Delhi District Court
B. S. Ojha vs Hari Gopal Manu on 19 January, 2015
1
In the Court of Sh. Rakesh Pandit, Additional District Judge3,
South East, Saket Courts, New Delhi
CS no. 58/14
B. S. Ojha ....... Plaintiff
v e r s u s
Hari Gopal Manu .....Defendant
ORDER
1 By this order I will dispose of application u/o.12 r.6 CPC dated 08.01.2014 moved on behalf of plaintiff seeking prayer that decree of possession of suit premises be passed in favour of plaintiff and against the defendant on the basis of admissions made by the defendant in the written statement.
2 The brief facts of the case necessary to dispose of this application are that plaintiff filed a suit for recovery of possession, damages, mesne profits and mandatory injunction against the defendant. As per the plaintiff, in the plaint, he is the owner/landlord of property bearing Flat no. 96, Mandakani Enclave, Alakhnanda, New Delhi110019 consisting of one drawingdinning room, three bedrooms, kitchen and two bathrooms (excluding the garage) hereinafter called "suit property". The suit property was let out to the defendant about 89 years ago. The last lease deed dated 01.06.2012 was executed and CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 1/11 2 the monthly rent was Rs.36,600/ excluding the electricity and water charges. The said lease deed expired by efflux of time on 30.04.2013. So, the last paid rent was Rs.36,600/. A legal notice dated 25.03.2013 was issued by the plaintiff stating that plaintiff does not want to further continue with the tenancy and terminated the tenancy of the defendant. The said legal notice was duly served upon the defendant. In the prayer clause it is sought that decree for possession of suit property be passed, decree for recovery of damages/mesne profits @ 60,000/ per month be passed along with interest @18% per annum and a decree of mandatory injunction whereby directing the defendant to pay all electricity and water charges before vacating the suit property. 3 In the written statement filed by the defendant, he has taken the plea that plaintiff had agreed to sell the property to the defendant and entered into a memorandum of understanding dated 07.05.2013 (hereinafter called MOU) and all the disputes ended. It is stated that part of the premises is in occupation of Sh. Ramesh Kumar and Sh. Bhavesh Kumar Mandal as tenants and they are necessary parties. Rest of the facts of plaint were denied. However it is not denied that defendant is liable to pay electricity and water charges. 4 In the replication plaintiff stated that he had never entered CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 2/11 3 into MOU dated 07.05.2013 and it is false and fabricated document. He denied landlord/tenant relationship with Ramesh and Bhavesh Kumar Mandal. In rest of the facts plaintiff reiterated his claim and denied those of written statement.
5 In this application u/o.12 r.6 CPC it is stated that defendant has admitted the plaintiff as the owner of the suit premises. He has admitted that the suit premises was taken by the defendant, on rent @ Rs.36,500/. It is stated that the tenancy has expired by efflux of time in April, 2013. Despite that a legal notice dated 25.03.2013 was served upon the defendant asking him to vacate the premises. It is stated that the MOU dated 07.05.2013 is a forged and fabricated document and even not admissible in evidence. It is stated that even if the said MOU is taken on its face value, it is just a mere agreement to sell which does not create any right, title or interest over the immovable property. The agreement only creates right in personum and not in estate. It is stated that the transfer of property can only be done through a registered document. The defence taken by the defendant is very weak and in fact "No Defence".
6 In the reply to this application, defendant has stated that no where in the pleadings, the defendant had admitted anything. It is CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 3/11 4 stated that the defendant is in the suit property on account of its own right being proposed buyer. There exists no relationship of landlord and tenant in the suit premises.
7 On 12.11.2014 parties were examined u/o.10 CPC. 8 I have gone through the pleadings of the case, replication, this application, its reply, documents on record and submissions forwarded by respective counsels in support of their claim.
9 As far as the present case is concerned, the following facts are not disputed:
(a) the defendant entered/occupied the suit property i.e property bearing Flat no. 96, Mandakani Enclave, Alakhnanda, New Delhi110019 consisting of one drawing dinning room, three bedrooms, kitchen and two bathrooms (excluding the garage), on account of lease deed dated 01.06.2012.
(b) the said lease deed was for the period till 30.04.2013.
(c) after 30.04.2013, no fresh lease deed was prepared.
(d) the last paid rent as per the said lease deed was Rs. 36,600/ per month.
(e) the plaintiff is the owner of the suit property (as the lease deed contains this portion and defendant has admitted the same in para wise reply in para 23 of written statement). CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 4/11 5 10 It is argued by the counsel for the defendant that after the expiry of the lease deed, the plaintiff executed MOU dated 07.05.2013, kept original with him and gave copy to the defendant. Defendant is in the property being the owner thereof and cannot be evicted after the execution of MOU dated 07.05.2013. Plaintiff can only claim the rest of the consideration amount.
11 On the other hand it is argued by counsel for the plaintiff that he has not executed any MOU dated 07.05.2013 and the same is the forged document. It is further stated that even otherwise this document has no evidenciary value and cannot be taken into consideration. In the absence of this MOU, if not taken into consideration as having no evidenciary value, the suit of the plaintiff can be decreed on admissions made by the defendant. He has relied on following judgments:
(i) Smt. Sharfi Devi Vs. Shankar by LRs, AIR 2000 Punjab & Haryana 253.
(ii) Shiddappa Adiveppa Jadi Vs. Ramanna, AIR 2002 Karnataka 416.
(iii) Sanjay Singh Vs. Corporate Warranties Pvt. Ltd., 204 (2013) DLT 12.
(iv) Sunil Kapoor Vs. Himat Singh, 2010 (115) DRJ 229.
(v) Abbot India Ltd. Vs. Rajinder Mahindra & Anr., RFA 207/13, DOD 17.01.2014 passed by Hon. High Court of Delhi.
CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 5/11 6
(vi) M/s Saj Flight Services Pvt. Ltd. Vs. Lousi Pereira and Ors., 2005 (1) RCR (Civil) 336.
(vii)Sunil Kapoor Vs. Himmat Singh & Ors., 167 (2010) DLT 806.
(viii)Shyam Lal Khera Vs. Sudharsan Kumar Rao, 2012 (1) RCR (Civil) 55.
(ix) Sushil Ansal Vs. Charmis Enterprises, 205 (2013) DLT 311.
(x) R. N. Sachdeva Vs. Ram Lal Mahajan Charitable Trust, 1997 (41) DRJ 698.
(xi) National Insurance Co. Ltd. & Anr. Vs. Pahlad Tempo Service & Ors., 158 (2009) DLT 58.
(xii)Zulfiquar Ali Khan (Dead ) through LRs. & Ors. Vs. Straw Products Ltd. & Ors., 87 (2000) DLT 76.
(xiii) I. T. D. C Ltd. Vs. M/s Chander Pal Sood & Sons, 84 (2000) DLT 337 (DB).
(xiv)Jiwan Dass Rawal vs. Narain Dass & Ors., AIR 1981 Delhi 291.
(xv)G. Ram Vs. DDA, AIR 2003 Delhi 120.
(xvi)Smt. J. Yashoda Vs. Smt. K. Shobha Rani, AIR 2007 SC 1721 (xvii)U. Sree Vs. U. Srinivas (2013) 2 Supreme Court Cases 114.
(xviii)Ashok Dulichand Vs. Madhavlal Dube & Anr., AIR 1975 SC 1748.
(xix)Arun Kumar Tandon Vs. M/s Akash Telecom Pvt. Ltd., CM (M) 1371/08 dated of order 02.03.2010 passed by Hon. High Court of Delhi.
(xx) VEENA Saluja Vs. Tahiliani Design P. Ltd. CS (OS) NO. 357/2008 dated of order 15.07.2009 passed by Hon. High Court of Delhi.
(xxi)Vivek Gaut Vs. Rajender Kumar Gupta CM (M) No. 191/2010 dated of order 09.02.2010 passed by Hon. High Court of Delhi.
CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 6/11 7 12 As far as the present case is concerned, there are admitted facts i.e. plaintiff is the owner/landlord, the rent of the property is more than Rs.3,500/ ( beyond the scope of Delhi Rent Control Act), defendant is/was tenant in the property. The tenancy has come to the end by efflux of time or even by the notice of termination of tenancy. The points which requires consideration are that i.e. the evidenciary value of document i.e. alleged photocopy of MOU dated 07.05.2013 and as to what was the relationship of the parties after entering into MOU dated 07.05.2013 and as whether these points require evidence or not.
13 As far as the the defendant is concerned, as per him he is in the property as the owner by virtue of MOU dated 07.05.2013. As far as the Transfer of Property Act is concerned, any immovable property of worth more than Rs.100/ can only be transferred by way of registered sale deed. So, this MOU dated 07.05.2013 cannot be said to be a document by which the suit property is sold. Moreover, the nature of the document is such that which suggests that the alleged transaction, if any, is not complete. So, this document cannot be termed as a complete document for sale of the property. 14 It is argued by the counsel for the defendant that he is in CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 7/11 8 occupation of the property on account of agreement/MOU dated 07.05.2013 and in view of Sec.53A of Transfer of Property Act. As far as the agreement dated 07.05.2013 is concerned, at the maximum it can be termed as alleged agreement to sale. As far as the rights accruing from this document, it is a settled law that an agreement to sale does not confer any interest in the immovable property but only create reciprocal obligations between the parties to the agreement. 15 However, as per the judgments relied by the plaintiff i.e. Sunil Kumar Vs. Himat Singh & Ors. (supra), Abbot India Ltd. Vs. Rajinder Mahindar & Ors. (supra), after the amendment of Transfer of Property Act and Stamp Act w.e.f. 24.09.2001 (Delhi), where the possession of the property is handed over, the agreement to sale can only be made by payment of stamp duty equivalent to 90% of the sale consideration and also is to be registered. Only than that document i.e. agreement to sale is admissible in evidence. 16 In this case the alleged MOU dated 07.05.2013 is not written after payment of relevant stamp duty. Nor it is a registered document. So, this document is inadmissible in evidence for all practical purposes i.e. for the purposes of Sec.53A of Transfer of Property Act. In these circumstances, defendant cannot claim his CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 8/11 9 right of possession of the property as alleged purchaser. 17 It is further argued by defendant that the moment plaintiff entered into agreement to sell/MOU dated 07.05.2013, the relationship between the parties i.e. landlordtenant comes to an end and he cannot claim possession. As far as these arguments are concerned, the relevant case law in the aforesaid judgments states that mere entering into any MOU/agreement to sell does not alter the tenant landlord relationship. Even after entering into this alleged agreement, the relationship of landlord and tenant does not ceases and the tenant cannot retained the property. Landlord has every right to evict him. The only remedy with the alleged tenant/holder of agreement to sell is to get it enforced by way of specific performance in a different suit and not in the same suit.
18 So, in these circumstances, with or without the MOU dated 07.05.2013, it does not create any interest in the property as far as the defendant is concerned. Moreover, this MOU is not a valid document which can be termed as admissible evidence and has no evidenciary value.
19 So, in the absence of this MOU, all the other three ingredients are admitted by the tenant.
CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 9/11 10 20 It is further argued by counsel for the defendant that the case involves intricate questions of facts and thus cannot be decided u/o.12 r.6 CPC since there is no clear cut admissions on the part of defendant.
21 As far as the test regarding the application u/o.12 r.6 CPC is concerned, the Apex Court has laid down the following criteria :
1. Whether the admission of fact arise in the suit.
2. Whether such admissions are plain, unambiguous and unequivocal.
3. Whether the defence set up is such that it requires evidence for determination of issues.
4. Whether objection raised against rendering the judgment are such that which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained.
22 In this case the admission of the defendant regarding relationship of landlord tenant, rate of rent above Rs.3,500/, termination of tenancy are clearly, unequivocally and unambiguously admitted by the defendant.
23 However, the defence raised is very weak and is unsustainable and can be said as if having no defence, as far as the scope of this case is concerned.
CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 10/11 11 24 So, in view of the law laid down in Payal Vision Vs. Radhika Chaudhary, 2012 (9) Scale 105, and in view of the discussions above, due to the admissions of the defendant in the present suit, as far as the suit for recovery of suit property is concerned, there is no requirement of any further evidence to be led by parties.
25 Hence, the application u/o.12 r.6 CPC filed by the plaintiff dated 08.01.2014 is allowed.
26 The suit of the plaintiff is decreed for the relief of recovery of possession of immovable property i.e. Flat no. 96, Mandakani Enclave, Alakhnanda, New Delhi110019 consisting of one drawing dinning room, three bedrooms, kitchen and two bathrooms (excluding the garage) hereinafter called "suit property". 27 Decree sheet be prepared according.
Announced in the open court (Rakesh Pandit) on 19.01.2015 Addl. District Judge03, South East, Saket Courts, New Delhi CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 11/11 12 CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu 19.01.2015 Present: None.
Vide separate order the application of plaintiff dated 08.01.2014 u/o.12 r.6 CPC is allowed.
The suit of the plaintiff is decreed for the relief of recovery of possession of immovable property i.e. Flat no. 96, Mandakani Enclave, Alakhnanda, New Delhi110019 consisting of one drawing dinning room, three bedrooms, kitchen and two bathrooms (excluding the garage) hereinafter called "suit property".
Decree sheet be prepared according.
Put up for filing of documents, if any, admission/denial, if any, of documents and framing of issues for the purposes of relief of damages/mesne profits for 19.02.2015.
(Rakesh Pandit) Addl. District Judge-03, South East, Saket Courts, New Delhi CS no. 58/14 B. S. Ojha Vs. Hari Gopal Manu page 12/11