Delhi District Court
Mrs. Kanchan Sethi vs Mr. Satish Kumar Sarogi on 15 February, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, COMMERCIAL CIVIL JUDGE
CUM ADDITIONAL RENT CONTROLLER, ROHINI COURTS, DELHI.
Suit No. 23/12.
Mrs. Kanchan Sethi
W/o Mr. Suraj Parkash Sethi
R/o DP77, Pitampura,
Delhi110034.
Through her Special Attorney
Mr. Suraj Prakash Sethi ....Plaintiff
Versus
Mr. Satish Kumar Sarogi
S/o Mr. Gobind Parshad
R/o Society Built Flat no.12,
III Floor, Swarn Apartment,
Near Madhuban Chowk,
Pitampura, Delhi110034. ....Defendant
Suit for Recovery of Possession and other reliefs
15.02.2013.
O R D E R
1. By this order, I shall decide the application under Order 12 Rule 6 read with Section 151 of Code of Civil Procedure filed by the plaintiff. By the said application, the plaintiff has prayed for passing a judgment on admissions made by the defendant.
2. The plaintiff has filed the present suit stating in the plaint that she is owner and landlady of Flat no.12, III Floor, Swarn Apartment, Near Madhuban Chowk, Pitampura, Delhi110034 shown in red colour in the site plan filed along with the plaint (hereinafter referred to as Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 1 of 10 Suit no. 23/12 "the suit property"). It is stated in the plaint that the defendant is a tenant in respect of the suit property at rent of Rs.8,000/ per month. It is stated that a registered rent agreement was executed by the parties on 17.02.2011. It is further pleaded that the lease deed provided for tenancy upto 31 December 2011. Thereafter the st tenancy was extended by mutual understanding. The plaintiff subsequently terminated the tenancy by legal notice dated 29.11.2011. Notice is stated to have been served upon the defendant. Yet the defendant failed to hand over vacant possession of the suit property. The plaintiff has prayed for recovery of possession of the suit property and for recovery of damages.
3. The defendant filed written statement. The defendant denied that the plaintiff is the owner and landlord of the premises. The defendant admitted that he is tenant in the premises. The defendant denied the receipt of legal notice.
4. In the application under Order 12 Rule 6 read with Section 151 of Code of Civil Procedure, the plaintiff has stated that the defendant has admitted the existence of landlord tenant relationship and therefore the suit is liable to be decreed in favour of the plaintiff for the relief of possession. Counsel for plaintiff has, during arguments, submitted that by the instant application he is praying only for relief of possession on the basis of admissions of the defendant and that the suit may be put to trial for the relief of recovery of damages.
5. In his reply to the application under Order 12 Rule 6 read with Section 151 of Code of Civil Procedure, the defendant stated that tenancy has not been terminated.
Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 2 of 10 Suit no. 23/12
6. I have heard submissions advanced by Ld. counsels for the parties and have perused the record.
7. In order to recover possession of the suit property, the plaintiff needs to establish the following:
A. That the plaintiff is landlord and the defendant is tenant in the suit property.
B. That the Delhi Rent Control Act does not apply to the suit property.
C. That the tenancy of the defendant has been terminated.
8. It is examined hereinafter whether the said ingredients stand proved by admissions of the defendant so as to entitle the plaintiff to a decree.
A. Whether the plaintiff is landlord and the defendant is tenant in the suit property?
9. The plaintiff has stated in paragraph no.2 of the plaint that "the defendant is the tenant in respect of the suit property at a monthly rent of Rs.8,000/ per month...". In the corresponding paragraph of written statement, the defendant has stated that "contents of para 2 of the suit is matter of record, need no reply. However, it is submitted that defendant was/is tenant of the suit premises since 2006 without break". Hence, the assertion of the plaintiff that the defendant is tenant in the suit property has been admitted by the defendant. The defendant has disputed the date on which he has been inducted as a tenant. The date of inducting the tenant is not relevant for deciding the present controversy and therefore the said dispute does not warrant a trial.
Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 3 of 10 Suit no. 23/12
10. The plaintiff has, in paragraph no.1 of the plaint, claimed to be the owner/landlord of the suit property. The defendant has, in the corresponding paragraph of written statement denied this. However, the defendant has not disclosed as to who is the landlord, if not the plaintiff. The defendant has also not disputed the execution of registered sale deed which clearly shows that it is the plaintiff who is the owner and landlord of the suit property. Reading the written statement as a whole, it is clear that the defendant has admitted that the plaintiff is landlord of the suit property. Since the plaintiff has been accepted by the defendant to be the landlord, the defendant is estopped from questioning the title of the plaintiff in keeping with Section 116 of the Evidence Act.
11. From the aforesaid, it can be safely inferred that the plaintiff is landlord and the defendant is tenant in the suit property. B. That the Delhi Rent Control Act does not apply to the suit property.
12. The defendant has not, in his written statement, raised the plea of applicability of Delhi Rent Control Act. Further, the defendant has not pleaded that the rate of rent is less than or equal to Rs. 3500/ per month so as to attract the provisions of the Delhi Rent Control Act.
13. The plaintiff has, in paragraph no. 2 of the plaint, pleaded that the rate of rent was Rs. 8000/ per month. In the corresponding paragraph of the written statement, the defendant has stated, "Contents of Para 2 of the suit is matter of record, need no reply.... Further he was inducted as a tenant in the year 2006 at a monthly rent of Rs. 5000/ excluding water, electric and other charges. Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 4 of 10 Suit no. 23/12 Further it was agreed that rent will be increased at the rate of 10% per annum and accordingly rate of monthly rent was / is Rs. 8000/ in the year 2011".
14. From the above, it stands proved by the admission by the parties that the rent of the suit property was not less than or equal to Rs. 3500/ per month. In the result, having regard to Section 3(c) of the Delhi Rent Control Act, 1958, the tenancy is not governed by the provisions of the Act.
C. Whether the tenancy has been terminated.
15. The plaintiff has stated in the plaint that tenancy of the defendant has been terminated by the service of legal notice dated 29.11.2011.
16. The defendant has denied the receipt of legal notice. The defendant has however not disputed the genuineness of the postal and courier receipts which have been filed by the plaintiff to show the dispatch of legal notice.
17. From the receipts of post and courier, it is clear that the legal notice has been dispatched on 29.11.2011. The legal notice bears the address of the suit property which the defendant is admittedly occupying. Hence, it appears that the legal notice has been sent at the correct address. The plaintiff has also filed copy of acknowledgment card showing delivery of the notice. The defendant has not disputed the genuineness of his signatures on the acknowledgment card. Hence, by the acknowledgment card, it is clear that the notice has been duly served upon the defendant. Even if the acknowledgment card is ignored, since it is admitted that the notice has been duly dispatched by post and by courier for Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 5 of 10 Suit no. 23/12 service upon the defendant at the correct address, the defendant is presumed to have been served with the notice. Under Section 114 of Evidence Act, the existence of facts which are likely to have happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration
(f) of Section 114. By common course of business, the legal notice would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed. The defendant has not pleaded the existence of any fact which could have precluded the service of notice.
As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543, a mere bald denial by the defendant of service of notice is not sufficient to rebut the presumption under Section 114 of illustration (f) of the Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant. On this point, the Hon'ble High Court of Delhi has, in the case of Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR 1996 Delhi 32 noted thus:
"From Ex. P1 to P11 it is proved and established that the aforesaid notice dated 12.12.1988 (Ex. P1) terminating the tenancy was dispatched to defendant No. 2 at its registered office and also to the appellant No. 1 and 3 at their addresses at 5, Golf Links, where they were admittedly residing, as is disclosed from the evidence of DW 1/appellant No. 1. In view of the dispatch of the said notices to the appellants/defendants individually at their proper addresses now the question arises as to whether a presumption of service of notice could be drawn in favour of the plaintiff or not. The basic law of Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 6 of 10 Suit no. 23/12 presumption of service of notice is permitted under the provisions of Section 27 of the General Clauses Act and also under the provisions of Section 114 of the Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918 Privy Council 102, wherein it was held that if a letter properly directed containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan v. Wazir J.V. Chand the Apex Court had held that all that a landlord can do is to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged under Section 106 of the Transfer of Property Act having been issued by the plaintiffs to the concerned defendants at their residential address in accordance with law, it can well be presumed under the aforesaid provisions statutory as well as case laws that the said notices have been duly served on the said defendants and therefore, in that view of the letter we do not find any infirmity to interfere with the findings of the learned trial court that the notice terminating the tenancy was duly, properly and validly served on the defendants."
Reference may also be made to the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007(2) DCR 321 SC in which the Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 7 of 10 Suit no. 23/12 Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business".
It is therefore safe to presume that the said legal notice was duly served upon the defendant.
18. It is not in dispute that the tenancy is for purposes other than agriculture and manufacture and as per Section 106 of the Transfer of Property Act, 1882 it is treated as a month to month tenancy. As per Section 106 of the Transfer of Property Act, 1882, the tenancy is terminable by fifteen days' notice.
19. The legal notice dated 29.11.2011 states that the tenancy of the defendant is terminated and the defendant shall vacate the suit property by 31.12.2011. The legal notice was dispatched on 29.11.2011 as is evident from the postal and courier receipts. It was dispatched from Delhi and was destined for Delhi. It affords at least fifteen days' time for vacating the suit property. The notice satisfies the requirement of Section 106 of Transfer of Property Act, 1882. By way of the said legal notice, tenancy of the defendant stood terminated, in keeping with Section 111(h) of the Transfer of Property Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 8 of 10 Suit no. 23/12 Act, 1882. The defendant therefore became liable to hand over the vacant possession of the suit property to the plaintiff.
20. The defendant has denied being served with notice of termination of tenancy. As held above and the notice is deemed to have been served upon the defendant, which in turn has terminated the tenancy. Yet, even if it is assumed that the said notice was not delivered to the defendant, that would not sustain the tenancy. In that event, the institution of the present suit shall be treated as notice of termination of tenancy since the intention to terminate the tenancy has been unequivocally expressed in the plaint. The Hon'ble Supreme Court has, in the case of Nopany Investments (P)Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728, held that the tenancy would stand terminated on filing of a suit for eviction. This decision has been followed by Hon'ble High Court of Delhi in the case of M/s. Jeevan Diesels & Electricals vs M/s. Jasbir Singh Chadha (Huf) & RFA No.179/2011 dated 25.3.2011. Hence, from the expiry of fifteen days from the institution of the suit, the tenancy has stood terminated and the plaintiff has become entitled to recover vacant physical possession of the suit property.
21. All the aforesaid ingredients being fulfilled, the plaintiff is entitled to a judgment and decree on admissions. The application filed by the plaintiff under Order 12 Rule 6 read with Section 151 of Code of Civil Procedure is allowed. A decree of recovery of possession is passed in favour of the plaintiff and against the defendant. The defendant is directed to handover peaceful and vacant possession of the suit property bearing Flat no.12, III Floor, Swarn Apartment, Near Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 9 of 10 Suit no. 23/12 Madhuban Chowk, Pitampura, Delhi110034 shown in red colour in the site plan filed with the plaint, to the plaintiff forthwith. Decree sheet shall be prepared.
Announced in the open Court on 15 February 2013.
th (Ashish Aggarwal) CCJcumARC (NorthWest) Rohini Courts, Delhi.
Mrs. Kanchan Sethi vs. Mr. Satish Kumar Sarogi 10 of 10 Suit no. 23/12