Delhi District Court
Kusum Nagia vs . Sanjay Gupta on 23 November, 2012
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 228/2012
In the matter of :
Kusum Nagia Vs. Sanjay Gupta
23.11.2012
ORDER :
Vide this order, I shall dispose off the application of the plaintiff filed u/o 12 Rule 6 CPC.
2 Plaintiff has filed the present suit for possession, mesne profit and damages. Plaintiff has submitted that she through her SPA holder let out on rent the suit property i.e. 2nd floor of the property bearing no. R6, Nehru Enclave, New Delhi110019 to the defendant for a period of 2 years w.e.f. 01.08.2009 at monthly rent of Rs.9,600/ for the first 12 months and thereafter with an increase of 10% i.e. @ Rs.10,560/ per month excluding electricity charges etc. till the expiry of the period of lease vide a Registered Lease Agreement dated 12.10.2009. The defendant was the lawful tenant of the plaintiff in the suit property, during the tenure of the lease, which has since expired by efflux of time on 31.07.2011 and since 01.08.2011, the defendant is in unauthorized possession of the suit property.
3 Plaintiff has submitted that clause 2 of the Lease Agreement
Kusum Nangia Vs. Sanjay Gupta Contd....P..1 of 7
: 2 :
provides that defendant would handover vacant and peaceful possession of suit property in good condition to the plaintiff upon expiry of the lease period failing which the defendant shall render himself liable to pay a sum of Rs.1,500/ per day over and above to the monthly rent to the plaintiff until the date of handing over the possession of suit property.
4 Plaintiff has submitted that after expiry of first 12 months of lease period, the defendant was regular in paying the monthly enhanced rent and also towards amount payable towards fitting and fixtures.
5 Plaintiff has also submitted that the Lease Agreement expired by efflux of time on 31.07.2011, however, the defendant despite repeated requests / reminder by the plaintiff did not vacate the suit premises and his occupation of the suit property after 31.07.2011 is unauthorized and illegal. 6 Plaintiff by way of abundant precaution served a legal notice of eviction dated 21.10.2011. However, the defendant did not hand over the vacant and peaceful possession of the suit property and is also in arrears towards rent, fitting and fixture charges etc. Hence the present suit has been filed. 7 Defendant has filed the detailed WS.
8 Plaintiff has filed the present application u/o 12 Rule 6 CPC for passing a decree of possession in her favour on the basis of admissions. 9 Defendant has also filed his reply to the said application and has denied admissions on his behalf and has prayed for dismissal of the present application. Defendant has submitted that additional amount of Rs.2 lakhs was Kusum Nangia Vs. Sanjay Gupta Contd....P..2 of 7 : 3 : given to the plaintiff on 22.04.2012 on the mutual oral settlement of extending the lease of suit property till 31.03.2014 on the same terms and conditions as agreed in the Lease Deed dated 12.10.2009. Defendant has submitted that since the tenancy has been extended orally for a period of 2 years, the present suit is non maintainable. Defendant has denied the receipt of any notice dated 21.10.2011. 10 Defendant has also submitted that plaintiff has accepted rent after expiry of original period of tenancy as stated in replication and accordingly the tenancy continues and the present application is nonmaintainable. 11 Detailed arguments were advanced by both the counsels. 12 Arguments heard. Record perused carefully.
13 For passing a judgment of possession on basis of admissions, the admissions are required with respect to the following:
i Admission regarding relationship of landlord and tenant between the parties.
ii Monthly rent to be above Rs.3,500/. iii Valid termination of tenancy. 14 A perusal of the WS reveals that defendant has admitted to be in
possession of the suit property in the capacity of landlord and tenant. Defendant has also admitted that the monthly rent is above Rs.3,500/. Defendant in Para 2 of reply on merits has admitted that the Lease Deed dated 12.10.2009 has expired by efflux of time on 31.03.2011. However, defendant has submitted that Lease Deed has been extended orally on 22.04.2012 for a period of 2 years till Kusum Nangia Vs. Sanjay Gupta Contd....P..3 of 7 : 4 : 31.03.2014. According to Section 107 of Transfer of Property Act a lease of immovable property for any term exceeding 1 year can be made only by a registered instrument. In view of Section 107 of Transfer of Property Act, the submission with respect to extension of tenancy orally for a period of 2 years is untenable and invalid. Thus there is no force in the submission of the defendant that the tenancy stood extended for a period of 2 years.
15 Defendant has submitted that plaintiff has accepted the rent after expiry of period of tenancy and accordingly the tenancy continuous. However, there is no force in the said submission also as it has been held in various judgments that mere acceptance of rent by the landlord does not extend or continue the tenancy. Thus acceptance of rent by the plaintiff after expiry of period of tenancy does not amount to continuous of tenancy. It was held in the matter of Phool Rani Trivedi Vs. Sh. Sheel Chandra, 2004 Rajdhani Law Reporter 467 that if tenant of lease deed of three years does not quit on expiry, then tenancy gets terminated by efflux of time. Mere payment of rent thereafter does not result in holding over u/s 116 nor acceptance of rent amounts to waiver.
Thus, acceptance of rent by the plaintiff in the present matter does not amount to extension or continuous of tenancy in favour of the defendant. 16 Defendant has denied the receipt of notice of termination dated 21.10.2011. Plaintiff has filed copy of the legal notice dated 21.10.2011 alongwith original postal receipts and original courier receipts on record. It has been held by superior courts that in case of original receipts being there on record, the Kusum Nangia Vs. Sanjay Gupta Contd....P..4 of 7 : 5 : service is deemed to have been completed. Thus the defendant was served the notice of termination of tenancy although the tenancy stood terminated otherwise also by efflux of time.
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 106 of 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 acknowledgment 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 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 view of law laid down in Atma Ram Properties(P) Ltd. vs. Pal Properties(India) Pvt. Ltd. and others, 91(2001) DLT438, and Section 27 of Kusum Nangia Vs. Sanjay Gupta Contd....P..5 of 7 : 6 : General Clauses Act, the defendant is deemed to have been served with the said letter. Thus, there was valid termination of tenancy.
Even otherwise, in the matter of M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; it had been held by Hon'ble High Court of Delhi that even service of summons in a suit can be treated as a notice under Section 106 of the Transfer of Property Act, 1882. It had been further held that along with the suit, copy of the notice terminating tenancy as a document is served upon the defendant, and which once again can be treated as a notice terminating tenancy. Accordingly taking aid of Order 7 Rule 7 CPC, it had been held that in suits for possession by a landlord, technical defences with respect to notices should not be permitted as long as the 15 day period expires prior to the filing of the suit. This decision of Hon'ble High Court of Delhi was challenged by way of SLP and the same has been dismissed by the Hon'ble Supreme Court of India bearing SLP NO. 15740/2011 on 07.07.2011. In the present case also, the notice for vacation of suit property was given on 21.10.2011 and suit is filed on 02.05.12 and thus 15 days period had expired prior to the filing of the suit. Further, defendant was served on 07.05.12. In view of the law laid down in M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; there is valid termination of tenancy as 15 days period had expired prior to the filing of the suit as well as because service of summons in a suit can be treated as a notice under Section 106 of Transfer of Kusum Nangia Vs. Sanjay Gupta Contd....P..6 of 7 : 7 : Property Act.
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.
17 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. As the necessary ingredients for passing a decree for possession exist in favour of the plaintiff, there is no requirement for her to go through the rigmarole of a protracted trial. 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 the plaintiff by 31.12.12. Decree sheet be drawn accordingly.
Dictated and announced in the open court on 23.11.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 23.11.2012 Kusum Nangia Vs. Sanjay Gupta Contd....P..7 of 7