Delhi District Court
Varinder Singh vs Rachit Dandriyal on 7 May, 2014
Page 1 of 11
IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 04 (SE)
SAKET COURTS COMPLEX: NEW DELHI
CS No.61/2014
Unique Case ID No.02406C0052572013
Varinder Singh Versus Rachit Dandriyal
O R D E R
1. Vide this order I shall dispose of the application of plaintiff under Order 12 Rule 6 CPC for seeking decree of possession in respect of suit premises in his favour on the basis of the admissions of defendant.
2. It is a matter of record that present suit was instituted before learned Civil Court and vide order dated 19.01.2013, plaint was ordered to be returned under Order 7 Rule 10 CPC for want of pecuniary jurisdiction and refiled before learned District Judge on 26.02.2013 from where it was assigned to this Court on 01.02.2014.
3. It would be relevant to note that initially the suit was filed by the father of the present plaintiff late Sh Baljeet Singh, through his attorney Sh Harminder Pal Singh. After the death of father of present plaintiff, Smt.Charanjit Kaur was allowed to be substituted vide order dated 16.04.2013 as by virtue of Will dated 18.05.1995, a life time interest was created in her favour in respect of suit property. However, on demise of CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 2 of 11 Smt.Charanjit Kaur, present plaintiff Sh Varinder Singh was allowed to be substituted at her place vide order dated 10.01.2014 as the suit property devolved upon the present plaintiff as per aforementioned registered will of his deceased father.
4. Briefly stated the facts necessary for the disposal of instant application are that: Present suit has been filed for seeking recovery of possession, arrears of rent, mesne profits/damages and permanent injunction against the defendant on the claim that father of present plaintiff late Sh Baljeet Singh, who was the owner of suit premises i.e. first floor of property bearing No.D50, Amar Colony, New Delhi, had let out the suit premises to defendant at a monthly rent of Rs.20,500/per month inclusive of water charges for a period of 11 months from 01.12.2011 till 30.10.2012 vide a lease agreement dated 16.11.2011. It is alleged that the defendant was irregular in payment of rent and after October, 2012 he did not pay any rent. Subsequent to which, father of the present plaintiff issued a legal notice dated 01.07.2012 calling upon defendant to vacate the suit premises by 31.08.2012. Upon receipt of said legal notice, defendant vide communication dated 04.07.2012 assured to vacate the suit premises by 30.10.2012. However, instead of vacating the suit premises on said date, defendant filed an injunction suit on totally fallacious grounds before the then learned Civil Judge Smt.Pooja Talwar. Considering the aforesaid conduct of the defendant, father of the plaintiff in order to avoid any CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 3 of 11 technical objection, again issued a legal notice dated 03.12.2012 for determination of lease agreement and called upon defendant to hand over the possession of suit premises by 31.12.2012.
5. Defendant has contested the suit by filing the WS. As per record, WS was filed on 17.07.2013 after the substitution of Smt.Charajiet Kaur on record vide order dated 16.04.2013. The defendant in the WS denied the locus of plaintiff to file the present suit by denying his ownership in respect of the suit property. The defendant however, neither denied the execution of lease deed dated 16.11.2011 nor the rate of rent but only contended that rent of Rs.20,500/ was inclusive of water charges. Defendant further claimed to have regularly made the payments of rent till October, 2012. It is further submitted that after October, 2012, plaintiff refused to accept the rent personally in order to make false and frivolous grounds to evict the defendant and therefore, defendant made the payments of rent through bank draft till 31.12.2012. Payments of rent was however stopped from January, 2013 as plaintiff expired on 29.01.2013. Defendant has however denied receipt of any legal notice dated 13.12.2012, allegedly sent by plaintiff for termination of lease agreement.
6. During pendency of present suit, plaintiff filed instant application under Order 12 Rule 6 CPC on the ground that defendant has replied in WS that contents of para No.1 of plaint are matter of record, thereby admitting that relationship of landlordtenant, but falsely disputed CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 4 of 11 the ownership of plaintiff in respect of the suit property. The rent agreement has also been admitted between the parties and the service of legal notice dated 03.12.2012 was effected upon defendant for termination of the lease deed on 14.12.2012 as per the online tracking report of speed post. It is prayed that after the termination of tenancy, defendant is now in unauthorised occupation of suit premises and the decree of possession of suit property is prayed on the basis of admission against the defendant.
7. Defendant has also filed reply to the application and asserted that the application is not maintainable as same is based on wrong and incorrect facts. In reply, defendant has also denied the locus of plaintiff to continue with the present case after demise of his father. The defendant in reply on merits broadly averred that facts are matter of record, however, disputed the service of legal notice for termination of the tenancy by both notices dated 01.07.2012 or 03.12.2012 and even the tracking report is alleged to be forged one.
8. In the instant application, plaintiff has prayed for decree of possession of the suit property on the ground that considering the clear and unequivocal admissions in the WS regarding execution of the lease agreement and thereby existence of relationship of tenant and landlord between defendant and plaintiff and further regarding determination of lease deed in terms of the Section 111 of the Transfer of Property Act, CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 5 of 11 1882, the plaintiff is entitled for decree of possession on admissions under Order 12 Rule 6 CPC. In support of his argument, learned counsel for plaintiff has relied upon following authorities :
i) Surjit Sachdev v Kazakhstan Investment Services Pvt Ltd & Ors : 66 (1997) DLT 54 (DB);
ii) Sh Ravinder Pal Singh v Hanif A Haroon :
AIR 2004 Delhi 383; &
iii) Zulfiquar Ali Khan & Ors v J K Helene Curtis Ltd & Ors :
AIR 2002 Delhi 425.
9. I have heard arguments from both the sides and gone through the entire records.
10. Before adverting to the pleadings of the parties, it would be germane to take a look of the provisions of Order 12 Rule 6 CPC, which reads as 'Judgment on admissions. (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) xxxxx xxxx
11. The admitted facts between the parties are that late Sh Baljeet CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 6 of 11 Singh (father of present plaintiff) was the owner and landlord of the suit premises i.e. first floor of property bearing No.D50, Amar Colony, New Delhi and he inducted the defendant as tenant in suit premises at a monthly rent of Rs.20,500/ (inclusive of water charges) vide lease agreement dated 16.11.2011. The suit was initially filed by late Sh Baljeet Singh through his attorney, but after his demise, his wife Smt.Charanjit Kuar, came on record vide order dated 16.04.2013 as LR of late Sh Baljit Singh as in her favour life time interest in respect of the suit property was created by late Sh Baljeet Singh vide registered Will dated 18.05.1995. Subsequently, after the death of Smt.Charanjit Kaur, the property came to devolve upon present plaintiff Sh Varinder Singh by virtue of aforementioned registered will of his father and hence, right to sue survived in his favour and he came to be impleaded as LR of late Smt.Charanjit Kaur.
12. Learned counsel for defendant has vehemently argued that since the defendant has challenged the locus of plaintiff to maintain the present suit and further his ownership in the suit property, no decree under Order 12 Rule 6 CPC can be passed as disputed questions of fact are invovled in the matter. He has further argued that defendant has also denied the service of both the alleged legal notices dated 01.07.2012 and 03.12.2012 and also the postal tracking report filed in respect thereof, hence, as such there is no admission as regard termination of tenancy, entitling the plaintiff for a decree under Order 12 Rule 6 CPC.
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13. As regards the question of title or ownership of present plaintiff is concerned, it is necessary to mention here that defendant has nowhere denied the lease agreement dated 16.11.2011, relationship of tenant and landlord between him and late Sh Baljeet Singh in respect of suit premises. The suit was initially filed by late Sh Baljeet Singh and it is only after his death and death of his wife Smt.Charanjit Kaur, the present plaintiff came to be impleaded on record as LR of original landlord. In this manner, present plaintiff has just stepped into the shoe of original owner/landlord especially qua his relationship with the defendant. In view of the provision of Section 116 of the Indian Evidence Act, 1872, a tenant is estopped from denying the ownership of his landlord and likewise, the defendant is precluded from denying the ownership of present plaintiff as he has just come on record as the LR of original landlord. Here in the instant case, the suit property has come to devolve upon present plaintiff by virtue of the registered will dated 18.05.1995. During the course of arguments, learned counsel for defendant submitted that genuineness of the said Will is also in dispute and his objection in this regard is also recorded by the learned predecessor court in the order dated 10.01.2014 vide which the application of the present plaintiff under Order 22 Rule 3 CPC was allowed, but the issue regarding the genuineness of said 'Will' was kept open to be decided at later stage.
14. To my opinion, the tenant has no right to challenge the genuineness of will executed by the landlord. But for the sake of CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 8 of 11 arguments, even if the 'Will' is believed to be forged or nonexistent, even in that case, law is very clear on the point that any of the coowners of the property may approach the Court to seek possession from the tenant. Admittedly, present plaintiff is the son of the original landlord. Here, the defendant has not even disclosed as to who else is claiming the ownership in the suit property so as to dispute the genuineness of the said registered Will dated 18.05.1995.
15. Having regard to the aforementioned discussion, the landlord tenant relationship between the plaintiff and defendant stands established on record in view of the admission of the defendant regarding execution of the lease deed dated 16.11.2011.
16. Now, comes to the question of termination of tenancy. As per Section 111 of the Transfer of Property Act, 1882 tenancy comes to an end in event of the various contingencies enumerated therein. One of them is by efflux of time where the tenancy was created for a fixed period of time and secondly, on the expiry of the period of notice of determination of tenancy.
17. In the instant case, the tenancy was created for eleven months with effect from 01.12.2011 till 30.10.2012. Since there is no plea of renewal or holding over, the tenancy came to an end by efflux of time on 30.10.2012. In para No.5 of WS, defendant himself has asserted that CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 9 of 11 plaintiff accepted payments of rent only till October, 2012 and thereafter, he made payments through bank draft. Thus, there cannot be any question of plaintiff consenting to the continuation of holding over.
18. Furthermore, in order to avoid any technical objection, plaintiff also issued a legal notice for determination of lease on 03.12.2012 and called upon the defendant to hand over the possession of suit property by 31.12.2012. Plaintiff has also placed on record Indian Post Tracking Report as per which, the notice was delivered at the address of the defendant on 14.12.2012. In this way, a clear 15 days notice was given to vacate the suit premises as per the provisions of Section 106 of the Transfer of Property Act, 1882. Furthermore, the defendant was sent notice on the address of suit premises i.e. on the very same address where he was served with the summons of the present suit. Hence, the notice was also sent at the correct address of defendant.
19. Even otherwise, Hon'ble High Court of Delhi in the matter of M/s Jeevan Diesels and Electrical Ltd v M/s Jasbir Singh Chadha (HUF) & Ors : RFA No.179/2011 decided on 25.03.2011 held that even service of summons in a suit can be treated as a notice under Section 106 Transfer of Property Act, 1882. It had been further held that alongwith 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 CS No.61/2014 Varinder Singh v Rachit Dandriyal Page 10 of 11 for possessions 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 before the Hon'ble Apex Court vide SLP No.15740/2011 which was dismissed on 07.07.2011. In the instant case also, the later notice of vacation of suit property was given on 03.12.2012 and suit is initially filed on 17.01.2013 and thus, 15 days period had clearly expired prior to the filing of the suit. Further, defendant was served somewhere around 11.03.2013. In view of the law laid down in M/s Jeevan Diesels (supra); 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 the TP Act, 1882, although no such notice was required to be served by the plaintiff on the defendant in terms of clause 1 of the lease agreement dated 16.11.2011. Even otherwise, no notice is required in view of the fact that the tenancy was created for a fixed period of 11 months and same stands expired by efflux of time as well.
20. In Pooja Aggarwal v 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.
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21. 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 CPC are fulfilled. As the requisite ingredients for passing a decree for possession exist in favour of plaintiff, there is no requirement for him to go through the rigmarole of a protracted trial.
22. In view of above discussion, instant application of plaintiff is allowed and stands disposed of. Accordingly, a decree of possession of suit premises i.e. first floor of property bearing No.D50, Amar Colony, New Delhi as depicted in red colour in site plan in favour of plaintiff and against the defendant is hereby passed. Defendant is directed to hand over the peaceful and vacant possession of the suit premises to the plaintiff on or before 10.07.2014. Decree sheet be drawn accordingly.
(Sunena Sharma) Addl. Distt Judge04/SouthEast Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 07.05.2014.
CS No.61/2014 Varinder Singh v Rachit Dandriyal