Delhi District Court
Smt. Manju Badiala vs Sh. Naushad on 1 May, 2007
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IN THE COURT OF MRS. R. KIRAN NATH,
ADDL. DISTRICT JUDGE:DELHI.
SUIT NO: 77/05
In Re:
Smt. Manju Badiala
W/o Sh. S.K. Badiala
R/o Flat No.135-F, Pocket-I,
Mayur Vihar-1,
Delhi- 110091. .... Plaintiff
VERSUS
Sh. Naushad
S/o Sh. Abdulla Hazi
R/o A-7/1, Acharya Niketan
Delhi- 110091 .... Defendant
: O R D E R :(Application u/O XII rule 6 CPC) This order shall dispose of an application u/O XII rule 6 CPC filed by the plaintiff.
In brief the facts material for consideration of this application are that the plaintiff has filed this suit for possession, permanent injunction, recovery of rent and damages.
It is the case of the plaintiff that she being the owner of the shop measuring 250 sq. ft., local no.1 built on the ground floor of property No. A-7, Acharya Niketan, Mayur Vihar, Phase-1, Delhi (hereinafter called Manju Badiala vs. Naushad :2: the suit property) had let out the same to the defendant for a period of 11 months w.e.f. 01.3.2004 on a monthly rent of Rs.20,000/-. The possession was handed over along with the furnitures, fixtures and fittings. It was the grievance of the plaintiff that after expiry of said period on 1.2.2005, the defendant did not vacate the premises.
Thereafter, the plaintiff joined her husband at his posting in North-East India. The defendant paid rent only for two months and stopped paying rent thereafter. It is the grievance of the plaintiff that while she was away, the defendant had made unauthorised alterations in the shop without her permission. The plaintiff demanded the defendant to vacate the shop, but the defendant did not pay any heed to the same. A legal notice dated 25.2.2005 was served upon the defendant terminating his tenancy and asking him to pay the arrears of rent and hand over the peaceful and vacant possession of the premises to her.
It is further her grievance that instead of complying with the legal notice, the defendant has levelled false allegations against her. Hence the suit seeking the decree of possession, arrears of rent amounting to Rs.2,40,000/- for 12 months @ Rs.20,000/- per month. The plaintiff has also prayed for decree of permanent injunction to restrain the defendants, his associates, representatives and agents etc. from transferring, alienating and creating any third party interest or parting with possession of the suit Manju Badiala vs. Naushad :3: property. Besides this, the plaintiff has also claimed damages for Rs.1,05,000/- for unauthorised use and occupation of the suit premises by the defendant from 1.2.2005 till the filing of the suit and further damages @ Rs.1000/- per day from the date of filing of the suit till the recovery of the possession of the suit premises.
The defendant has contested the suit on the ground that the lease was initially for a period of three years i.e. though it was shown only for eleven months in the agreement, but it was orally extended for another three years and hence the plaintiff could not file the suit for possession before that date. Further that the defendant had spent a sum of Rs.1,19,000/- for the basic structural changes, modification and renovation of the building for the benefit of the plaintiff and for his jewellery business. The said renovation and changes had been done with the active supervision and co-operation of the plaintiff and on the understanding that the expenses will be adjusted from the future rent as also on the understanding that the lease was extended for another three years with 10% enhancement after two years. Thus, a cheque for Rs.20,000/- was issued by the defendant, which was accepted by the plaintiff and encashed and from the act, it was clear that there was extension of lease.
It was further submitted by him that immediately after having leased out the premises i.e. from 20.3.2004 the plaintiff had started some Manju Badiala vs. Naushad :4: major construction/renovation work and structural changes. The plaintiff had requested for change of location of staircase and filling of basement so as to enable her to lease out the first floor of the premises on a good rent.
The defendant had spent around Rs.1,19,000/- on the renovation work and on demand, the plaintiff had stated that the same could be deducted from the future monthly rent. The defendant lost around 10% of leased space due to construction of staircase by the plaintiff. The defendant admitted having receive the legal notice dated 25.2.2005 from the plaintiff.
Thereafter, this application under Order XII rule VI CPC was moved by the plaintiff. Vide the present application, the plaintiff prayed for decree on admission. It is her case that in the WS, the defendant had admitted the relationship of landlord and tenant; he admitted the execution of the rent agreement dated 27.3.2004 for 11 months wef 1.3.2004 to 1.2.2005; he has also admitted the rate of rent @ Rs.20,000/- per month; he has also admitted the service of legal notice dated 25.2.2005; in para T of the WS, the defendant had also admitted the factum of arrears of rent amounting to Rs.1.00 lacs in as much as he had stated that the pay order for the same was ready on 16.8.2005. It was submitted that the decree of possession, permanent injunction, recovery of rent and damages be passed against the defendant on these admissions as there was no issue arising or Manju Badiala vs. Naushad :5: likely to arise for the purpose of trial in view of these admissions.
The defendant has contested this application submitting on the same lines as the WS that the rent agreement was initially for a period of 11 months, but was orally extended for another three years. The actual possession was only 180 sq. ft. working space instead of 237.50 sq. ft as alleged and that 57.5 sq. ft of the space was lost due to structural changes made by the parties. The plaintiff has agreed to extend the lease for further period of three years; that Sh. Rajesh, who used to collect the rent on behalf of the plaintiff, had refused to accept the same while the plaintiff was away and as such there was no willful default on part of the defendant. It is his case that he had spent a sum of Rs.1,19,000/- on renovation of the said premises after taking the plaintiff into confidence.
I have heard the Ld. Counsel for both the parties at length and have gone through the record carefully. Thereafter, my opinion on this application is as under.
Order 12 rule 6 CPC provides for judgment on admissions as under :-
'(1) Where admissions of fact have been made either in the pleading 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 Manju Badiala vs. Naushad :6: 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) Whenever 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 on which the judgment was pronounced.' In the present case, the landlord tenant relationship is admitted; the rate of rent @ Rs.20,000/- was also admitted; the execution of the rent agreement dated 27.3.2004 between the parties is also admitted.
The original rent agreement is filed on record. It is seen that the said agreement is duly registered with the office of Sub-Registrar. It, specifically, provides that the premises is let out for a period of 11 months from 1.3.2004. Clause 8 of the said agreement further provides that the defendant shall hand over the vacant possession of the premises to the plaintiff on the expiry of rent agreement.
Clause 14 of the said agreement further provides as under :
'That if the second party fails to vacate the said premises within the stipulated period of 11 months, the second party shall pay a penalty of Rs.1000/- per day in addition to the agreed rent amount and the penalty/rent amount is reduced to nil the first party shall take possession of the said premises and the second party shall have no objection in this regard.' Manju Badiala vs. Naushad :7: Section 111 of the Transfer of Property Act, 1882 provides that the lease of immovable property determines by the efflux of time after 11 months, hence when there is a registered lease executed between the parties for eleven months, the said lease automatically determines by efflux of time after eleven months.
That aside, in the present case, the plaintiff had got issued the legal notice dated 25.2.2005 through an advocate whereby the tenancy of the defendant was terminated. The defendant admitted having received the said notice.
The defendant had taken a stand that though the lease deed shows that the premises had been leased out for eleven months, in fact, the terms of the lease had been extended by an oral agreement for another three years. This contention of the defendant cannot be accepted in view of Section 91 of the Indian Evidence Act, 1872. Once the lease has been granted to the defendant by way of a registered document, the same could be extended only by a written agreement and no oral evidence is admissible to prove that the terms of the lease had been extended by a mutual understanding. Under the law i.e. under Section 107 of the Transfer of Property Act, 1882, the lease of an immovable property for a term exceeding one year can be made only by a registered instrument. In the absence of a registered instrument, granting the lease of the said property Manju Badiala vs. Naushad :8: for three years in favour of the plaintiff, the plea of the defendant is not admissible that the terms of the lease had been extended for another three years by an oral agreement.
I am, thus, of the opinion that in view of above facts, the claim of the plaintiff for recovery of possession of the suit premises stands admitted.
The plaintiff had also prayed for a decree of permanent injunction to restrain the defendant, his associates, family members, authorised representatives and agents etc. from transferring, alienating or creating any third party interest or parting with possession of the suit property. In view of my above observations that the plaintiff is entitled for recovery of possession, I am of the opinion that the plaintiff is also entitled to this injunction.
The plaintiff has claimed the arrears of rent to the tune of Rs.2,40,000/- as it is stated by her that the defendant has admitted the arrears of rent in as much as he has mentioned in the WS that he had sent a letter to the plaintiff counsel on 19.8.2005 stating that a pay order of Rs.1.00 lakh towards arrears of rent was ready. Manju Badiala vs. Naushad :9: However, in my opinion, the same can not be said to be an unqualified admission of the defendant for being in arrears of rent w.e.f. 1.5.2004 for 12 months. This admission made by the defendant in para 'T' of the WS is for arrears of rent of Rs.1.00 lacs till the time of filing of the WS i.e. till 19.8.2005 i.e. a rent of five months as on 19.8.2005. Whereas the plaintiff has claimed the rent for 12 months from 1.5.2004 to 30.4.2005. Hence, it cannot be said that the defendant has admitted that he was in arrears of rent w.e.f. 1.5.2004.
Rather, the defendant has taken a stand that he had spent a sum of Rs.1,19,000/- on the basic structural changes in the suit premises. This is a question, which can only be decided on trial. Hence, it cannot be said that the defendant has admitted that he was liable to pay the arrears of rent as claimed by the plaintiff.
I, thus, hold that in view of my discussions above, I am of the opinion that the defendant has only admitted the case of the plaintiff with respect to the possession of the property held by him. The plaintiff is thus, entitled to the recovery of possession on the admissions of these facts by the defendant. Hence, a decree under Order 12 rule 6 CPC for recovery of possession of the suit premises and permanent injunction is, thus, passed. The defendant, his associates, family members, authorised representatives and agents etc. are restrained from transferring, alienating or creating any Manju Badiala vs. Naushad :10: third party interest or parting with possession of the suit property.
Decree-sheet be prepared accordingly.
ANNOUNCED IN THE OPEN COURT ON 01.05.2007.
J. (R. KIRAN NATH)
ADDITIONAL DISTRICT COURT : DELHI.
Manju Badiala vs. Naushad
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Suit No. 77/05
01.05.2007
Present: None
Vide separate order of date, I have partly allowed the application u/O XII rule 6 CPC.
The suit of the plaintiff is partly decreed, on the admissions by the defendant, for recovery of possession and permanent injunction. The defendant, his associates, family members, authorised representatives and agents etc. are restrained from transferring, alienating or creating any third party interest or parting with possession of the suit property.
The defendant is further directed to hand over the vacant possession of the suit premises within two months from today.
Case, now, to come up for admission/denial of the docments and framing of issues with respect to the point of arrears of rent and damages for 31.07.2007.
(R. KIRAN NATH) ADJ/DELHI/ 01.05.2007 Manju Badiala vs. Naushad