Delhi District Court
Col. V.P. Mohan vs Suresh Batra on 24 April, 2007
1
IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO.226/06
1. COL. V.P. MOHAN
S/O LATE MAJOR GENERAL P.C. MOHAN,
GROUND FLOOR, SAI ASHIWAAD,
10, NAVJEEWAN VIHAR,
NEW DELHI-110017.
2. MRS. SHOBHA MOHAN,
W/O COL. V.P. MOHAN,
GROUND FLOOR, SAI ASHIWAAD,
10, NAVJEEWAN VIHAR,
NEW DELHI-110017. ....PLAINTIFFS
versus
SURESH BATRA,
S/O LATE SH. C.D. BATRA
SECOND FLOOR, SAI ASHIWAAD,
10, NAVJEEWAN VIHAR,
NEW DELHI-110017. ....DEFENDANT
DATE OF INSTITUTION: 22/08/2006
ARGUMENTS CONCLUDED ON: 24/04/2007
DATE OF DECISION: 24/04/2007
Counsel for Plaintiffs: Sh. V.K. Sharma, Advocate
Counsel for Defendant: Sh. K.K. Sharma, Advocate
JUDGMENT
1. Plaintiffs' application dated 02/02/07 under the provisions of Order XII Rule 6 CPC in this suit for recovery of possession of the tenanted premises the second floor of Sai Ashirwaad, 10 Navjivan Vihar, New Delhi (hereinafter referred CS/226/06 Page 1 of 11 pages 2 to as "the suit property") and damages etc. is being hereby disposed of. Defendant filed a reply to the application. I have heard ld. Counsel for both the sides, who took me through the entire record.
2. Briefly stated, facts relevant for present purposes are as follows. Plaintiff no.1, the owner of the suit property inducted the defendant as tenant initially by way of registered lease deed dated 07/09/04 for a period of 11 months. On expiry of the said period, another registered lease deed dated 27/09/05 was executed between the plaintiff no.1 and the defendant for a further period of 11 months till 31/07/06. In supplement of the lease deeds, Hire Agreements were also executed between the plaintiff no.2 and the defendant whereby towards user of fittings and fixtures, the defendant had to pay the stipulated amount to plaintiff no.2.
3. As pleaded in the plaint, tenancy of the defendant was to expire by efflux of time on 31/07/06, so plaintiff no.1 issued notice dated 30/04/06 calling upon the defendant to vacate the suit property before 01/08/06. The said notice was duly served upon the defendant, who issued reply dated CS/226/06 Page 2 of 11 pages 3 18/05/06.
4. Since despite termination of tenancy by way of notice dated 30/04/06 as well as by efflux of time on 31/07/06 defendant did not vacate the suit property, plaintiff has brought the present suit.
5. In his written statement, the defendant admitted having executed the above said lease deeds but pleaded that he had taken the suit property on rent for a period of atleast five years since shifting of residence is a difficult task. As per defendant, even plaintiff no.1 had agreed to let out the suit property for a period of five years but it was decided that parties would execute lease agreements for 11 months which would be renewed every year.
6. As per defendant in the written statement, plaintiff raised an illegitimate and unjustified demand of 100% increase in rent as a precondition to renewal of the lease deed, which was not agreeable to the defendant and hence plaintiff has brought the present suit with oblique purposes.
7. Defendant admitted having received plaintiffs' notice dated 30/04/06 which was duly replied by him vide letter CS/226/06 Page 3 of 11 pages 4 dated 18/05/06. But defendant denied that lease has come to an end by way of quit notice dated 30/04/06 or by efflux of time on 31/07/06. As per defendant, since he continues to be a lawful tenant, the suit deserves to be dismissed.
8. Plaintiff filed a detailed replication denying the pleadings of the defendant and reiterated the plaint contents.
9. It is on the basis of these pleadings that the application under consideration was brought by plaintiff seeking partial decree of the suit to the extent of recovery of possession of the suit property on the basis of admissions made by the defendant in his written statement.
10. Ld. Counsel for plaintiff argued that defendant has admitted in written statement having executed the lease deed dated 27/09/05 which was for a period of 11 months expiring on 31/07/06. Defendant has also admitted having received the quit notice dated 30/04/06 which was replied back by the defendant. Even legality of the quit notice has not been challenged in the written statement. Therefore, this is a fit case to decree the relief of possession of the suit property by invoking the provisions under Order XII Rule 6 CPC.
CS/226/06 Page 4 of 11 pages 5
11. Ld. Counsel for defendant argued that in order to invoke the provisions of Order XII Rule 6 CPC, the admission relied upon has to be an unconditional one. Ld. Counsel pointed out the reverse side of second page of both the lease deeds which mentioned the deed name as "lease with security upto five years" and argued that this title clearly reflects that the lease was for a period of five years and not for eleven months. Ld. Counsel also made a reference to clause 1 of the lease deed dated 27/09/05 to contend that the deed contemplated continuation of tenancy for a period beyond 11 months also, though with 10% enhancement in rent. Ld. Counsel argued that since triable issue as regards the true span of lease has been made out from pleadings and documents, the suit cannot be decreed even partially under Order XII Rule 6 CPC.
12. 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 the judgment of Hon'ble Supreme Court in the case of DATTO PANT vs VITHAL RAO, AIR 1975 SC 1111 held that when CS/226/06 Page 5 of 11 pages 6 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. 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 had been decreed under Order XII Rule 6 CPC in view of admission of facts 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 duly served upon the defendants.
13. In the case of PHOOL RANI vs SHEEL CHANDRA, 2004 RAJDHANI LAW REPORTER 467 a division bench of Hon'ble Delhi High Court held that once the tenancy expires by efflux of time, mere payment of rent thereafter does not result in holding over under Section 116, Transfer of Property Act.
14. 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 CS/226/06 Page 6 of 11 pages 7 expires during pendency of the case, decree under Order XII Rule 6 CPC can be 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.
15. 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. 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 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 CS/226/06 Page 7 of 11 pages 8 Hon'ble High Court, would be emasculation of judicial power to do justice.
16. 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 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 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.
17. In the case of BADRI DASS vs AGFR & S CON.
COOPERATIVE STORE, 1986 RLR 26 Hon'ble Delhi High Court held that where an agreement between the parties is in writing, no oral evidence as regards variation of its terms can be allowed. In the case of RAJIV SRIVASTAVA vs SANJEEV CS/226/06 Page 8 of 11 pages 9 TULI, 2005 RLR 71 (note) Hon'ble Delhi High Court held that if the lease entered into by way of a registered document expires with efflux of time, which facts are admitted in the written statement and there is a claim of oral extension of lease, admissions in the written statement are enough to grant decree under Order XII Rule 6 CPC.
18. So far as the deed name is concerned, the same cannot be read in a manner to prevail over the contents of the lease deed. The lease agreement has to be read in its entirety. Anything contrary to the overall impression conveyed by the deed has to be disregarded. Clause 9 of the lease deed dated 27/09/05 categorically stipulates term of the lease for a period of 11 months only and the said clause uses the word "not" in capital letters in the sentence "this lease deed is NOT extendable". Clause 10 of the lease deed also shows the maximum period of lease contemplated to be 11 months i.e. till 31/07/06. Clause 16 of the said lease deed uses the word "only" to qualify the period 11 months. Both the lease deeds read together as well as separately in their entirety leave no doubt that the lease contemplated by each of lease deeds was CS/226/06 Page 9 of 11 pages 10 for a period of 11 months only.
19. From pleadings of the parties, the following unchallenged admissions can be indisputably culled out:
1. That the tenancy of the defendant was governed by registered lease agreement dated 27/09/05;
2. That the period of tenancy as contemplated by the registered lease agreement was for a period of 11 months and rate of rent agreed was more than Rs.3,500/- per month;
3. That the tenancy expired by way of efflux of time on 31/07/06;
4. That the defendant was also served with a notice dated 30/04/06 terminating the tenancy with effect from 01/08/06; and
5. The defendant has not vacated the suit property.
20. In similar situations in the case of N.C. JAIN vs. INDIAN OIL CORPORATION, 77 (1999) DLT108 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 CS/226/06 Page 10 of 11 pages 11 enquiry under Order XX Rule 12 CPC to determine the rate and quantum of mesne profits.
21. In view of the above mentioned admissions, which are unambiguous, unequivocal and unconditional, plaintiff is certainly entitled to judgment under the provisions of Order XII Rule 6 CPC so far as the relief of recovery of possession of the suit property is concerned. Application dated 02/02/07 of plaintiff is allowed and consequently the suit is decreed against the defendant for recovery of possession of the suit property being the second floor of Sai Ashirwaad, 10 Navjivan Vihar, New Delhi.
22. Decree sheet be accordingly drawn up, leaving the issue of costs open till final disposal of the suit. ANNOUNCED IN THE OPEN COURT ON 24th April 2007 (GIRISH KATHPALIA) ADDL. DISTRICT & SESSIONS JUDGE DELHI CS/226/06 Page 11 of 11 pages