Delhi District Court
Kvr Chandra & Sons Huf vs . Jaico Book Distributors on 28 July, 2014
Suit No. 114A/2010 & 115/2010
KVR Chandra & Sons HUF Vs. Jaico Book Distributors
28.07.2014
ORDER ON APPLICATION DATED 27.10.2009 OF THE PLAINTIFF
UNDER ORDER XII RULE 6 & SECTION 151 CPC:
1.This common order will dispose off identical applications of the plaintiff specified in the title above seeking decree of possession of the suit properties demised therein on the basis of admissions in pleadings. Not only the parties but also their counsels and substantially the pleadings in the two suits are identical except the floor of tenancy premises. Whereas the demised premises in Suit no. 114A/10 are on the basement, the demised premises of Suit No. 115/10 are on second floor of of property no. G2/16, Ansari Road, Darya Ganj, New Delhi (hereinafter called 'the suit properties'). The parties have exchanged common correspondence in respect of two tenancies, therefore it will be convenient to take up the applications moved in both the cases in one go.
2. To start with the background, the plaintiff claims that the defendant was inducted as tenant in respect of distinct floors in 1978 by HUF Suit No. 114A/2010 & 115/2010 Page No. 1 of 16 represented by Late Sh. Krishna Chandra, karta of Krishna Chandra Rastogi HUF, Late Sh. Vipin Chandra Rastogi, Karta of Vipin Chandra Rastogi HUF and Late Sh. Ramesh Chandra Rastogi, Karta of Ramesh Chandra Rastogi, HUF who together constituted the plaintiff which is now being represented by Sh. Satish Chandra Rastogi, Sh. Rajesh Chandra Rastogi and Sh. Ravish Chandra Rastogi who are the sons of aforesaid kartas respectively. The last monthly rent of the defendant in respect of each tenancy was Rs. 3,630/ per month. Since the defendant was paying a meager rent far below the prevailing market rate, the plaintiff was suffering huge losses. The defendant therefore was requested to enhance the rent of each tenancy from Rs. 3,000/ to Rs. 6,000/ per month vide letter dated 25.07.2005 under signatures of Sh. Ravish Chandra Rastogi. It was followed with a notice dated 12.09.2005 reminding them of increase in the rent of tenancy premises to Rs. 6,000/ each per month and for payment thereof. Pursuant whereto, the defendant illegally tendered rent at the rate of Rs. 3,000/ per month as part of the rent for the months of September to November, 2005 along with reply dated 18.11.2005. As the defendant had failed to comply with the request of plaintiff, they were specially called upon to enhance the rent clarifying that the rent stood increased from Rs. 3,000/ per month to Rs. 3,300/ per month for each tenancy after service of letter dated 25.07.2005 and that it shall further stand enhanced by 10% to Rs. 3,630/ each per month vide notice dated 17.11.2008. The defendant however did not act in terms whereof therefore the contractual Suit No. 114A/2010 & 115/2010 Page No. 2 of 16 tenancies were terminated through legal notice dated 11.06.2009 calling upon the defendant to deliver the vacant peaceful possession thereof by 01.07.2009 or on the end of the tenancy month if it is deemed not to be according to English calendar month, failing which the damages for unauthorized use and occupation of basement and second floor shall be charged at Rs. 5 lacs & Rs. 7.5 lacs per month respectively. It was clarified that the payments at the rate of Rs. 3,000/ per month by the defendant subsequent to the notice will not constitute waiver thereof. The defendant instead of vacating the suit properties sent a false and frivolous reply dated 04.07.2009 compelling the plaintiff to file the two suits for recovery of possession of the suit properties as also decree of mesne profits from 01.07.2009 till disposal of the suit.
2. The defendant has taken preliminary objections in their written statements contending that the suit properties are under their tenancy each at the rate of Rs.2,300/ per month besides Rs.700/ per month as house tax, ground rent and all other taxes payable by the lessors to the Municipal and other authorities for the said portions. The subject matter of suits is therefore covered under Delhi Rent Control Act and as such this court has no jurisdiction to entertain them. The premises were let out by three HUFs and as per the directions of said three lessors, rent along with house tax is being paid in the name of plaintiff and as such the plaintiff has no locusstandi to file the present suits. Moreover, a HUF cannot be represented by three Kartas. It is Suit No. 114A/2010 & 115/2010 Page No. 3 of 16 denied that plaintiff is the landlord of the suit properties or has any right, title or interest in them. It is denied that the defendant is in illegal occupation suit properties. The plaintiff has mischievously failed to produce the lease deed/rent agreement which had been retained by them at the time of its execution with ulterior motive. It is contended that huge amount was paid towards 'Pugree' for each tenancy which is prevalent in the area and the rents of the suit properties were fixed by taken into account the said Pugree amounts. There is therefore no question of rents becoming meager or the plaintiff suffering any losses on account thereof. It is alleged that the defendant is being pressurized for enhancing the rents illegally and arbitrarily without following the provisions of Delhi Rent Control Act. Sh. Ravish Chandra Rastogi did not have any right to ask the defendant to enhance the rent of the suit properties. The defendant could have agreed to enhance the rent of two floors to Rs. 6,000/ per month each as there were no such terms between the parties. It therefore continued to pay an amount of Rs.3,000/ per month inclusive of Rs.2,300/ as rent and Rs.700/ as house tax, ground rent and other taxes etc. The notice dated 17.11.2008 is stated to be neither legal nor valid nor was ever served upon the defendant. The other notice dated 11.06.2009 however was suitably replied on 04.07.2009. The defendant denied that any statutory enhancement in rent was made by the plaintiff vide notice dated 17.11.2008. The liability to pay damages at the claimed rates has also been refuted. It is averred that suit being false, frivolous and barred under Section Suit No. 114A/2010 & 115/2010 Page No. 4 of 16 50 of The Delhi Rent Control Act is liable to be dismissed with special costs.
3. In the applications under disposal, the plaintiff has averred that there are admissions in the pleadings which are sufficient for passing decree of possession of the suit properties in favour of the plaintiff. In the reply dated 04.07.2009, the defendant has unequivocally admitted plaintiff to be the landlord of the suit property. There is no averment about notice having not been got issued by authorized person through which their tenancy was terminated. No illegality therein has been highlighted nor has it been qualified under Section 106 of The Transfer of Property Act. The letter dated 27.05.2007 and notice dated 17.11.2008 have also not been denied in reply dated 04.07.2009 whereby the rent was enhanced from Rs.3,000/ to Rs. 3,300/ and from Rs.3,300/ to Rs.3,630/ per month for each tenancy. The tender of rent to plaintiff through Sh. Ravish Chandra Rastogi with letter dated 18.11.2005 reflects their acceptance as landlord. It is stated that landlords are entitled to receipt enhanced rent by 10% on last paid rent on service of notice but the defendant has not complied with such demands. The suit properties therefore have come out of the purview of Delhi Rent Control Act. Although, the defendant by adopting a frivolous plea has tried to segregate the rent but even the same does not give rise to any triable issue as payment was never tendered under two heads in the last more than 25 years. Even otherwise the payment of house tax or any other tax shall be considered as an integral part of Suit No. 114A/2010 & 115/2010 Page No. 5 of 16 rent in the absence of contract to the contrary.
4. In replies, the defendant has termed application to be false and an instrument to pressurize it to yield to the illegal and unjustified demands of plaintiff and therefore not maintainable. It has been denied that defendant has made any admissions for exercising jurisdiction under the invoked provisions. As per settled legal principles, judgments on admissions are not a matter of rights but of discretion. Where the defendant is raised objections, which go to the root of case, it would be inappropriate to exercise the dismissal. The defendant has raised dispute about the plaintiff's legal right, title or interest in the suit properties and about the maintainability of the civil suit which can only be decided on trial hence the application is liable to be dismissed.
5. It is denied that defendant has admitted the ownership of the suit properties of plaintiff in the reply to legal notice. The defendant has been making payment of Rs.3,000/ per month to the plaintiff for each floor comprising Rs.2,300/ as rent and Rs.700/ towards house tax etc. In the letters dated 21.08.2006 & 21.06.2008, the plaintiff admitted the monthly payable amount to be Rs.3,000/ and had not claimed it at the rate of Rs.3,300/ per month. It is controverted that the defendant has tried to build up a case in defence of Section 6A of The Delhi Rent Control Act. It is also denied that last rent of the suit properties is to be considered as Rs.3,630/ each or that an Suit No. 114A/2010 & 115/2010 Page No. 6 of 16 attempt to segregate the rent by taking a frivolous plea has been made. The payment of house tax and any other tax cannot form part of the rent. It has been denied that decree of possession of suit properties deserves to be passed in the suits against the defendant.
6. I have heard Ld. Counsels for the parties and carefully perused the files. In support of his contentions the plaintiff has relied upon 'Karam Kapahi Vs.Lal Chand Public Charitable Trust, 2010 V AD (SC) 238' to contend that the plaintiff has a right to speedy judgment under Order XII Rule 6 CPC where either party may get rid of so much of the rival claims about which there is no controversy.
The admissions not only in pleadings but also on the documents relied upon by parties, answered to interrogatory and evasive denials can be considered under this provision. Reference to the judgment in 'Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India, (2000) 7 SCC 120 has been made therein. It is further laid that approbate and reprobate is not legally permissible. A person cannot say at a time that a transaction is valid and thereby obtain some advantage to, which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage. (Nagubhai Ammal Vs. B. Shama Rao, AIR 1956 SC 593) Suit No. 114A/2010 & 115/2010 Page No. 7 of 16
7. In 'Charanjeet Lal Mehra Vs. Kamal Saroj Mahajan, (2005) 11 SCC 279, it was held that even an implied admission can be looked into for the purpose of Order XII Rule 6 CPC. It was relied in 'ASSOCHAM Vs. Y. N. Bhargawa, 2011 (185) DLT 296'.
8. In Rohini Varshnei Vs. R. B. Singh, 155 (2008) DLT 440, it was held that on failure of the tenant to increase rent after service of notice, it will amount to nonpayment of appropriate rent. To the same effect was held in 'Deepak Thirwani Vs. Lachchman Das Mansarmani, 2013 (203) DLT 391'. In Variety (Agents) Pvt. Ltd. Vs. Brig. Jagdev Singh, 1998 V AD (Delhi) 449' issuance of composite notice of enhancement of rent by 10% and termination of tenancy was held valid. The jurisdiction on going out of DRC Act and filing of civil suit held maintainable. It was held on the similar lines in 'Nishchint Bagga Vs. Goliath Detectives P. Ltd, 78 (1999) DLT 432.
9. The 'maintenance charges' payable by the tenant to the landlord were held to fall within the ambit of expression 'rent' in 'Standard Pharmaceuticals Ltd. Vs. Gyan Chand Jain, 97 (2002) DLT 290'.
10. In Jindal Dyechem Industries Pvt. Ltd. Vs. Pahwa International Pvt. Ltd., 2009 VIII AD (Delhi) 535, it was observed that the court shall scrutinized the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of notice or nature of Suit No. 114A/2010 & 115/2010 Page No. 8 of 16 tenancy. Service shall be deemed to be effectuated by properly addressing, prepaying and posting by registered post a letter containing notice. Unless, the presumption is disproved, dispelled or rebutted, the court can treat it as tantamounting to proof.
In Hill Elliot & Company Ltd. Vs. Bhupinder Singh, 2011 AIR CC 1368 (Delhi), that there is presumption of service of notice of termination of tenancy which was sent to the tenant by registered AD post, UPC and by courier. Confirmation whereof was given by the Postal Authorities regarding delivery. Simple denial of service by the tenant without stating that the premises during the period notice was purported to have served were locked and no responsible person was present, there is no reason by which normal course of business of service of notice was prevented.
11. Failure to specifically raise an objection about invalidity or insufficiency of notice in written statement cannot do away with it. Mere bald assertions in the written statement that notice has not validly terminated the tenancy, are not sufficient.
12. Ld. Counsel for the defendant on the other hand cited 'State Bank of India Vs. M/s Midland Industries, AIR 1988 Delhi 153, to the effect that judgment on admission is not a matter of right but discretion of court. Where the defendant has raised specific issues in spite of admission, decree under Suit No. 114A/2010 & 115/2010 Page No. 9 of 16 Order XII Rule 6 CPC, cannot be passed.
Further in Smt. Radha Lal Vs. M/s Jessop & Co., AIR 1992 Delhi 331, it was held that where the tenant is neither admitting the facts relating to the title of landlord and has challenged termination of his tenancy by notice, the facts require investigation and proof and do not called for passing of decree of possession.
In Mrs. Vijay Gupta Vs. Ashok Kumar Gupta, AIR 2007 Delhi 166, it was held that prerequisite for passing a decree on admission is existence of certain unambiguous and clear admission. Pleading or a document has to be construed or read as a whole to see its effect. One or two lines cannot be permitted to be taken out of context and use as an admission of a party entitling the other for passing of a judgment upon admission.
13. While there can be no quarrel with the legal proposition cited by the parties, their applicability will be enshrined in the discussion of facts hereafter. In order that an application under Order XII Rule 6 CPC urging for passing decree for possession straightaway may be favourably considered following need to be established:
i) the existence of relationship of landlord and tenant between the parties;
ii)the service of notice of termination of tenancy;
iii) the rent of the demised premises should be above Rs. 3,500/ Suit No. 114A/2010 & 115/2010 Page No. 10 of 16 per month so as to the out of the purview of Delhi Rent Control Act.
Let us examine how far these parameters are unequivocally, unambiguously and categorically can be culled from the pleadings and documents.
14. Relationship: Not only in reply dated 04.07.2009 to the legal notice but also in the written statement, the defendant has admitted having tendered rent of the suit properties to the plaintiff. The ownership of plaintiff of the properties however is questioned. There is legal presumption under Section 116 of The Evidence Act that the tenant cannot dispute the title of his landlord in respect of the tenanted property. Reliance may be placed upon 'Bhogadi Kanna Babu Vs. Vuggina Pydamma Vugging, 2006 (5) SCC 532' in this behalf. When the defendant had started paying rent to the plaintiff at the instance of three kartas of as many HUFs, there is no reason to doubt the entitlement of three kartas of said HUFs who have stepped into the shoes of their predecessorininterest by operation of law on their demise and who are pursing the matter on behalf of the plaintiff. The question of their locusstandi thus does not arise in view of defendant having never earlier doubted such arrangement and entitlement of predecessors of present kartas.
Suit No. 114A/2010 & 115/2010 Page No. 11 of 16
15. Termination of tenancy: The service of notices dated 11.06.2009 whereby the tenancy of defendants of the suit properties were terminated is not in contention as the defendant had even sent their reply. It has vaguely been alleged that the tenancy cannot be terminated nor got terminated through this notice. No latent or patent defect in the termination notices has been specifically pointed out nor was argued. It is the prerogative of a landlord to decide the timing till when he/it intends to keep a tenant in the property. The step of such landlord to terminate the tenancy can neither be guided by the conduct of tenant nor by any other factor except his/its own wish and will. The plaintiff after service of legal notice instituted the present suit seeking ejectment of the defendant from the suit properties reflects the seriousness of pursual. It was held in 'Jeevan Diesel & Electricals Ltd. Vs. Jasbir Singh Chaddha HUF, (2010)6 SCC 601, that filing of the suit for possession by the landlord against the tenants itself is sufficient to draw inference of termination of tenancy. The second essential parameter thus is available in the facts in hand.
16. Rate of rent: No document whatsoever has been produced by the defendant whereby the bifurcation of rent including the component of house tax etc. may have been earlier notified to the plaintiff. For the first time therefore such a Suit No. 114A/2010 & 115/2010 Page No. 12 of 16 posture in reply dated 04.07.2009 has been adopted in the faint hope that the suit premises would not go beyond the applicability of the provisions of Delhi Rent Control Act. Even otherwise it was held in 'Ganga Ram Vs. Mohd. Usman, ILR 1978 (1) Delhi 139 (FB)' and 'Gujarati Education Society Vs. Calcutta Municipal Corporation, 2003 (10) SCC 533' that house tax and other regular payments being made to the landlord would constitute 'rent'. Similar was held in United India Assurance Co. Ltd. Vs. Anup Kaur, RSA 251/08 decided on 28.04.2011 by Hon'ble High Court of Delhi.
These were relied upon in M/s Aatma Ram Properties (P) Ltd. Vs. Delhi Transport Corporation, CS (OS) No. 574/10 decided by Hon'ble High Court of Delhi on 25.10.2013.
17. So far as, the enhancement in rent is concerned the plaintiff had requested therefore in letter dated 25.07.2005 which was reiterated in letter dated 12.09.2005. No question about the competence of one out of three kartas for issuing these letters can be raised because the defendant itself had been interacting with very same person or making payments as may be visualized in their letter dated 18.11.2005. True that the letter dated 25.07.2005 neither mentioned the legal provision under which enhancement was demanded nor contained to the increase in rent by 10% yet the intent thereof was clear and straight. It has been held in 'Rakesh Kumar Vs. Hindustan Everest Tools Ltd., 1988 (1) RCR 369' which has been relied on 'M/s Pradeep Oil Suit No. 114A/2010 & 115/2010 Page No. 13 of 16 Corporation Vs. Union of India, LPA No. 54/2012 decided by Hon'ble Delhi High Court on 30.01.2012, that notice must be read in common sense point of view bearing in mind how it is understood by ordinary people. Logical reference in the same context can also be laid to the ratio in 'H. M. Doyal Company Vs. Ram Nath Chitkara, 28 (1985) DLT 212'. The legal import of the letter was fully clarified in notice dated 17.11.2008 sent through courier and registered post exactly at the same address at which termination notice dated 11.06.2009 was posted. The natural presumption of delivery thereof to the addressee is raised under Section 27 of The General Clauses Act in view of absolutely vague and evasive denial of receipt thereof by the defendant. It is interesting to note that the defendant has purportedly even without receiving said notice, could comment upon its validity. The least impact of letter dated 25.07.2005 was to prompt the tenant to enhance the rent as is legally permissible if not to the extent of demand. The plaintiff was entitled to further enhance the last applicable rent by 10% after a period of three years which right was exercised through notice dated 17.11.2008. The rent of Rs. 3,000/ for each tenancy stood enhanced to Rs. 3,300/ per month on the basis of demand letter dated 25.07.2005 w.e.f. 01.09.2005 or at least from 01.11.2005 on the basis of letter dated 12.09.2005. On subsequent enhancement w.e.f. 01.01.2009 vide notice dated 17.11.2008, the rents went beyond Rs. 3,500/ per month i.e. became Rs. 3,630/ for each floor. The semblance of defence of the defendant thus is found not to hold water.
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18. The plaintiff had candidly admitted the issuance of letters dated 21.08.2006 and 21.06.2008 to the defendant. They are however of no assistance to the defendant as none of them reflects that the continuance of rent of the suit properties at the rate of Rs. 3,000/ per month has either been admitted therein or the plea of enhancement in rent waived. The letters just pointed out the bank instruments received from the defendant towards monthly rent and the issues connected with their clearance/acceptance. By no stretch of interpretation can it be assessed that either of these letters had superseded the earlier communication dated 25.07.2005 and 12.09.2005.
19. As a corollary of above discussions, the plaintiff having been able to establish the existence of requisite parameters in which respect no triable issue was really raised by the defendant, their applications are hereby allowed and decree of possession of basement floor of property no. G2/16, Ansari Road, Darya Ganj, New Delhi in suit no. 114A/10 and decree of possession of second floor, of property no. G2/16, Ansari Road, Darya Ganj, New Delhi in suit no. 115/10 is passed in favour of the plaintiff and against the defendant.
Since the defendant has been carrying on its business in the suit properties for more than 35 years now, they are directed to deliver the vacant Suit No. 114A/2010 & 115/2010 Page No. 15 of 16 and peaceful physical possession of the suit properties unto the plaintiff within three months from today. A copy of this order be placed in each file for preparation of decrees.
Put up on 15.10.2014 for framing of issues in respect of the remaining subject matter of the suit.
Announced (Sunil K. Aggarwal) Addl. District Judge (Central)10 Delhi/28.07.2014.
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