Delhi District Court
Mrs Suman Gupta vs M/S Himachal Environmental ... on 29 August, 2014
IN THE COURT OF ANURAG SAIN, ADJ03 (EAST),
KARKARDOOMA COURTS, DELHI
C.S. No.: 549/14
Unique Case ID No.02402C00070282013
Mrs Suman Gupta,
W/o Mr Vinod Gupta,
R/o 38, Shalimar Park,
Shahdara, Delhi110032
........Plaintiff/Applicant
Versus
M/s Himachal Environmental Engineering
Company Private Limited,
A Company incorporated and existing
under the Provisions of The Companies Act, 1956
Through its Managing Director:
Mr Manoj Garg,
G39, Preet Vihar,
Delhi110092
Also At:
Premises No.202C, Plot No.4,
Sagar Complex,
New Rajdhani Enclave,
L.S.C. Main Vikas Marg,
Delhi110092
Email: [email protected]
C.S. No.: 549/14 Page 1 of 28
[email protected]
........Defendant
Date of institution of the suit : 05.03.2013
Date of filing of app. U/O 12 Rule 6 CPC : 26.10.2013
Date of reserving judgment : 16.08.2014
Date of disposal of app. U/O 12 Rule 6 CPC : 29.08.2014
JUDGMENT
1. Vide this judgment, I shall dispose off the application Under Order 12 Rule 6 read with Section 151 CPC filed by the plaintiff.
2. Brief facts of the case are that the plaintiff is an absolute owner/landlady of premises bearing no.202C, Plot No.4, Sagar Complex, New Rajdhani Enclave, L.S.C., Main Vikas Marg, Delhi110092 having super area admeasuring 350 sq. ft. more specifically shown in red colour in the site plan (hereinafter referred to 'the suit property'). It has been further averred that the defendant has been taking the suit property on rent from the plaintiff and the suit property had been last leased out to the defendant vide registered Lease Deed dated 26th October, 2009 bearing Registration No.13049 in Additional Book No.1, Volume No. 4246 on pages 43 to 49, registered on 27th October, C.S. No.: 549/14 Page 2 of 28 2009 before the office of the concerned SubRegistrarVIII, Delhi for a period of three years only starting from 01.08.2009 and ending in 31.07.2012. It has been further averred that as per the terms in the aforesaid Lease Deed, the initial gross rent of the suit property was agreed as Rs.18,400/ per month which was to be effective from 01.08.2009 till 31.07.2010 exclusive of water, electricity and maintenance charges. With effect from 01.08.2010 till 31.07.2011, the gross rent of the suit property was agreed as Rs.19,700/ per month exclusive of water, electricity and maintenance charges. With effect from 01.08.2011 till 31.07.2012, the gross rent of the suit property was agreed as Rs. 21,000/ per month exclusive of water, electricity and maintenance charges and the same has been duly paid by the defendant to the plaintiff after deduction of TDS as per prescribed rates till 31.07.2012. It has been further averred that despite expiry of the said tenancy by efflux of time on 31.07.2012, the defendant failed to vacate the tenanted premises despite various requests and demands made on behalf of the plaintiff; The defendant also failed to respond to the communications sent by the plaintiff; Still further the defendant C.S. No.: 549/14 Page 3 of 28 was electronically remitting a net amount of Rs.18,900/ in the bank account of the plaintiff without any instructions or authorization given by the plaintiff in this regard. It has been further averred that the plaintiff does not want to keep the defendant as a tenant in the suit property though the tenancy had already expired by efflux of time on 31.07.2012; It has been further averred that the plaintiff got served a legal notice dated 05.11.2012 of termination of tenancy upon the defendant thereby calling upon the defendant to vacate the suit property on or before 30.11.2012 and it was clarified in the said notice that in case the defendant fails to vacate the suit property on or before 30.11.2012, the defendant shall be liable to pay damages towards unauthorized use and occupation of the suit property at the rate of Rs.1,25,000/ per month w.e.f. 01.12.2012 excluding electricity and water charges. It has been further averred that the defendant has neither complied with the legal notice nor vacated the suit property. It has been further averred that after the service of legal notice, the defendant is threatening the plaintiff to clandestinely transfer the possession of the suit property unauthorizedly and illegally in favour of third C.S. No.: 549/14 Page 4 of 28 parties/entities in order to illegally frustrate the legitimate claims of the plaintiff. The plaintiff has claimed damages/mesne profits from the defendant for the unauthorized use and occupation charges of the suit property w.e.f. 23.02.2013 which comes to Rs.41,667/ at the rate of Rs.1,25,000/ per month. The plaintiff has also claimed damages/mesne profits from the defendant for the unauthorized use and occupation charges of the suit property at the rate of Rs.1,25,000/ per month till the handing over the physical and vacant possession of the suit property along with pendentelite and future interest at the rate of 24% per annum till the actual realization of the entire sum due.
3. Written statement filed by the defendant wherein it has been submitted that the defendant company was earlier known as Himachal Environmental Engineering Co. Pvt. Ltd. but now the defendant company is known as Himenviro Environmental Engineering Co. Pvt. Ltd. and a certificate as per the Sec. 23 (1) of the Companies Act has been issued by the Registrar of Companies, Himachal Pradesh and Sh. T.K. Ghosh, Finance Head of the company has been appointed as Authorized C.S. No.: 549/14 Page 5 of 28 Representative of the defendant company. The defendant had also taken preliminary objections in the written statement such as the plaintiff has concealed the material facts and has not come to this court with clean hands; suit is not properly valued; no cause of action ever arose in favour of the plaintiff; suit is barred by law. Relationship of landlord and tenant has been admitted and the execution of the Lease Deed and terms and conditions thereof have been admitted by the defendant. It has been further averred that there was an oral agreement between the parties in the month of December, 2012 that the defendant shall keep depositing the rent and further lease deed shall be executed between the parties and till then the defendant is keep deposing the rent after deducting the TDS. On merits, it has been averred that no notice was ever served upon the defendant. It has been further averred that in the month of December, 2012 the negotiation meetings were held between the parties and the defendant is ready to pay the rent of the suit property as per the market rate of the rent i.e. around Rs.21,000/ or so, in the area where the suit property is situated but the plaintiff was adamant for high rate of rent of Rs.50,000/ per month. Rest of the C.S. No.: 549/14 Page 6 of 28 contents of the plaint have been denied by the defendant in the written statement.
4. The plaintiff has filed the present application under Order 12 Rule 6 CPC for passing of decree of possession against the defendant on the basis of the admissions made by the defendant in the written statement. It has been averred by the plaintiff in the application that the relationship of landlord and tenant, registered Lease Deed dated 26.10.2009 and rate of rent of Rs. 21,000/ per month have been admitted by the defendant in the written statement. It has been further averred that the tenancy of the defendant has already expired by efflux of time on 31.07.2012. It has been further averred that though the defendant has denied the service of legal notice dated 05.11.2012 for terminating the tenancy but even otherwise the copy of the said legal notice dated 05.11.2012 has been served upon the defendant at the time of service of the summons of this suit. On these premise, the present application has been filed by the plaintiff.
5. Reply to the application has been filed by the defendant. In the reply the defendant took similar objections, as taken in the C.S. No.: 549/14 Page 7 of 28 written statement.
6. I have heard ld. counsels for the parties and carefully perused the record.
7. For the disposal of the application under Order 12 Rule 6 CPC, first I have to look at the contents of last Lease Deed dated 26.10.2009 executed between the parties. Clause 2, 3 and 4 of this Lease Deed state that:
"2. The lease of the said premises shall be for a period of 3 (three) years commencing from 01st August, 2009 and ending on 31st day of July, 2012".
"3. The lease shall be a month to month lease starting from the 1st day of each English Calendar month w.e.f. 01.08.2009 and ending on the last day of the same English Calendar month. The Lessee shall pay to the Lessor before 7th day of each English Calendar Month, a monthly rent of Rs. 18,400/ (Rupees Eighteen Thousand and Four Hundred only).
"4. The Lessor shall be entitled to an increase in the rent on the then last paid rent every year and the rent for the tenanted premises would be as follows:
(a) For the period 01.08.2009 till 31.07.2010, C.S. No.: 549/14 Page 8 of 28 Rs.18,400/ (Rupees Eighteen Thousand and Four Hundred Only) per month.
(b) For the period 01.08.2010 till 31.07.2011, Rs.
19,700/ (Rupees Nineteen Thousand and Seven Hundred Only) per month.
(c) For the period 01.08.2011 till 31.07.2012, Rs. 21,000/ (Rupees Twenty One Thousand Only) per month.
8. Thereafter, clause 16 of this Lease Deed states that:
"16. The Lessee undertakes to handover the vacant and peaceful possession of the said tenanted premises on expiry/termination of the Lease, and in case the Lessee fails to handover the vacant and peaceful possession of the said tenanted premises, then the Lessor shall be entitled for the used and occupation charges which, in any case, shall not be less than but not limited to the then prevalent market rate of monthly rent for each month or part thereof and additionally an extra amount as damages from the period the Lease has expired/terminated till the actual possession of the said tenanted premises is handed over to the Lessor by the Lessee, which the Lessor may recover by instituting appropriate legal proceedings before the competent court of law, at the cost, risk, consequences and responsibility of the Lessee........................"C.S. No.: 549/14 Page 9 of 28
9. Thus, it was mentioned in these clauses that the Lease Deed was for a period of three years commenced from 01.08.2009 to 31.07.2012 and thereafter, the defendant was required to handover possession of the suit property to the plaintiff. There is no dispute between the parties regarding the terms of this Lease Deed.
10.In a judgment 155 (2008) DELHI LAW TIMES 431 titled as P.S. Batra v. S. Anoop Singh & Anr., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission Rule 6.(1) Where admissions of fact have been made either in the pleadings 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.C.S. No.: 549/14 Page 10 of 28
(2) Whether a judgment is pronounced under Subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment was pronounced."
8. The scope and ambit of Order 12 Rule 6, CPC was discussed by the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v.
United Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the supreme Court observed as under :
"Para 12. As to the object of the order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'. We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the C.S. No.: 549/14 Page 11 of 28 former to succeed, it should apply and also wherever there is a clear admission of facts in the fact of which, it is impossible for the party making such admission to succeed."
9. In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of this Court interpreted the provisions of Order 12 Rule 6, CPC by holding :
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
10. Another Division Bench of this Court had the occasion to interpret the expression 'otherwise' as used under Order 12 Rule 6, CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Anr., reported as 119 (2005) DLT 202 (DB). It was observed as below :
"Para 10. The use of the expression 'otherwise' C.S. No.: 549/14 Page 12 of 28 in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e. either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under Order 10 Rules 1 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matter in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein............."
11.In another case RFA (OS) No. 1/2005 titled as Mr. Prem Narain Misra Vs. Faire Brothers Export and Import Ltd. decided on July 12 2007, it was observed by our own Hon'ble High Court in para 17 :
"The very objective and purpose of enacting the provision like Order 12 Rule 6 CPC is to enable C.S. No.: 549/14 Page 13 of 28 the Court to pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. 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".
12.The Hon'ble Supreme Court of India in a case titled as Payal Vision Ltd. Vs. Radhika Choudhary (2012) 11 Supreme Court Cases 405 has held in para 7 that: "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 C.S. No.: 549/14 Page 14 of 28 dispute the court can pass a decree in terms of Order 12 Rule 6 CPC, which reads as under: '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."
In para 8, it has been held that : "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 12 Rule 6 CPC and C.S. No.: 549/14 Page 15 of 28 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. relied upon by the High Court where this Court has observed: (SCC p. 604, para 10) '10. ......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 may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation."
13.In the light of the law laid down with respect to the ambit and scope of Order 12 Rule 6 CPC, let us examine the case of the defendant and from the averments/submissions, if the court comes to the conclusion that the same amounts to admissions C.S. No.: 549/14 Page 16 of 28 unequivocal and clear, the decree on the admissions of the defendant can be passed.
14. In this case, the defendant has made the following averments as under:
(i)That after the expiry of the lease deed, negotiations were going on regarding the new rent and in the meanwhile the plaintiff directed the defendant to continue deposit the rent till the formal lease deed is executed between the parties and hence the defendant is depositing the rent @ Rs.18,990/ in her bank account regularly.
(ii)No legal notice bearing reference no. L16/2012 dated 05.11.2012 whereby the plaintiff has terminated the tenancy of the defendant as a matter of abundant precaution, was ever sent by the plaintiff or received by the defendant and also the email.
(iii)Since oral understanding between the plaintiff and the defendant that fresh rent agreement shall be executed between the plaintiff and the defendant.
15.I shall be taking averments so made by the defendant one by one.
16.The first contention of the defendant is that after the expiry of C.S. No.: 549/14 Page 17 of 28 tenancy by efflux of time (which is an admitted fact) or the legal notice of termination of tenancy upon the defendant bearing reference no.L16/2012 dated 05.11.2012, the plaintiff has accepted the rent and thus the same amount to waiver of notice. The defendant had been regularly depositing the rent in the account of the plaintiff.
17. Ld. counsel for the defendant argued that by receiving of rent by the plaintiff from the defendant amounts to accepting the defendant as a month to month tenant in respect of the suit property with an intention to treat the lease deed subsisting. It has been further argued that thus, the alleged notice dated 05.11.2012 for the termination of the tenancy of the defendant stands waived/withdrawn and is rendered ineffective.
18.In a judgment (2006) 4 Supreme Court Cases 205 titled as Sarup Singh Gupta Versus S. Jagdish Singh and Others decided on 29th March, 2006, it has been held in para 8 by the Hon'ble Supreme Court of India that: "8. In the instant case, as we have noticed earlier, two notices to quit were given on 1021979 and 1731979. The suit was filed on 261979. The tenant offered and the landlord C.S. No.: 549/14 Page 18 of 28 accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver".
C.S. No.: 549/14 Page 19 of 28
19.In a Judgment 2006, RAJDHANI LAW REPORTER. 355 titled as Central Bank v. Lalit K Bhargav decided on 19.4.2006, it has been held in para 12 that : "12. The law is well settled that no tenant can be allowed to retain possession of the tenanted premises without payment of rent/damages for its use and occupation. The law is equally well settled through catena of decisions of High Court and Supreme Court, that mere acceptance of rent after service of notice to quit does not amount to creation of a new tenancy and that the notice to quit is not waived by mere acceptance of rent."
20.In a judgment 140 (2007) DELHI LAW TIMES 649 (DB) titled as Punjab National Bank versus Riviera Apartments Pvt. Ltd, it has been observed by our own Hon'ble High Court in para 4 that :
4. The learned Single Judge examined, in the facts of this this case, whether it was a case of holding over under Section 106 of the Transfer of Property Act, 1882 or the Bank was tenant at sufferance. Quoting from the Supreme Court judgment in R.V. Bhupal Prasad v. State of A.P., AIR 1996 SC 140, which explained this difference, the learned Single Judge further held that mere C.S. No.: 549/14 Page 20 of 28 acceptance of rent after serving upon the tenant a notice to quit would not amount to waiver under Section 113 of the Transfer of Property Act, 1882, as was held by the Supreme Court in Sarup Singh Gupta v. S. Jagdish, III (2006) SLT 148=II (2006) CLT 16 (SC)=2006 (4) SCC 205. Number of other judgments in respect of this very proposition are noted and relevant portions extracted. Our purpose would be served in referring to the following quotes from two such judgments. In Shanti Prasad Devi v. Shankar Mahto , V (2005) SLT 198=III (2005) CLT I (SC)=2005 (5) SCC 543, it was observed as under:
"18. We fully agree with the High Court and the first appellate Court below 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....."
21. The second contention of the defendant is that no legal notice bearing reference no.L16/2012 dated 05.11.2012 for terminating the tenancy of the defendant was ever served upon the defendant by any mode viz registered AD, email and speed post and thus, the tenancy of the defendant is subsisting till date.
C.S. No.: 549/14 Page 21 of 28
22.Our own Hon'ble High Court in a case titled as Skyland International Pvt. Ltd. Vs. Kavita P. Lalwani (MANU/DE/2203/12 has formulated the principles while dealing with the provisions of Order 12 Rule of the Code of CPC. It has so been held in (vii) that: "(vii)..................A vague denial of receipt of a notice to quit, the defendant is not sufficient to raise an issue. To rebut the presumption of service of a notice to quit, the defendant has to plead material particulars in the written statement such as where after receiving the plaint and the documents, the defendant has checkedup with the PostOffice and has obtained a certificate that the postal receipt filed by the plaintiff was forged and was not issued by the concerned Post Office.
(viii)A selfserving denial by the defendant and more so in these types of case, cannot hold back the Court from exercising its jurisdiction to decree a suit under Order XII Rule 6 of the Code of Civil Procedure. Raising a plea of nonreceipt of notice to quit and seeking an issue on it is obviously to drag on the litigation and keep on holding to the suit property without having to pay the current market rentals, is not sufficient to raise an issue and, therefore, liable to be rejected".
23.Even otherwise the issue of legal notice for termination of C.S. No.: 549/14 Page 22 of 28 tenancy and to handover the vacant possession is no longer resintgra. While referring to the catena of judgment on the legal notice to quit, it has been held by the Hon'ble High Court of Delhi in a case titled as Cottage Industries Exposition Ltd. Vs. Amritpal Kaur & Ors. 209 (2014) Delh Law Times 177 has held in para 6 that: "6.In any case, so far as the issue of service of notice is concerned, the law so far as Courts of Delhi are concerned is well settled by the judgment in the case of Jeevan Diesels and Electricals Limited v. Jasbir Singh Chadha (HUF) & Anr., 183 (2011) DLT 712, wherein by reference to the amended provision of Section 106 of Transfer of Property Act; and which provision was amended to take away technical defences with respect to termination of tenancy; it has been held that service of summons in the suit can also be treated as a notice under Section 106 of the Transfer of Property Act. Para 7 of the judgment in the case of Jeevan Diesel (Supra) reads as under: "7.The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as C.S. No.: 549/14 Page 23 of 28 follows:
(i)The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.07.2006 as Ex. PW1/3 and with respect to which the registered received, UPC and AD card were exhibited as Ex. PW1/4 to Ex. PW1.6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.7.2006 was duly served upon the appellant resulting in termination of the tenancy.
(ii)The Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), I (2008) SLT 195=146 (2008) DLT 217 (SC)=2008 (20 SCC 728, has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (Supra) I hold that even assuming C.S. No.: 549/14 Page 24 of 28 the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.
.............."
24.Recently our own Hon'ble High Court in Civil Misc. (Main) 467/14 and C.M. Nos.81558156/14 in a case titled as Pradeep Kumar Vs. Mukesh Kumar Jain has held in para 3 that: "3..............In the city of Delhi, tenancies where rents are more than 3500/ per month, and the tenant is a month to month tenant, such a tenant has no defence because premises are outside the Delhi Rent Control Act, 1958 and even if no notice is sent terminating the tenancy, it is a settled law so far as this Court is concerned vide M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183 DLT 712, that even summons of service of the suit can be taken as a notice under Section 106 of the Transfer of Property Act, 1882 for terminating the tenancy".
25.Thus, the contention of the defendant on this count also fails.
26.Lastly the counsel for the defendant argued that there was oral agreement between the plaintiff and the defendant for the C.S. No.: 549/14 Page 25 of 28 renewal of the lease deed and that requires trial. The argument of the ld. counsel for the defendant holds no water for the reasons that the aforesaid submission of the defendant are self serving statement of the defendant. It is unilateral statement of the defendant which has been specifically denied by the plaintiff. The same is further fortified from the conduct of the plaintiff when he issued the legal notice bearing reference no.L16/2012 dated 05.11.2014 for terminating the tenancy of the defendant and subsequently filing the present suit. In law, either there is a tenancy for a specific period in terms of a duly registered lease deed, and in which case the tenant would have protection for the period of lease or if there is no registered lease deed for the leased premises then the tenancy will be on a month to month basis.
27. Thus, from the above, the following facts are clear: Relationship of landlord and tenant not disputed; Rate of rent not disputed, the same is beyond the purview of Delhi Rent Control Act; Registered Lease Deed dated 26.10.2009 for the period from 01.08.2009 to 31.07.2012 in respect of the premises has come to an end by efflux of time i.e. 31.07.2012 or by a C.S. No.: 549/14 Page 26 of 28 valid notice dated 05.11.2012 sent by the plaintiff to the defendant to quit and handover the vacant and peaceful possession of the suit property, already discussed and answered above.
28.Our Own Hon'ble High Court in a case titled as Atma Ram Properties Pvt. Ltd. Vs. Pal Properties Pvt. Ltd. & Ors. 2002 (62) DRJ 623 held that in order to succeed in the suit for possession, the plaintiff has to prove the following ingredients:
1. That there is relationship of landlord and tenant between the parties.
2. Tenancy in respect of the premises has come to an end either by efflux of time or by a valid notice sent by the plaintiff to the defendant under Section 106 of the Transfer of Property Act and duly served on the defendant.
3. The rent of the premises in question is more than Rs. 3,500/ per month and therefore, there is no protection of the provisions of Delhi Rent Control Act available to the tenant.
29.The aforesaid judgment squarely applies in the facts of the present matter.
30.In view of the discussion and observations made herein above, the application under Order 12 Rule 6 read with Section 151 C.S. No.: 549/14 Page 27 of 28 CPC moved by the plaintiff deserves to be allowed and the plaintiff is entitled for judgment regarding the relief of possession of the suit property on admission made by the defendant. Thus, the plaintiff is entitled for possession of the suit property from the defendant and the defendant is directed to handover and deliver the actual, physical, vacant and peaceful possession of the suit property bearing no.202C, Plot No.4, Sagar Complex, New Rajdhani Enclave, L.S.C., Main Vikas Marg, Delhi110092 having super area admeasuring 350 sq. ft. more specifically shown in red colour in the site plan to the plaintiff immediately after the expiry of statutory period of appeal. Decree sheet shall be drawn in accordance with this order passed today.
31. For the remaining reliefs as prayed in the suit, the plaintiff has to prove the case in accordance with the law during the trial. Announced in the open court On 29.08.2014 (Anurag Sain) Addl. District Judge03 (East) Karkardooma Courts, Delhi C.S. No.: 549/14 Page 28 of 28 C.S. No.: 549/14 29.08.2014 Present None.
Vide separate judgment pronounced in the open court, the application under Order 12 Rule 6 read with Section 151 CPC moved by the plaintiff is allowed and the plaintiff is entitled for possession of the suit property from the defendant and the defendant is directed to handover and deliver the actual, physical, vacant and peaceful possession of the suit property bearing no.202C, Plot No.4, Sagar Complex, New Rajdhani Enclave, L.S.C., Main Vikas Marg, Delhi110092 having super area admeasuring 350 sq. ft. more specifically shown in red colour in the site plan to the plaintiff immediately after the expiry of statutory period of appeal. Decree sheet shall be drawn in accordance with this order passed today.
Now to come up for disposal of application under Order 7 Rule 11 CPC, replication, admission/denial of documents and framing of issues on 03.11.2014. Parties are directed to appear in person.
(Anurag Sain) Addl. District Judge03 (East) Karkardooma Courts, Delhi C.S. No.: 549/14 Page 29 of 28