condition precedent to the termination of the tenancy.
31. Issue no.4 is same as issue no.3(e) discussed above, though issue no.3(e) has been framed more accurately.
32. It appears that issue no.5 was framed on the basis of para 2 of preliminary RCA No. 37/2008 14 M/s Modipon Ltd.
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objections of the written statement. In this paragraph the defendant has taken a specific plea that it was agreed between the plaintiff and defendant that plaintiff shall have no right to terminate the tenancy without refunding the sum of Rs.3,84,000/. This issue has been specifically addressed in issue no.3(e) by Ld. Civil Judge.
33. Accordingly Ld. Civil Judge decided all these issues against the defendant and in favour of plaintiff and returned a specific finding that quit notice was valid and legal and the tenancy of the defendant was validly terminated.
34. Issue no.6 Vide an order dated 5.3.1997 passed by Sh. S. S. Bal, Ld. ADJ, this issue was decided to have become redundant as the plaintiff had withdrawn the relief regarding possession of 600 sq. yds. of the land from the previously instituted suit. Accordingly Ld. Civil Judge decided the issue in favour of plaintiff. The defendant is not in appeal before this court on this issue.
35. Issue no.8.
Ld. Civil Judge answered this issue in favour of plaintiff and against the defendant holding that the suit is not barred under the provision of Delhi Rent Control Act as the rate of rent is more than Rs.3500/ per RCA No. 37/2008 15 M/s Modipon Ltd.
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month.
36. Issue no.9, 10 and relief.
Ld. Civil Judge held that the plaintiffs are entitled for relief of possession and also awarded mesne profits at the rate of Rs.30,000/ w.e.f. 14.1.1989 till vacation of the suit property. The suit was decreed accordingly.
37. New issues raised by the appellant/defendant at appellate stage During the arguments on this appeal Ld. Counsel for appellant argued that issue no.3(a) was never decided by Ld. Civil Judge and that for this purpose the matter should be remanded back to the trial judge directing him to return a finding on this issue. Appellant also moved an application under Order 14 Rule 5 CPC praying for framing an additional issue. I take up these new issues as under :
(i) Whether Ld. Civil Judge has answered issue no.3(a) It is argued by Ld. Counsel for appellant that issue no.3(a) has not been decided by Ld. Civil Judge and decision of this issue is the basis of the entire case. If this issue is not decided, this appellate court has not option but to remand back of the case to Ld. Civil Judge to decide issue no.3(a). Ld. Counsel for respondent/plaintiff however argues that this issue has been decided very specifically by Ld. Civil Judge in para 98 and 99 of the judgement. Ld. Counsel for appellant argues that para 98 and 99 do not contain the findings on issue no.3(a), rather it is only a reproduction of the contentions and pleadings of the defendant. I reproduce para 98 and 99 of the RCA No. 37/2008 16 M/s Modipon Ltd.
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impugned judgement, which is as under : "98. It is further the contentions of the Ld. Counsel for defendant the notice was invalid in as much as it terminated two tenancies that is one for 2900 Sq. yds and one for 600 Sq. yds. However, that is not the case. Ex. D82 written by the defendant to the plaintiffs wherein the defendant himself categorically stated that a total area of 3500 Sq. yds of property was let out to us on a monthly rent of Rs. 7000/ per month. The relevant portion of the said letter Ex. D82 of December 1990 is reproduced hereunder: "As regards para 1 and 2 of the letter in question, it is denied that property no. 13 Amrita Shergill Marg, New Delhi was covering an area of 2900 Sq. yds. A total area of 3500 Sq. yds of property no. 13, Amrita Shergill Marg was let out to us for the purpose of transit facilities of Directors, officers and guests.......'
99. Even otherwise, the WS of the defendant itself shows that the defendant treated the said area of 3500 Sq. yds which included both 2900 Sq. yds as well as 600 Sq. yds shown in Red colour and Yellow Colour respectively in the site plan as one tenancy. paragraph 2 of the WS is reproduced hereunder:
"A total area of 3500 Sq. yds in property no. 13 A Amrita Shergill Marg, New Delhi was let out to the defendant....."
38. A perusal of above stated paragraphs would show that in para no.98 Ld. Civil Judge has first taken up the contention of two tenancies and thereafter he specifically disagrees with the submissions of Ld. Counsel for respondent while observing that "however that is not the case". Ld. Civil Judge supports his RCA No. 37/2008 17 M/s Modipon Ltd.
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opinion by referring Ex.D/82 written by respondents/plaintiffs to the appellant/defendant wherein respondent himself categorically states that a total area of 3500 sq. yds. was let out to respondent. Ld. Civil Judge further takes the support of written statement of the appellant/defendant and cites it as another reason for disagreeing with the "two tenancies" contention of the respondent/defendant.
39. I am of the opinion that Ld. Civil Judge, while answering issue no.3(b), has taken up the issue of two tenancies under this head i.e. issue no.3(b) itself and although there is an inadvertent omission in mentioning of issue no.3(a), however I find that the said issue i.e. issue no.3(a) has been duly addressed in para no. 98 and 99 of the judgement by Ld. Civil Judge. A perusal of these paragraphs shows that Ld. Civil Judge has rejected the plea of the premises being two tenancies as raised by Ld. Counsel for appellant/defendant. Hence the issue has been decided by Ld. Civil Judge in favour of respondent/plaintiffs and against the appellant/defendant. Therefore there is no question of remanding back the appeal to Ld. Civil Judge asking him to return a finding of issue no.3(a).
(ii) Whether an additional issue is required to be framed
40. Ld. Counsel for appellant has moved an application under Order 14 Rule 5 CPC for framing of an additional issue. .
Ld. Counsel for appellant later on moved an application under Section 41 Rule 27 CPC read with Section 151 CPC praying that an additional issue may be framed as under : "whether the suit has been correctly valued for the purpose of court fee and jurisdiction for relief of possession."
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41. Ld. Counsel for appellant argues that this is a very vital question of jurisdiction and if it is found that Ld. Civil Judge has no pecuniary jurisdiction to try the suit, the entire judgement and proceedings would have no value in the eyes of law. Ld. Counsel for appellant argues that not only this court should frame this issue but also allow the appellant to produce additional evidence.
42. It is argued by Ld. Counsel for appellant that this is a suit involving two premises, one being property no.13 measuring 2900 sq. yds. having a rental of Rs.7,000/ per month and other property no. 13A measuring 600 sq. yds. given on license basis to the appellant at the nominal charge of Rs.1 per year.
43. Ld. Counsel for appellant argues that appellant wants to file a certified copy of plaint in suit no. 1121/1983, which was filed by the respondent. It is argued that this document would substantiate the plea of appellant that the premises measuring 600 sq. yds. was very much valued by the respondents/plaintiffs in the said suit but the premises was not valued in the present suit. The plaintiff has placed on record the copy of the said plaint, correctness of which has not been disputed by Ld. Counsel for respondent/plaintiff. Ld. Counsel for appellant has drawn my attention that appellant had valued the relief for possession of 600 sq. yds. of the land at Rs.1 lacs. On the other hand in the instant case the plaintiff has valued the suit at the rent of Rs.7000/ per month in respect of the area of 2900 sq.yds. This shows that plaintiff has not valued the area of 600 sq. yds. in the present suit. Ld. Civil Judge could not have passed the decree in respect of the 600 sq. yds. i.e. premises no. 13A. It is argued that this evidence further proves that premises no. 13A and 13 are two premises.
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44. Ld. Counsel for respondents/plaintiffs has opposed this application on the ground that for the purpose of court fee and jurisdiction, the suit has to be valued on the basis of a plain reading of the plaint.
45. I have considered the submissions of the parties. I am of the opinion that at the appellate stage if this court holds that the suit should have been valued at higher side, the judgement cannot be set aside on this very ground. The court has to proceed with a case on the basis of valuation made in the plaint for the purpose of court fee and jurisdiction. However if at the final stage the valuation of the property is found to be more than as stated in the plaint, the plaintiff can be ordered to pay the court fee as per rules. The proceedings and judgement of such court cannot be held to be illegal if later on some material is brought on record at appellate stage that the court did not have the pecuniary jurisdiction.
46. Therefore there is no need to frame an additional issue and application of the plaintiff in this regard is hereby dismissed. So far as the question of two tenancies is concerned, I make it clear that the document i.e. copy of the plaint of the suit no. 1121/1983 filed by Ld. Counsel for appellant would be considered by me while discussing the question of two tenancies. Both the applications are disposed of as above.
47. At the stage of appeal the parties addressed their detailed arguments on following questions :
1. Whether the property no.13 and 13A, Amrita Shergill Marg are two separate tenancies or are one tenancy?
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2. Whether the unregistered and unstamped lease deed between the parties can be read in evidence in order to understand the nature of tenancy?
3. Whether the respondents/plaintiffs had let out the suit property for building purposes to the appellant and if so was it a tenancy for indefinite period/perpetuity?
4. Whether the notice under Section 106 of Transfer of Property Act is valid and was duly served upon the appellant/respondent.
5. Status of PW1Sh. Vijay Kumar.
6. Refund of Rs.3,84,000/.
7. Mesne profits/damages.
48. I take up these issues one by one.
One tenancy or two tenancies
49. Ld. Civil Judge has referred to the written statement of the appellant/defendant wherein the appellant has himself admitted that this is one tenancy. Ld. Counsel for appellant argues that he has not admitted this fact in his WS and that Ld. Civil Judge has read the pleadings out of context. Ld. Counsel for appellant/defendant has drawn my attention to the replication of the plaintiff and argues that it is the plaintiff's own case that premises no.13 and 13A are two different premises. It is further argued that in fact the respondent/plaintiff had himself filed a suit no. 1121/1983 wherein he sought possession of the area of 600 sq. yds. i.e. premises no.13A only. However the said suit was later on withdrawn. Ld. Counsel for appellant argues that in the said suit the respondent/plaintiff himself has averred that the premises RCA No. 37/2008 21 M/s Modipon Ltd.
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no.13 and 13A are two different premises. Ld. Counsel for appellant has drawn my attention to the testimony of defence witnesses to show that premises no.13 and 13A are two separate properties. Ld. Counsel for appellant/defendant argues that Ld. Civil Judge ignored the fact that premises no.13 was let out as tenancy to the appellant/defendant whereas property no.13A was given to the appellant/defendant on license basis on the rent of Rs.1/ per month. Therefore it is clear that both the properties are two different properties rented out to the appellant/defendant vide separate documents and at different times. Hence both are the two different tenancies. It is argued by Ld. Counsel for appellant that he can show that the property no. 13A given to the appellant on license fee of Rs.1/ per month was not simply a license but was actually a tenancy, which was covered under Delhi Rent Control Act.
50. On the other hand Ld. Counsel for respondent/plaintiff argues that when the appellant/defendant has clearly admitted in the written statement that he was a tenant in respect of entire tenancy of the area of 3500 sq. yds., the matter sets at rest. Regarding the pleadings in replication Ld. Counsel for appellant argues that in his replication the respondents/plaintiffs have nowhere admitted that these are two separate tenancies.
51. I have perused the pleadings in para 2 of reply on merits, the appellant/defendant states as under :
"It is denied that the area let out to the defendants was only 2900 Sq. Yds. of the said property was let for residential purposes only. A total area of 3500 Sq. Yds. in property no. 13A RCA No. 37/2008 22 M/s Modipon Ltd.
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Amrita Shergill Marg, New Delhi was let out to the defendant and the said property was let to the defendant......."
Ld. Civil Judge has considered this admission of defendant and I agree with him that total area of 3500 sq. yds. is a single tenancy. So far as replication is concerned, I have perused the same and I reproduce para 3(vi) of replication as under :
"the case of plaintiff is not that only 2900 sq. yds. of land were comprised in lease deed dated 10.1.1977 and 600 sq. yds. of land were subsequently taken on license basis by defendant vide letter dated 28.5.1977 and do not form part of the demise/lease. The defendant is falsely raising a false plea that additional 600 sq. yds. of land is also comprised in the lease. The plaintiff do not accept or admit the case of the defendant. However in order to avoid any technical objection and as a matter of an alternative plea, it is stated in the notice dated 22.2.1989 and in the plaint, that should be plea of the defendant be accepted by the court (which however is a false plea) and it is held that land comprised in the lease is 3500 sq. yds. and not 2900 sq. yds., even in that case the tenancy stands terminated......"
52. Ld. Counsel for appellant has drawn my attention to following pleadings of respondent/plaintiff in para 2 of the replication (reply on merits), which is reproduced as under :
"2. Para 2 of the written statement is not admitted and is denied and para No. 2 of the plaint is reiterated in reply. Only property No. 13, Amrita Shergill Marg, New Delhi was comprised in the lease dated 10.1.1977 at RCA No. 37/2008 23 M/s Modipon Ltd.
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a rental of Rs. 7,000/ (Rupees seven thousand only) per month. No portion of property No. 13A, was leased to the Defendant. Six hundred Sq. Yds, of land of property No. 13A, shown yellow in the plan filed by the Plaintiff, was given on licence basis at a nominal licence fee of Rs. 1/ per month. The terms of the lease as per agreement to lease dated 10.1.1977 and the licence dated 28.05.1977 are wholly different. It is false to allege that the total area of 3500 sq. yds. was comprised in the lease. The lease of property No. 13 was granted for the purpose set out in clause (vii) of the lease deed dated 10.1.1977. The property has been described in para No. 2 of the plaint with reference to the are and its number and is more particular delineated in the plan filed with plaint. The yellow portion falls in plot No. 13A and is not comprised in the lease."
53. Ld. Civil Judge after perusing the pleadings of the parties opined that defendant himself has admitted in his written statement that defendant is a tenant in respect of entire area of 3500 sq. yds. In view of this admission Ld. Civil Judge disagreed with the arguments of the defendant (appellant herein) that these were two tenancies. I may point out that as soon as the defendant admits a fact mentioned in the plaint, the dispute in this regard is set at rest. Even if in replication plaintiff takes a different stand, the same would not make any difference because once a fact is taken out of the perview of investigation by the court on account of it having been admitted, the court would direct its attention on the trial and investigation of the other disputed facts. Ld. Civil Judge had also rightly referred to the document Ex.D82 (in para 98 of his RCA No. 37/2008 24 M/s Modipon Ltd.
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judgement). The letter Ex.D82 written by the appellant/defendant to the respondents/plaintiffs clearly shows that appellant/defendant had himself treated the entire area of 3500 sq. yds. to be one tenancy at the monthly rate of Rs.7000/ per month. Hence Ld. Civil Judge was right in discarding the plea of the appellant/defendant that these are two tenancies. However it is also a matter of record that parties had been taking different pleas in this regard in various litigations between the same parties on the same subject matter. For example, the plea of plaintiffs in suit no. 1121/1983 is that 600 sq. yds. is a separate property whereas the defendant has been taking the plea that rented premises comprised of 3500 sq. yds, which includes 600 sq. yds. of premises. Perhaps both the parties were altering their dancing steps to the tunes of changing law. Hence it is necessary to see the conduct and intention of the parties. It is not in dispute that initially 600 sq. yds, i.e. premises no.13A was not a part of the lease. After a few month this portion was given to defendant on a license at the rate of Rs.1/. The premises no. 13 was on rent of Rs.7000/ per month. Respondent has not shown that the licensee for Rs.1/ was ever paid by the defendant to plaintiffs. The defendant had occupied the entire area of 3500 sq. yds. but had been paying a rent of Rs.7000/ per month only. This conduct of parties amply shows that they intended to make the entire premises of 3500 sq. yds. to be one tenancy at the rent of Rs.7000/ per month. Ld. Counsel for appellant/defendant has drawn my attention to the plaint wherein it is stated by the plaintiffs that the defendant was been paying the rent at the rate of Rs.1/. I am of the opinion that the use of word "was" in this sentence means that presently the defendant is not paying the license fee of Rs.1/, though earlier he used to do so. Defendant has not placed on record any evidence or receipt to show the payment of Rs.1/ to the plaintiffs. These circumstances leave RCA No. 37/2008 25 M/s Modipon Ltd.
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me in no doubt that the defendant had been paying the rent of Rs.7000/ per month for the premises of 3500 sq. yds. consisting of premises 13 and 13A. The landlords and tenant therefore treated these two premises as one tenancy. Reliance is placed by Ld. Counsel for respondents/plaintiffs on 2001 II AD (Delhi) 381 - Mercury Travels (India) Ltd. Vs. Mahavir Prasad & Anr., 1996 V AD ( Delhi) 143 - Shri Chander Prakash Chawla Vs. K.K. Kapoor & Another, 2004 V AD (Delhi) 88 Shri Harishanker Vs. Madan Mohan Gupta and ILR 1999 Kar 3306 - K. Ramachandra Mayya Vs. Sanjeeva S. Putran.
54. Therefore I fully agree with the findings of Ld. Civil Judge on issue no.3(a) and hold that though initially premises no. 13 was let out to the defendant and later on premises no.13A was licensed to the defendant but subsequent conduct of the parties shows that they treated both the premises jointly as one tenancy. I may point out that both the premises are adjacent to each other.
Unregistered and unstamped lease deed
55. Ld. Counsel for appellant has referred to a catena of authorities to show that unregistered and unstamped lease deed can looked into for the purpose of collateral purposes. Though there is no dispute about this proposition but the fact remains that law totally debars a lease for a period more than one year unless it is done so by a registered instrument. It is not in dispute that the sale deed and the letter are unregistered. Ld. Counsel for appellant wants this court to draw an inference that it was lease rent for building purposes. Ld. Counsel has drawn my attention to AIR 1962 SC
413. I have perused this authority. Hon'ble Supreme Court had gone through the terms and conditions of the lease deed, and after perusing the same, had held that the premises was leased for RCA No. 37/2008 26 M/s Modipon Ltd.
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building purposes for perpetuity. However in para 3 of this judgement, Hon'ble Supreme Court has noted that it was a registered lease deed. I am of the opinion that had the lease deed before this court been a registered instrument, the court would have the liberty to go through the terms and conditions mentioned in it. But since it is unregistered and unstamped, the law prohibits the courts to read it in such a manner that the lease is presumed to be for perpetuity. Even if it is presumed that the premises was let out for building purposes, it would not amount to be a lease for perpetuity on account of the legal bar of Section 107 of the Transfer of Property Act. In fact Ld. Civil Judge has rightly held that being an unregistered document, it cannot be read by this court to ascertain the duration of the tenancy because the duration of a lease is one of the basic ingredient of lease agreement and the same cannot be considered to be a collateral issue.
56. The question of the collateral issue was considered by the Supreme Court in (2008) 8 Supreme Court Cases 564 (referred by the respondent). I reproduce para 34 of the judgement as under
:
"34. From the principles laid down in the various decisions of this Court and the High Court, as referred to hereinabove, it is evident that:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is,a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
RCA No. 37/2008 27 M/s Modipon Ltd.
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5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
57. The above stated position of law has been consistently followed by various High Courts as well as the Supreme Court and there is no divergent opinion on it. Ld. Counsel for respondent has referred to 2SCR 333, Javed Chand & Ors. Vs Pukhraj Surana in which the Supreme Court held that once two unstamped Hundis admitted in evidence by the trial judge, the same, though inadmissible, have to be read in evidence. Ld. Counsel for appellant argues that once a document rightly or wrongly is received in evidence, the matter regarding its admissibility stands closed and the same cannot be raised later on. It is argued by Ld. Counsel for appellant that the lease deed in question was admitted in evidence and the respondents did not raise any objection to it. In fact the respondents (plaintiffs) have themselves relied upon the terms and conditions of the lease in their pleadings.
58. Although the submissions of Ld. Counsel for appellant are good so far as the legal proposition is concerned. However here the question is not of admissibility of the lease deed. Rather the question before this court is as to whether an unregistered lease deed can create a lease for the period of one year or more. Ld. Civil Judge has answered this question in negative and I fully agree with Ld. Civil Judge in this respect.
Ld. Counsel for appellant wants this court to read the lease deed and the documents to come to the conclusion that the lease deed was for perpetuity. Ld. Counsel argues that the "nature of the lease" is collateral purpose and hence the court can look into the document to determine as to whether it is a permanent lease for RCA No. 37/2008 28 M/s Modipon Ltd.
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building purposes. I am of the opinion that duration of a lease is not a collateral purpose. In fact it is the most important term of a lease. Hence, the lease and the letter, being unregistered, cannot be considered for the purpose of knowing the duration of the lease.
Whether the premises in question was let out on perpetual lease?
59. Ld counsel for appellant has argued that the perusal of the lease deed and the subsequent letter written by the respondent would show that the premises was leased out to the appellant on perpetual lease. The Transfer of Property Act 1882 governs ''the lease''. Section 105 of the Transfer of Property Act envisages two types of lease. One, which is made for certain period. Second, a lease which is made for perpetuity . As per Section 107, lease of immovable property exceeding one year can be made only by registered instrument. Therefore, it is clear that there is complete bar on leasing out an immovable property for any term exceeding one year except by a registered instrument. This legislative bar has been honoured by the courts repeatedly in numerous judgments. In AIR 1988 Supreme Court 1470 Hon'ble Supreme Court was very categorical that a lease for the period exceeding one year can be executed only by a registered instrument and in absence of registration of the lease deed, the lease shall be deemed to be "lease from month to month''. Ld Civil Judge while deciding this issue has considered Section 106, 107 of the Transfer of Properties Act and held that the lease in question was an unregistered document and hence it was a month to month tenancy. Ld Civil Judge considered AIR (36) Nagpur, 265, AIR 1962 Supreme Court 413, AIR 1971 S.C 1878 referred by Ld counsel for appellant and after discussing all these authorities, Ld Civil Judge relied RCA No. 37/2008 29 M/s Modipon Ltd.
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upon AIR 1988 SC 1470 (referred above) to reach a conclusion that it was a month to month tenancy and not perpetual tenancy.
60. Ld. Counsel for appellant has taken me through AIR 1971 Supreme Court 1878 in which the lease was for a period of 30 years and the purpose of lease was constructing buildings. It is argued that Hon'ble Supreme Court considered the said lease to be a permanent lease. I have perused the judgement. In this judgement, it is no where written that the lease in question was unregistered. More over, the Supreme Court was not dealing with the issue of the effect of an unregistered lease deed. In such circumstance this authority is of no benefit to the appellant.
61. Ld counsel for respondent has referred to (2004) 1, SCC and submits that in this authority, the Supreme Court has approved proposition of law laid down by a Division Bench of Andhra Pardesh High Court in Sayeed Jallel Zane Vs P. Venkata Murli Dhar in which it was held that in India the law does not prohibit a perpetual lease but a clear and unambiguous language would require to infer such a lease. If language is ambiguous , the court would opt for an interpretation negating the plea of perpetual lease .
62. I have seen relevant lease documents as well as the letter written by respondent to the appellant. Both these documents suffer from the basic defect which is being unregistered and unstamped. Hence, these documents cannot convey lease rights for perpetuity even if they specifically mention it.
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63. It is argued by Ld counsel for appellant that in the lease deed, no such period has been mentioned. I am of the opinion that even in this situation, the lease would be presumed to be a month to month tenancy. In State of UP & others Vs Lalji Tandon (2004) 1, Supreme court Cases 1, the Supreme Court has specifically mentioned that the court always leans against a perpetual renewal.
64. Ld counsel for appellant has read the clause of the lease deed and argues that the property was leased for building purposes and hence it should be presumed for perpetuity. Ld Civil Judge has taken care of terms and conditions of the lease deed in his judgment and has also considered the letters EXD8 to EXD77 written by the appellant to the plaintiff. Though Ld. Civil Judge has held that parties never intended to create a tenancy for perpetuity, however, I am of the opinion that Ld. Civil Judge has erred in considering the terms and conditions of the lease deed and the letter, simply because no perpetual lease can be created by way of unregistered instrument.
In view of above discussions, I hold that the lease in question cannot be held to be for perpetuity.
Validity and service of notice under Section 106 of Transfer of Property Act
65. I have perused the findings of Ld. Civil Judge on this issue i.e. issue no.3. To my mind the findings are correct and justified. Ld. Counsel for appellant has raised numerous objections on this point and a large portion of cross examination and evidence has been devoted by the parties on this aspect. However, all the objections (which have been dealt minutely by Ld. Civil Judge) lose relevance in view of 2007 (14) SCALE 90 - M/s Nopany Investments Pvt.
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Ltd. Vs. Santok Singh, wherein the Supreme Court held that filing of an eviction suit under general law is itself a notice to quit. Therefore even if the notice under Section 106 of Transfer of Property Act is not sent or served or is defective, still filing of eviction suit by all the respondents/plaintiffs is sufficient notice to quit.
The status of PW1
66. Ld. Counsel for appellant/defendant has argued that PW1 examined by the plaintiffs is only a power of attorney, who could prosecute the suit but could not have testified on behalf of the plaintiffs. It is argued by Ld. Counsel for appellant that PW1 was neither witnessed the lease deed nor any transaction had taken place in his presence. Hence his testimony should be discarded entirely. it is argued that if the testimony of PW1 is discarded, the plaintiff's case is bound to fail.
67. I disagree with the submissions of Ld. Counsel for appellant. The suit is based upon the pleadings that premises no.13 was leased to the defendant and later on premises no.13A was licensed to the defendant. This fact is not disputed by the appellant/defendant. The respondents/plaintiffs have filed the present suit for eviction is a matter of record. I may point out that normally such type of suits are being decreed on the basis of pleadings only under Order 12 Rule 6 CPC, without taking any evidence. Therefore even if testimony of PW1 is discarded, the suit for possession was bound to succeed on the basis of pleadings only, though the trial court might have deferred the inquiry on the damages/mesne profits.
68. Further, though Sh. Vijay Kumar was prosecuting the case as an attorney of the plaintiffs but he testified as a witness i.e. PW1 in his RCA No. 37/2008 32 M/s Modipon Ltd.
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own right and on his personal knowledge of the facts. The exhibiting the documents, which are not in dispute, by him is also perfectly correct because the plaintiffs were not under an obligation to prove those documents on account of having been admitted. Hence the question raised by Ld. Counsel for appellant upon the capability of Sh. Vijay Kumar to testify as PW1 has no basis.
Whether the termination of tenancy is illegal without refund of Rs.3,84,000/.
69. Ld. Counsel for appellant argues that refund of Rs.3,84,000/ was condition precedent for termination of the tenancy. I disagree with the submissions. Although the appellant is entitled to refund of this amount but it is in no manner a condition precedent to the termination of the tenancy. In fact it is a vice versa. Termination of tenancy is condition precedent to refund of the above stated amount. Therefore although the appellant is entitled to refund of the above stated amount, it cannot be stated that the termination of tenancy is illegal without the refund of this amount.
Mesne profits
70. Ld. Civil Judge has taken in consideration the location of the property as well as the area. He has considered that the testimony of PW1 regarding the rate of rent was not controverted. As per this testimony the rent was stated to be Rs.3 or 4 lacs per month and Ld. Civil Judge awarded mesne profits at the rate of Rs.30,000/ per month w.e.f. 1.4.1989, which to my mind, is reasonable and justified. Ld. Civil Judge however has not given any adjustment of Rs.3,84,000/. Hence the impugned judgement and decree require some modification.
71. In view of above discussions I do not find any merit in the appeal and accordingly I dismiss the same with a minor RCA No. 37/2008 33 M/s Modipon Ltd.
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modification as under :
"The respondents/plaintiffs' suit for possession of property no.13 and 13A, Amrita Sher Gill Marg, New Delhi, more specifically shown in red and yellow colour of site plan Ex.PW1/1 is hereby decreed. The appellant/defendant is hereby directed to hand over the vacant and peaceful possession of the suit property to the respondents/plaintiffs. The respondents/plaintiffs are further entitled to mesne profits at the rate of 30,000/ per month payable by the appellant/defendant w.e.f. 1.4.1989 till delivery of possession of the suit property by the appellant to the respondents/plaintiffs. However, since the appellant/defendant is entitled to refund of Rs.3,84,000/ from the respondents/plaintiffs, this amount shall be adjusted towards the total mesne profits."
72. A fresh decree be prepared accordingly. The copy of judgement along with trial court record be returned to the trial court. Appeal file be consigned to record room.
Date 24.12.2009 (VINOD KUMAR) Additional District Judge20 Central District, Tis Hazari, Delhi