Delhi District Court
Tina Kohli vs . Shalini Jolly on 15 May, 2014
Tina Kohli Vs. Shalini Jolly CS 203/14 15.05.2014
ORDER ON THE APPLICATION U/O 12 RULE 6 CPC Vide this Order I shall dispose off an application u/o 12 Rule 6 CPC. Plaintiff has filed the suit for possession recovery of damages and future mesne profits in respect of residential Flat No.20, Top Floor, Milansar Apartments, Paschim Vihar, New Delhi.
2 As per the plaintiff, the lease deed dated 10.07.2007, wherein the original rent agreed was Rs.7,000/ p.m., and which lease deed was duly registered, was originally for a period of two years i.e. from 01.07.2007 till 30.06.2009 and that after expiry of the initial lease dated 10.07.2007, the parties entered into a fresh agreement on 21.07.2010 mutually agreeing to extend the lease for another period of 11 months w.e.f. 01.07.2010 up to 30.05.2011, whereafter the tenancy become on month to month basis at an increased rent of Rs.9,000/ p.m. 3 Due to irregular payment of the rent, the plaintiff did not want to continue with the defendant as a tenant and terminated the tenancy by means of a registered AD notice dated 11.03.2013 which notice, as already above discussed, was duly received and even replied.
Pages 1 to 7 Tina Kohli Vs. Shalini Kohli 4 Plaintiff had called upon the defendant to vacate the premises by
01.04.2013 and in default, her possession over the property thereafter would be illegal. Since the defendant failed to vacate, the present suit was filed for the major relief being possession and remaining being for recovery of rent arrears, damages for use and occupation.
5 As per the applicant/plaintiff, in their pleadings/WS, the defendant has admitted the relationship of landlordtenant between the parties, the rate of rent i.e. Rs.9,000/ p.m. also stands admitted and further the receipt of notice of termination of tenancy dated 11.03.2013 has also not been disputed as in fact even a reply had been sent thereto on 12.04.2013 by the defendant. The rent being more than Rs.3500/ p.m. and all the above aspects having been already admitted, no evidence would be required for passing the decree of possession and accordingly, he prays for a decree of possession based on admissions. 6 In her reply, the defendant/nonapplicant raises some preliminary objections, though they are in general, and simply that the application is an abuse of process of law based on false and frivolous facts and grounds and further that plaintiff has concealed material facts from the court. 7 Further the defendant on merits submits that though the relationship of landlordtenant between the parties is not disputed, but that she has paid the rent up till March 2013 and whereafter it is the plaintiff who refused to receive the Pages 2 to 7 Tina Kohli Vs. Shalini Kohli rent.
8 The exact rate of rent as per the defendant is stated to be Rs.8500/ and not Rs.9000/. As alleged by the defendant, Rs.500/ was being deducted every month by month by the defendant as it was the version of the defendant/non applicant that plaintiff had availed a loan of Rs.39,500/ by a cheque from the defendant for major repairs, whitewash, flooring etc. and out of which, Rs. 24,000/ was still unpaid and lying due against the plaintiff, further Rs.48,000/ is claimed to have been paid by the defendant against the security by way of two installments i.e. Rs.21,000/ paid in June 2007 and Rs.27,000/ paid in July 2010. 9 Apart from this, defendant has not stated anything material and in other words, it is also not her case even that she has been able to raise any defence to the suit in so far as it relates to the relief of possession. She has not disputed the landlordtenant relationship. She has also not disputed the rate of rent being above Rs.3500/ p.m, and she has not disputed the receipt of the notice of termination.
Arguments were addressed on behalf of both the parties. 10 The submissions of the defendant in reply to the application were totally irrelevant and away from the point in question. The payment or non payment of the rent is not in question in this application and this was repetitively brought to the notice of ld. counsel for defendant. Even during arguments not only ld. counsel for defendant was making all her submissions on the payment or Pages 3 to 7 Tina Kohli Vs. Shalini Kohli nonpayment of rent and alleging about the plaintiff having taken some loan from the defendant.
11 This would all be a subject matter for the inquiry relating to mesne profits and arrears of rent etc., but same could not be relevant for the disposal of the application u/o 12 Rule 6 CPC w.r.t. which, the legal position is absolutely clear and settled by a catena of decisions: 12 The Hon'ble Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. 13 Further, following the view taken by the Hon'ble Supreme Court in the above referred, our own Hon'ble High Court has also held in the case of M/s. Jeevan Diesels and Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) and Anr., RFA 179/2011 decided on 25.3.2011 as under: "That the summons of the suit with which the plaint is accompanied, can also be treated as a notice under Section 106 of the Transfer of Property Act, 1882 read with Order 7 Rule 7, Code of Civil Procedure considering the intendment of Act 3 of 2003 by which Section 106 of the Transfer of Property Act, 1882 was amended to do away with the defence of the inadequacies in termination of tenancy, once otherwise a period of 15 days expires prior to filing of the suit."
Pages 4 to 7 Tina Kohli Vs. Shalini Kohli
14 In the case of Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani
in RFA No.697/10 decided on 25.05.2012, his Lordship of our own Hon'ble High Court has been pleased to analyze the entire legal position on this aspect.
"10. The law with respect to the obligations of a tenant upon expiry of the period of the lease and termination of the monthly lease under Section 106 of the Transfer of Property Act are well settled......."
"The erstwhile tenant whose term has expired but has not vacated is called a tenant at sufferance. He comes into possession of the premises by a lawful grant but holds it wrongfully after termination of the term or expiry of the lease by efflux of time. A tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of his lawful term......"
"Section 111 of the Transfer of Property Act, 1882 provides various modes of determination of lease which includes end by efflux of time [Section 111(a)], by notice of termination [Section 111(h)]...."
"13.1 Under Section 108(q) of Transfer of Property Act, 1882, it is the statutory obligation of the lessee to restore the possession of the leased property to the lessor on determination of the lease...."
"17. Though a plea was taken in the written statement about non determination of the lease because no notice to quit as envisaged under Section 106 of the Transfer of Property Act has been served on the defendants before filing of the present suit, but this aspect was not pressed at the hearing. Even otherwise, it is a well settled proposition of law that when the term of the lease has expired by efflux of time, there is no need for a landlord to determine the Pages 5 to 7 Tina Kohli Vs. Shalini Kohli lease by serving quit notice..."
See: 1. Inmacs Limited v. Prema Sinha, 153 (2008) DLT,
2. Ashok Chopra v. Syndicate Bank, 169 (2010) DLT 15 Apart from this, recently in the case of Deepak Thirwani Vs. Lakchman Dass Mansharmani 203 (2013) DLT 391, the said legal position has been further reaffirmed/followed by our own Hon'ble High Court and a decree for possession was passed.
16 Throughout all these judgments, the Hon'ble Supreme Court and our own Hon'ble High Court and various other Hon'ble High Courts have been consistently of the view that the defendants have no right to continue in possession after the expiry of the lease and in case, the tenancy is converted into month to month tenancy, the service of notice of termination is sufficient to bring the tenancy to an end as under Section 106 of Transfer of Property Act. 17 In view of the above discussion, application u/o 12 Rule 6 CPC stands allowed and a decree of possession is passed in favour of the plaintiff and against the defendant, directing the defendant to vacate the suit property i.e. Flat No.20, Top Floor, Milansar Apartments, Paschim Vihar, New Delhi and handover the vacant possession to the plaintiff within 45 days from today.
Decree sheet be prepared.
Pages 6 to 7 Tina Kohli Vs. Shalini Kohli The suit shall continue for the decision on the remaining reliefs i.e. w.r.t. arrears of rent and mesne profits.
Application disposed off.
(SUJATA KOHLI)
Announced in Open Court ADDITIONAL DISTRICT JUDGE
today i.e. 15.05.2014 WEST/DELHI
Pages 7 to 7 Tina Kohli Vs. Shalini Kohli