Delhi District Court
Sh. R.C.Jain vs Sh. Mohinder Jeet Singh on 5 May, 2009
1
IN THE COURT OF MS. HEMANI MALHOTRA
ADDITIONAL DISTRICT JUDGE-04 (WEST)
TIS HAZARI : DELHI
Suit No. : 43/2008
SH. R.C.JAIN
S/O. LATE SH. H.M.JAIN
R/O. WZ-596, V& P.O. PALAM
NEW DELHI-110 045.
...PLAINTIFF
VERSUS
SH. MOHINDER JEET SINGH
S/O. SH. SUKH CHARAN SINGH
R/O. 144, FIRST FLOOR
STATE BANK NAGAR
PASCHIM VIHAR
NEW DELHI-110 063.
Date of Institution of the Suit : 13.12.2008
Date of Reserving the judgment : 05.05.2009
Date of passing the judgment : 05.05.2009
SUIT FOR RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY,
MESNE PROFIT/DAMAGES AND PERMANENT INJUNCTION
JUDGMENT
1. By this judgment, I shall dispose of an application U/o.12 Rule 6 R/w. Section 151 CPC filed by the plaintiff.
2. The brief facts pertaining to the present case are that the plaintiff is the owner and landlord of property bearing no.144, State Bank Nagar, Paschim Vihar, New Delhi, which is the suit property. The defendant was inducted as tenant on 15.05.2006 by 1/10 2 the plaintiff vide registered Rent Agreement dt.22.05.2006 for a period of two years commencing from 15.05.2006 till 15.5.2008 at a monthly rent of Rs.10,000/- for residential purpose in respect of the first floor and one mezzanine room between the first floor and the second floor.
3. A refundable security of Rs.40,000/- was given by the defendant to the plaintiff. It has been claimed that defendant illegally occupied another mezzanine room with latrine and bathroom above the second floor. A hand written notice dt.29.03.2008 was served upon the defendant to pay damages @ Rs.5,000/- p.m for the unauthorized use and occupation of the said mezzanine room with latrine and bathroom above the second floor, which was duly replied by the defendant through his counsel vide reply dt.06.05.2008. It has also been claimed by the plaintiff that this mezzanine room with latrine and bathroom was surrendered to him soon after 06.05.2008 and it remained in occupation of the defendant for two years for which he is liable to pay damages.
4. It has also been averred by the plaintiff that the tenancy of the defendant expired by efflux of time by the midnight of 14/ 15.05.2008. Another notice dt.18.10.2008 by way of abundant precaution was served upon the defendant terminating the tenancy, 2/10 3 claiming damages-past, present and future. This notice was also duly replied by the defendant by way of a legal reply dt.03.11.2008. The plaintiff has further averred that defendant who had paid a sum of Rs.40,000/- in cash was adjusted towards damages till 15.08.2008. The plaintiff, thereupon on 13.12.2008 filed a suit for recovery and possession of the suit premises as well as for mesne profits, damages towards use and occupation of tenanted premises and the mezzanine room along with latrine and bathroom above the second floor which was in the illegal occupation of the defendant for two years.
5. Written Statement was filed by the defendant wherein defendant did not dispute the relationship of landlord and tenant between the parties. Registered Rent Agreement dt.22.05.2006 was also admitted by the defendant. However, the defendant has claimed that he was never in illegal occupation of mezzanine room of the second floor along with latrine and bathroom, though the same was admitted in the reply notice dt.03.11.2008. It has also been averred by the defendant that the security of Rs. 40,000/- was not an interest free security but was to fetch an interest of 2 % p.m i.e 24% p.a and the said security was refundable along with interest to the defendant on surrendering the tenanted premises. The defendant has claimed oral tenancy w.e.f 01.6.2008 to 31.05.2011 3/10 4 and has claimed to have given an advance rent for this period @Rs.11,000/- p.m. Hence, according to him he has already paid the future rent of Rs.3,96,000/- in cash to the plaintiff upto 31.05.2008 and not Rs.40,000/- in cash towards damages as claimed by the plaintiff. The defendant has also averred that the tenancy from 01.06.2008 to 31.5.2011 is an oral tenancy which does not require registration as the same is month to month. The agreed rate of rent of oral tenancy was claimed to be Rs.11,000/- per month as the same was an enhancement of 10% in the original rent of Rs.10,000/- p.m.
6. The plaintiff has filed an application U/o.12 Rule 6 R/w. Section 151 CPC for judgment on admissions made in the Written Statement. The plaintiff has denied any oral tenancy between the parties and has stated that if at all there was any, the same has been terminated by the plaintiff by serving upon the defendant a statutory legal notice dt.18.10.2008. The plaintiff has laid emphasis on the fact that no tenancy exceeding the period of one year can be created unless same is created vide a registered instrument as per Section 107 of the Transfer of Property Act. Any tenancy which is a month to month tenancy can be terminated U/s.106 of Transfer of Property Act by giving 15 days clear notice.
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7. The defendant in his reply has contended that tenancy was extended as stated in the Written Statement for three years w.e.f 01.6.2008 to 31.5.2011 at a monthly rent of Rs.11,000/- and the entire rent of Rs.3,96,000/-for extended period of tenancy was paid in advance to the plaintiff. He has also categorically stated that there is no admission on his part that the tenancy has come to an end. Rather he has claimed that the tenancy cannot be terminated simply by serving a notice dt.18.10.2008.
8. I have heard rival submissions made by the Learned Counsels for the parties on the application u/o. 12 Rule 6 R/w. Section 151 CPC and perused the record as well as the judgments relied by them.
9. Neither registered Rent Agreement dt.22.05.2006 nor the relationship of landlord and tenant has been disputed and denied by the defendant. The only question which needs to be determined in the present case is whether the tenancy was extended w.e.f. 01.06.2008 to 31.05.2011 by way of an oral agreement between the parties and whether the defendant had paid an advance rent for the extended period of tenancy to the tune of Rs.3,96,000/- @Rs.11,000/- p.m to the plaintiff. It is pertinent to note that no receipt has been filed on behalf of defendant with respect to the 5/10 6 amount of Rs.3,96,000/- nor any Rent Deed for the extended tenancy has been claimed to have been executed. If the defendant's version is to be believed then the tenure of the extended tenancy would have come into effect from 16.05.2008 onwards and not w.e.f. 01.06.2008 as claimed by him. Otherwise also, it is a mandate of law U/s.107 of Transfer of Property Act that any lease deed of immovable property for any term exceeding one year can be made only by a registered document. Assuming that there was some oral tenancy created between the parties, then at the most in the absence of any registered instrument the tenancy could be only a month to month tenancy. And if it was so, then the same was terminated by way of notice dt.18.10.2008 admittedly served upon the defendant by the plaintiff. In view of the discussion the tenancy stood terminated.
10. Learned Counsel for defendant has placed reliance on several judgments which have no bearing on the present case as the admissions made therein were neither clear nor unambiguous and there was a possibility of other interpretation. In Tek Chand Narula & Ors. Vs. Jammu & Kashmir Bank Ltd. reported in 88 (2000) DLT 261 relied upon by the defendant, the lease had not come to an end by efflux of time as in the present case. In the present case, apart from the lease, coming to an end by efflux of time, a valid 6/10 7 legal notice dt.12.10.2008 was also served, terminating the alleged month to month tenancy, if any. In the present case, the pleas taken by the defendant in his reply to the application u/o.12 Rule 6 R/w. Section 151 CPC and in his Written Statement are frivolous and have been devised to delay the eviction and delivery of possession of the premises to the landlord/plaintiff. Thus, the admissions made in the Written Statement are held to be clear, unambiguous and unequivocable.
11. In this view of mine, I find support from a Division Bench Judgment of our own Hon'ble High Court in 2001 (III) AD (DELHI) 604 titled as Dunlop India Ltd. vs. Sh. Sunil Puri & Ors. wherein para-5 of the said judgment it has been held that :
"Assuming that there was an oral arrangement not to evict the defendant till 2007, even in that case the defendant cannot successfully resist a suit for possession by the plaintiff in as much as the said oral arrangement was not made a part of the registered lease deed. No benefit or advantage could be taken by the defendant of the alleged oral understanding as a defence to a suit filed by the plaintiff seeking eviction of the defendant. Section 107 of the Transfer of Property Act require that a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by a registered instrument. In the absence of any registered instrument incorporating the alleged oral understanding, this plea itself will be of no avail and on this plea a suit for possession 7/10 8 cannot be resisted."
12. This judgment applies on all fours to the facts of the present case as the judgment of Trial Court passed on application u/o.12 Rule 6 CPC was upheld by the Hon'ble High Court by this judgment.
13. The plea of the defendant that an advance of Rs.3,96,000/- has been paid to the plaintiff for the extended period of tenancy is improbable if not highly preposterous. It will be against all principles of prudent thinking to advance such a huge amount in cash without obtaining any receipt. Admittedly the tenancy was created by registered Rent Deed which was expired on 15.05.2008 and therefore, to claim the oral tenancy commencing w.e.f. 01.06.2008 is contrary to normal human conduct as there was an interregnum of 16 days. It was also observed that the defendant has all along been harping that the amount of Rs.40,000/- which was paid as refundable security was not an interest free security. However, in para 7 of his W.S he has stated that it was decided between the parties that the security amounting to Rs.40,000/- already deposited with the plaintiff will remain with the plaintiff, to be refunded when the premises would be vacated after the expiry of the extended period of tenancy. The same is also contrary to whatever has been stated by him earlier which also goes to show 8/10 9 contradictory plea which has been taken by the defendant.
14. In Charanjeet Lal Mehra & Ors Vs. Kamal Saroj Mahajan 2005 III AD (Supreme Court) 525 and various other Apex Court judgments the objects and reason for including a provision like Order 12 Rule 6 in the Code of Civil Procedure has been explained as under:
"In fact Order 12 Rule 6 CPC is enacted for the purpose of and in order to expedite the trials, if there is any admission on behalf of defendant or an admission can be inferred from the facts and circumstances of the case without any dispute, then, in such a case in order to expedite and dispose off the matter, such admission can be acted upon. "
15. Consequently, on the basis of clear, categorical and unambiguous admissions made on behalf of defendant that there existed a registered Rent Agreement dt.22.05.2006 for a period of two years w.e.f. 15.05.2006 to 15.05.2008, relationship of landlord and tenant between the parties and legal termination of tenancy which can be safely inferred, a decree for possession is liable to be passed in favour of the plaintiff and enquiry may be subsequently made as to the quantum and period of mesne profit and damages.
16. I therefore, grant the plaintiff a decree of possession in 9/10 10 respect of premises bearing no.144, State Bank Nagar, Paschim Vihar, New Delhi comprising of first floor and mezzanine room between the first and second floor against the defendant. The defendant is given three months time to vacate and handover the vacant and peaceful possession of the suit premises.
17. Plaintiff will be liable to seek damages/mesne profits by way of moving an appropriate application after the limitation period of three months to vacate and hand over the physical and peaceful possession of the suit premises elapses.
18. Judgment signed and announced in the open court. Decree Sheet be prepared accordingly. File be consigned to Record Room.
(HEMANI MALHOTRA) ADJ-04(West)/Delhi 05.05.2009 10/10