Delhi District Court
Through vs Sh.Sanjay Anand on 6 January, 2007
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IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO.165/06
Sh. S.L. KASHYAP
s/o Late Sh.R.N.KASHYAP
Smt.URMIL RANI KASHYAP
w/o Sh.S.L.KASHYAP
Dr.MOTI LAL KASHYAP
s/o Late Sh.R.N.KASHYAP
Sh.ONKAR NATH KASHYAP
s/o Late Sh.R.N.KASHYAP
ALL RESIDENTS OF 19, BROADRICK ROAD,
SINGAPORE-15.
Through,
ATTORNEY
Mr.K.K.UPPAL ....PLAINTIFFS
versus
Sh.SANJAY ANAND
s/o Sh.S.K.ANAND
r/o C-117, ground floor,
GREATER KAILASH-I,
NEW DELHI. ....DEFENDANT
Date of Institution: 10/07/06
Arguments Concluded on: 20/12/06
Date of Decision: 06/01/07
Counsel for Plaintiffs: Ms.Rahmi Diwan, Advocate
Counsel for Defendant: Mr.Nishant Kumar, Advocate
JUDGMENT
Page 1 of 9 pages
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1. This is a suit for recovery of possession of the tenanted ground floor of premises bearing no. C-117, Greater Kailash-I, New Delhi (hereinafter referred to as "the suit property" for brevity) and arrears of rent. Plaintiffs being residents of Singapore, the plaint has been signed, verified and instituted by their duly constituted attorney Sh.K.K.Uppal, who is stated to be fully conversant with facts of this case. Written Statement was filed by the defendant after paying cost for an adjournment and the matter was posted for arguments on plaintiffs' application under Order XXXIX Rule 10 CPC. During arguments, counsel for plaintiffs placed on record an acknowledgment dated 10/3/06 reflecting that the defendant stood in arrears of rent to the tune of Rs.2,31,000/- as on 10/3/06. Counsel for the defendant denied the execution of the said acknowledgment by his client. But the defendant kept shying away from the box to admit or deny the said acknowledgment on oath. With this backdrop, both the counsel were heard as to why the suit be not partly decreed under Order XII Rule 6 CPC so far as the relief of recovery of possession of the suit property is concerned. Recently a division bench of Hon'ble Delhi High Court has held in the case of NICHOLAS PIRAMAL INDIA LTD.vs B.N.CHADHA(DECEASED) THROUGH LRs, 133(2006) DLT 573 DB that the court can suo motu act under Order XII Rule 6 CPC in appropriate cases and decree the suit.
2. Facts pleaded by plaintiffs, owners of the suit property are as follows. On being approached, plaintiffs inducted the defendant as their tenant in the suit property for a period of two years with effect from 01/11/2004 at a monthly rent of Rs.21,000/- exclusive of electricity and water charges. Lease Deed dated 27/10/04 was Page 2 of 9 pages 3 executed between the plaintiffs through their attorney Mr.Uppal and the defendant, which was got duly registered with the Sub-Registrar, New Delhi.
3. As per terms of the lease, rent was payable by the defendant to the plaintiffs on or before 7th day of each calendar month. But the defendant turned out to be a habitual defaulter and fell in arrears of rent for the period between December, 2004 to April, 2006 to the total tune of Rs.3,57,000/-.
4. In view of repeated defaults on the part of the defendant, plaintiffs terminated the tenancy by way of a quit notice dated 01/05/06, which notice was duly received by the defendant on 09/05/06. Since the defendant neither vacated the suit property nor paid rent, plaintiffs have brought this suit.
5. In his Written Statement, the defendant pleaded that he had been paying rent to Mr.Uppal, the attorney of plaintiffs in cash every month though no receipt was issued by Mr.Uppal. Defendant also pleaded that he had advanced a loan of Rs.1,50,000/- to Mr.Uppal without any receipt for constructions in the floors above the suit property and that amount had to be adjusted against rent. Since the said constructions caused seepage in the suit property, Mr.Uppal requested the defendant to get the same repaired at his cost and adjust the same against rent. Defendant spent Rs.80,000/- on the said repairs and claims the adjustment of total sum of Rs.2,30,000/- against rent. Despite such an understanding the defendant kept paying rent to Mr.Uppal at request of the plaintiffs. Later on, when the defendant Page 3 of 9 pages 4 demanded the said amount of Rs.2,30,000/-, Mr.Uppal denied having taken any such advance or rent and rather started demanding rent at a rate of Rs.30,000/- per month, which the defendant was not able to pay. As a counterblast plaintiffs have brought this suit.
6. Defendant in written statement also pleaded that even prior to the Lease Deed dated 27/10/04 he was tenant under the plaintiffs in the suit property by virtue of different registered lease deeds for different periods and had been paying rent regularly to Mr.Uppal. Defendant admitted the last lease document to be the Lease Deed dated 27/10/2004 contemplating the rate of rent as Rs.21,000/- per month.
7. In Replication, plaintiffs denied the pleadings of the defendant and reaffirmed the plaint contents. Plaintiffs also placed on record the above mentioned acknowledgment dated 10/03/04 of the defendant as regards arrears of rent in order to demolish the version of loan/advance etc. pleaded by the defendant.
8. Plaintiffs have filed the registered original Lease Deed dated 27/10/04, which has been admitted by the defendant in his Written Statement. As per Clause 1 of the said deed, the lease was for a period of two years with effect from 01/11/04 at a monthly rental of Rs.21,000/-. Admittedly, lease between the parties expired by efflux of time on 01/11/06.
9. Plaintiffs have also filed the quit notice dated 01/05/06 along with its postal record, including AD card to show the due Page 4 of 9 pages 5 service thereof on the defendant. However, in his Written Statement, the defendant denied having received the said quit notice.
10. Counsel for plaintiffs argued that defendant has clearly admitted in the written statement that the lease was for a period of two years, commencing on 01/11/04 and the admitted rate of rent does not allow the Delhi Rent Control Act protection to the defendant. It was also argued that the defendant was duly served with quit notice dated 01/05/06, as such, the suit so far as the relief of possession is concerned, can be decreed under Order XII Rule 6 CPC. Per contra, counsel for the defendant argued that in written statement service of the quit notice has been denied by the defendant, as such plaintiff needs to be taken through a full dress trial to prove termination of tenancy.
11. In the case of SATYA NARAYAN SPUN PIPE FACTORY vs N. PADMAWATI, 2003 (3) RCR (CIVIL) 388 Hon'ble Andhra Pradesh High Court, relying upon judgment of Hon'ble Supreme Court in the case of DATTO PANT vs VITHAL RAO, AIR 1975 SC 1111 held that when tenancy is determined with efflux of time, no quit notice is necessary. Same was held by Hon'ble Orissa High Court in the case of A. RAJESWARI vs BRUNDABAN MOHAPATRA, 2003(2) RCR (CIVIL)14.
12. In the case of VED PRAKASH vs MARUDHAR SERVICES, 2000 RAJDHANI LAW REPORTER 423, Hon'ble Delhi High Court held that admissions must be drawn from totality of defence in the written statement. If there is evasive defence, it is Page 5 of 9 pages 6 impermissible to allow evidence on it. Where the tenant raises hollow pleas of waiver, he cannot oppose the decree under Order XII Rule 6 CPC. To refuse decree, in the words of Hon'ble High Court, would be emasculation of judicial power to do justice.
13. A division bench of Hon'ble Delhi High Court in the case of BHARTIA INDUSTRIES LIMITED vs RAJIV SALUJA, 112(2004) DLT 82 DB upheld the judgment of Hon'ble Single Judge whereby the suit was decreed under Order XII Rule 6 CPC in view of admission of fact in regard to the relationship of landlord and tenant, termination of tenancy by efflux of time or in any case by means of quit notice dated 08-06-2000 which was duly served upon the defendants. Hon'ble High Court found that the denials made by the defendants in the written statement were not specific and were evasive.
14. In the present case also, the defendant has only vaguely denied having received the quit notice. In reply to the pleadings of the plaintiff describing the postal records of the quit notice, defendant does not plead that the postal record is fabricated or procured one. Defendant just vaguely pleads that the postal documents are matter of record and baldly denies having received the notice of tenancy termination.
15. In the case of K. KISHORE CONSTRUCTION vs ALLAHABAD BANK, 1998 RAJDHANI LAW REPORTER 248 Hon'ble Delhi High Court held that if the tenancy agreement expires during pendency of the case, decree under Order XII Rule 6 CPC can be Page 6 of 9 pages 7 granted on such expiry by the court ignoring the objection that suit, when filed was premature and also plaintiff had not admitted relationship of landlord and tenant. Hon'ble High Court further held that even if plaintiff has not set up a certain case, he can ask relief from the facts stated in the written statement.
16. In the case of NATIONAL RADIO AND ELECTRONIC COMPANY LIMITED vs MOTION PICTURE ASSOCIATION, 122(2005) DLT 629 DB a division bench of Hon'ble Delhi High Court upheld the decree passed by the trial court under Order XII Rule 6 CPC in view of admission of relationship of tenancy, rate of rent and service of quit notice by the defendant.
17. A division bench of Hon'ble Delhi High Court, in the case of UNION BANK OF INDIA vs. SUSHILA GOEL, 125(2005) DLT 161 DB held that where the tenancy expired with efflux of time, no notice to vacate is necessary in law. As such, the suit was decreed under Order XII Rule 6 CPC.
18. In the case of DUNLOP INDIA LIMITED vs. SUNIL PURI, 90(2001) DLT 769 DB the trial court of ld. Additional District Judge decreed the suit under Order XII Rule 6 CPC on admitted facts that tenancy came to an end by efflux of time and rent of the premises was more than Rs.3500/- per month. Hon'ble Delhi High Court observed that the period fixed in lease deed stood expired on 31-08- 1997 and the terms of lease provided for an extension of two years at the option of lessee to have the lease renewed. That period also expired on 31-08-1999. Hon'ble High Court held that plea of alleged oral Page 7 of 9 pages 8 understanding being not tenable in the eyes of law there was no illegality in the judgment of ld. trial court to the extent that the plaintiff is entitled to decree of possession.
19. Falling back to the case in hand, relationship of tenancy between the parties, rate of rent above Rs.3,500/- per month and expiry of tenancy by efflux of time on 01/11/06 are admitted facts. As discussed above, mere filing of the suit in the month of July, 2006 before expiry of tenancy by efflux of time is insignificant and must be ignored. It is also clear that the defendant, in his pleadings has been evasive and has only vaguely denied having received the quit notice just for the sake of denial, which is no denial in the eyes of law. Consequently, the quit notice also is deemed to have been served upon the defendant.
20. By now the lease has expired by efflux of time and Hon'ble Delhi High Court held in the case of K.KISHORE CONSTRUCTION (supra) that to shorten the litigation the court obviously can look into the altered circumstances without expecting the plaintiff to amend the plaint and plead expiry of lease by efflux of time pendente lite.
21. In view of above discussion, suit of the plaintiffs as regards possession of the suit property definitely deserves to succeed. But so far as the financial relief is concerned, for the same, the suit can proceed in view of challenges pleaded by the defendant. Defendant must be allowed opportunity to prove the loan advanced by him to Mr.Uppal followed by money spent on seepage, which allegedly were Page 8 of 9 pages 9 to be adjusted against rent. In similar situations in the case of N.C. JAIN vs. INDIAN OIL CORPORATION, 77(1999) DLT 108 and AMARCHAND TALWAR vs EXPORT PROMOTION COUNCIL, 77(1999) DLT 809 and DUNLOP INDIA LIMITED (supra) Hon'ble Delhi High Court decreed the suit under Order XII Rule 6 CPC for possession of the suit property and directed enquiry under Order XX Rule 12 CPC to determine the rate and quantum of mesne profits.
22. Suit of the plaintiffs succeeds so far as relief of recovery of possession of the suit property is concerned and is hence partly decreed against the defendant for recovery of possession of the tenanted ground floor of premises bearing no. C-117, Greater Kailash-I, New Delhi, comprising of three bed rooms set with the existing fittings and fixtures, as shown in red colour in the site plan Annexure A to the plaint. So far as the relief of recovery of rent arrears is concerned, the suit shall proceed through full dress trial.
23. Decree sheet be accordingly drawn up, leaving the issue of costs open till final disposal of the suit.
ANNOUNCED IN THE OPEN COURT ON 6th JANUARY, 2007 (GIRISH KATHPALIA) ADDITIONAL DISTRICT JUDGE DELHI Page 9 of 9 pages