Delhi District Court
Dr. Adarsh Dusaj vs Sh. Sanjeev Malik on 13 May, 2010
Suit no. 1661/08
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-CUM-
GUARDIAN JUDGE (WEST): DELHI
Suit No.1661/08
Unique Case ID No.02401C0312802008
Dr. Adarsh Dusaj
W/o Dr. R. K. Dusaj
R/o D-49, Gujranwala Apartments
Vikas Puri
New Delhi-110018 ......Plaintiff
Versus
Sh. Sanjeev Malik
S/o Sh. Kamla Malik
R/o KG-1/416
Vikas Puri
New Delhi - 110018 .....Defendant
Date of institution of the suit : 27.02.2008
Date on which order was reserved : 21.04.2010
Date of decision : 18.05.2010
JUDGMENT
1. In the Suit for Possession, Recovery of arrears of rent and damages, the plaintiffs filed an Application under Order 12 Rule 6 of the Code of Civil Procedure, 1908 for a decree of possession in respect of MIG Flat no. KG-1/416, Vikas Puri, New Delhi - 110018 (Hereinafter referred as "the suit premises").
2. Brief facts relevant for the adjudication of the said application are that the plaintiff is the owner of the suit premises. She had let out the suit premises to the defendant on monthly rent of Rs. 5,500/- excluding electricity and water charges for a limited period of 11 months w.e.f. 29.08.2006 vide registered lease agreement dated 29.08.2006.
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3. According to the plaintiffs, the tenancy of the defendant in respect of the suit premises came to an end of 28.07.2007 by efflux of time. The defendant did not vacate the suit premises despite several requests and continued to occupy the suit premises as an unauthorized occupant. It is further case of the plaintiff that cheques issued by the defendant towards rent/damages for use and occupation of the suit premises returned unpaid. The plaintiff adjusted the security of Rs. 11,000/- on the request of the defendant. It is stated that the defendant had paid charges for the use and occupation of the suit premises up to the month September, 2007.
4. It is further stated that the plaintiff terminated the tenancy of the defendant vide legal notice dated 27.12.2007 w.e.f. 31st January, 2008. The defendant was duly served with the said notice. The defendant replied the said notice vide reply dated 05.02.2008. The defendant failed to deliver the possession of the suit premises despite termination of his tenancy by efflux of time and service of notice dated 27.12.2007. The defendant is in unauthorized occupation of the suit premises. The defendant is liable to pay damages @ Rs. 200/- per day for unauthorized use and occupation of the suit premises w.e.f. 29.10.2007 till the delivery of the possession of the suit premises and Rs. 32,090/- including Rs. 10,890/- towards arrears of electricity bills.
5. In the Written Statement, the defendant controvert-ed the averments made in the plain. It is contended that the plaintiff has herself admitted that she had received the rent up to October, 2007 after expiry of the lease agreement. It is contended that the plaintiff starting receiving rent in cash after dishonour of the cheque and she did not issue any rent receipt. It is stated that the defendant paid the rent up to February, 2008. It is stated that the plaintiff pressurized the defendant to enhance the rent and did not accept the rent for the month of March and April, 2008. It is stated that the plaintiff intends to let out the suit premises on higher rent. The defendant spent huge amount of Rs. 16,350/- towards wiring of the suit premises and winding of the water motor.
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6. It is further contended that the plaintiff is not the owner of the suit premises. It is stated that the electricity connection is in the name of Shailender Bajaj. It is denied that the tenancy of the defendant came to end by efflux of time on 28.07.2007. It is contended that the lease was extended with mutual consent. It is contended that the defendant is a lawful tenant of the plaintiff and paid the rent up to February, 2008. It is stated that the defendant is ready to pay the arrears of rent from March, 2008 onwards. It is stated that the plaintiff accepted the rent even after expiry of the lease. It is stated that electricity charges of Rs.11,050/- for the month of November, 2007 was paid on 19.01.2008 and balance electricity charges of Rs. 6,870/- was payable up to 06.05.2008.
7. In the written statement, the defendant has not denied the service of notice and reply thereto. It is denied that the defendant is an unauthorized occupant or liable to pay damages @ Rs. 2,00 per day.
8. In the replication, the plaintiffs denied the contentions of the defendant and re-affirmed the averments in the plaint. It is stated that the defendant used to pay rent by cheques only.
9. In the application under Order 12 Rule 6 of the Code of Civil Procedure, 1908; the plaintiff stated that the tenancy of the defendant in respect to the suit premises came to end by efflux of time on 28.07.2007. It is stated that the plaintiff terminated the tenancy of the defendant vide notice dated 27.12.2007. It is stated that the defendant replied the said notice vide reply dated 05.02.2008. It is stated that the defendant in para no.8 of the written statement admitted service of notice. It is stated that the defendant admitted service of notice and rate of rent as Rs. 5,500/- per month. It is stated that the defendant admitted execution of lease agreement dated 28.06.2006. It is further stated that the defendant was directed to pay admitted arrears of rent vide order dated 09.09.2008. It is stated that the defendant is enjoying the suit premises without paying any amount. It is stated that the plaintiff is entitled to a judgment on admissions in respect of possession of the suit premises.
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10. In the reply, the defendant stated that he preferred an appeal against the order dated 09.09.2008 which was dismissed in default for wrong noting of the date. He stated that he is ready to deposit the rent as per order of the Appellate Court. He stated that the plaintiff is seeking excess amount as he had paid the rent up to February, 2008 whereas the order was passed to deposit the arrears of rent w.e.f. October, 2008. It is contended that the tenancy was extended with the mutual consent of the parties. It is stated that the notice sent by the plaintiff was vague and the defendant duly replied the said notice. It is prayed that the application of the said application is liable to be dismissed.
11. I have heard argument of Sh. S. P. Aggarwal, Advocate for the plaintiff. I have perused written arguments filed by the defendant.
12. Learned counsel for the plaintiff argued that the relationship of landlord and tenant, rent of the suit premises and the receipt of the notice of termination of tenancy dated 27.12.2007 were admitted by the defendant in his written statement. He argued that the defendant in the para no.2 the Written Statement admitted that the plaintiff let out the suit premises for a period of 11 months @ Rs. 5,500/- vide registered lease deed dated 29.08.2006. He argued that the defendant in para no.8 of the written statement admitted service of legal notice dated 27.12.2007. He argued that the tenancy of the defendant came to end by efflux of time on 28.07.2007. He argued that the tenancy of the defendant was validly terminated w.e.f. 01.02.2008 by serving 15 days notice vide notice dated 27.12.2007 under section 106 of the Transfer of the Property Act. He argued that the defendant has not disputed the service of notice dated 27.12.2007. He argued that the defendant replied the said notice vide reply dated 05.02.2008. He argued that the defendant has no right to be in possession of the suit property on termination of lease by way of efflux of time and after termination of tenancy w.e.f. 01.02.2008. He argued that the defendant is in wrongful possession of the suit premises.
13. Learned Counsel for the plaintiff argued that the existence of the relationship of lessor and lessee and the determination of such relation by any of modes envisaged under Section 111 of the Transfer of the Property Act are the twin factors deserves consideration for the pronouncement of judgment on Adarsh Dusaj v. Sanjeev Malik page 4of 11 Suit no. 1661/08 admissions. He argued that the admissions made by the defendants in his written statement are unambiguous and unequivocal. He argued that no issue arises for determination regarding relief of possession of the suit premises and therefore, the plaintiff is entitled to a Judgment on Admissions in respect of relief of the possession of the suit premises under Order 12 Rule 6 of the Code of Civil Procedure, 1908.
14. In his written arguments, the defendant contended that the application is not maintainable because appeal against the order dated 09.09.2008 is pending. He contended that he is ready to deposit the rent as per order of the Appellate Court. He contended that he had already paid the rent up to February, 2008 but he was directed to deposit the arrears of rent w.e.f. October, 2007. It is contended that the tenancy was extended with the mutual consent of the parties and the defendant is a lawful tenant in respect of the suit premises.
15. Before adverting to the issue under consideration, it will be apposite to refer Order 12 Rule 6 of the Code of Civil Procedure, 1908;
"6. 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 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."
16. A bare reading of Rule 6 would show that the Court either on the application of any party or on its own motion and without waiting for determination of any other question between the parties proceed to give judgment, as it may think fit, having regard to the admission.
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17. In Gulab Singh & Sons Pvt. Ltd. v. New India Assurance Co. Ltd. [164(2009) DLT 43]; It was held:
"13. An established principle of law relating to decree on admissions is that the Court has to read the pleadings of the parties meaningfully. The pleas of the defendants in a case have to be clear and unambiguous; disputes if any raised in regard to facts to fall within the scope of the order, should be such, as do not call for any trial whatsoever. The object of the provision is to curtail the period for determination of disputes and to see that a decree on admission is passed without any unnecessary hindrance. 'Admission' comprehends admission by a party in pleadings or otherwise, orally or in writing. Another cannon of interpretation here is that the provisions are to be liberally construed. The Court should satisfy itself that all the elements which constitute admission are present, before issuing a decree. An admission to enable the plaintiff, to relief, should be unambiguous, clear and unconditional."
18. Object of Rule 6 of Order 12 Rule 6, CPCis to enable a party to obtain speedy judgment at least to the extent of the relief, which, according to the admission of the other party, he is entitled.
19. Admission on which judgment can be pronounced must be clear and unequivocal one and such an admission must be either of the entire claim made in the suit or even for a part of the claim for which decree can be passed separately.
20. The proposition of law is that in a case of clear and unequivocal admissions, suit can be decreed or in other words, decree in part for one of the reliefs can be passed.
21. In Surjit Sachdev Vs Kazakhstan Investment Services Pvt. [66(1997)Delhi Law Times 54], Delhi High Court held that unequivocal admission of the following two factors will entitle the plaintiff to a decree as regard possession in such suit:
(a) Existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as a tenant;
(b) Determination of such relation in any of the contingency, as envisaged in Section 111 of the Transfer of Property Act. One of the modes stated therein is by efflux of time limited by the lease.
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22. On perusal of the written statement, it is evident that the defendant has admitted the relationship of landlord and tenant between the parties, rate of the rent of the suit premises as Rs. 5,500/- per month excluding electricity and water charges. It is also admitted that the suit premises was let out to the defendant for a period of 11 months w.e.f. 29.08.2006 vide registered lease dated 29.08.2006. The para no.2 of the plaint and the corresponding para of the written statement is reproduced as under:
Para no. 2 of the Plaint Para no.2 of the Reply on merits of the Written Statement
2. That the plaintiff let out the suit property to 2. That the contents of para no.2 are the defendant for a limited period of 11 not denied.
months w.e.f. 29.08.2006 for residential purposes at a monthly rent of Rs. 5,500/-
excluding electricity and water charges and a registered rent/lease deed dated 29.08.2006 was duly executed between the plaintiff and the defendant. The lease deed dated 29.08.2006 is annexed herewith as Annexure
- B.
23. The tenancy of the defendant in respect of the suit premises came to end on 28.07.2007 by efflux of time.
24. So far as contention of the defendant that the tenancy was extended by mutual consent and the plaintiff received rent even after expiry of lease period up to February, 2008 and therefore, he is a lawful tenant in respect of the suit premises is concerned, it is pertinent to note that Clause 6 of the lease deed dated 29.08.2006 specified procedure and condition for extension of lease which is reproduced as under:
"6. That if the Agreement is extended by mutual consent for further period there will be 10% increase in the monthly rent, and fresh lease deed will be executed and got registered."
25. Mere averment that the lease was extended with mutual consent would not advance the case of the defendant. Admittedly, no fresh lease or agreement was Adarsh Dusaj v. Sanjeev Malik page 7of 11 Suit no. 1661/08 executed between the parties after determination of the lease by efflux of time on 28.07.2007. It is not the case of the defendant that the plaintiff ever consented to the extension of the lease. Admittedly, the defendant continued to pay rent @ Rs. 5,500/- and not 10% increased rent as provided under the said lease deed. The plaintiff had neither expressly nor impliedly agreed for extension of lease.
26. Mere fact that the plaintiff received the rent up to September, 2007 or up to February, 2008 is not sufficient to create a fresh tenancy. In Shanti Prasad Devi v. Shankar Mahto, AIR 2005 SC 2905; Hon'ble Supreme Court held that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of the lessee even after expiry of lease period. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was 'holding over' as a lessee within the meaning of Section 116 of the Transfer of Property Act."
27. Having reached to the conclusion that the lease of the defendant in respect of the suit premises came to an end on 28.07.2007, the defendant had no right to remain in possession of the suit premises.
28. Assuming that the tenancy of the defendant was orally extended by mutual consent. In that eventuality, in the absence of a registered lease, the tenancy was a month-to-month terminable by 15 days notice.
29. In Dunlop India Ltd. v. Sunil Puri & Ors., 90(2001)DLT 769(DB); Hon'ble Delhi High Court held in the para no.5 of the judgment that:
"5. Assuming that there was an oral arrangement not to evict the defendant till 2007, even in that case the defendant cannot successfully resist a suit for possession by the plaintiff in as much as the said oral arrangement was not made a part of the registered lease deed. No benefit or advantage could be taken by the defendant of the alleged oral understanding as a defence to a suit filed by the plaintiff seeking eviction of the defendant."
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30. In Shukla Malhotra & Ors. v. Vysya Bank Ltd. 73(1998)DLT124 it was held that:
"18. Having come to the finding that the lease in the present case was from month- to-month, the only question which remains to be considered is whether it was lawfully determined. Admittedly, legal notice dated 9th January, 1995, issued on behalf of the plaintiffs by their Counsel, terminating the tenancy of the defendant w.e.f. midnight of 31st January, 1995, and asking the defendant to deliver the vacant possession of the subject premises, was duly served on the defendant. The defence in resistance taken in para 6 of the written statement, based on plea of fixed tenancy for 5 years and its extension is that the said notice is as such uncalled for and misconceived as communicated in defendants' reply dated 23rd January, 1995, received by Counsel for the plaintiff. Nothing is pointed out in the written statement nor during the course of arguments to show that the said notice did not fulfill the requirements of Section 106 of the Act. What is stipulated in Section 106 of the Act, is that notice under the section has to be in writing which should be signed by or on behalf of the person giving it and is to be served on the party either by post or tendered or delivered in person. Consequently, I hold that notice dated 9th January, 1995, terminating the tenancy and duly served on the defendant was valid and the tenancy stood lawfully terminated w.e.f. 1st February, 1995 as envisaged under Section 111(h) of the Act.
19. The factum of tenancy and its valid determination under Section 111 of the Act not being in dispute, I am of the considered opinion that the plaintiff is entitled to a judgment under Order 12 Rule 6, CPC."
31. In the case at hand, the defendant has not disputed the service of legal notice dated 27.12.2007 terminating his tenancy w.e.f. 31.01.2008. Relevant extracts of the para no.8 of the plaint and the corresponding para no. 8 of the written statement are reproduced as under:
Adarsh Dusaj v. Sanjeev Malik page 9of 11
Suit no. 1661/08
Para no.8 of the Plaint Para no.8 of the Reply on merits of the
Written Statement
8. That as stated above, the tenancy of the 8. That the contents of para no.8 are
defendant had come to an end by efflux of wrong, false and hence, denied. It is time on 28.07.2007 and he was bound to denied that the tenancy of the vacate the suit property on that day, however defendant had come to an end by the plaintiff through a legal notice dated efflux of time on 28.07.2007 and he 27.12.2007 called upon the defendant to was bound to vacate the suit property. handover the possession of the suit property However, it is not denied that the on or before 01.02.2008 and terminated the notice was served by the Counsel of tenancy of the defendant by the close of the the plaintiff and the same was duly said date i.e. 31.12.2008, if for any reason replied by the defendant. It is the defendant contends himself as a tenant in submitted that the tenancy period has the suit property on the basis of month-to- been extended with the mutual month tenancy after 28.07.07. The legal consent; hence, the defendant is still a notice dated 27.12.2007 was duly served lawful tenant of the plaintiff and paid upon the defendant through Registered Post, the rent up to February, 2008. UPC and Courier on 28.12.2007. The defendant replied the same through reply dated 05.02.2008.
32. It is evident that the defendant has admitted receipt of the notice of termination of tenancy dated 27.12.2007. Moreover, the defendant replied the said notice vide reply dated 05.02.2008. The defendant neither pleaded nor demonstrated any legal infirmity in the said notice dated 27.12.2007 whereby the tenancy of the defendant was terminated with effect from 31.01.2008 and he was called upon to deliver possession of the suit premises on 01.02.2008. The said notice was sent to the defendant by way of Regd. AD Post, UPC and Courier dated 28.12.2007 by Sh. Naresh C. Sharma, Advocate on behalf of the plaintiff. Resultantly, I hold that notice of termination of tenancy dated 27.12.2007 was valid and duly served upon the defendant and the tenancy stood lawfully terminated w.e.f. 31.01.2008 as provided under Section 111(h) of the Transfer of the Property Act. The defendant is an unauthorized occupant of the suit premises w.e.f. 01.02.2008. The defendant had no right to stay in the suit premises w.e.f.
Adarsh Dusaj v. Sanjeev Malik page 10of 11 Suit no. 1661/08 01.02.2008 and he was under legal obligation to hand over the possession of the suit premises to the plaintiff.
33. Pendency of appeal against the order dated 09.09.2008 directing the defendant to pay the arrears of rent @ Rs. 5,500/- per month w.e.f. 29.10.2007 till the date of the order and further, continue to pay future rent cannot come in the way of relief of possession of the suit premises.
34. In view of unambiguous and unequivocal admissions made by the defendant in his written statement as discussed above, No triable issue arises for determination for the relief of possession. The twin factors as envisaged in Surjit Sachdev Vs Kazakhstan Investment Services Pvt. (supra) that is existence of relationship of landlord and tenant and determination of tenancy of the defendant by any one of the modes as envisaged in Section 111 of the Transfer of Property Act lessor exist for passing a decree in favour of the plaintiffs for the relief of the possession of the suit premises.
35. Accordingly, the Application under Order 12 Rule 6 of the Code of Civil Procedure, 1908 filed by the plaintiff for judgment on admission for possession of the suit premises is allowed.
36. A decree of possession in respect of decree of possession in respect of MIG Flat no. KG-1/416, Vikas Puri, New Delhi - 110018 (the suit premises) is passed in favour of the plaintiff and against the defendant.
Decree Sheet be prepared accordingly.
Order announced in the open Court on (SANJAY SHARMA)
JSCC-Cum-ASCJ-Cum
18th May, 2010
GUARDIAN JUDGE (West)
Delhi
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