Delhi High Court
Nitin Jain vs Geeta Raheja on 15 October, 2015
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15.10.2015
+ RFA 563/2015
NITIN JAIN ....APPELLANT
Versus
GEETA RAHEJA .....RESPONDENT
ADVOCATES WHO APPEARED IN THIS CASE:
For the Appellant : Mr. Hameed S. Shaikh, Advocate
For the Respondent : Mr. Anuj Kumar, Advocate
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1. This is an appeal which is directed against judgment dated 04.07.2015
passed by the learned Additional District Judge (East), Kakardooma Courts,
Delhi (in short, the ADJ).
1.1 By virtue of the impugned judgment and decree, the learned ADJ has
partly decreed the suit filed by the respondent / plaintiff, based on an
application preferred by her, under Order 12 Rule 6 of the Code of Civil
Procedure, 1908 (in short the CPC).
2. The appellant being aggrieved, has preferred the appeal.
3. In order to appreciate the challenge laid to the impugned judgment and
decree, the following facts, in so far as, they are necessary, are required to
be noticed :
RFA 563/2015 Page 1 of 12
3.1 The respondent / plaintiff in her action has averred that she is the owner
and the landlady of the property, described as G-35, Preet Vihar, Delhi-
110009, admeasuring 180 sq. yds. comprising of ground floor and partially
constructed first floor alongwith terrace (in short the suit property).
3.2 It is averred that this property was let out to the appellant / defendant
vide lease agreement dated 11.12.2006 for a period of eleven (11) months.
The said period, it is averred, commenced from 01.12.2006 and ended on
31.10.2007. According to the respondent / plaintiff, the suit property was let
out at a rent of Rs.10,000/- p.m.
3.3 As per the respondent / plaintiff, the lease tenure was mutually
extended and a fresh lease agreement deed dated 01.11.2008 was executed.
It is averred that by virtue of the said lease agreement, the lease tenure was
extended for a period of eleven (11) months commencing from 01.11.2008,
which ended on 30.09.2009.
3.4 It is further averred that the appellant / defendant failed to hand over
vacant and peaceful possession of the demised premises, on the expiry of the
lease tenure. Consequently, the respondent / plaintiff wrote a letter dated
10.03.2010, requesting the appellant / defendant to vacate the suit property.
3.5 Since the respondent / plaintiff got no response to her entreaties, a
legal notice dated 25.01.2011 was served on the appellant / defendant, inter
alia, calling upon him to vacate the suit property.
3.6 On account of the failure of the appellant / defendant to hand over the
vacant and peaceful possession of the suit property, the respondent / plaintiff
was constrained to file a suit, given her immediate need, as her husband,
who is a Government servant is, due for retirement in March 2016. It is also
RFA 563/2015 Page 2 of 12
averred by the respondent / plaintiff that since her husband is suffering from
a kidney related ailment, they are required to be in Delhi as they would
require the assistance of their relatives.
3.7 The appellant / defendant, on the other hand, has filed, I must say, a
written statement, which is both garbled and consist of vague pleas, I suspect
deliberating so. However, upon a careful perusal of the written statement,
what I have been able to glean from the pleadings, is as follows :-
(i). That the execution of the lease deed dated 11.12.2006 is not denied. It
is, however, averred that the said lease agreement was not prepared with the
consent of the appellant / defendant and as such, the subsequent lease
agreement, which is dated 01.11.2008, is fraudulent. This is evident upon a
perusal of paragraph 2 of the reply on merits of the written statement.
(ii). The execution of the second lease agreement, dated 01.11.2008, is also
not disputed except to the extent of incorporation of a lease tenure of eleven
(11) months. The stand taken by the appellant / defendant is that in the draft
of the lease agreement, there was no mention of the lease tenure, and that,
the respondent / plaintiff slipped in a tenure of eleven (11) months in the
final lease agreement, albeit fraudulently. This plea is discernible upon
reading paragraph 2 of the preliminary objections and paragraph 3 of the
reply on merits of the written statement.
(iii). That appellant / defendant has paid the agreed rent up to October 2013
via account payee cheques which, stand credited to the account of the
respondent / plaintiff.
(iv). The appellant / defendant has not been served with any notice of
termination of the lease agreement and, in any event, without admitting the
RFA 563/2015 Page 3 of 12
receipt of notice of termination, the termination, as such is illegal and not in
accordance with the provisions of the Transfer of Property Act, 1882 (in
short the TP Act).
(v). The appellant / defendant has acquired leasehold rights in the suit
property in accordance with the provisions of Section 116 of the TP Act by
holding over and by payment of rent. Consequently, the suit is liable to be
dismissed.
4. A perusal of the pleadings would show that the appellant / defendant
has admitted to the following :-
(i). That he was inducted in the suit property by the respondent / plaintiff in
the capacity of a tenant.
(ii). That he executed both lease agreements (i.e. lease agreement dated
11.12.2006 and 01.11.2008). In so far as the first lease agreement is
concerned, the appellant‟s / defendant‟s stand is that it was not prepared with
his consent. As regards, the second lease agreement, his stand is that the
tenure of eleven (11) months, was in a manner of speech, slipped in, without
his knowledge. In other words, the second lease agreement, did not contain
or made a reference to any tenure.
(iii). There is no dispute raised though, with regard to the rate of rent.
(iii)(a). The respondent / plaintiff has clearly pleaded in paragraph 2 of the
plaint that the suit property was let out at the rate of Rs.10,000/- p.m. There
is no denial to this assertion of the respondent / plaintiff in the written
statement.
RFA 563/2015 Page 4 of 12
5. Therefore, what emerges on reading of the pleadings filed in the matter
is as follows :-
(i). There is acceptance of the relationship of landlord and tenant as
between the parties.
(ii). There is acceptance of the fact that the rent of the suit property is more
than Rs.3,500/- and hence, the subject matter of the suit falls outside the
purview of the Delhi Rent Control Act, 1958.
5.1 Therefore, if the respondent / plaintiff was able to establish her intent to
seek possession of the property then, ordinarily, a decree for possession
would have to follow.
5.2 The principle in this behalf has been captured by the Supreme Court in
the case of Payal Vision Ltd. Vs. Radhika Choudhary, (2012) 11 SCC 405,
paras 7 and 8 at page 411. For the sake of convenience, the relevant
observations are extracted hereafter :-
7. In a suit for recovery of possession from a tenant whose
tenancy is not protected under the provisions of the Rent Control
Act, all that is required to be established by the plaintiff-landlord
is the existence of the jural relationship of landlord and tenant
between the parties and the termination of the tenancy either by
lapse of time or by notice served by the landlord under Section
106 of the Transfer of Property Act. So long as these two aspects
are not in dispute the Court can pass a decree in terms of Order
XII Rule 6 of the CPC, which reads as under:
"..7. ...Judgment on admissions-(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 determination of any other question between the
RFA 563/2015 Page 5 of 12
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 upon in accordance with the judgment and
the decree shall bear the date on which the judgment was
pronounced."
8. The above sufficiently empowers the Court trying the suit to
deliver judgment based on admissions whenever such admissions
are sufficient for the grant of the relief prayed for. Whether or not
there was an unequivocal and clear admission on either of the
two aspects to which we have referred above and which are
relevant to a suit for possession against a tenant is, therefore, the
only question that falls for determination in this case and in every
other case where the plaintiff seeks to invoke the powers of the
Court under Order XII Rule 6 of the CPC and prays for passing
of the decree on the basis of admission. Having said that we must
add that whether or not there is a clear admission upon the two
aspects noted above is a matter to be seen in the fact situation
prevailing in each case. Admission made on the basis of
pleadings in a given case cannot obviously be taken as an
admission in a different fact situation. That precisely is the view
taken by this Court in Jeevan Diesels & Electricals Ltd. (supra)
relied upon by the High Court where this Court has observed:
"Whether or not there is a clear, unambiguous admission by one
party of the case of the other party is essentially a question of fact
and the decision of this question depends on the facts of the case.
The question, namely, whether there is a clear admission or not
cannot be decided on the basis of a judicial precedent. Therefore,
even though the principles in Karam Kapahi (supra) may be
unexceptionable they cannot be applied in the instant case in
view of totally different fact situation..."
6. The appellant / defendant, in this behalf, has taken the stand that he was
neither served with the communication dated 10.03.2010 nor the legal notice
RFA 563/2015 Page 6 of 12
dated 25.01.2011. It is also the stand of the appellant / defendant that
payments have been made by him towards rent till October 2013. The
respondent/ plaintiff has contended to the contrary.
6.1 However, even if, one were to assume that the legal notice dated
25.01.2011 was not served on the appellant / defendant, the position as it
obtains in law today, is that, once a suit is filed for possession, the mere fact
that no notice to quit and / or to vacate a demised premises is given will not
inhibit a court from passing a decree of possession if, there is no other
impediment in law, as the institution of the suit is an expression of the
intention to seek possession. [See Nopany Investment Pvt. Ltd. Vs.
Santokh Singh (HUF), (2008) 2 SCC 728, para 22, page 740-741]. The
relevant observations of the Supreme Court, on this aspect of the matter, are
set out hereinbelow :-
"...When the eviction petition was pending before the
Additional Rent Controller and the order passed by him under
Section 15 of the Act directing the appellant to deposit rent at
the rate of Rs. 3500/- was also subsisting, the notice dated 9th of
January, 1992 was sent by the respondent to the appellant
intimating him that he wished to increase the rent by 10 percent.
Subsequent to this notice, another notice dated 31st of March,
1992 was sent by the respondent intimating the appellant that by
virtue of the notice dated 9th of January, 1992 and in view of
Section 6A of the Act, the rent stood enhanced by 10 percent i.e.
from Rs. 3500/- to Rs. 3850/-. It is an admitted position that the
tenancy of the appellant was terminated by a further notice
dated 16/17th of July, 1992. Subsequent to this, the eviction
petition No. 432 of 1984 was withdrawn by the respondent on
20th of August, 1992 and the suit for eviction, out of which the
present appeal has arisen, was filed on 6th of February, 1993.
That being the factual position, it cannot at all be said that the
suit could not be filed without the leave of the Additional Rent
Controller when, admittedly, at the time of filing of the said suit,
RFA 563/2015 Page 7 of 12
the eviction petition before the Additional Rent Controller had
already been withdrawn nor can it be said that the notice of
increase of rent and termination of tenancy could not be given
simultaneously, when, in fact, the notice dated 16/17th of July,
1992 was also a notice to quit and the notice intending increase
of rent in terms of Section 6A of the Act was earlier in date than
the notice dated 16/17th of July, 1992. In any view of the
matter, it is well settled that filing of an eviction suit under the
general law itself is a notice to quit on the tenant. Therefore, we
have no hesitation to hold that no notice to quit was necessary
under Section 106 of the Transfer of Property Act in order to
enable the respondent to get a decree of eviction against the
appellant. This view has also been expressed in the decision of
this court in V. Dhanapal Chettiar Vs. Yesodai Ammal [AIR
(1979) SC 1745].
(emphasis is mine)
7. Which brings me to the last aspect : as to whether a bald pleading to the
effect that rent had been paid till October 2013, should come in the way of
the court passing a decree for possession. The pleading is vague as there are
no details as to the cheque numbers and dates on which payments were made
or that payments were accepted by respondent / plaintiff with an intent to
continue or create new tenancy. As a matter of fact, in the reply to the
application under Order 12 Rule 6 of the CPC, the appellant / defendant has
not even cared to refer to the period(s) for which payments have been made.
I had specifically asked the counsel for the appellant /defendant to supply
details of payments made, as claimed, till October 2013. The counsel for
the appellant /defendant failed to supply any details. As a matter of fact,
when the appeal came up for hearing, for the first time, before this court on
21.08.2015, it had been conveyed to the court that the appellant /defendant
was only interested in seeking extension of time for vacating the suit
property. Notice in the appeal was confined to this aspect of the matter.
RFA 563/2015 Page 8 of 12
However, the counsel for the appellant / defendant after taking two
accommodations in the matter i.e. on 11.09.2015 and 12.10.2015, chose to
argue the matter. This is how, the matter proceeded on merits.
7.1 Coming back to the aspect of purported payments made by the
appellant / defendant, even if, one were to assume in favour of the appellant /
defendant that monies were paid after the institution of the suit, those
payments could only be categorized as „use and occupation charges‟ and not
„rent‟ unless he was able to demonstrate to the contrary. This demonstration
necessarily would commence with the appellant / defendant in the first
instance making a clear and specific pleading in that behalf. The frequency
of payments and the quantum of those payments, coupled with an assertion
that respondent/ plaintiff accepted it with a view to continue or create a new
tenancy, would, at least prima facie, have established that the appellant /
defendant had made payments towards rent. On the other hand, the factum
of institution of the suit for possession (and I am not referring to the legal
notice dated 25.01.2011, which the appellant / defendant says that he has not
received) would show that the appellant / defendant was no longer a "tenant
holding over", as contended, but had become a "tenant at sufferance".
Therefore, the appellant / defendant had to give specific details of the
payments made, to demonstrate, that they were in the nature of rent, which
were accepted to continue or create new tenancy, and not, payment towards
use and occupation charges. The mere acceptance of payment of monies
does not ipso facto create a fresh tenancy, in law. [See Gulam Ghaus Vs.
Chaudhary, AIR 1947 Madras 436]. In Gulam Ghaus the court came to
conclusion that the case did not come within the ambit of Section 116 of the
T.P. Act despite the fact that the rent had been paid and receipt was
RFA 563/2015 Page 9 of 12
generated in that behalf after the concerned court had directed that
possession of the subject property should be handed over.
7.2 Consequently, the contention advanced on behalf of the appellant /
defendant that a tenancy by holding over was created, is untenable as it
requires a bilateral and a consensual act involving both the landlord and the
tenant.
7.3 This apart, reference may also be made to a Division Bench judgement
of this court in the case of Delhi Jal Board vs Surendra P. Malik (2003)
104 DLT 151, wherein it observed that mere acceptance of rent, after
tenancy has expired by efflux of time, cannot renew or create fresh tenancy.
The Division Bench went on to observe, once tenancy had expired by efflux
of time under Section 111 of the TP Act, it was not required to be
determined by issuance of a notice under Section 106 of the said Act. The
relevant observations made in paragraph 12 at page 276 are extracted
hereafter:
"......12. It is no longer a grey area that where a tenancy had
otherwise expired by efflux of time but the tenant continued
in possession of the premises, mere acceptance of rent by the
landlord could neither renew the tenancy nor create a new
one. That is so because such subsequent occupation of
premises was not in pursuance of any contract, express or
implied between the parties...."
7.4 It is important to note, that in Delhi Jal Board vs Surendra P. Malik's
case, the Division Bench was dealing with a property which was outside the
purview of the DRC Act.
7.5 The courts are empowered to exercise powers under Order 12 Rule 6
of the CPC to enable a party to obtain speedy judgment at least to the extent
RFA 563/2015 Page 10 of 12
the defendant has admitted its claim. As to what kind of admissions are
admissible, one may only replicate with profit the observations of the
Supreme Court in Uttam Singh Duggal and Company Ltd. Vs. United Bank
of India, (2000) 7 SCC 120 at page 129 para 17. The relevant observations
are extracted hereinbelow :-
"17. ...Learned counsel for the Petitioner contended that
admissions referred to in Order XII, Rule 6 CPC should be of
the same nature as other admissions referred to in other rule
preceding this Rule. Admissions generally arise when a
statement is made by a party in any of the modes provided under
Sections 18 to 23 of the Evidence Act, 1872. Admissions are of
many kinds : they may be considered as being on the record as
actual if that is either in the pleadings or in answer to
interrogatories or implied from the pleadings by non-traversal.
Secondly as between parties by agreement or notice. Since we
have considered that admission for passing the judgment is
based on pleadings itself it is unnecessary to examine as to what
kinds of admissions are covered by Order XII, Rule 6 CPC..."
7.6 The practice of defendants deliberately making vague averments only
to ensure that the matter somehow is put to trial is to be deprecated. In this
particular case, the trial court, in my view, has correctly noted that despite
the fact that the appellant / defendant has taken the plea that the two lease
agreements were, in a sense, drawn up without his consent, does not appear
to be correct as, there is no plea in the written statement that he ever objected
to the contents of the lease agreements. As a matter of fact, the appellant /
defendant continued to pay rent both under the lease agreements dated
11.12.2006 as well as 01.11.2008.
7.7 As to the manner in which the court is to proceed in respect of vague
and evasive pleadings, is best answered by the observations of a Division
Bench of this court in the case of Vijaya Myne Vs. Satya Bhushan
RFA 563/2015 Page 11 of 12
Kaura, (2007) 142 DLT 483 (DB), para 12 at page 491-492. For the sake of
convenience, the relevant observations are extracted hereafter :-
"..12. ..It is not necessary to burden this judgment by extracting
from the aforesaid authoritative pronouncement as the learned
Single Judge has accomplished this exercise with prudence and
dexterity. Purpose would be to get the decree, inasmuch as 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 circumstances of the
case. No doubt, for this purpose, the Court has to scrutinize the
pleadings in their detail and has to come to the conclusion that
the admissions are unequivocal, unqualified and unambiguous.
In the process, the Court is also required to ignore vague,
evasive and unspecific denials as well as inconsistent pleas
taken in the written statement and replies. Even a contrary stand
taken while arguing the matter would be required to be
ignored..."
(emphasis is mine)
8. Having regard to the above, I am not inclined to interfere with the
judgment of the learned ADJ, for reasons given above. The appeal is
accordingly, dismissed with costs of Rs.7,500/- to be paid to the respondent /
plaintiff, within a period of one week from today.
RAJIV SHAKDHER, J.
OCTOBER 15, 2015 yg RFA 563/2015 Page 12 of 12