Delhi District Court
Smt. Kailash Rani vs Sh. Sharwan Aggarwal on 14 November, 2011
: 1:
IN THE COURT OF JITENDRA KUMAR MISHRA
ADDITIONAL DISTRICT JUDGE -III, ROHINI COURTS, DELHI.
Civil Suit no. 343/11
Unique ID No. 99962010
Smt. Kailash Rani
W/o. Late Sh. Kashmiri Lal Chawla,
R/o. B-401, Sai Baba Apartment,
Sector-9, Rohini,
Delhi-110085
.............Plaintiff
Versus
Sh. Sharwan Aggarwal
S/o. Late Sh. Laxmi Narayan Aggarwal
R/o. 55/9, Sector.16, Rohini,
Delhi-110085
And also at :
A-103/7, Wazirpur Industrial Area,
Delhi-110052
.........Defendant
Date of institution of the suit : 01.05.2010
Reserved for order u/O. 12 R. 6 of CPC on : 20.11.2011
Date of pronouncement of judgment on admission : 14.11.2011
ORDER :
1. By this order, I shall dispose of an application under Order 12 Rule 6 of CPC moved by the plaintiff stating therein that in the plaint, it is the case of the plaintiff that the suit premises was let out to the defendant at a monthly rent of Rs. 51,000/- per month vide rent agreement dated 01/10/2006 for the period of three years, despite the fact that the tenancy expired by efflux of time and plaintiff by notice dated 31/03/2010 terminated the tenancy with the month ending on 30/04/2010. It is further submitted that since the rent of the premises is above Rs. 3,500/- per month, therefore, the defendant has no protection Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 2: of Delhi Rent Control Act, 1958. It is further the case of the plaintiff that the defendant has already admitted the material contents of the plaint and, therefore, in view of the admissions made by the defendant in his written statement, the plaintiff is entitled for judgment on admission.
2. For the purpose of disposal of application, plaint and written statement are perused. It is an admitted fact by the defendant that the defendant is a tenant in the suit premises bearing no. A-103/7, Wazirpur Industrial Area, Delhi. It is also the case of the defendant that initially he was inducted as a tenant w.e.f. 08/10/2003 under the terms of the rent agreement dated 17/12/2003. it is further case of the defendant that he was paying rent to Sh. Desh Raj Chawla, S/o. Late Sh. K. L. Chawla. It is the further case of the defendant that initially the rate of rent was agreed @ Rs. 11,000/- per month for a period of three years for the purpose of operating a factory of steel hot rolling etc. It is further admitted by the defendant that he had paid rent in cash. It is also the case of the defendant that he had also paid a sum of Rs. 4.5 lacs in cash as security deposited to late Sh. K. L. Chawla, who had expired in the year 2004. It is the further case of the defendant that w.e.f. October, 2006, it was agreed between Sh. Desh Raj Chawla and defendant that the rent was enhanced up to Rs. 13,500/- per month and the rent was lastly paid at the said rate. It is also alleged by the defendant that the rent agreement dated 01/10/2006 is a fabricated and manipulated document. It is further case of the defendant that after the expiry of the lease under the rent agreement dated 17/12/2003, the rent agreement was expired and was never objected on behalf of the plaintiff before filing of the suit. Consequently, by holding over, the plaintiff has created a fresh tenancy in favour of the defendant and thus the suit of the plaintiff is liable to be dismissed.
Civil Suit no. 343/11Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 3:
3. Record is perused. There is rent agreement dated 01/10/2003, executed between late Sh. K. L. Chawla and the defendant. This agreement was for the period ended on 01/10/2006. Thereafter, another rent agreement is also available which is of dated 01/10/2006 executed between the defendant and Smt. Kailash Rani, wife of late Sh. K. L. Chawla. The case of the defendant is that the rent agreement dated 01/10/2006 is a fabricated and manipulated document. It is not in dispute that Smt. Kailash Rani is the wife of late Sh. K. L. Chawla and Sh. Desh Raj Chawla is son of late Sh. K. L. Chawla. It is also not in dispute that original tenancy was between late Sh. K. L. Chawla and the defendant. It is also not in dispute that after the death of Sh. K. L. Chawla, plaintiff and her son Sh. Desh Raj Chawla are legal representatives of late Sh. K. L. Chawala. No rent receipt either issued by late Sh. K. L. Chawla or Sh. Desh Raj Chawla or by the plaintiff herself has been filed by either of the parties to the suit. It is also not the case of the defendant that he ever asked for the rent receipt and the said rent receipt was denied. It is not the case of the defendant that he issued any letter in writing for issuance of rent receipt and the rent receipt was refused to be issued either expressly or impliedly. The case of the defendant is that after the death of Sh. K. L. Chawla, his son Sh. Desh Raj Chawla was acting as landlord and collected the rent from the defendant. It is contended by the defendant that rent agreement dated 01/10/2006 is a false and fabricated document. It is observed that the defendant has not produced any rent agreement executed between him and Sh. Desh Raj Chawla. It is an admitted case of the defendant that after the death of Sh. K. L. Chawla, plaintiff is successor in interest along with her son Sh. Desh Raj Chawla for late Sh. K. L. Chawla. It is not in dispute that late Sh. K. L. Chawla is the owner of the suit property. During arguments, ld counsel for the plaintiff also filed certified copy of conveyance deed executed by DDA in favour of the plaintiff. This document is perused Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 4: carefully and by virtue of this document, the paramount title holder i.e. DDA has granted rights of the suit property in favour of the plaintiff. Thus, this argument of the defendant is not going to help him inasmuch as, there is no document brought on the record by the defendant regarding any rent paid by him to Sh. Desh Raj Chawla. No rent receipt or any document whereby the defendant tendered the rent to Sh. Desh Raj Chawla at any time, has been brought on the record.
4. Another argument raised by the ld counsel for the defendant that acceptance of rent after expiry of the lease period is waiver of period of notice to quit. Here this court refers Central Bank of India Vs. Lalit Kumar Bhargava (HUF) 129 (2006) Delhi Law Times 338 (DB), where in para 12 it was held :
12. The law is well-settled that no tenant can be allowed to retain possession of the tenanted premises without payment of rent/damages for its use and occupation. The law is equally well-settled through a catena of judgments, both of High Courts and of Supreme Court, that mere acceptance of rent after service of notice to quit does not amount to creation of a new tenancy and that the notice to quit is not waived by mere acceptance of rent.
5. The contention regarding service of notice raised by the defendant has already been decided by Hon'ble High Court in M/s . Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & ANR decided on 02/09/2011 in RFA No. 179/2011 held :
(iv) ".............. Once the summons in the suit along with documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 5: a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of subsequent events of the expiry of 15 days after receipt of a copy of the notice along with documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court.
8. Therefore, looking at it from any point i.e the fact that legal notice terminating tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the appellant/tenant was back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over possession of the tenanted premises."
6. Another contention raised by the Ld counsel for the defendant that the present suit has been filed by the plaintiff who is not the owner of the premises; inasmuch as the owner or landlord of the premises was late Sh. K. L. Chawla and after his death Sh. Desh Raj Chawla collected the rent of the suit premises from the defendant. The Hon'ble Delhi High Court in Shri M. R. Sahni Vs. Mrs. Doris Randhawa ILR (2008) Supp. 7 Delhi 76 held in para 35 :
"A. 35. I additionally note that the learned Trial Court and the learned Appellate Court has referred to a decision of the Hon'ble Supreme Court reported as AIR 1976 SC 2335 Sh. Ram Pasricha Vs. Jagan Nath & Ors. Holding that a co-owner of a property is deemed to be owner of each part of the property and is entitled to remain a suit for ejectment/possession without impleading the other legal heirs."
Further in Dhannalal Vs. Kalawatibai and others AIR 2002 Supreme Court 2572 (1), the Hon'ble Supreme Court held in para 16 :
"16. It is well settled by at least three decisions of this Court namely, Shri Ram Pasricha v. Jagannath and others - (1976) 4 Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 6: SCC 184, Kanta Goel v. B.P. Pathan and others - (1977) 2 SCC 814 and Pal Singh v. Sunder Singh (dead) by Lrs and others - (1989) 1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co-owners if such other co-owners do not object."
7. In the present case also, the suit has been filed by the widow of late Sh. K. L. Chawla, earlier landlord of the defendant and also accompanied the plaintiff before the court. This court take judicial notice of such fact. Moreover, the paramount title holder has already executed the conveyance deed in favour of the plaintiff and in such circumstances, this argument of the ld counsel for defendant is also not sustainable. The Hon'ble Supreme Court earlier in India Umbrella Manufacturing Co. and others Vs. Bhagabandei Agarwalaa (2004) 3 Supreme Court Cases 178 held in para 6 :
"6. Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See Sri Ram Pasricha v. Jagannath and Dhannalal vs. Kalawatibai, SCC para 25.) This principle is based on the doctrine of agency. One co- owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co- owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement."
8. In view of the observations made herein, the arguments of the ld counsel for defendant regarding the maintainability of suit filed by the plaintiff does not inspire confidence as it is a settled law that the plaintiff can file the present suit. It is not the case of the defendant that any Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 7: other person has ever objected the filing of the suit who has claimed himself as owner of the suit premises.
9. Another contention raised by the Ld counsel for the defendant that the averments made by the defendant in the written statement does not cover under Order 12 Rule 6 of CPC. In facts and circumstances of the present case, this court has to refer the law laid down by superior court such as :-
155 (2008) DELHI LAW TIMES 431 titled as P.S. Batra vs. S. Anoop Singh & Anr., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission-
Rule 6.(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whether a judgment is pronounced under Sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment was pronounced."
The scope and ambit of Order 12 Rule 6 of CPC was discussed by the Hon'ble Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v. Union Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the Hon'ble Supreme Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 8: Court observed as under :
"Para 12. As to the object of the order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'. We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the fact of which, it is impossible for the party making such admission to succeed."
In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of this Court interpreted the provisions of Order 12 Rule 6 of CPC by holding as below:
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
Another Division Bench of this Court had the occasion to interpret the expression 'otherwise' as used under Order 12 Rule 6 of CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Anr., reported as 119 (2005) DLT 202 (DB). It was observed as below :
"Para 10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e. either Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 9: in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under Order 10 Rules 1 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matter in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein............."
In another judgment 154 (2008) DELHI LAW TIMES 237 titled as Pooja Aggarwal v. Sakata Inx (India) Ltd., it was observed by our own Hon'ble High Court in para 7 :
"7. In the instant case, the admission regarding relation- ship of landlord and tenant is not in dispute. The rate of rent is above Rs. 3,500/-. The service of notice has been amply shown by the plaintiff by placing the documents on record and the denial by the defendant is a sham and false and the Court can always disregard such sham and false denials. All conditions of passing an order under Order 12 Rule 6 of CPC being satisfied, the trial Court wrongly dismissed the application under Order 12 Rule 6 of the CPC."
In another case No. : RFA (OS) No. 1/2005 titled as Mr. Prem Narain Misra Vs. Faire Brothers Export and Import Ltd. decided on July 12 2007, it was observed by our own Hon'ble High Court in para 17 :
"The very objective and purpose of enacting the provision like Order 12 Rule 6 CPC is to enable the Court o pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 10: circumstances of the case".
In another case C.R.P. No. 119/2007 titled as Mr. P. L. Verma Versus State Bank of India and Anr. decided on September 10, 2008, it was observed by our own Hon'ble High Court in para 4 :
"4. In order to pass a decree of possession in respect of tenanted premises, the Court has only to ensure that the tenancy of the tenant stands terminated either by a valid notice or by efflux of time and there was relationship of landlord and tenant, nothing else is required to be proved."
Further in 168 (2010) Delhi Law Times 501 titled as Karam Kapahi & Ors. Vs. Lal Chand Public Charitable Trust & Anr., it was observed by our own Hon'ble High Court in paras 48 to 51 :
48. "In the 54 Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering Judges to use it 'ex debito justiciae a, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment."
49. "If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by 'pleading or otherwise in writing' but in Order 12 Rule 6 the expression 'or otherwise' is much wider in view of the words used therein namely:'admission of fact.......either in the pleading or otherwise, whether orally or in writing."
50. "Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 11: (Smt.) and Another,118 (2005) DLT 396 (SC)=III (2005) SLT 131=(2005) 11 SCC 279 at page 285 (para 8)]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas's Commentary on the Code, 16th Edition, Volume II, page 2177]."
51. " In the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India and Ors.
VI (2000) SLT87=(2000) 7 SCC 120, this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment ".
10. As already observed, it is the admitted case of the parties that there having extended relationship of landlord and tenant between the parties and the rate of rent was more than Rs. 3500/- per month, taking the premises out of protection of Delhi Rent Control Act, 1958. It is admitted case of the defendant that earlier rent agreement was executed between the parties but same was expired in the year 2006. The case of the defendant that there was no agreement executed between the parties but the contention of the plaintiff is that a rent agreement was executed in the year 2006 which was expired in the year 2009. It is another contention raised by the ld counsel for the defendant that the rate of rent by agreements executed in the year 2003 is Rs. 13,500/-, whereas the plaintiff comes before the court with a submission that the rate of rent is Rs. 51,000/- in view of the agreement executed on 01/10/2006. This agreement has been denied by the defendant. In view of the admissions made by the defendant himself, the rate of rent is atleast Rs. 13,500/- per month i.e. out side of the protection as provided by Delhi Rent Control Act. Whether rent agreement dated 01/10/2006 executed between the parties is correct or not, the same can be seen during disposal of the suit regarding issue of mesne profits. Even if the contention of the defendant is believed upon that there was no written rent agreement executed between the parties on 01/10/2006, Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 12: then also the tenancy qua the suit premises of the defendant is month to month. In such circumstances, this court refers clause 17 of rent agreement dated 01/10/2003 :
"17. That this Rent Agreement can be renewed for further period on the terms and conditions mutually agreed upon between both the parties."
11. The contention raised by ld counsel for defendant that since rent was collected by Sh. Desh Raj Chawla, i.e. S/o. Late Sh. K. L. Chawla, after the death of late Sh. K. L. Chawla, therefore, the tenancy was renewed between the parties. Here, the court has to observe that even if the arguments raised by the ld counsel for the defendant assumed to correct, then also the tenancy was month to month as it was already agreed upon by rent agreement dated 01/10/;2003 that a tenancy could be renewed between the parties only. After the death of late Sh. K. L. Chawla, Sh. Desh Raj Chawla was not the party to the rent agreement but LRs of late Sh. K. L. Chawla were the LRs of the rent agreement and in those circumstances, the plaintiff was also to be consented for renewal of the rent agreement. But the fact remains that there is no such record filed by the defendant that any rent agreement was ever executed between Sh. Desh Raj Chawla and the defendant. On the contrary, the plaintiff has already filed a rent agreement executed on 01/10/2006, though it is disputed by the defendant. Thus, this contention also does not sustain in view of the observations made by this court herein above.
12. Another contention raised by ld counsel for the defendant that by virtue of holding over and after making payment of the agreed rent since October, 2006 to Sh. Desh Raj Chawla, a fresh tenancy has been created. Section 116 of the Transfer of Property Act states :
"116. Effect of holding over.- If a lessee or Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 13: under-lessee of property remains in possession thereof after the determination of the lease granted tot he lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."
In Bhawanji Lakhamshi and others Vs. Himatlal Jamnadas Dani and others (1972) 1 Supreme Court Cases 388, where in it was held :
9. The act of holding over after the expiration of the term does not create a tenancy of any kind.
If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English. Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Another, the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the tenancy might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 14: acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations :
"Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy."
10. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy........." It was further held in para 13 of the said judgment as :
"13. Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Section 116. We are not inclined to accept this contention. We have already shown that the basis of the Section is a bilateral contract between the erstwhile landlord and the erstwhile tenant. If the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 15: thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in Ganga Dutt Murarka v. Kartik Chandra Das (supra) regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession."
In Bhuneshwar Prasad and another Vs. United Commercial Bank and others (2000) 7 Supreme Court Cases 232, wherein para 7 it was held :
"7. ........ The whole basis of Section 116 is that a landlord is entitled to file a suit for ejectment and obtain a decree for possession and, therefore, his acceptance of rent after expiry of lease is an unequivocal act referable to his desire to assent to the tenant continuing possession. It would be absent in cases where there are restrictions as contemplated by rent laws. In such cases, therefore, it is for the tenant where it is said that the landlord accepted the rent not as a statutory tenant but only as a legal tenant indicating his assent to the tenant's continuing possession, to establish it."
The Hon'ble High Court in M/s. Jeevan Diesels & Electricals Ltd. (supra) held :
"9................I must also note that the Supreme Court in the case of Sarup Singh Vs. S. Jagdish, 2006 (4) SCC 205 has held that receipt of rent after termination of tenancy can be taken as charges towards use and occupation because after all a tenant is bound to pay charges till he vacates the tenanted premises. Finally, I must add that after all the appellant has not led any evidence in the trial Court and assuming the case was pleaded of creation of a fresh tenancy by acceptance of higher rent, the appellant had necessarily to lead evidence Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 16: to prove this aspect and which it did not. I thus fail to understand as to how this argument can at all be raised."
Thus, the plea raised by the ld counsel for the appellant regarding holding over is not going to help in any manner to the defendant.
13. In view of the observations made herein above and in view of the admissions made by the defendant in his written statement, judgment on admission is passed in favour of the plaintiff and against the defendant with direction to the defendant to hand over the vacant and peaceful possession in respect of an open space measuring approximately 275 sq. yds. forming part of property no. A-103/7, Wazirpur Industrial Area, Delhi, which has been more specifically shown in red colour in the site plan filed by the plaintiff. The site plan filed by the plaintiff shall form part of the decree to be prepared upon the judgment passed herein. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant thereby restraining the defendant, his family members, attorneys, successors etc from creating third party interest in respect of the above said premises of an open space measuring approximately 275 sq. yds. forming part of property no. A-103/7, Wazirpur Industrial Area, Delhi till the same be handed over by the defendants to the plaintiff. Decree sheet be prepared accordingly.
Announced in the Open Court today on 14.11.2011.
(Jitendra Kumar Mishra) Additional District Judge-III, Rohini Courts, Delhi Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal : 17: CS No. 343/11 14.11.2011 Present: None.
By separate order announced in the open court, judgment on admission under Order 12 Rule 6 of CPC regarding the relief of possession and permanent injunction in respect of in respect of an open space measuring approximately 275 sq. yds. forming part of property no. A-103/7, Wazirpur Industrial Area, Delhi, which has been more specifically shown in red colour in the site plan filed by the plaintiff. The site plan filed by the plaintiff shall form part of the decree to be prepared upon the judgment passed herein. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant thereby restraining the defendant, his family members, attorneys, successors etc from creating third party interest in respect of the above said premises of an open space measuring approximately 275 sq. yds. forming part of property no. A-103/7, Wazirpur Industrial Area, Delhi till the same be handed over by the defendants to the plaintiff. Decree sheet be prepared accordingly.
Now to come up for further proceedings regarding the other reliefs prayed in the suit, on 06.03.12.
(Jitendra Kumar Mishra) ADJ-III, Rohini Courts,Delhi 14.11.2011 Civil Suit no. 343/11 Smt. Kailash Rani Vs. Sh. Sharwan Aggarwal