Delhi District Court
Sh. Banarasi Dass Bedi vs Ms. Anika Singh on 7 January, 2013
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0448622011
CS No. 434/12
1. Sh. Banarasi Dass Bedi
S/o Sh. Narain Dass Bedi
2. Sm.t Bimla Rani
W/o Sh. Banarasi Dass Bedi
3. Sh. Rishab Bedi
W/o Sh. Sarabjeet Bedi
All Residents of A-3/191, Paschim Vihar,
New Delhi 110062.
4. Smt. Rajni Bedi
W/o Sh. Harsh Bedi
R/o A-3/172, Paschim Vihar,
New Delhi. ...Plaintiffs
VERSUS
Ms. Anika Singh
D/o Sh. Mohanjeet Singh
R/o 23/62, Punjabi Bagh (West)
New Delhi 110026. ...... Defendant
Date of institution : 10.12.2012
Arguments heard on : 19.12.2012
Date of order : 07.01.2013
JUDGMENT
1. The plaintiffs have moved an application u/o 12 R 6 CPC for decreeing the suit on the basis of admission made by CS No. 434/12 1 /25 2 defendant in written statement. The contention of the plaintiff is that besides written statement, defendant has replied the legal notice served upon her before institution of suit. She has categorically admitted that property was taken on rent by her from the predecessor in interest of the plaintiff namely Sh. Charanjit Singh by virtue of registered lease deed dated 30.8.06. She has admitted the receipt of notice for termination of tenancy dated 1.8.2011 and has not disputed the extent of tenancy mentioned in the said notice, in reply thereto. She has further admitted that lease was for a fixed period of five years as per lease deed. There is a statutory attornment in favour of the plaintiffs by virtue of section 109 TPA as they have purchased the property. No trial on facts is required. Legal preposition do not require any trial.
2. The defendant has filed reply to the aforesaid application and raised preliminary objection that application is an attempt to pressurise her to settle the matter on the terms of the plaintiffs. The same is abuse of process of law. Admission must be clear, unequivocal, unambigious CS No. 434/12 2 /25 3 and categorical. The entire written statement is to be taken as a whole. She has categorically stated in written statement that notice is bad in law and tenancy could not be terminated by the plaintiffs, the plaint is liable to be rejected u/o 7 R 11 CPC. In replication the plaintiffs have admitted existence of construction on the roof of the first floor. She has pleaded that the lease was for a period of nine years and on asking and assurance of previous landlord the lease was executed only for six years with the commitment that it could be enhanced for a further period of three years. There cannot be statutory attornment when there is specific provision in the lease deed in that regard.
3. There is another application u/o 7 R 11 r/w section 151 CPC moved by the defendant for rejection of plaint. The same proceeds on the allegations that there is no privity of contract between the plaintiffs and defendant. In terms of clause 24 of the lease deed, in the event of any change of ownership the procedure of attornment is prescribed whereby a joint letter is required to be issued by CS No. 434/12 3 /25 4 the previous landlord along with the subsequent purchaser to be given to the defendant. No such letter has been issued.
4. Plaintiff has opposed the said application by filing a reply. They have raised preliminary objection that defendant has not filed written statement despite opportunity granted to her. The application has been filed to prolong the litigation knowing well that she has no ground in her defence. The defendant is in arrearts of rent and damages. The plaintiffs have categorically stated in the plaint that previous owner has instructed the defendant to pay rent to the plaintiffs w.e.f. 1.4.2011.
5. Vide order dated 30.11.2011 the defendant has been directed to deposit rent @ Rs. 1,26,500/- per month w.e.f. 1.4.2011 within ten days and continue to deposit the same by 7th day of each succeeding month.
6. Briefly stated the facts giving rise to the above two applications are that plaintiff filed a suit that they purchased shop No. 2 consisting of ground floor and first floor in Property No. J-75, Main Market, Rajouri Garden, CS No. 434/12 4 /25 5 Delhi from previous owner vide two registered sale deeds dated 2.5.2011 and 11.7.2011. Their predecessor in interest let out the premises on monthly rent of Rs. 1,10,000/- exclusive of electricity and water charges for a period of five years vide registered lease deed dated 30.8.2006. The rent has been increased by 20% and last paid rent is Rs. 1,26,500/- per month after contractual increase of rent after three years. The defendant has failed to pay the rent to the erstwhile owner or to the plaintiff from 1.4.2011. As per clause 19 of the lease agreement the lease could be terminated if lessee made default in payment of monthly lease money or violated any of the terms of the lease by giving one month notice. If lessee did not vacate the premises after termination he was to pay double amount of the rent. Plaintiff served legal notice dated 1.8.2011 for termination of the tenancy, recovery of rent and damages. The defendant sent a frivolous and false reply. Otherwise also tenancy of the defendant expired by efflux of time on 30.8.2011. Hence this suit for possession, money decree for rent w.e.f. CS No. 434/12 5 /25 6 1.4.2011 to 31.7.2011, rent for August 2011, mesne profit from 1.9.2011 @ Rs. 2,53,000/- / being double of the agreed rent , interest @ 15% per anuum and costs. The plaintiffs have undertaken to pay court fee on mesne profit as and when the same are adjudged.
7. Written statement of the defendant proceeds on preliminary objection that plaintiffs are stranger, there is no privity of contract, therefore suit is without any cause of action. Immediately after execution of the lease deed dated 30.8.2006 previous landlord agreed and allowed the defendant to raise construction on the roof of first floor and with that oral permission and consent, the defendant constructed three rooms on the roof of first floor with pacca structure and tin shed for generator. The defendant executed work of permanent character and incurred huge expenses. The plaintiffs could not have terminated lease/licence and suit is bad in law. Lease was granted for a period of nine years but on the asking and assurance of previous landlord the lease was executed for six years with the commitment that landlord would enhance the CS No. 434/12 6 /25 7 period of lease for three more years i.e. total period of nine years. The lease could not have been terminated before expiry of six years in terms of clause 23(A) of Lease Deed. The suit has been filed just on expiry of five years and is not maintainable. Suit has been filed only for eviction of ground floor and first floor knowingly that second floor is also in possession of defendant. There is no independent approach to the second floor and stairs to the second floor are from the first floor premises. The suit is for partial eviction which is not permissible. The defendant has denied that she is in arrears of rent for last many years or that she has committed default or breach of terms of lease.
8. I have gone through the material on record and heard the arguments. The counsel for the plaintiffs submitted that the pleas raised by the defendant are false and frivolous, without any base. Regarding attornment he submitted that attornment takes place of its own and no notice is required. In this regard he placed reliance on decision of Gujrat High Court in Gullaminia Hasmuddin Vs CS No. 434/12 7 /25 8 Shekhwat Khan Mohd Khan (2001) 2 Gujrat Law Reporter 1068 where it was held that section 109 TPA does not impose any obligation on the lessor or transferor to give notice of transfer to the lessee. Similar view has been taken in B. P. Pathak Vs Riazuddin AIR 1976 MP 55 and Pratap Chander Vs Madan Ram AIR 1969 Orissa 273, Champal Lal Dayabhai Natali Vs Saraswatiben AIR 1977 Gujrat 48 Full Bench, Brij Bihari Prasad Vs Deoki Devi & Anr. AIR 1978 Patna 117.
9. The counsel for the defendant submitted that arguments advanced by the counsel for the plaintiffs could have been understood if the lease deed was silent on the aspect of transfer of premises. But in the instant case clause 24 provides that if lessor, during the period of lease, sells the premises, letter shall be issued jointly by the lessor and the new owner (transferee) in favour of lessee confirming the terms. No such joint notice has been served. I put it to the counsel for the defendat whether agreement can override the law. When the law does not require notice for attornment, the agreement is of no CS No. 434/12 8 /25 9 consequence.
10. The counsel for the defendant quickly changed his stand to urge that agreement might not have override the law, in case the purchaser waited for a period of lease to expire. But since the purchaser has attempted to terminate lease during the subsistence of lease by taking resort to clause 19 permitting him to terminate the lease on account of default in payment of rent, the joint notice assumes significance. In the absence of joint notice, tenant was not supposed to know that she has to pay rent to the new landlord and cannot be said to be defaulter in payment of rent.
11. The counsel for the plaintiffs suitably replied that the arguments of the counsel for the defendant could have been understood, if the defendant has paid the rent or atleast tendered the rent to the previous landlord w.e.f 1.4.2011/ period in default. But there is no such plea of the defendant. The arguments appears to be convincing.
12. The other way of looking at the matter is that even if the notice of termination is excluded for a moment and for CS No. 434/12 9 /25 10 the sake of arguments, the lease stood expired by efflux of time on 30.8.2011 i.e. before the institution of the suit on 24.9.2011.
13. The plea regarding option of the lessee to renew the lease for one year as per clause 23A does not hold water. The reason being that even if a lessee has option to renew the lease, written documents is must for renewal of the lease. This is so as per law laid down in Hardesh Ores (P) Ltd. Versus Hade & Company 2007 (7) Apex Decision SC 373.
14. Again there is yet another way of looking into the matter. Even if it is held that lease was extended for one year, it has come to an end on 30.8.2012. Now we are in January 2013. Court can always take notice of subsequent events and grant the relief accordingly. For this reference with advantage may be made to S.L. Associates Versus Karnatak Han. Dev 1996 Rajdhani Law Reporter note 86 and Kidarsons Industries Pvt. Ltd. Versus Allahbad Bank 80 (1999) DLT 540. Somewhat similar view was taken in Vithal Bhai Pvt. Ltd. Vs Union CS No. 434/12 10 /25 11 of India AIR 2005 SC 1891.
15. The plea of the defendant is that lease was for nine years, was executed for five years on the assurance of previous landlord that same would be renewed is hit by section 91 and 92 of Indian Evidence Act. No evidence aimed at adding to or variying the contents of a written documents can be permitted. Moreover the same is hit by clause 23 (A) of the Lease Deed in which it was to be renewed upto a period of one year. Clause 23A could have spoken of renewal for four years instead of renewal for one year.
16. The counsel for the defendant tried to set up a arguments that lease was executed for five years as Stamp Duty in lease deed five years is one whereas stamp duty in lease exceeding five years is different. I fail to appreciate the arguments. Firstly different stamp duty could have been paid easily. Secondly if the defendant attempted to defraud the exchequer by mentioning lesser period of lease, now she cannot be allowed to take advantage of her own wrong. It is needless to mention CS No. 434/12 11 /25 12 that liability to pay Stamp Duity is that of the lessee. Thirdly when the purpose was tried to be achieved by incorporating clause 23A that lessee would be entitled to increase the lease for one year, the same could have been achieved by mentioning that lessee would be entitled to increase the lease for next four years.
17. Now turning to the plea of permission to raise construction on the second floor by the initial landlords, I may mention that when everything was being reduced to writing, there is no reason why permission to raise construction was not reduced to writing. Lease Deed was reduced to writing, was got registered, option to renew lease was incorporated in the Lease Deed.
18. The counsel for the plaintiff rightly pointed out that in reply to notice placed at page 349 to 353 of the file, defendant has not raised any such plea of oral permission to raise construction on the roof of the first floor. The same has come for the first time in written statement and appears to be after thought and does not inspire confidence.
CS No. 434/12 12 /25 13
19. Moreover the previous landlord has given a writing dated 29.4.2012 which is placed at page 415 of the file in which he has clearly mentioned that he never gave any consent oral or in writing to Mrs. Anika Singh ( defendant ) to raise any construction on the terrace and she has made a wrong statement in the court. This writing of the previous landlord does not leave any scope for the defendant to contend that she was permitted by the previous landlord to raise additional construction.
20. The counsel for the defendant submitted that previous landlord did not raise any objection when the defendant was raising construction on the roof of the first floor though he was residing in the same locality. His silence gives rise to an inference that he granted the oral permission to raise construction. At least this plea requires evidence. In support of his submission he relied upon RamSwaroop Gupta Vs Bishun Narain Inter college (1997) 2 SCC 555. In the said case it was held that where licence is oral, purpose of its grant and circumstances leading to the grant as also conduct of the parties have to CS No. 434/12 13 /25 14 be considered to determine whether it is irrevocable. Underlined words are in different context of and not in the context silence by the granter while construction was being raised. Moreover in that case licence was oral whereas in present case lease is in writing.
21. For the same preposition he also relied upon Janan Salehbhai Safiyuddin Vs Municipal Corporation of Gr. Bombay and Ors. 1993 (3) Bombay CR 282. In para 24 of the said judgment it has been observed that section 60
(b) of the Indian Easement Act operates in the nature of estoppel against the licensor after having granted the licence, stands by idly watching the licencee erecting a construction of a permanent nature upon the property, which is the subject matter of the licence, the licensor cannot, at a subsequent point of time in future, be heard to contend that licencee had no right to make construction upon the property. The same is not applicable to the facts of the case in hand. The reason being that in the instant case plaintiffs are not trying to make out that licencee had no right to make construction. What they are trying to make CS No. 434/12 14 /25 15 is that said construction did not have any effect on their right to terminate the tenancy.
22. It may also be added that generally litigants try to avoid coming to court for petty issues under the fear that same would involve lot of expenses and time and by that period the lease would come to an end by efflux of time. One knocks at door of court only when water crosses the head.
23. Reliance on Tek Chand Hemraj Vs Uddhav Kumar Ramnath Kaushal 1982 MPLJ 594 is unfounded. That was a revision against order in execution. The non applicant Udhav Kumar filed a suit against applicant Tek Chand for eviction on the ground of disclaimer and arrears of rent. At last page it was held that from persual of the impugned order it is clear that the points which are mentioned by Hon'ble High Court in the said order, were not considered by the Ld. Executing Court and executing court was directed to consider as to whether the decree was based on any of the grounds mentioned u/s 12 of the MP Accommodation Control Act.
CS No. 434/12 15 /25 16
24. Reliance has also been placed on Manoolal Balchand Vs Kaluram Gulabchand AIR 1958 MP 343 in which it was held that transferee did not get any better rights than those possessed by the transferor. From this the counsel for the defendant wanted me to hold that the plaintiffs cannot derive any better right than what the original landlord had. In another words the original landlord could not escape from the consequence of licence becoming irrevocable. The same is not applicable. Plaintiffs are not trying to establish any right better than that of the original landlord. For the same reasons decision in Rahim Baksh Vs Sambu (1951) ILR Nagpur 86 is distinguishable.
25. Regarding effect of construction, the counsel for the defendant strongly argued that section 60 of the Easement Act provide that in case the licencee raises structure of permanent nature and incurr huge expenses, his licence become irrevocable. The argument is mis-conceived. Section 60 Easement Act applies to licencee and not tenant. Still further the defendant has not CS No. 434/12 16 /25 17 given the exact figure how much she has spent on raising construction on the roof of first floor. So it cannot be said that she has incurred huge expenses.
26. The counsel for the plaintiffs relied upon decision of Madras High Court in Anandakrishnan Vs The Commissioner Second Appeal (MD) No. 1250 of 2008 decided on 7.1.2011. In para 13 it has been held that section 60 of the Easement Act has to be read with section 62 of the Easement Act, as per section 62(c), the licence is deemed to be revoked where it has been granted for a limited period and the period expires. In para 15 it has been held that even though the licencee has executed a work of permanent character and has incurred expenses, it will not affect the revocability of the licence on the expiry of period. The same squarely applies to the present case. Here also the lease was for a limited period of five years which period has expired. The same cannot become irrevocable.
27. Law regarding additional construction by the tenant is that same does not create any independent right in CS No. 434/12 17 /25 18 tenant to continue to occupy the same and eviction cannot be confined in respect of portion described in plaint only. In this regard reliance may be placed on decision of our own Hon'ble High Court in Hero Devi Vs Balbir Singh 161 (2009) DLT 121. Similar view was taken in Sultan Ahmed Vs Allauddin 82 (1999) DLT 884 and Suman Sodhi Vs Yogender Sharma 150 (2008) DLT 339. To the same effect is the decision in M/s Kamakshi Builders Vs M/s Ambedkar Educational Society AIR 2007 SC 2191.
28. In R.V. Bhuper Pd. Vs Salesh Begum 2001 (2) Rent Control Reporter 649 division bench of Andhra Pradesh High Court held that if lessee makes additional construction, same becomes part and parcel of demised premises and on expiry of the lease period, lessee is not entitled to remove the construction. In this regard reference was made to section 108 (d) Transfer of Property Act where it is mentioned that accession made to the demised premises form part of the demised premises.
29. In Vyom Garg & Anr. Vs M/s Shyam Lal Aggarwal & sons & Ors in Civil Suit (OS) 585 of 2009 decided on CS No. 434/12 18 /25 19 23.10.2010 by our own Hon'ble High Court similar plea was taken by the tenant as incorporated in para 11 of the judgment. The defendant pleaded that a sum of Rs. 40,00,000/- was spent by him towards renovation of the premises. In Zulfikar Hussain Vs Mst. Hussan Fatima Rent Control Revision No. 465/12 decided on 12.9.2012 by our own Hon'ble High Court, there was a plea that tenants have constructed one room. Despite that eviction order was passed. It is true that this plea has not been specifically dealt within the judgment but nevertheless the eviction has been ordered meaning thereby that the plea has been rejected. In this regard the law is that a relief which is sought for and not granted amount to denial as per Gurpreet Singh Versus U.O.I. 2006 (8) SCC 457.
30. The counsel for the defendant vigoursly submitted that application u/o 12 R 6 CPC is beyond the scope of said provision. According to him the admission should be clear and unambiguous. In support of his submission he relied upon Himani Alloys Ltd. Vs Tata Steel Ltd. 2011 (3) Recent Civil Reports 729. In that case the plea of the CS No. 434/12 19 /25 20 plaintiff was that in meeting held on 9.12.2000 for reconciling account as on 31.3.1999, defendant admitted that a sum of Rs. 74,57,074/50 was outstanding to the plaintiff. In para 6 of the judgment Hon'ble Supreme Court found that the said sum has nothing to do with the defendant viz Himani Alloys Ltd. In fact the same figured in minutes of meeting held on 23.02.2009 between plaintiff and another companies by name Himani Ferro Alloys Ltd. In para 7 it was observed that the minutes concluded that final figure will be arrived at the meeting subsequently when the minutes merely noted certain figures and stated that they were tentative and both parties would verify the same and said that final figures would be arrived at next meeting, after discussion, the court failed to understand how same could be termed as admission.
31. Another decision relied upon by the counsel for the defendant in this regard is Jeevan Diesels and Electricals Ltd. Vs Jasbir Singh Choudhary (HUF) & Anr. AIR 2010 SC 1980. In para 13 of the cited judgment it has been observed whether or not there is clear, unambiguous CS No. 434/12 20 /25 21 admission by one party of the the case or the other party is essentially a question of fact and the decision of this question depends on the facts of the case. This question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent.
32. On the other hand the counsel for the plaintiff heavily relied upon Vyom Garg & Anr. Vs Shyam Lal Aggarwal supra in which decree was passed on admission u/o 12 R 6 CPC.
33. Division bench of our own Hon'ble High Court in Vijay Myne Vs Satya Bhushan 142 (2007) DLT 483 held that admission for the purpose of order 12 R 6 CPC may be constructive. In National Textile Corporation Vs Aswal Wadera 167 (2010) DLT 602 it was held that admission need not be express. In National Insurance Company Vs Prehled Tempo Service 158 (2009) DLT 68 it was held that admission need not be direct.
34. P.S. Batra Vs S. Anup Singh 155 (2008) DLT 431, Uttam Singh Duggal & Company Vs United Bank of India AIR 2000 SC 2740, ITDC Ltd. Vs M/s Chander Pal Sood CS No. 434/12 21 /25 22 and Sons 84 (2000) DLT 337 DB, Rajiv Sirivastava Vs Sanjiv Tuli 119 (2005) DLT 202 DB, Puja Aggarwal Vs Scata Incs ( India ) Ltd. 154 (2008) DLT 237, Prem Narain Mishra Vs Fairey Bros. Exports and Imports Ltd. 126 (2006) DLT 98 are also decision supporting passing of decree u/o 12 R 6 CPC on the basis of admission. In Charanjit Lal Mehra Vs Kamal Saroj Mahajan (2005) 11 SCC 279 Hon'ble Supreme Court quoted the observations in Uttam Singh Duggal supra as below:-
" In the objects and reasons set out while amending rule 6 of order 12 CPC it is stated that where claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree of admitted claim. The object of the rule is to enable to obtain speedy judgment atleast to the extent of relief to which according to the admission of the defendant, the plaintiff is entitled. The Supreme Court should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Therefore, in the present case, as appearing to us, there is a clear admission on behalf of CS No. 434/12 22 /25 23 the defendant that there existed a relationship of landlord and tenant, rent is more than Rs. 3500/- and the tenancy is joint and composite one, as such on these admitted facts, there is no two opinions in the matter."
35. In Madhusudan Vs Smt. V Valsale Jayamani 165 (2009) DLT 1 it was held that unscrupulous person who enjoy the property without any rent / occupation charges and have no intention of paying the same, and instead their desire is to grab the property leased to them, such person deserve to be dealt with a heavy hand.
36. All the above decisions were quoted with approval by our own Hon'ble High Court in RFA No. 30/10 titled as M/s Sharex Vs Sudershan Suri decided on 4.6.2010.
37. In Zulfiquar Ali Khan & Ors Vs A.K. Helene Curtis Ltd. AIR 2002 Delhi 425 it was held that in suit against tenant for recovery of possession filed by co-owners of property, if tenant admits creation of lease by plaintiff and that lease had expired by efflux of time, plea of tenant that plaintiff cannot get relief, unless plaintiff prove themselves to owner of the property, is not tenable. Such plea is CS No. 434/12 23 /25 24 available in suits for title when there is a dispute as to title and not in suit for recovery of possession against tenant. In M/s Uptron Powertronics Vs G.L. Rawal AIR 1999 Delhi 377, Ramaghei Vs U.P. State Handloom Corporation 91 (2001) DLT 386, Abdul Hamid & Ors Vs Charanjit Lal Mehra & Ors 1998 (6 ) AD Delhi 45 it was held that a decree for possession could be passed in favour of the lessor on the basis of admission made by the lessee, on determination of relationship of lessor and lessee.
38. In Atma Ram Properties (P) Ltd. Vs Pal Properties (India) Pvt. Ltd. 91 (2001) DLT 438 it was held that questions raised by defendant were purely legal question not requiring any evidence. Admissions by defendant were sufficient to grant decree.
39. In the instant case the defendant has substantially admitted the case of the plaintiff. She has admitted that she is tenant, she has admitted the registered lease deed and she has admitted the receipt of notice. Termination of lease by efflux of time is apparent. Thus a clear case of decree on admission is made out. The defendant has CS No. 434/12 24 /25 25 filed a site plan showing present status of construction including construction on terrace of first floor. The same is exhibited as Ex. C-1 and decree in respect of the entire premises as shown in site plan Ex. C-1 including portion constructed by defendant is passed in favour of the plaintiffs and against the defendant. Plea of partial eviction was repelled by our own Hon'ble High Court in Narain Devi Vs Vinod Kumar 1979 Rajdhani Law Reporter 493 and V.S. Sachdeva Vs M.L. Grover 1997 Rajdhani Law Reporter 439. Application u/o 12 R 6 CPC is allowed. Decree Sheet be prepared accordingly.
40. Application u/o 7 R 11 CPC is dismissed as the plaintiffs are not strangers, they are purchasers from the admitted original landlord who inducted the defendant as tenant. A relationship of landlord and tenant has come into existence between the parties by virtue of statutory attornment.
Announced in the open court on 7th, January 2013. (O.P. GUPTA) DJ&ASJ-In-Charge(West)/ARCT Delhi CS No. 434/12 25 /25