Delhi District Court
M/S. Atma Ram Properties (P) Ltd vs Pal Properties (India) Pvt. Ltd on 12 June, 2012
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: DELHI
CS N0. 149/11.
UID No. 02401C08533622003.
M/s. Atma Ram Properties (P) Ltd.
Having its office No. 8
1st Floor, Atma Ram Mansion
Scindia House, Connaught Circus
New Delhi
Through its Director Shri C. M. Chadha
........... Plaintiff
Versus
1. Pal Properties (India) Pvt. Ltd.
H-72, Connaught Circus
New Delhi
2. Pal Properties (India) Pvt. Ltd.
H-72, Connaught Circus
New Delhi
3. M/s. Pal Properties
H-72, Connaught Circus
New Delhi
4. Bank of Baroda
H-72, Connaught Circus
New Delhi
......... Defendants
Date of institution of suit : 29.09.1997
Date of reserving for order : 21.05.2012
Date of judgment : 12.06.2012
CS No. 149/2011 Page 1
JUDGMENT
1. The is a suit filed by the plaintiff for recovery of possession of the property showroom bearing no. H-72, Connaught Circus, New Delhi and also for claiming of mesne profits.
2. Briefly stated the facts of the case are :
a) Arya Dharma Seva Sangh, 1 Doctor's Lane, New Delhi has been the owner and landlord of H Block formerly known as Krishna Bhawan, Connaught Circus, New Delhi including the premises no. H-72, Connaught Circus, New Delhi. Plaintiff became the owner of this property after purchasing it from Arya Dharma Seva Sangh, vide registered sale deed dated 31/03/1994.
b) Sh. C. M. Chadha is the Director and principal officer of the plaintiff and is duly authorized by the resolution of the board dated 13/07/1994 to sign, verify and institute the suit against the defendants.
c) Defendants no. 1 to 3 have been the tenants of the above said premises and a part of it was sub-letted to defendant no. 4. The tenancy was a monthly tenancy commenced on 26 th day of each English calander month and expired on the expiry of the 25th day of succeeding English calender month.
d) Defendants took the premises on rent vide registered lease deed which expired by efflux of time on 27/05/89 as the same was for a period of 114 months commencing from 26/11/79.
e) After the expiry of said lease deed, no fresh lease deed was executed between the predecessor in title of the plaintiff or with the plaintiff and hence the defendant became the tenant holding over. The tenancy of the defendant has been a monthly tenancy.
f) The premises which was let out to the defendant is out of Delhi Rent Control Act,1958 by virtue of Section 3 (c) of Delhi Rent Control CS No. 149/2011 Page 2 Act, 1958.
g) Defendant sub-letted to Bank of Baroda at the rate of rent more than Rs. 3,500/- per month. The rent agreed between defendants no. 1 to 3 as lessee and defendant no. 4 as sub-lessee @ Rs. 24,701.75.
h) Plaintiff vide notice dated 11/07/97 served upon the defendants, terminated the tenancy of defendant on the expiry of 25th day of August, 1997. The notice was served upon defendants no. 1 to 3 and defendant no. 4 was also served with a copy of the same. In spite of service of the notice and termination of the tenancy, defendant did not vacate the premises nor replied the notice nor disputed the correctness of the notice. Therefore, the notice deemed to have been admitted by defendants no. 1 to 3.
i) Defendant neither vacated the suit premises nor paid the damages at the market letting value of the premises which as on today is Rs. 5 lacs per month.
3. Defendants no. 1 to 3 filed written statement wherein objection of Section 50 of Delhi Rent Control Act is raised. Objection of Section 10 of Code of Civil Procedure is also raised on the ground that a similar proceedings have been pending adjudication before the court of Additional Rent Controller, Delhi. It is also disputed that the tenancy created by the plaintiff in favour of the defendants has not come to an end. It is also objected that there is no relationship of landlord and tenant between the parties. Objections of mis-joinder of cause of actions and parties, are also raised. It is admitted that the premises was let out to the defendants by M/s. Arya Dharma Seva Sangh. It is also admitted that the defendants are tenants at the suit property. It is stated that on the basis of compromise filed in suit no. 62/80 titled as Shree Arya Dharma Seva Sangh Vs. M/s. Pal Properties, it was agreed that the rent payable would be Rs. 1,400/- per month and the said rent CS No. 149/2011 Page 3 of Rs. 1,400/- per month will be increased by 25% if lease be renewed after 114 months from 26/11/27. Accordingly, on exercise of the right of renewal on part of the defendants, the lease stood renewed for a further period of 114 months beginning from 26/11/79. Fact of sub tenancy is also admitted by the parties. Rest of the contents of the plaint are denied in the written statement filed by the defendants.
4. Defendant no. 4 also filed written statement wherein it is admitted that defendant no. 4 is tenant of defendant no. 1 at a monthly rent of Rs. 24,701.75. It is also stated that defendant no. 1 has filed a suit against defendant no. 4 for possession and recovery of Rs. 2,66,219.25.
5. Plaintiff filed replication to the written statement of defendants no. 1 to 3 wherein averments made in the written statement have been denied and contents of the plaint re-iterated and affirmed.
6. My ld predecessor by order dated 11/05/2005 framed following issues :
"(i) Whether the plaintiff is entitled to the relief of recovery of possession of property no. H-72, Connaught Circus, new Delhi ? OPP.
(ii) Whether the plaintiff is entitled to recover Rs. 5.00 lacs. If so, from whom ? OPP.
(iii) Whether the plaintiff is entitled to recover Rs. 5 lacs per month a mesne profits from the date of filing of the suit i.e. 29/09/1993 till recovery. If so, from whom ? OPP.
(iv) Whether the plaintiff is entitled to interest. If so, at what rate, on what amount and from whom ? OPP.
(v) Whether the plaintiff company is duly incorporated under the Indian Companies Act 1956 ? If not, its effect ? OPP.
(vi) Whether the suit is barred u/s 50 DRC Act ? OPD 1 to 3.
(vii) Whether the present suit is liable to be stayed u/s 10 CPC in view of the preliminary objection No. 2 ? OPD 1 to 3.
(viii) Whether the suit is not maintainable in view of the preliminary objection No. 3 ? OPD 1 to 3.
CS No. 149/2011 Page 4
(ix) Whether the suit has not been properly valued for the
purpose of fee and jurisdiction ?OPD- 1 to 3.
(x) Whether the suit is bad for mis joinder of cause of action
as well as the parties. If so, its effect ?
(xi) Whether the suit has not been filed by a duly authorized
person. If so, its effect ? OPD-1 to 3.
(xii) Whether a valid notice of termination of the tenancy u/s
106 T P Act had been served, as claimed by the plaintiff, on the defendants. If not, what is its effect ? OPD 1 to 3.
(xiii) Whether the lease stood renewed for another period of 114 months w.e.f. 24/11/1979 by virtue of compromise arrived at in suit no. 62/80 in suit titled as M/s. Arya Dharma Seva Sangh Vs. Pal Properties India (P) Ltd. ? If so, its effect. OPD 1 to 3.
(xiv) Relief."
7. To prove its case, plaintiff examined Sh. C. M.Chadha, Director and principal officer of it. He tendered his evidence by way of affidavit Ex.
PW1/A. This witness was cross-examined at length by the counsel for the defendant. Plaintiff further examined judicial assistant, Delhi High Court, who brought original file of suit no. 2669/91 titled as Pal Properties (India) Limited Vs Bank of Baroda. Opportunity for cross- examination was given to the defendants. Plaintiff further examined clerk of Record Room (Civil), Tis Hazari Courts, Delhi as PW3, who brought the original file of eviction petition bearing no. E-21/94, titled as Arya Dharma Seva Sangh vs. Pal Properties. Opportunity for cross- examination was also given. Plaintiff further examined record attendant of office of Sub Registrar-III, who brought lease deed dated 26/11/79. Opportunity for cross-examination was given. Plaintiff further examined LDC from office of Sub Registrar-III, who brought the register containing the agreement of list dated 21/02/95. Opportunity for cross-examination was given. In defence, defendant no. 1 examined Sh. Parveen Gupta, Director and AR of defendant no. 1. This witness CS No. 149/2011 Page 5 was cross-examined by ld counsel for plaintiff. Defendant further examined Inspector, Registrar of Societies who brought summoned record pertaining to the certificate of registration of Arya Dharma Seva Sangh and its memorandum of association and rules and regulations, copies of which are Ex. DW2/A, Ex. DW2/B and Ex.DW3/C respectively. Opportunity for cross-examination of this witness was given to the plaintiff. Thereafter, vide separate statement, ld counsel for defendants closed DE.
8. I have gone through the entire voluminous record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard at great length Sh Amit Sethi, counsel for the plaintiff and Bakshi Shri Ran Singh, counsel for the defendant who advanced arguments on behalf of all the defendants. My issuewise findings are :
9. Issues No. 1, 6, 8 and 12Issue No. 1 : Whether the plaintiff is entitled to the relief of recovery of possession of property no. H-72, Connaught Circus, New Delhi ? OPP.
Issue No. 6 : Whether the suit is barred u/s 50 DRC Act ? OPD 1 to 3.
Issue No. 8 : Whether the suit is not maintainable in view of the preliminary objection No. 3 ? OPD 1 to 3.
Issue No. 12: Whether a valid notice of termination of the tenancy u/s 106 T P Act had been served, as claimed by the plaintiff, on the defendants. If not, what is its effect ? OPD 1 to 3.
10. I am of the considered opinion that facts pertaining to these issues are inter-related to each other and, therefore, I am going to decide these issues by common findings. Onus to prove issue no. 1 is upon the CS No. 149/2011 Page 6 plaintiff whereas onus to prove issues no. 6, 8 and 12 is upon defendants no. 1 to 3. It is the case of the plaintiff that it has purchased the suit property from its erstwhile owner Arya Dharma Seva Sangh vide registered sale deed dated 31/03/94, certified copy thereof is Ex.PW1/3 (original was seen and returned). It is admitted case of the parties that defendant no. 1 was entered into suit property as tenant through M/s. Arya Dharma Seva Sangh who was earlier the landlord and owner of the suit premises. A registered lease deed dated 26/11/79 was entered into and the certified copy thereof has been tendered in evidence as Ex. PW1/4. The said lease deed was for a period of 114 months commencing from 26/11/79 and the same was expired by efflux of time on 27/05/1989. It is further stated that Arya Dharma Seva Sangh vide lease dated 05/08/94, 26/05/98 and 18/12/98 time and again informed defendants no. 1 to 3 about the fact of the sale of the property to the plaintiff and the carbon copy of those letters are Ex. PW1/5 to Ex. PW1/7. Plaintiff also tendered in evidence Ex.
PW1/8 which is copy of order dated 06/09/97 passed by Civil Judge in suit no. 633/95, wherein plaintiff was substituted in place of M/s. Arya Dharma Seva Sangh and the said order is Ex. PW1/8. Ld. Civil Judge while allowing application under Order 22 Rule 10 of CPC moved on behalf of the plaintiff in the suit pending between the parties made following observations :
"It is settled law that at the stage of considering application u/o 22 R 10 CPC, court only has to be prime- facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. For that matter, it is not necessary for court to conduct a detailed enquiry at this stage."
11. After considering the settled position of law, the ld Civil judge decided the application under order 22 Rule 10 of CPC moved by the plaintiff in the said suit. Thus, ld Civil judge was very much cautious that she was CS No. 149/2011 Page 7 not going to decide final rights of the parties but only prima facie decided the application for continuation of the suit only. It was also observed by ld Civil judge that for the disposal of the said application, it was not necessary for court to conduct a detailed inquiry at that stage. Therefore, at that stage whatever finding was given by ld Civil Judge is not going to help the plaintiff for final disposal of the rights of the parties for the purpose of the present suit. Thus Ex. PW1/8 is not going to help the plaintiff for final disposal regarding the status of the plaintiff as a landlord qua defendants no. 1 to 3 in this case. PW.1 has further proved carbon copy of notice dated 11/07/97 as Ex. PW1/9, where in para 5 it was stated :
"5. That you have subletted the premises to the Bank of Baroda and the rent agreed between you and Bank of Baroda is at the rate of Rs. 24,200/- p.m. As Section 3(c) of Delhi Rent Control Act provides that nothing in Delhi Rent Control Act, 1958 shall apply to any premises whether residential or not whose monthly rent exceeds Rs. 3,500/- p.m. As the monthly rent of the premises exceeds Rs. 3,500/- p.m. because you have inducted a sub tenant namely Bank of Baroda at a monthly rent of Rs. 24,200/- as aforesaid."
Plaintiff further proved Ex. PW1/14 which is AD card regarding the receipt for the said notice by the defendant. During arguments, it is submitted on behalf of the defendant that this AD card does not bear either seal or signature of the defendant. It is mentioned on the seal 'D Group of .........' and submits that since this notice was received by one D Group of Companies, therefore, this notice was not served upon the defendant. It is not disputed by the defendant that the notice was correctly addressed and the AD card also bears the correct address of the defendant. There is presumption regarding the service of a notice if the notice correctly addressed and if any party has to rebut the presumption then the said party has to lead evidence in this regard. Plaintiff also proved copy of complaint sent to postal department and CS No. 149/2011 Page 8 reply received from there as Ex. PW1/15 and Ex. PW1/16 and submits that by both these documents, the notice was deemed to be served. Plaintiff also proved notice dated 07/06/96 as Ex. PW1/17 issued to the defendant. Plaintiff further proved letter dated 23/11/98 issued by the defendant to the plaintiff which is Ex. PW1/21 wherein the defendant informed that it was never informed by M/s. Arya Dharma Seva Sangh that they have sold the property to the plaintiff and also asked for renewal of lease. Plaintiff further proved notice dated 07/12/98 as Ex. PW1/23. Plaintiff further proved reply dated 07/12/98 to letter dated 23/11/98 as Ex. PW1/28. It further proved copy of plaint filed by defendant no. 1 against defendant no. 4 in Delhi High Court as Ex. PW1/33. During cross-examination, PW1 has admitted that paras 8, 9, 11, 12 and 13 of Ex. PW1/A are beyond pleadings. During further cross examination, it is admitted that the plaintiff never demanded rent from defendants no. 1 to 3 because it did not consider them as legal tenants. He has further stated that he did not demand rent from defendants as they are not its legal tenants. It is further stated that he did not know whether the rent was being accepted by Arya Dharma Seva Sangh up to 1994 and it is the claim of the plaintiff that the property was purchased by it around 31/03/94. He has further stated that the area of H-72, Connaught Place, New Delhi is around 3000 sq. feet but he was unable to tell the area of the premises which was let out to the defendant as it is stated by him that the premises was let out by Arya Dharma Seva Sangh.
12. DW1 has stated in para 2 of Ex. DW1/X that plaintiff did not pay the house tax for the period of 01/04/94 to 31/03/95 in respect of the suit property, though, it has been claimed by the plaintiff that the property was purchased on 31/03/94. Direction for attachment of rent was issued and the same is Ex. DW1/2. Rent was attached from August, CS No. 149/2011 Page 9 1995 up to May, 1998 and thereafter remitted by the defendant in favour of NDMC in compliance of the said notice. During cross examination, it was admitted by PW1 that the rent was attached by NDMC as the plaintiff did not pay the house tax. It is further stated that M/s. Arya Dharma Seva Sangh had received rent up to July, 1995 from the defendant and the same is Ex. DW1/4. Ex. DW1/4 is perused. This is letter dated 4/4/199 as other digit of the date is not legible. This letter was addressed to M/s. Arya Dharma Seva Sangh and issued by defendant no. 1 wherein the rent was sent through pay order from April, 1995 to May, 1995. In para 7 of Ex. DW1/X, it is stated by DW1 that in past, the plaintiff had never wrote a letter claiming itself to be the owner/landlord of the premises nor the defendant had paid any rent to them. The defendant, therefore, never recognized the plaintiff either as landlord or owner of the suit premises. Cross examination of DW1 is perused. This piece of evidence/statement of DW1 has not been challenged by the plaintiff. There is no cross-examination on part of the plaintiff on this piece of the statement of DW1. There is no cross- examination on behalf of the plaintiff to para 3 of Ex. DW1/X i.e. to challenge that M/s. Arya Dharma Seva Sangh had received the rent up to July, 1995.
In para 3 of Rajinder Pershad (dead) by LRs. Vs. Smt. Darshana Devi' 93 (2001) DLT 1 (SC) held that:
'.........There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U. P. v. Nahar Singh (dead) and Ors. III (1998) (3) SLT 510=1998(3) SCC 561, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed:
"The oft-quoted observation of Lord IIcrschell, L.C. CS No. 149/2011 Page 10 In Brownev. Dunn clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
Thus, if there is no cross examination by the plaintiff to the statement of this witness that statement is deemed to be admitted by the plaintiff.
In a case titled as 'Srichand and Shivan Das Vs. The State 28 (1985) DELHI LAW TIMES 360 it has been held in para 6:
"The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true."
13. During arguments, ld counsel for the defendant challenged that the plaintiff is not the owner of the suit property and, therefore, he did not recognize the plaintiff as landlord of the defendant. He submits that M/s. Shree Arya Dharma Seva Sangh is his landlord and not recognized the plaintiff as his landlord. He further disputes that the claim of the plaintiff regarding the transfer of the ownership in respect CS No. 149/2011 Page 11 of the suit property by M/s. Shree Arya Daharm Seva Sangh to the plaintiff is a fictitious transaction and thus, the plaintiff has no locus standi to file the present suit. Earlier, the suit property was in favour of M/s. Shree Arya Dharma Seva Sangh, a society registered by way of Certificate of Registration of Societies Ex. DW2/A on 27/03/1942. Earlier, this property was in the name of Sardar Jagat Singh, Sardar Prabha Singh and Lala Suraj Narain in whose favour perpetual lease deed was executed on 09/05/1936 by Secretary of State for India through Chief Commissioner of Delhi. M/s. Shree Arya Dharma Seva Sangh having seven trustees and a memorandum of association Ex. DW2/C was executed by all those seven trustees. Rule 3 of Rules and Regulations of Memorandum of Association Ex. DW2/C states :
"3. All properties of the Trust shall vest in the Trustees for the time being and it shall not be necessary to obtain any vesting order or to execute and further document for the vesting of properties in new Trustees or substituted Trustees......."
Clause 3 of memorandum of association Ex. DW2/B states about the aim and objects of this association as :
"3. The aims and objects of the Association are :-
(a) To maintain and support principally "LUXMINARYAN AND BUDHA TEMPLE" situated at Delhi with the garden and the Dharmashala attached thereto.
(b) To maintain and support Arya Samaj, Delhi and support other institutions founded and maintained by Seth Jugal Kishore Birla at Delhi.
(c) To support and/or to maintain the Temples and other institutions at Pilani.
(d) To spread Hindu Religion and education and establish Schools and College and help in the spread of education amongst the Hindus.
(e) To maintain and support other institutions at other places."
It is the claim of the plaintiff that M/s. Shree Arya Dharma Seva CS No. 149/2011 Page 12 Sangh had executed sale deed dated 31/03/1994 in favour of the plaintiff. The sale deed was executed by attorneys Sh. P. K. Khanna and Sh. M. L. Anand on behalf of M/s. Shree Arya Dharma Seva Sangh in favour of the plaintiff. It is mentioned in lease deed that Sardar Jagat Singh, Sardar Prabha Singh and Lal Suraj Narain by indenture of sale deed dated 01/06/1936 sold the property to Seth Laxmi Niwas Birla. It is further mentioned at page 24 of Ex. PW1/3 i.e. sale deed that on 30/03/1948 the Governor General granted and demised to Seth Laxmi Niwas Birla as lessee of this piece of land. It is further mentioned at page 30 of this document that a trust as All India Hindu (Arya) Dharma Seva Sangh Trust was created by a trust deed dated 10/11/1949 registered at Calcutta Registration office and Sh. Jugal Kishore Birla transferred to the trust various immovable properties including the present property. It is further mentioned at page 36 that by indenture of transfer dated 05/04/1965 the trustees of All India Hindu (Arya) Dharma Seva Sangh Trust through its trustees transferred the said property to the trustees of M/s. Shree Arya Dharma Seva Sangh. It is further mentioned at page 39 of this document that the vendor had all the times hereafter shall hold the said premises upon trust and subject to the powers, provisions, stipulations and agreements declared, contained and expressed in the two trust deeds dated 27/03/1942 i.e. Ex. DW2/A, Ex. DW2/B and Ex. DW2/C. At page 49 of this document, it is further mentioned that M/s. Arya Dharma Seva Sangh on the date of execution of Ex. PW1/3 had eight trustees whose names have been mentioned at page 50. It is further stated at page 52 that those trustees have unanimously decided that the return from the properties is insignificant and the trust is deprived of the return from the property and the trust will be benefited a lot in case the above said property be sold at best of the price as offered by CS No. 149/2011 Page 13 the vendee. At page 54 of this document, it is further mentioned that offer of the vendee be accepted. It is further mentioned at page 63 that by virtue of resolution dated 27/11/1992 passed in the meeting of the trustees, a power of attorney has been executed and registered in the office of Registrar of Assurances and power of attorney is executed in favour of Sh. Y. N. Bhargava, Sh. P. K. Khanna, Sh. M. L. Anand and Sh. S. S. Banthia were appointed, constituted and nominated by the vendor M/s. Shree Arya Dharma Seva Sangh as true and lawful attorneys. It is further mentioned in the power of attorney that the acts and deeds mentioned in the power of attorney can be done and performed by any of those two attorneys acting jointly. It is further mentioned at page 66 that an agreement to sale dated 30/11/1992 was also entered into between the vendor through Sh. S. K. Birla, trustee and the vendee i.e. the plaintiff. At page 97, it is mentioned that it was specifically represented by the vendor to the vendee that none of the trustee nor the vendor society has given till date any permission to sub-let nor have they given any permission to raise any unauthorized construction or permission to misuse the property or to violate or to commit breach of the terms and conditions of the perpetual lease. It is further mentioned that the vendor has not acquiesced and has not waived any cause of action or right of action in any manner whatsoever against the defaulting party, tenant or occupier. At page 101, it is further mentioned that other and 19 tenants, there are two more tenants namely Pal Properties (i.e. The defendant) and Goodluck Estates (P) Ltd. At page 114, it is further mentioned that all the aforesaid lease deeds have been expired by efflux of time and none of the lease deeds were renewed by the vendor. It is further mentioned at page 117 that the cases are pending between the vendor and the occupants and a suit no. 591/83 for possession and cancellation of CS No. 149/2011 Page 14 lease filed against defendant no. 1 is also mentioned at page no. 118.
14. This Ex. PW1/3 was signed by Sh. P. K. Khanna and Sh. M. L. Anand on behalf of M/s. Shree Arya Dharma Seva Sangh. Section 5 of the Societies Registration Act, 1860 states that all the properties of the societies where movable or immovable if not vested in trustees, shall be deemed to be vested for the time being in the governing body of the society. Section 1 of this Act also states that societies formed by memorandum of association and registration shall be governed by this Act. Preamble of this Act also mentions that the legal condition of societies established for the promotion of literature, science or the fine arts or or for charitable purpose, this Act enacted.
15. Ex. DW2/B described the aims and objects as referred herein above include to maintain and support other institutions at other places including to spread Hindu religion and education to establish schools and colleges, to maintain the temples to maintain and support Arya Samaj and to support principally Laxmi Narain and Budha temple along with garden and Dharmashala attached thereto. When Ex. DW2/B read with Ex. PW1/3 then it is mentioned at page 51 of Ex. PW1/3 that trustees have decided to sell the suit property as they got a lucrative offer. It specifically hits by the aims and objects of M/s. Shree Arya Dharma Seva Sangh inasmuch as nowhere it is mentioned that for the lucrative offer, the property could be sold. If the property has to be sold then only in furtherance of aims and objects of M/s. Shree Arya Dharma Seva Sangh. It is further mentioned at page 52 of Ex. PW1/3 that the return from the property is insignificant and the trust is deprived from the returns of the property. Again it is not mentioned that the earlier returns were not sufficient to further the aim and objects of M/s. Shree Arya Dharma Seva Sangh. As per the aims and objects of the memorandum of association, it was the charitable and religious CS No. 149/2011 Page 15 purpose for which M/s. Shree Arya Dharma Seva Sangh i.e. the society was registered but not to sale the property for lucrative offer or to get sufficient return. The property has to be utilised either for charitable or religious purposes.
16. The transfer of the suit property through Ex.PW1/3 also hit as per the provisions of Section 38 of the Transfer of Property Act, 1882. Section 38 of the Act states :
"38. Transfer by person authorised only under certain circumstances to transfer-Where any person, authorised only under circumstances in their nature variable to dispose of immovable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith."
Thus, as per the provisions of Section 38 of the Transfer of Property Act, 1882, M/s Arya Dharam Seva Sangh could dispose of or could transfer the property under certain circumstances and the plaintiff being a transferee of the property was required to take reasonable care to ascertain the existence of such circumstances and was also to be acted in good faith. What care and action of good faith to be taken care by the transferee, was dealt by the privy council in Anant Ram and others v. Collector of Etah and others AIR 1917 Privy Council 188 :
".............If the necessity cannot be established by direct evidence it may be assumed, if it can be shown that reasonable care was taken to ascertain if such circumstances existed and the transferee acted in good faith (sec. 38, Transfer of Property Act). In either case the burden of proof lies on the person who claims the benefit of the mortgage.........."
CS No. 149/2011 Page 16 Further the Hon'ble Calcutta High Court in AIR 1975 CALCUTTA 389 Jogendra Nath Naskar v. Official Receiver and others held in para 13 :
"13. Even assuming that the 3 members of the managing committee were competent to execute the leases and the consent of the majority of the Shebaits had been obtained it must be shown that the leases were executed for legal necessity before the same can be upheld. It is well settled that it is for the party who wants the court to uphold the alienation of debuttar property to prove that the alienation was made for legal necessity................"
It was further held in the said case that the transferee has also to be pleaded a case of bona fide enquiry. However, in the present case, it is already mentioned in Ex.PW1/3 that the property was sold to the plaintiff by a religious and charitable society only for lucrative offer and not for any necessity.
17. During arguments, ld counsel for the plaintiff submits that it is not open to the defendant to challenge the title of the plaintiff qua the suit property. He further submits that as per Section 116 of Indian Evidence Act, tenant i.e. the defendant is estopped to deny the title of the plaintiff towards the suit property and also as landlord thereof. He further relies upon Tej Bhan Madan Vs. II Additional District Judge and others (1998) 3 Supreme Court Cases 137. He further relies upon Ex. PW1/8 i.e. The copy of order passed by Civil Judge in suit no. 633/95 between M/s. Arya Dharma Seva Sangh Vs. Pal Properties (I) Pvt. Ltd. and submits that by this order, the ld Civil Judge already decided an application and whereby the said application was allowed and the plaintiff was substituted in the said suit.
18. On the other hand, ld counsel for the defendant opposed the contention and submitted that the defendant has never recognized the plaintiff as landlord inasmuch as the defendant never paid rent to the CS No. 149/2011 Page 17 plaintiff as there was no occasion for the defendant to pay the rent as he was never informed by M/s. Arya Dharma Seva Sangh that the property was sold to the plaintiff and also M/s. Arya Dharma Seva Sangh had no power or authorization to sold the property to the plaintiff.
19. At this stage, ld counsel for the plaintiff relied upon Ex. PW1/5. This document is perused. This is a letter written to the defendant by M/s. Arya Dharma Seva Sangh and copy was sent to the plaintiff. In this letter, it was informed by M/s. Arya Dharma Seva Sangh to the defendant that property was sold to the plaintiff and cheque towards the payment of rent was returned to the defendant with a direction to make payment and for all future correspondence to be addressed to the plaintiff in respect of the suit property. Document carefully perused. At the top of this document, date has been mentioned
5. 8. 94 and number of letter at the left top of this document has been mentioned. The entire document is a carbon copy whereas date and letter number have been mentioned in different ink. Above both these things, there is mentioned 'Regd. AD' by a ball point pen. Now the question arises that this letter is not on the letterhead of M/s. Arya Dharma Seva Sangh but on a simple piece of paper. CC of this letter was sent to the plaintiff who brought this document on the record. No proof for dispatch of this letter has been brought on the record. During arguments, it is submitted on behalf of the plaintiff that this letter has been brought by the plaintiff as he had received copy from the plaintiff. It is objected by the ld counsel for the defendant during arguments that the plaintiff could not prove this document as no notice to produce original of this document as per the provisions of Order 12 Rule 8 of CPC was given by the plaintiff to the defendant. It is further objected that since dispatch of this document has not been brought on the CS No. 149/2011 Page 18 record i.e. postal receipt, in those circumstances, this document should have been proved by the concerned person from M/s. Arya Dharma Seva Sangh. Further contention was raised on behalf of the defendant that the genuineness of this document is itself in doubt inasmuch as no name is mentioned of authorized signatory, upon this document. Further contention was raised on behalf of the defendant to the effect that this document must have been fabricated by the plaintiff to succeed in the case inasmuch as this document came into the possession of the plaintiff and it was the plaintiff who has to prove this document in accordance with the law.
20. Plaintiff further relied upon Ex. PW1/6 and Ex. PW1/7 and submitted on behalf of the plaintiff that these documents are also available to prove that it was informed by M/s. Shree Arya Dharma Seva Sangh to the defendant about the factum of the sale of property to the plaintiff. Ex. PW1/6 and Ex. PW1/7 are perused carefully. These documents were written on the letterhead of M/s. Shree Arya Dharma Seva Sangh to the defendant Ex.PW1/6 signed by one Sh. V. K. Mishra but author of the document Ex. PW1/7 is not disclosed. Neither designation of Sh. V. K. Mishra on document Ex. PW1/6 nor the name and designation of the person who had signed the document Ex. PW1/7 has been disclosed. Whether these letters were written by any authorized person on behalf of M/s. Shree Arya Dharma Seva Sangh, not proved in evidence. Ex. PW1/6 and Ex. PW1/7, both are compared with Ex. PW1/5. While Ex. PW1/5 was allegedly sent by 'M/s. Arya Dharma Seva Sangh' whereas Ex. PW1/6 and Ex. PW1/7 by 'M/s. Shree Arya Dharma Seva Sangh'. Whether 'M/s. Shree Arya Dharma Seva Sangh' and 'M/s. Arya Dharma Seva Sangh' are the same societies, not explained by the plaintiff. Thus, it is contention of the defendant that these documents do not prove the fact of sale of the CS No. 149/2011 Page 19 suit property to the plaintiff or any information regarding the sale of the property to the defendant by previous owner M/s. Arya Dharma Seva Sangh. It is further contended by ld counsel for the defendant that Ex. PW1/6 and Ex. PW1/7 were issued only after filing of the suit. The present suit was filed on 17/10/97 whereas both these letters were allegedly issued in the year 1998.
21. Ld counsel for the plaintiff further relies upon Harbhajan Singh Vs. Harbans Singh & Ors. 2009(3) Civil Court Cases 759 (P&H), where in para 16, it was observed :
"16. ....... It is settled law that the Court cannot adjudicate upon the claim of the parties which is not put forth before it in their pleadings."
He further relied upon Nagorao Bhujanga More & Anr. Vs. Premalabai w/o. Digamber & Anr. 2009(3) Civil Court Cases 344 (Bombay) wherein para 14, the Hon'ble Bombay High Court held :
"14. ...... In civil suits, no party can be allowed to take new defence for which necessary foundation is not laid in the pleading and when the other side was not put to notice by any suggestion in the cross-examination."
He further relied upon Udhav Singh Vs. Madhav Rao Scindia AIR 1976 Supreme Court 744. He submits that all those facts which are essential to clothed the party with a complete cause of action are material facts and which must be pleaded and failure to plead even a single material fact is fatal to the case. In support of his contention, he further relied upon Durga Prasad Vs. Mst. Parveen and others AIR 1975 Madhya Pradesh 196. Lastly, he vehemently relied upon Chandra Sekhar Das and another Vs. Giridhari Sahu and others AIR 1990 Orissa 129 and submits that in view of this judgment, the defendant, cannot raise the issue of invalidity of sale deed in favour of the plaintiff. He further submits that the defendant cannot deny the title CS No. 149/2011 Page 20 of landlord to the plaintiff.
22. Another contention raised by the ld counsel for the defendant that notice as prescribed under Section 106 of Transfer of Property Act has not been served upon the defendant. It is submitted by the defendant that as per the contents of the notice of the plaintiff itself, defective notice was issued by the plaintiff. It is further submitted that the plaintiff has placed on record notice Ex. PW1/9 which was issued on 11/07/1997. He further submits that this notice was never served upon the defendant. On the other hand, ld counsel for the plaintiff further contends that AD card in this respect has already been proved as Ex. PW1/14 and postal receipts are Ex. PW1/10 to Ex. PW1/13. Ld counsel for the defendant submits that the seal as appears on this AD card mentions 'D Group of.....' New Delhi Circus'. He submits that as per the seal appears on this AD card the notice was served upon some D Group of Companies but not upon the defendant. He further submits that defendant is not aware about any D Group of Companies and, therefore, there is no service of notice upon the defendant.
23. This court does not agree with the contention raised by ld counsel for the defendant. Admittedly, the address mentioned upon the AD card Ex. PW1/14, is of the defendant. This address has not been disputed by the defendant. In such circumstances in ordinary course it was the postman who took the letter for delivery, delivered it and took the seal as mark of receipt of this letter. The court has to draw presumption that in ordinary course the postman must have visited the address mentioned at the AD card as well as upon the envelop and thereafter it brought the AD card with the mark of seal at it. If the defendant has to rebut the presumption then it was the duty of the defendant to summon the said postman/concerned official from the postal department and prove it accordingly. But the defendant did not take any step to CS No. 149/2011 Page 21 summon the said postman to examine him to explain the reason for the said seal upon the AD Card and to enquire whether there was non service of the said envelope upon the defendant.
24. It is submitted by ld counsel for the plaintiff that filing of suit under the general law itself is a notice to quit to the tenant and he has relied upon Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 Supreme Court Cases 728 and further submitted that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the defendant to get a decree of eviction against it. This court agrees with the contention raised by the ld counsel for the plaintiff in this regard. If notice was issued to the defendant bears the correct address then presumption is always in favour of the plaintiff. In this case possibility cannot be ruled out that postman might have visited at the correct address mentioned at the envelop and served the notice there but with a view to play a foul play, defendant might have put an incorrect seal at Ex. PW1/14 to defeat the purpose of the notice. Thus, this argument does not hold any force. Moreover, recently Hon'ble Delhi High Court in Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) 2011 (183) DLT 712 again taken the view that service of notice along with documents in the suit, is sufficient service of the notice upon the defendant.
25. The Hon'ble Supreme Court held in para 7 of Subhash Chandra Vs. Mohammad Sharif and others AIR 1990 Supreme Court 636 :
"7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Wher the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiffs claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by S. 116 of the Evidence Act. The section does not permit the tenant, CS No. 149/2011 Page 22 during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. so far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which non-existent in the renders the transfer to be eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor landlord who ham initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy."
26. It was further held by the Hon'ble Supreme Court in para 18 of J. J. Lal Pvt. Ltd. And others Vs. M. R. Murali and another AIR 2002 Supreme Court 1061 :
"18. What amounts to denial of title, and whether such denial is bonafide or not are the questions to be determined in the facts and circumstances of each case. As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to rule of estoppel contained in Section 116 of the Evidence Act which estoppes the tenant from denying the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped form denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative title of a CS No. 149/2011 Page 23 transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. To operate against the tenant as providing a ground for eviction under Section 10 of the Act a mere denial of the title of the landlord is not enough, such denial has to be not bona fide. Not bona fide would mean absence of good faith or non genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be not bona fide. Therefore, to answer the question whether an assertion of denial of landlords title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen.........."
27. In the present case, the original landlord of the suit premises was M/s. Arya Dharma Seva Sangh. It is the case of the plaintiff that it had purchased the suit property from M/s. Arya Dharma Seva Sangh and sale deed was executed as Ex. PW1/3. However, in the present case, the defendant has challenged the said transfer of the property took place between plaintiff and M/s. Arya Dharma Seva Sangh. Applying the ratio laid down in Subhash Chandra's case (supra), this title is vulnerable to a challenge as the defendant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord and the alleged transfer is ineffective for valid reason which non-existent in the renders the transfer to be eye of law. Applying the same principle laid down in the said judgment, the defendant in this case can challenge the derivative title to the transferor-plaintiff. In such a case the defendant is entitled to challenge the transfer of the property by M/s. Arya Dharma Seva Sangh to the plaintiff.
28. As per The Societies Registration Act, 1860, the Section 5 of the Act states :
"5. Property of society how vested.- The property, movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all CS No. 149/2011 Page 24 proceedings, civil and criminal, may be described as the property of the governing body of such society for their proper title."
29. Thus, all movable and immovable property vested in the governing body of the society. The word 'ownership' has not been used by the Legislature but the word 'vest' has been used. Thus, it is the Legislature which intentionally did not use the word 'owner' or 'ownership' as the governing body of the society has the control over the properties of the societies including movable and immovable in accordance with the provisions of The Societies Registration Act, 1860. The society has to use and manage the properties in accordance with the provisions as per The Societies Registration Act, 1860 as well as the memorandum and objects of the society mentioned therein. In the memorandum of association, aims and objects of the society are mentioned therein. Section 20 of The Societies Registration Act, 1860 states about to what societies this Act applies. Section 20 of the said Act states :
"20. To what societies Act applies.- The following societies may be registered under this Act :-
Charitable societies, the military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, [the diffusion of political education], the foundation or maintenance of libraries or reading- rooms for general use among the members or open to the public, or public museums and galleries of paintings and other work of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs."
30. As per Section 20 only charitable societies or societies established for the promotion of science and literature or the purpose mentioned therein, this Act shall be applicable. If Section 20 be read with preamble of the Act where it is stated that this Act is for promotion of CS No. 149/2011 Page 25 literature, science and charitable societies but nowhere The Societies Registration Act, 1860 states that the object and aim of the societies either to earn the profit or to make benefits out of the properties maintained and managed by the society. Whatever properties have been vested in the governing body of the societies, the said properties are only to achieve the objects and aims as mentioned in the memorandum of association and the provisions of Societies Registration Act, 1860. In the present case M/s. Arya Dharma Seva Sangh was registered for the purpose to support or to maintain temples, support Hindu religion and education, support Laxmi Narayan and Budha Temples situated at Delhi and to support other institutions founded and maintained by Sh. Jugal Kishore Birla at Delhi. Thus, M/s. Arya Dharma Seva Sangh is a society registered for charitable and religious purposes. Its aim and object mainly are religious and to some extent charitable also, but certainly not to earn the profit or to sell the property, if income derived from the property is insignificant. It was also not registered to get the benefits out of the properties by sale thereof as mentioned at page 52 of Ex. PW1/3 i.e. the sale deed wherein the purpose of sale of the suit property has been mentioned.
31. Now the question arises whether the society is simply an association of persons or a body corporate. The Hon'ble Supreme Court in Illachi Devi (D) By LRs Vs. Jain Society, Protection of Orphans India and others AIR 2003 Supreme Court 3397 held in para 11 that the society is an association of persons. It was further held in para 21 :
"21. A society registered under the Societies Registration Act is not a body-corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a Society registered under the Societies Registration Act is not a juristic person................"
It was further held in para 24 of the same judgment :
"24. The Patna High Court in K. C. Thomas v. R. L. CS No. 149/2011 Page 26 Gadeock and another (AIR 1970 Patna 163) held that a society registered under the Act enjoys the status of legal entity apart from the members constitution and is capable of suing or being sued. The said decision is not correct."
It was further held in para 26 of the same judgment :
"26. Vesting of property, therefore, does not take place in the Society. Similarly, the society cannot sue or be sued. It must sue or be sued through a person nominated in that behalf."
Thus, the society neither can sue or be sued in its own name. It has to be sued through a person nominated on that behalf. Section 6 of the Societies Registration Act states :
"6. Suits by and against societies. - Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:
Provided that it shall be competent for any person having a claim, or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."
32. In para 31 of Elachi Devi's case (supra) the Hon'ble Supreme Court further held :
"31. A bare perusal thereof would show that a society registered under the Societies Registration Act as contra- distinguished from a company registered under the Company Act cannot sue in its own name. It is to be sued in the name of the president, chairman, or principal secretary or trustees as shall be determined by the rules and regulations of the society or in the name of such person as shall be appointed by the Governing Body for the occasion in default of such determination. It is, therefore, not correct to contend that it is capable of suing or being sued in its own name. "
In the same judgment, the Hon'ble Supreme Court in para 38 referred Section 2 (7) of the Companies Act wherein it is provided that CS No. 149/2011 Page 27 body corporate or corporation includes in them both corporate (not being a company as defined in the Act) which the Central Government have made, by notification in the official gazette specify in this behalf. Thus, the society is not a body corporate.
33. The Hon'ble Supreme Court in Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre and Anr. AIR 2010 Supreme Court 2943 further held in para 54 :
"54. However, even when it comes to the immovable properties, Section 5 of the Societies Registration Act provides for deemed vesting of the properties belonging to a society into the Governing Body of such society.............."
34. Thus, the concept of the status of a 'person' as enjoyed by body corporate i.e. the company is not available to the society. A company or body corporate can acquire or own movable or immovable property but a society does not enjoy ownership of the property but only the fact that the property vested in the governing body of the society. The Hon'ble Supreme Court further held in the same judgment in para 55 :
"55. In this behalf, we must keep in mind, the raison d'etre of the above-referred to Section 5 that once a trust is established and a society is registered for the administration of the trust, the statue contemplates that the society should be fully autonomous and that the lack of actual transfer of property of the trust should not prevent the governing body in its administration. Law recognizes that it would be proper to regard that as done which ought to have been done.
The deeming provision creates a fictional vesting in favour of the Governing Council and not in favour of the Society or the Trust. This is also for the reason that society is not a body corporate which has also been held by this Court in the Board of Trustees. Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi and another [AIR 1962 SC 4581] and reiterated in Illachi Devi (D) by L.R.s and others v. Jain Society, Protection of Orphans India and others [AIR 2003 SC 3397] : (2003 AIR SCW 4824). Since the society cannot hold the property in its name, vesting of the property in the trustees is likely to hinder the administration of the trust property, particularly, where the trustees themselves or their legal CS No. 149/2011 Page 28 representatives claim adversely to the trust. It is for this reason that the law vests the properly belonging to the society in its Governing Body."
It was further held in para 56 of the same judgment :
"56. The phrase 'property belonging to a person' has two general meanings-(1) ownership, (2) the absolute right of user (per Martin A in Att. Gen. v. Oxford and C. Railway Co., 31 LJ (1862) 218 at 227) 'Belonging' connotes either ownership or absolute right of user (Wills J. in The Governors of St. Thomos', St. Bartholomew's, and Bridewell Hospital v. Hudgell (1901) 1 KB 381. The Centre has an absolute right of user over its immovable properties which it has been exclusively exercising all throughout. Section 5 of the Societies Registration Act clearly declares that the property belonging to the society, meaning under its user, if not vested in the trustees shall be deemed to be vested in the Governing Council of the society. In the present case, it is nobody's case that the property remains vested in the Trustees of the Dorabji Tata Trust. It has been canvassed on behalf of the first respondent that the property is vested in the Central Government. However, the Central Government has never claimed any title to the property adverse to the first respondent-Tata Memorial Centre. It is true that the property dedicated to the Tata Memorial Centre has not been transferred to the Society by the Central Government. But the fact is that it is the Governing Council of the first respondent which has been administering and controlling the day-to-day affairs of Tata Memorial Centre and its property funds, employment of its staff and their conditions of service.
Hence, in view of the above-referred to factual as well as legal scenario the first issue will have to be decided that the property dedicated to the first respondent will be deemed to be vested in the Governing Council of the first respondent-Society."
It was further held in para 19 of Pamulapati Buchi Naidu College Committee, Nibubrolu and others v. Government of Andhra Pradesh and others AIR 1958 Andhra Pradesh 773 (Vol. 45, C.
225) :
"19. The basic assumption made by the learned counsel for the petitioner that the registration of society can be equated to the granting of a Royal Charter, does not rest on a solid foundation. A society registered under the Societies Registration Act is an association of individuals which comes into existence with CS No. 149/2011 Page 29 certain aims and objects.
If it is not registered as a society under the Act, it would have the character of an association which cannot sue or be sued except in the name of all the members of the association. The registration of the Society confers on it certain advantages. The members as well as the Governing Body of the Society are not always the same. Even though the members of the Society or the Governing Body fluctuate from time to time, the identity of the Society is sought to be made continuous by reason of the provisions of the Societies Registration Act.
The Society continues to exist and to function as such until its dissolution under the provisions of the Act. The properties of the society continue to be vested in the trustees or in the Governing Body irrespective of the fact that the members of the society for the time being are not the same as they were before; nor will be the same thereafter.
By reason of the provisions of the Societies Registration Act, once the society is registered with the Registrar, by the filing of the memorandum and certified copy of the rules and regulations and the Registrar has certified that the society is registered under the Act, it enjoys the status of a legal entity apart from the members constituting the same and is capable of suing or being sued.
But the fact to be noted is that what differentiates a society registered under the Act of 1860 from a company incorporated under the Companies Act is that in the latter case the share-holders of the company hold the properties of the company as their own whereas in the case of a society registered under the Act of 1860, the members of the society or the members of the governing body do not have any proprietary or beneficial interest, in the property the society holds.
Having regard regard to the fact that the members of the general body or the members of the governing body of the society do not have any proprietary or beneficial interest in the property of the society, it follows that upon its dissolution, they cannot claim any interest in the property of the dissolved society. The Societies CS No. 149/2011 Page 30 Registration Act, therefore, does not create in the members of the registered society any interest other than that of bare trustee. What all the members are entitled to, is the right of management of the properties of the society subject to certain conditions."
35. Per contra, Ld counsel for the plaintiff relied upon Vyas Aqua Product Pvt. Ltd. Vs. UCO Bank & Anr. 2001 III AD (DELHI) 762, where in para 7 it was held :
7. Learned Counsel for the plaintiff has further relied on Anar Devi Vs. Nathu Ram 1994 (4) SCC 250 Head Note-B is of relevance, and is reproduced as below :
"Doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them. This doctrine finds statutory recognition in Section 116 of the Indian Evidence Act 1872. In a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116. That section applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
The Hon'ble High Court referred in this case Anar Devi Vs. Nathu Ram JT 1994 (4) SC 164 and the Hon'ble High Court relied upon the said judgment earlier passed by the Hon'ble Supreme Court. In Anar Devi's judgment, the Hon'ble Supreme Court in para 13 held :
"13. ...... Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
CS No. 149/2011 Page 31 Further, in para 18 of this judgment, it was held :
"18. ...... Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4,and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation....."
36. Thus, in view of the law referred herein above, if the defendant had accepted the plaintiff as his landlord at any time, then only Section 116 of Indian Evidence Act shall be helpful to the plaintiff. Cross- examination of DW1 is referred again. Except the plaint, Ex. DW1/X2, the plaintiff has also confronted the certified copy of document Ex. DW1/X3 to DW1. There is another document Ex. DW1/X4 confronted to the witness DW1. In a specific question, it was put to the witness and witness replied that Ex. DW1/X2 was a suit for specific performance of agreement of lease. Another document Ex. DW1/X5 confronted to the witness which is letter dated 23/11/98. DW1 specifically stated that the plaintiff is not the owner of the suit property. This statement of the witness has not been challenged by the plaintiff during the cross-examination of DW1. It is a settled law that if a statement of the witness during cross-examination is not challenged then the said statement is deemed to be admitted by the opponent party. It is not the case put to DW1 that at any time DW1 had attorned or recognized or accepted the plaintiff as his landlord as no such case put to the witness during cross-examination. In such circumstances, this court is of the considered opinion that the plaintiff cannot take the assistance of Section 116 of Indian Evidence Act as this provision of law is not applicable to the facts and circumstances of the present case.
37. Ld counsel for the defendant further relies upon Harinarayan Shaw Vs. Gobardhandas Shroff AIR 1953 Calcutta 140, where in para 25 the Hon'ble Calcutta High Court relied upon Section 5 of the Societies CS No. 149/2011 Page 32 Act. Further in para 27 of this judgment, it was held :
"27. .......By operation of the provisions contained in S. 5 of the Act, and the very purposes for which Registration is provided in the Act the registered society automatically obtained rights over the property. The property is at the disposal of the Society, subject, no doubt, to the Trust. The property continues to be vested in the Trustees as before. Under S. 5 of the Act, a property, whether "vested in trustees" or be "deemed to be vested in the Governing Body of such Society" may still belong to a Society registered under the Act."
Further in para 28 of this judgment, it was held :
"28. It must, therefore, be held that the disputed property which was vested in the trustees before registration of the society, became, as from after the registration of the Society, a property "belonging to the society" and be deemed to be the property of the Society. As a matter of fact, and strictly speaking, there is no transfer of ownership. That which belonged to an unregistered Society continues after the change in status of that Society on being registered, as being belonging to the registered Society. The first point raised on behalf of the appellants must, therefore, be overruled."
He further contended that in view of this judgment, the society was not the owner of the property and as a matter of fact, the society couldn't transfer the property. The suit property was belonging to the society and deemed to be the property of the society. His further contention is that the suit property was transferred to the plaintiff which is a body corporate and private limited company, through two authorized persons by the governing body of the society in this case. Thus, the governing body of the society delegated the power of transfer of the suit property for execution of sale deed but the society was not authorized to delegate such power. In this case, sale deed Ex. PW1/3 was executed by Sh. P. K. Khanna and Sh. M. L. Anand, which was an illegal act to the effect that there was no authority given through Ex. DW2/B i.e. Memorandum of association of M/s. Shree Arya Dharma Seva Sangh wherein only seven persons who were the CS No. 149/2011 Page 33 signatory of the memorandum of association and also in Ex. DW2/C which are rules and regulations of M/s. Shree Arya Dharma Seva Sangh, no specific authorization has been prescribed for delegation of any authority or power to any outsider person.
38. Further Ex. DW2/C makes a provision for purchase of immovable property yielding rent, purchase of debentures, secured on the immovable property of a company or preference share of the companies or any other securities which may be agreed to unanimously by the trustees. Thus, the framers of the rules and regulations i.e. Ex. DW2/C were very conscious towards safety of the funds and assets of M/s. Arya Dharma Seva Sangh to the extent that only powers were given to purchase all the immovable property and that immovable property which can yield the rent or to invest the money of the society through debentures secured on the immovable property so that the funds of the company should not be wasted. They further made the provision that such a decision should be taken unanimously by the trustees. However, no such power has been given regarding sale of the immovable property vested in the governing body of the society and also no power has been given for delegation of the authority of the trustees to any person either within the society or outside the society.
39. Hon'ble Delhi High Court in Hoshiar Singh Mann Vs. Charan Singh 162 (2009) Delhi Law Times 208 held in para 23 :
"23. The appointment of office bearers as pleaded by the plaintiffs themselves, according to me is not lawful. The trustees of a public charitable trust are to exercise their duties / functions themselves and not by delegation. The Indian Trust Act, though applicable to private charitable trusts, but principles whereof are applicable to public charitable trusts also, in Section 47 thereof, provides so. The Apex Court recently in J.P. CS No. 149/2011 Page 34 Srivastava & Sons Pvt. Ltd. v. Gwalior Sugar Co. Ltd., II (2004) SLT 1072=I (2005) BC 142 (SC)=AIR 2005 SC 83, cited with approval Atmaram Ranchodbhai v.
Gulamhusein Gulam MANU / GJ / 0112 / 1973 holding, whether a trust is a private trust governed by the Indian Trusts Act or is a public charitable or religious trust, a trustee cannot delegate any of his duties, functions and powers to a cotrustee or to any person unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in the regular course of business. It was further held that the trustees even by a unanimous resolution authorise one of themselves to act as managing trustee for executing the duties, functions and powers relating to the trust and everyone of them must join the execution of such duties, functions and powers."
Similarly, no such provision is made in the Societies Registration Act regarding delegation of powers by any of the member of the governing body to any other person or member of the society. In my considered opinion, the Legislature in all its wisdom has not made any such provision in view of the fact that as per Section 20 of the Societies Registration Act, 1860, the society has to be registered either for charitable purpose or for religious purpose as its preamble also states so. The sense of charity or religion can be perceived and felt better by a member of governing body who has to take all the decision regarding the affairs of the society in a better way with all such feelings and conscious to achieve the aims and objects as mentioned in the memorandum of association. Such belongingness, feelings and consciousness cannot be accepted from any other person which can be expected from a member of the governing body. For this reason, in CS No. 149/2011 Page 35 my considered opinion, the Legislature in all its wisdom did not make any provision regarding delegation of the authority or powers to be exercised by the member of governing body. Moreover, this wisdom and belongingness towards the objects and aims of the society, shall be more relevant when there is duty to look after the matter regarding the management of the property especially immovable property. A member of governing body who associates himself with the society and put its time and labour being a member of the governing body can definitely have a feeling and affection towards charitable and religious purpose for which the society has been registered but a member or outsider person may not have such feelings. In the present case, it is not stated that Sh. P. K. Khanna and Sh. M. L. Anand were even the members of M/s. Arya Dharma Seva Sangh i.e. the society then how such a wisdom and affection towards the religious and charitable purpose for which M/s. Arya Dharma Seva Sangh was registered, could be expected from those two persons. In such circumstances, when it is already observed that the society is not a body corporate and having no perpetual seal like a company registered under the Companies Act, the governing body could not delegate the powers to execute sale deed Ex. PW1/3 to anyone including Sh. P. K. Khanna and Sh. M. L. Anand. If any sale deed has to be executed in favour of the plaintiff then it should be executed by all the members of the governing body by putting their signatures at the sale deed but at the sake of repetition it is again observed that the governing body was not entitled to delegate this power to execute the sale deed to anyone else.
40. Thus, this court agrees with the contention raised here that in this case delegation of power to execute the sale deed by the trustees to Sh. P. K. Khanna and Sh. M.L. Anand is not in accordance with the rules as mentioned in Ex. DW2/C. CS No. 149/2011 Page 36
41. At this stage, ld counsel for the plaintiff raised objection that there is no specific dispute has been raised by the defendant regarding the execution of the sale deed. It is further contended that no such dispute has been raised in the written statement regarding the competency of M/s. Arya Dharam Seva Sangh for execution of sale deed in favour of the plaintiff. To support this contention, he relies upon Chander Shekhar Das Vs. Giridhari Sahu AIR 1990 Orissa 129, where in para 11, it was held :
"11. ...... There was no assertion in the written statement that the so-called sale was invalid on account of lack of prior permission by the State. Since there was no pleading alleging invalidity of alienation and consequently, there was no issue, the plaintiffs were not required to prove the permission of the State. In that view of the matter, the Subordinate Judge erred in law in recording a finding that the alienation was invalid on account of lack of permission. In the absence of any pleading to that effect in the written statement and in the absence of any issue to that effect it was not open for the Subordinate Judge to entertain and decide the question."
42. He further relied upon Pritibha Jhangi Vs. Devinder Kumar Singla, Civil Revision No. 1171 of 2009 Punjab and Haryana High Court where in para 9, it was held :
9. It would be pertinent to notice here that petitioner-
tenant conceded to have filed a suit challenging the validity of the sale deed executed by the initial owner in favour of the respondent-landlord. She conceded, as correct, a suggestion for the suit aforementioned had been dismissed in default. She, thereafter, volunteered a statement that an application filed by her for restoration of suit is pending. There is no material obtaining on the record to indicate the fate of that restoration plea.
It was further held in para 10 of the aforesaid judgment :
"10. It is interesting to find that even the petitioner- tenant does not dispute proposition that execution of the sale deed aforementioned the title of the tenanted premises had come to vest in the respondent-landlord who had also been entitled to receive rent from her."
CS No. 149/2011 Page 37
43. To counter this objection, ld counsel for the defendant relied upon Prem Prakash Vs. Union of India 187 (2012) Delhi Law Times 566 (DB) and referred para 17, where in it was held :
"17. Apparently, the cases relied on by the petitioner are distinguishable and on the basis of the ratio of the above noted case, it cannot be held that the petitioner is medically fit. While appreciating a precedent, it must be remembered that the ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. A decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without having regard to the factual situation and circumstances in two cases. The Supreme Court in Bharat Petroleum Corporation Ltd. and Anr. v. N. R. Vairamani and Anr., VI (2004) SLT 586=AIR 2004 SC 778, had held that a decision cannot be relied on without considering the factual situation. In the said judgment the Supreme Court had observed as under :
"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statues."
He further submits that the facts of the judgments referred by the ld counsel for plaintiff are entirely different from the facts of the present case. He further submits that in the present case, challenge is not there for transfer of property by the State to the plaintiff, but transfer by a society which has been registered for the purpose of discharge of religious and charitable functions, in favour of the plaintiff which is a CS No. 149/2011 Page 38 body corporate constituted for the only purpose to earn the profit. The judgment referred Chander Shekhar Vs. Giridhari Sahu (supra) by ld counsel for the plaintiff, wherein the permission was to be taken for the sale of the property but he submits that the judgment is not applicable to the facts of this case as in this case the transfer of the property itself illegal which is in favour of the plaintiff inasmuch as M/s. Shree Arya Dharma Seva Sangh was not authorized to sell the property with the reason that the rules and regulations of the said society do not empowered the society or governing body of the society to transfer the immovable property. Another objection against the transfer of the property is to delegate the power of execution of the sale deed to outsiders by appointing attorney and the most important factor that the reason for transfer of the suit property is only with a view to earn profit out of lucrative offer made by the plaintiff to M/s. Shree Arya Dharma Seva Sangh. It is against the aims and objectives of the society. He further submits that facts of Pritibha Jhangi's case (supra) are also not applicable to the facts of the present case inasmuch as in the said case, the tenant conceded the validity of the sale deed but in this case at no point of time, there was any admission or conceding of the title in favour of the plaintiff by the defendant. At this stage, this court further once again referred the evidence recorded in the case. A suggestion was given to PW1 during cross-examination that the plaintiff is not the sole owner of the suit property and the said suggestion was denied. In para 3 of Ex. DW1/X, the defendant challenged that M/s. Arya Dharma Seva Sangh continued to receive the rent up to July, 1995 whereas the plaintiff claimed to purchase the suit property on 31/03/94 from M/s. Arya Dharma Seva Sangh. Thus, since the very beginning, the defendant challenged the title of the plaintiff. In para 7 of Ex. DW1/X, it is further stated by DW1 that defendant never recognized the plaintiff CS No. 149/2011 Page 39 as either landlord/owner of the premises. Thus, the defendant has challenged ownership of the plaintiff as well as status of the landlord qua the suit property. However, there is no such counter suggestion to such piece of statement of DW1 during cross-examination has been given on behalf of the plaintiff. In cross-examination also, it is again stated by DW1 that the plaintiff is not the owner of the suit property and the plaintiff except to bring on record the sale deed in favour of the plaintiff, has not brought any evidence to prove the title of the plaintiff. Even no suggestion has been given to DW1 to challenge this statement of DW.1. In such circumstances, by applying the ratio of Prem Prakash's case (supra), this court is of the considered opinion that the law stated by the plaintiff in this regard are not applicable to the facts of the present case.
44. In view of the discussion herein above, this court comes to the conclusion regarding the ownership of the property that the sale in favour of the plaintiff through Ex. PW1/3 is not in accordance with the law inasmuch as the sale, if any, should be within strict framework of the Societies Registration Act. If the sale would have taken place for the purpose of charitable or religious purpose as per Societies Registration Act or in accordance with the aims and objectives as mentioned in Ex. DW2/B and by following rules and regulations as mentioned in Ex. DW2/C, then only the said sale deed Ex. PW1/3 would be in accordance with law. But in this case as already observed and as the cost of the repetition, this court further reiterates that neither the sale took place for charitable or religious purpose nor sale took place through the trustees/members of governing body of the society M/s. Shree Arya Dharma Seva Sangh and delegation of the power in favour of two outsiders i.e. Attorneys namely Sh. P. K. Khanna and Sh. M. L. Anand was not in accordance with the rules and regulations of CS No. 149/2011 Page 40 Ex. DW2/C. Thus, the sale deed executed in favour of the plaintiff is not in accordance with law and thus, does not confer any right in favour of the plaintiff.
45. Now the court has to see whether the plaintiff is the landlord of the defendant in respect of the tenanted premises. In Ex. DW1/X, in para 2 itself the case of the defendant that the plaintiff did not pay the house tax for the period 01/04/94 to 31/03/95 in respect of the suit property and after receiving notice from NDMC which was served upon the defendant with a direction for adjustment of rent. Thereafter, the rent from August, 1995 to May, 1998 were attached/remitted by the defendant in favour of NDMC in compliance of the said notice. Further in para 7, it is again the case of the defendant that the plaintiff had never written any letter claiming themselves to be the owner/landlord of the premises nor the defendant has made any payment of rent to them. Observation herein above also made in earlier part of this judgment. However, at this stage again this court refers cross-examination of DW1 by the plaintiff. During cross-examination, plaintiff confronted the certified copy of the plaint of the case title as M/s. Pal Properties India Private Limited Vs. M/s. Arya Dharma Seva Sangh and Atma Ram Properties, the certified copy thereof is Ex. DW1/X2. The plaint is perused. This is a suit for specific performance of agreement to lease. In para 5 of this document, it is stated that the defendant was paying rent to M/s. Arya Dharma Seva Sangh which was accepting. In para 6, it is the case of defendant herein that it was entitled to seek the fresh renewal of the lease and called upon M/s. Arya Dharma Seva Sangh vide letter dated 23/11/98 seeking renewal of the lease. It is further stated that vide letter dated 23/11/98 which was also addressed to the plaintiff herein, as in the meanwhile plaintiff had communicated to the defendant that the plaintiff had purchased the property from M/s. Arya CS No. 149/2011 Page 41 Dharma Seva Sangh and has also filed the present suit. In the same para, it is further mentioned that defendant did not ever receive any communication from M/s. Arya Dharma Seva Sangh calling upon the defendant herein to attorn in favour of plaintiff herein. Admittedly, it was the case in that suit of the defendant that in the absence of any communication from M/s. Arya Dharma Seva Sangh, it was not known to the defendant that the property had been purchased by plaintiff herein. Thus, nowhere in Ex. DW1/X2, it was admitted categorically that the defendant had ever admitted the plaintiff as its landlord. Letter dated 23/11/98 was also confronted with DW1 wherein again it is categorically stated on behalf of the defendant and informed to the plaintiff that M/s. Arya Dharma Seva Sangh never informed that they sold the property to the plaintiff. During cross-examination of PW1 it is categorically stated by PW1 that the plaintiff never demanded any rent from the defendants because the plaintiff never considered them as legal tenants. Thus, it is admitted case of the plaintiff that the plaintiff never demanded rent from the defendants and notice Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 have already been considered earlier. Except Ex. PW1/5 all the communications in this case are of after filing of the suit as present suit was filed on 17/10/1997 and regarding Ex. PW1/5, the court has already given observation earlier.
46. Thus, in view of all such discussion herein above, this court is of the considered opinion that the defendant never recognized the plaintiff as its landlord prior to the filing of the suit. Therefore, the plaintiff cannot claim status of landlord in view of the admissions made by the defendant in any communication. Moreover, this court further observes and repeats that M/s. Arya Dharma Seva Sangh is a society registered under Societies Registration Act. If any communication required to be made by M/s. Arya Dharma Seva Sangh then it should be by the CS No. 149/2011 Page 42 governing body of the said society as Section 5 of the Societies Registration Act, 1860 makes a provision for vesting of all the properties in the governing body of the society. Thus, any such letter like Ex. PW1/5, Ex. PW1/6 or Ex. PW1/7 should have been written by governing body of the society as the governing body of the said society was capable to do as such but not by any person whose designation even has not been disclosed either in Ex. PW1/6 or Ex. PW1/7 or by any authorized signatory whose name has also not been disclosed in Ex. PW1/5. Thus, execution of Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 should have been only by governing body of the society and none else was authorized to issue any such letter. At the sake of repetition, it is again observed that Ex. DW2/B and Ex. DW2/C do not give any power for delegation of the authority by any of the trustees or by governing body to any person. Thus, Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 have not been issued by the governing body of M/s. Arya Dharam Seva Sangh and thus these letters have no validity in the eyes of law.
47. Now the another contention which has to be adjudicated upon whether defendant is a protected tenant under Delhi Rent Control Act, 1958. Ld counsel for the plaintiff submits that since defendants no. 1 to 3 subletted the suit property to defendant no. 4 and was getting monthly rent of Rs. 24,701.75 p.m. It is the case of the plaintiff that in view of this fact, the defendant lost the protection of the Delhi Rent Control Act and, therefore, he is not a protected tenant. At this stage, ld counsel for the plaintiff relies upon P. S. Jain Company Ltd. Vs. Atma Ram Properties (P) Ltd. 65 (1997) Delhi Law times 308 (DB), where in para 14, it was held :
"14. A question may be asked as to how a premises to which the Act would apply so long as the tenant was paying rent less than Rs. 3,500/- p.m. would suddenly lose the protection when the tenant sublets the whole premises-may be lawfully, for more than Rs. 3,500/- p.m. or sub lets different units of the CS No. 149/2011 Page 43 premises each for a rent of more than Rs. 3,500/- p.m.?"
It was further held in para 15 of the above said judgment :
15. We do not find any difficulty in answering this question. For example, a building whose rental is fixed (say) at Rs. 2,000/- with a clause for annual increase of rent by 20% cold lose the protection as soon as the rent exceeds Rs. 3,500/- p.m. On the same analogy, a building where the tenant is paying less than Rs. 3,500/-
p.m. could lose the benefit of protection as soon as there is subletting- may be lawfully - by the tenant of the entire unit for a rent in excess of Rs. 3,500/- pm or by subletting of more than one unit of the premises where each unit fetches more than Rs. 3,500/- pm. It was further held in para 17 of this judgment :
"17. Thus, though as long as the tenant is in occupation of the premises physically and is paying rent which is less than Rs. 3,500/-, he may be entitled to the protection, once he sub-lets the premises lawfully and when the units which are sublet each fetch above Rs. 3,500/- pm, the premises becomes one "whose monthly rent exceeds Rs. 3,500/- and the premises loses the protection of the Act. With that, the said tenant who has ceased to occupy the premises also loses the protection of the Act vis-a- vis the said units. It was in fact pointed in Bhatia's case (supra) that the tenant does not have a vested right in the protection afforded by the rent control legislation. His right is merely a right to take advantage of the provisions of the statute and his right will cease once the premises loses the protection. The same principle has been reiterated in Parripati Chandrasekhara Rao & Sons v. Alapati Jalaiah, 1995(3) SCC 709, wherein the validity of a notification under the A. P. Rent Act in respect of buildings whose rental is above Rs. 1,000/- pm has been upheld. In that case also, it is held that "in the case of a tenant, the protective shield extended to him survives only so long as and to the extent the special legislation operates. The rights and remedies of the tenants are not vested and could be taken away."
48. Now, the notice Ex. PW1/9 is perused. This notice was issued for the tenanted premises and it is mentioned in the notice that as per Section 3(c) of Delhi Rent Control Act, the protection of Delhi Rent Control Act is not applicable to the premises whose monthly rent exceeds Rs.
CS No. 149/2011 Page 44 3,500/- and as per para 5 of the notice, it is stated that the rent of the premises exceeds Rs. 3,500/- per month due to induction of a sub tenant namely Bank of Baroda at a monthly rent of Rs. 24,200/- per month. In para 7 of the notice, it was further stated that the whole of the premises was sub-letted whereas it is submitted by ld counsel for the defendant that the notice was itself defective inasmuch as the whole of the premises was never sub-letted. Ld counsel for the plaintiff refers para 7 of Ex. PW1/A wherein it is stated by PW1 that the defendants had sub-letted and parted with the possession of part of premises to defendant no. 4. He further submits that similarly in para 12 of the plaint, it is the case of the plaintiff that the defendants had sub-letted the premises to defendant no. 4. Thus, it is contended by ld counsel for defendants that since evidence led by the plaintiff is different from the facts mentioned in the notice as well as in the plaint and, therefore, the notice is itself defective and cannot be relied upon. Ld counsel for the defendant further raises the arguments that the plaint is itself defective inasmuch as it does not describe the exact specification of the suit property as per Order 7 Rule 3 of CPC. Order 7 Rule 3 is perused, wherein it is mentioned that where the subject matter of the suit is immovable property, the plaint has to contain a description of the property sufficient to identify it. It is contention of the ld counsel for the defendant that since the property which was subletted to defendant no. 4 was part of the tenanted premises and not whole of the suit property, therefore, the plaint should have contained the description to specify that particular part of the suit property which was sub-letted and fetching rent more than Rs. 3,500/- per month. He further submits that since the affidavit filed in evidence by the plaintiff is not in accordance with the plaint filed before this court and the plaint is lacking of such necessary particulars to identify the portion of the CS No. 149/2011 Page 45 property, therefore, the suit filed by the plaintiff is itself not maintainable.
49. Thus, Hon'ble High Court in P. S. Jain (supra) held that when the units which have been subletted each fetch above Rs. 3,500/- pm, the premises becomes one whose monthly rent exceeds Rs. 3,500/- and looses the protection of Delhi Rent Control Act. It is the contention of the ld counsel for the defendant that defendant no. 4 was not given the entire premises but only given the part of the premises for sublet and, therefore, the portion which was not subletted by defendant no. 1 to defendant no. 4 does not cover under the provisions of Delhi Rent Control Act. It is further the case of the defendant that the plaintiff has not specifically defined or mentioned in the plaint regarding the portion of the premises which was subletted by defendant no. 1 to defendant no. 4 and, therefore, it has not been distinguished the portion separable which was subletted. It is further the case of the defendant that the subletting was done in accordance with the permission given by its landlord M/s. Arya Dharma Seva Sangh. This court does not agree with the contention raised by ld counsel for the defendant. As already observed by Hon'ble Delhi High Court in para 11 of P. S. Jain's case (supra) that a purposeful or liberal construction is to be given and, therefore, it cannot be said that if a portion of the tenanted premises was subletted by the defendant at much higher rate of Rs. 24,000/- pm, then it can take the advantage to the fact that since entire premises was not subletted, therefore, the premises which was subletted, only that portion lost the protection. The fact remains that if any part of the tenanted premises fetched rent of more amount than Rs. 3,500/- p.m. then by application of judgment of P. S. Jain's case (supra), in my considered opinion, lost the protection of Delhi Rent Control Act, 1958.
CS No. 149/2011 Page 46
50. The another contention raised by ld counsel for the defendant that there was no cause of action to file the present suit for the plaintiff. It is submitted on his behalf that if it is believed upon that the suit property was duly purchased by the plaintiff in accordance with the law then also the plaintiff has no cause of action to file the present suit. It is further submitted that according to the plaint, the property was purchased through sale deed dated 31/03/1994. It is further submitted on behalf of the defendant that it is admitted case of the parties that a lease deed was executed on 26/11/1979 between M/s. Arya Dharma Seva Sangh and defendants no. 1 to 3 and according to said lease the defendant was authorized to sublet the premises. At the file there is copy of lease deed filed by the plaintiff and clause 6 of the said lease deed mentions :
"6) The Lessor of their own accord grants to the Lessee the right and authority to sub-let assign or part with possession of the whole or parts of the said premises i.e. Flat No. H-72, Connaught Circus, New Delhi in (First Floor) to any person on such terms and conditions as the Lessee may deem fit and proper."
He further submits that in accordance with the said term, defendant no. 4 was inducted as a sub-tenant at the suit property. It is further submitted on behalf of the defendant that suit for possession and recovery was filed by defendant no. 1 against defendant no. 4 in the year 1991. He refers Ex. PW1/33 which is certified copy of the plaint filed by defendant no. 1 against defendant no. 4 and it bears the verification of dated 05/08/1991. It is submitted by ld counsel for the defendant that in the said suit defendant no. 1 claimed a decree for recovery of possession. It is further submitted that along with this relief, there is a claim of grant of decree for recovery of mesne profits but arrears of rent were not claimed in the said suit. It is further stated that a decree for recovery of the amount was also claimed but nowhere it is mentioned that the defendant was claiming against defendant no.
CS No. 149/2011 Page 47 4, the arrears of the rent. It is further submitted on behalf of defendant no. 1 that since the suit was decreed against defendant no. 4 in the year 2005, therefore, the plaintiff has no cause of action as the plaintiff came into the suit property in the year 1994 and the suit against defendant no. 4 already filed by defendant no. 1 and after the date of the purchase of the suit property by the plaintiff, defendant no. 1 had never received rent more than Rs. 3,500/- p.m. for any portion of the tenanted premises. Therefore, the plaintiff has no cause of action against defendant no. 1 or any of the defendants. Ld counsel for the plaintiff refers para 16 of the plaint which states that the cause of action for the suit arose on the termination of the tenancy as mentioned in the notice dated 11/07/1997. Thus, it is submitted by ld counsel for the defendant that the cause of action for termination of the tenancy to file the present suit arose in the year 1997 but the fact remains that after 1991, the rent was never received above Rs. 3,500/- p.m. from defendant no. 4 by defendant no. 1 for sub-tenancy. On the other hand, ld counsel for the plaintiff submits that in view of the law laid down in P. S. Jain Company Ltd. Vs. Atma Ram Properties (P) Ltd. & Ors. (supra), if at any time the rent of the premises fetched rent more than Rs 3,500/- per month, then Section 3 (c) of Delhi Rent Control Act shall be applicable which removes the protection as provided under Delhi Rent Control Act qua the tenanted premises. This court has already referred the relevant paras of the judgment herein earlier.
51. But the fact remains that this judgment was passed in the year 1996 and the plaintiff admittedly did not come into the picture at the time when the defendant was getting rent of Rs. 24,000/- pm and this court has already observed that the suit property has not been transferred to the plaintiff through a validly executed document. Therefore, the CS No. 149/2011 Page 48 plaintiff has no cause of action to get the benefit of the judgment P. S. Jain Vs. Atma Ram Properties (supra). Moreover, this judgment passed in the year 1996 and admittedly after the year 1989, the defendant never received any rent from defendant no. 4 @ Rs. 24,000/- or at any other rate above than Rs. 3,500/- pm. It is an admitted case of the parties that in the year 1991, defendant no. 1 filed a suit against defendant no. 4 seeking eviction. Defendant no. 1 further relied upon Ex. DW1/6 which is an order passed by Hon'ble High Court in Civil Suit (OS) 2669/1991 wherein only damages were awarded to defendant no. 1 but not recovery of arrears of rent. In my considered opinion, damages and rent are entirely two different concepts. The Hon'ble Delhi High Court in the said order, copy of which is Ex. DW1/6, specifically mentioned damages. Therefore, the same cannot be treated as a rent. Thus, issue no. 6 is answered against the plaintiff and in favour of the defendants in view of the observations made herein above.
52. Similarly, defendants no. 1 to 3 in their written statement filed before this court, taken preliminary objection to the effect that the suit of the plaintiff is not maintainable as the tenancy created by the plaintiff in favour of the defendants has not come to an end. It is further objected that the tenancy could only be determined by an order passed by the rent controller on the grounds as prescribed under Delhi Rent Control Act.
53. This court has already made observations to the effect in foregoing paras that Delhi Rent Control Act is not applicable to the suit property in view of the law laid down by Hon'ble Delhi High Court in P. S. Jain's case (supra) as the rent of the suit premises by sub tenancy has already crossed the limit of Rs. 3,500/- and thus, this issue is answered in favour of the plaintiff and against the defendant's to the CS No. 149/2011 Page 49 effect that Delhi Rent Control Act is not applicable to the suit property in view of the facts of the case.
54. This court has already given findings in foregoing paras to the effect that Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 have not been issued in accordance with the law as those letters were not issued by any of the trustees or the member of the governing body of M/s. Shree Arya Dharma Seva Sangh. Therefore, Ex. PW1/9 i.e. Dated 11/07/1997 issued on behalf of the plaintiff to the defendant is not valid as the plaintiff was not authorized to issue any such notice to the defendant. Therefore, no notice of termination of the tenancy has been issued to the defendants no. 1 to 3 through their landlord i.e. M/s. Shree Arya Dharma Seva Sangh and, therefore, Ex. PW1/9 having no effect upon the defendants.
55. Issues No. 2, 3 and 4Issue No. 2 : Whether the plaintiff is entitled to recover Rs. 5.00 lacs. If so, from whom ? OPP.
Issue No. 3 : Whether the plaintiff is entitled to recover Rs. 5 lacs per month as mesne profits from the date of filing of the suit i.e. 29/09/1993 till recovery. If so, from whom ? OPP.
Issue No. 4 : Whether the plaintiff is entitled to interest. If so, at what rate, on what amount and from whom ? OPP.
56. In view of the observations made herein above, it is already observed that the plaintiff has no locus standi in the present case. Therefore, there is no question for any entitlement of the plaintiff to recover any amount from any of the defendants. Therefore, issue no. 2 is answered against the plaintiff. Similarly, issues no. 3 and 4 are also answered against the plaintiff in view of the observations made herein CS No. 149/2011 Page 50 above.
57. Issue No. 5Whether the plaintiff company is duly incorporated under the Indian Companies Act 1956 ? If no, its effect ? OPP.
Onus to prove this issue was upon the plaintiff. However, during the trial none of the parties have seriously challenged the incorporation of the plaintiff. Therefore, in view of the non challenge of the fact regarding incorporation of the plaintiff, this court is of the considered opinion that all of the defendants have accepted and admitted the fact of incorporation of the plaintiff and, therefore, this issue is decided in favour of the plaintiff.
58. Issue No. 7Whether the present suit is liable to be stayed u/s 10 CPC in view of the preliminary objection No. 2 ? OPD 1 to 3.
Onus to prove this issue was upon the defendants. However, during arguments ld counsel for the defendants have not pressed this issue and, therefore, this issue is answered against the defendants.
59. Issue No. 9Whether the suit has not been properly valued for the purpose of fee and jurisdiction ?OPD- 1 to 3.
Onus to prove this issue was upon the defendants. However, none of the defendants have led any evidence to prove this issue. Therefore, this issue is answered against the defendants.
60. Issue No. 10Whether the suit is bad for mis joinder of cause of action as well as the parties. If so, its effect ?
CS No. 149/2011 Page 51 This court has already made observation in earlier part of this judgment that the suit property has not been transferred in accordance with the law by M/s. Arya Dharma Seva Sangh in favour of the plaintiff and, therefore, the plaintiff has no locus standi to file the present suit. Therefore, the suit is bad for mis-joinder of the plaintiff in the present suit and thus, the suit is not maintainable at all as the sale of the suit property in favour of the plaintiff, does not confer any right in favour of the plaintiff nor the plaintiff is the landlord of defendants no. 1 to 3. Similarly, this court has already made observations in earlier part of this judgment that the plaintiff has no cause of action to file this suit. Thus, this issue is answered in favour of the defendants and against the plaintiff.
61. Issue No. 11Whether the suit has not been filed by a duly authorized person. If so, its effect ? OPD-1 to 3.
Onus to prove this issue was upon defendants no. 1 to 3. PW1 in para 1 stated that he is one of the directors and principal officer of the plaintiff being fully conversant with the facts of the case. It is further stated that PW1 has been duly authorized by the board of directors to pursue the present case by virtue of resolution dated 30/07/1994 passed by the board of directors. It is further stated that he has brought the original minute book containing the resolution dated 30/07/1994 and the same is Ex. PW1/2. During cross-examination, it is stated by PW1 that he has brought the original minute book of the plaintiff. At the time of filing of present suit, he was also the chairman of the plaintiff though he was not the managing director at that relevant time. He has further stated that he was the chairman of the plaintiff and by virtue of it, he was also the principal officer of the plaintiff. He has further stated that he was authorized by the board meeting dated CS No. 149/2011 Page 52 30/07/1994. He has further stated that he has not brought the notice and postal receipt required for convening the meeting of board of directors dated 30/07/1994 but further stated that required notice as per law was given. No challenge to this part of the statement of PW1 on behalf of the defendants. According to Order 29 Rule 1 of CPC, any pleadings can be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. There is no challenge to the statement of PW1 that PW1 is the chairman of the plaintiff and by virtue of his designation as chairman, he is also the principal officer of the plaintiff. Defendants have not challenged this part of evidence of PW1 and, therefore, it deems to be admitted on behalf of the defendants. Therefore, this issue is answered in favour of the plaintiff and against the defendants.
62. Issue No. 13Whether the lease stood renewed for another period of 114 months w.e.f. 24/11/1979 by virtue of compromise arrived at in suit no. 62/80 in suit titled as M/s. Arya Dharma Seva Sangh Vs. Pal Properties India (P) Ltd. ? If so, its effect. OPD 1 to 3.
Onus to prove this issue was upon defendants no. 1 to 3. In para 3 of Ex. DW1/X, it is stated by DW1 that M/s. Arya Dharma Seva Sangh continued to receive the rent up to July, 1995 and they have also filed Ex. DW1/4. This is a letter dated 04/04/1999. The last digit regarding the year is not legible. However, at the bottom of this letter a postal receipt is affixed which bears the seal of the postal department as 04/04/1995. Therefore, the court can take inference that this letter must bear the date of 1995. Through this letter a pay order towards the rent CS No. 149/2011 Page 53 up to April, 1995 and May, 1995 was dispatched to M/s. Arya Dharma Seva Sangh. Along with this letter photocopy of cash order drawn on Punjab National Bank dated 04/04/1995 is also filed. Except this piece of statement, the defendants have not brought or stated any evidence to prove this issue. No compromise arrived at in suit no. 62/80 in suit titled as M/s. Arya Dharma Seva Sangh Vs. Pal Properties India (P) Ltd., has brought on record. Therefore, since no compromise has been brought on the record or proved in accordance with the law by the defendants, therefore, this issue is answered against the defendants.
63. Issue No. 14Relief In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 12/06/2012. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 149/2011 Page 54 CS No. 149/11 12/06/2012 Present : None.
Vide separate order announced in the open court today, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra)
Additional District Judge-09
Central District, Tis Hazari Courts
Delhi/12.06.2012
CS No. 149/2011 Page 55