Delhi District Court
Mr. Parveen Kumar Kataria vs Mr. Vijay Kumar on 23 August, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS. 211149/2016
Mr. Parveen Kumar Kataria
S/o. Late Sh. D.R. Kataria
R/o. A1/147 (U.G.F.) Inderpuri
New Delhi - 110012. ............Plaintiff
VERSUS
Mr. Vijay Kumar
S/o. Sh. Nahar Singh
R/o. B114, 3rd Floor
Village Mohammad Pur
New Delhi - 110066.
Also at :
D26, South Extension, PartI
New Delhi - 110049. .........Defendant
Date of Institution : 20.08.2016
Date of Arguments : 24.07.2017
Date of Order : 23.08.2017
ON APPLICATION U/O XII R 6 AND ORDER XV A R/W
SECTION 151 OF THE CODE OF CIVIL PROCEDURE IN
SUIT FOR POSSESSION, ARREARS OF RENT AND
DAMAGES/MESNE PROFITS
CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 1 of 19
JUDGMENT
1. An application u/O XII Rule 6 and order XV A r/w Sec. 151 of the Code of Civil Procedure (in short CPC) was filed by plaintiff on 08.12.2016.
2. I have heard the Ld. Counsel for the parties, perused the record including the aforesaid application under consideration, pleadings of parties and other material on record.
3. In the course of submissions on 24.07.2017, Ld. Counsel for plaintiff submitted that he only presses the application for seeking relief under Order XII Rule 6 CPC with respect to possession only and did not press the application under Order XV A r/w Sec. 151 CPC at present and stated that same part may be considered later. Accordingly, the application under consideration is only considered for the relief under Order XII Rule 6 CPC and for remaining part under Order XV A r/w Section 151 CPC, the said application is taken as not pressed at present.
4. Factual matrix of case of plaintiff is that this suit was filed by the plaintiff for possession, arrears of rent and damages/mesne profit with respect to suit property i.e. basement of the property CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 2 of 19 bearing no. D26, South Extension, PartI, New Delhi - 110049 measuring about 2000 Sq. ft. (super area) (as shown in red colour in site plan annexed with plaint). It is the case of the plaintiff that suit property was let out by plaintiff to defendant vide registered lease deed dated 02.03.2012. The lease for suit property was for commercial purpose and for a period of 5 years commencing w.e.f. 01.03.2012 whereby it was agreed that rent was payable by defendant by 7th day of each English calendar month. The lease was to expire by efflux of time on 01.03.2017. The defendant started running gym under the name and style of M/s. Leo Gradin Wild Fitness. The defendant paid rent upto June 2013 in cash and thereafter defaulted in making the payment of rent despite demands and requests of plaintiff. In the last week of June 2016, following cheques towards part arrear of rent w.e.f. July 2013 were given by defendant to plaintiff :
BANK CHEQUE NO. DATE AMOUNT
Vijaya Bank 791215 04/07/2016 56,100
Vijaya Bank 791216 04/07/2016 56,100
Vijaya Bank 791217 05/07/2016 56,100
Vijaya Bank 791218 05/07/2016 56,100
Vijaya Bank 791219 05/07/2016 56,100
Vijaya Bank 791220 06/07/2016 56,100
Vijaya Bank 791221 06/07/2016 56,100
Vijaya Bank 791222 06/07/2016 56,100
Vijaya Bank 791223 06/07/2016 56,100
CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 3 of 19
HDFC Bank 000020 08/07/2017 50,000
HDFC Bank 000040 08/07/2017 6,00,000
The cheque no. 000020 for Rs. 50,000/ of date 08.07.2016 was honoured whereby other cheques aforesaid were dishonoured on presentation for the reasons 'funds insufficient'. Plaintiff issued legal notice dated 13.07.2016 to defendant terminating his tenancy w.e.f. 07.08.2016 as defendant failed to adhere to the terms of lease and failed to pay monthly rent on time and his issued cheques for part payment of arrears of rent, were dishonoured. Neither the defendant vacated the suit property nor complied with the terms of the notice nor cleared the arrears of rent, hence this suit.
5. In the filed written statement, the defendant admitted of having obtained the suit property on lease vide registered lease deed dated 02.03.2012 registered on 05.03.2012. Terms of the lease are admitted by the defendant. It is the averment of the defendant that he had paid the entire rent amount of the lease in cash and that he was not a defaulter of payment of rent and the cheques detailed in the plaint, were security cheques for which plaintiff was asked not to present these cheques, yet on asking of plaintiff for emergency need, cheque of Rs. 50,000/ aforesaid was got encashed whereas plaintiff fraudulently CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 4 of 19 misused other cheques. Remaining averments of the plaint have been denied by the defendant.
6. In the application under consideration, the applicant/plaintiff has sought judgment on admissions for the relief of recovery of possession of suit property submitting relationship of landlord and tenant interse parties is admitted. Lease deed inter se parties is admitted. In the pendency of the case, the term of lease had expired so there is sufficient notice for termination of tenancy, whereas even otherwise, the tenancy stands expired by efflux of time under section 111(a) of the Transfer of Property Act on 02.03.2017 during the pendency of the suit. In parawise reply on merits in WS in response to para 8 of the plaint, there is no specific or categorical denial of receipt of legal notice dated 13.07.2016 sent by plaintiff to defendant.
7. Despite opportunities, reply to application under consideration has not been filed by the defendant. Ld. Counsel for defendant orally opposed the application reiterating the averments of the written statement elicited above. Defendant prayed for dismissal of the application.
8. In the case of Chittraroopa Palit Vs. Global Health Pvt. Ltd.
CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 5 of 19 & Anr., CRP No. 21/2012 & CM No. 2628/2012, Hon'ble Mr. Justice Manmohan Singh, held in paras 17 to 20 on 06/08/2013 as follows : "17. The Supreme Court in the case of Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), 2008 (2) SCC 728 held that the filing of the eviction suit under general law itself was notice to quit upon the respondents and thus even as per the alleged claim of the respondent No. 2 of a separate tenancy, the same being a month to month tenancy, the same stood terminated on the filing of the suit and service of summons, plaint and documents thereof upon him.
18. As rightly held by esteemed brother J.R. Midha, J. in the case of Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani, 191 (2012) DLT 594 wherein the court has dealt with similar aspect of issue in great details in para 26.7 to 26.12 and 26.17 which read as under :
'26.7 The pleadings are the foundation of litigation and must setforth sufficient factual details. Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a suit for ejectment, it is necessary for the defendant to plead specifically as to the basis on which he is claiming a right to continue in possession. A defendant has to show a subsisting right to continue as a lessee. No issue arises on vague pleadings. A vague denial of the receipt of a notice to quit is not sufficient to raise an issue. To rebut the presumption of service of a notice to quit, the defendant has to plead material particulars in the written statement such as where after receiving the plaint and the documents, the defendant has checkedup with the PostOffice and has obtained a certificate that the postal receipt filed by the plaintiff was forged and was not issued by the concerned Post Office.
CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 6 of 19 26.8 A selfserving denial by the defendant and more so in these types of cases, cannot hold back the Court from exercising its jurisdiction to decree a suit under Order XII Rule 6 of the Code of Civil Procedure.
Raising a plea of nonreceipt of notice to quit and seeking an issue on it is obviously to drag on the litigation and kept on holding to the suit property without having to pay the current market rentals, is not sufficient to raise an issue and, therefore, liable to be rejected.
26.9 If such a plea of denial of notice is treated as sufficient to nonsuit the plaintiff, the plaintiff will have serve a fresh notice to quit and then bring a fresh suit where again the defendant would deny the receipt of notice to seek an issue and trial. The process would go on repeating itself with another notice, in fact, repeat adinfinitum and in this manner, the defendant will be able to effectively stay indefinitely till the plaintiff settles with him for a price. The Court cannot remain a silent spectator and allow the abuse of process of law. The eyes of the Courts are wide enough to see the truth and do justice so that the faith of the people in the institution of Court is not lost.
26.10 In view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003, no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat the decree for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.
26.11 Therefore, even if the notice of termination is held to be invalid, service of summons of the suit for possession can be taken as notice under Section 106 of CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 7 of 19 the Transfer of Property Act read with Order VII Rule 7 of the Code of Civil Procedure but in that event the landlord would be entitled to mesne profits after the expiry of 15 days from the date of the receipt of summons and not from the date of notice of termination.
26.12 The purpose of Order XII Rule 6 CPC is to give to plaintiff a right to speedy judgment. The thrust of amendment of Order XII Rule 6 is that in an appropriate case a party on the admission of the other party can press for judgment as a matter of legal right. If a dishonest litigant is permitted to delay the judgment on the ground that he would show during the trial that he had not received the notice, the very purpose of the amendment would be frustrated.
26.17 In the last 40 years, a new creed of litigants have cropped up who do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream justice or who touches the pure foundation of justice with tainted hands, is not entitled to any relief, interim or final.'
19. The Hon'ble Judge in para 13.1 to 13.7 of the abovementioned judgment has discussed various judgment on this aspect. The same are :
'13.1 In M/s Raptakos Brett & Co. Ltd. V. Ganesh Property, VII (1998) SLT 472 = IV (1998) CLT 11 (SC) = AIR 1998 SC 3085, the Supreme Court held that when a lease comes to an end by efflux of time, or by notice of termination, or if there be a breach and the lessee's rights are forfeited, the lessee becomes a tenant at sufferance, and it becomes the duty of the lessee under Section 108 (q) of the Transfer of Property Act to restore possession to the lessor forthwith. The Supreme Court held as under : CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 8 of 19 "22. ....Under law the erstwhile landlord is entitled to restoration of possession by enforcement of statutory obligation of the erstwhile tenant as statutorily imposed on him under Section 108 (q) read with Section 111
(a) of the Property Act...'.
13.2 In C. Albert Morris V. K. Chandrasekaran, VIII (2005) SLT 247 = (2006) 1 SCC 228, the Supreme Court held as under : "26. ...Much argument was advanced on the receipt of the rent by the landlord after the cancellation of the lease. The consensus of judicial opinion in this country is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession...' "32. ...We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. (Emphasis supplied) 13.3 In Delhi Jal Board V. Surendra P. Malik, 104 (2003) DLT 151 (DB), the Division Bench of this court held as under : "12. It is no longer a grey area that where a tenancy had otherwise expired by efflux of time but the tenant continued in possession CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 9 of 19 of the premises, mere acceptance of rent by the landlord could neither renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties...."
"13. ...In any case, this aspect does not assume any importance as no notice under Section 106 was required to be served on appellant due to the expiry of the Lease between the parties by efflux of time." (Emphasis supplied) 13.4 In Usha Rani Jain Vs. Nirulas Corner House Private Limited, ILR (2005) II Delhi 349, this Court held as under : "17. Though a plea was taken in written statement about non determination of the lease because no notice to quit as envisaged under Section 106 of the Transfer of Property Act has been served on the defendants before filing of the present suit, but this aspect was not pressed at the hearing. Even otherwise, it is a well settled proposition of law that when the term of the lease has expired by efflux of time, there is no need for a landlord to determine the lease by serving quit notice. (Emphasis supplied) 13.5 In Inmacs Limited V. Prema Sinha, 153 (2008) DLT 311 (DB), the Division Bench of this court held as under : "13. ...If a lease is evidence by a contract, as in the instant case, the duration of the lease would be as per the contract and at the expiry of the lease period as per contract the lease expires by efflux of time. Expiry of lease by CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 10 of 19 efflux of time results in the determination of the relationship between the lessor and the lessee and since the lease expires under the contract by efflux of time, no notice of determination of the lease is required."
(Emphasis supplied) 13.6 In Ashok Chopra V. Syndicate Bank, 169 (2010) DLT 361, this Court held as under : "17. It is clear that the tenancy had come to an end by a efflux of time. Admittedly, there was no document executed between the parties renewing the lease. Tenancy having expired by efflux of time; no notice was required to terminate the lease...."
13.7 In Pakistan International Airlines V. Abaskar Constructions Private Limited, MANU/DE/4394/2011, this Court held as under : "21. Law is clear. If a lease is evidence by a contract in writing, as in the instant case, the duration of the lease would be as per the contract and at the expiry of the lease period, as per contract the lease expires by efflux of time. Expiry of lease by efflux of time results in the determination of the relationship between the lessor and the lessee and since the lease expires under the contract by efflux of time, no notice of determination of the lease is required."
20. Recently in the judgment reported as M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr., 2011 (182) DLT 402 and against which S.L.P. No. 15740/2011 has been dismissed on 7th July, 2011, a very similar issue was considered. Though in that case the facts were CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 11 of 19 different from the present case, however the ratio of that case applies in the present case also. Para 7 of that judgment reads as under :
"7. The second argument that the legal notice dated 15.7.2006 was not received by the Appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows :
(i) The Respondents/Plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.07.2006 as Ex. PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex. PW1/4 to Ex. PW1/6.
The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the Respondents/Plaintiffs led evidence and duly proved the service of legal notice, the Appellant/Defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address.
Admittedly, the Appellant/Defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the Appellant would not have ordinarily helped the Appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.07.2006 was duly served upon the Appellant resulting in termination of the tenancy.
(ii) The Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 12 of 19 Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the Appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the Appellant/Defendant.
(iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 13 of 19 tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the Appellant/Defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 Code of Civil Procedure can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rational ought to apply because after all the only object of giving a notice under section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy months, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.
(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex PW1/3 is that the Respondents/Plaintiffs CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 14 of 19 admittedly filed a copy of this notice alongwith the suit way back in the year 2007. Once the summons in the suit alongwith documents were served upon the Appellant/tenant, the Appellant/tenant would obviously have received such notice. Even if we take this date when the Appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the Appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the Appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court."
9. In the case of W.N. Gujral Vs. Smt. Kavita Chibber, 2015(1)RLR 438, Hon'ble Mr. Justice Valmiki J. Mehta after relying upon the law laid in case of M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) & Anr., (2011) 183 DLT 712, held that service of summons in a suit can also be taken as service of notice under section 106 of The Transfer of Property Act, 1882 for termination of the tenancy by CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 15 of 19 the landlord.
10. In the case of Sky Land International Pvt. Ltd. Vs. Kavita P Lalwani, 191(2012) DLT 594, it was inter alia held that presumption of service of notice of termination is embodied in Section 27 of General Clauses Act, 1897 whereby service of notice shall be deemed to be effected by properly addressing, prepaying and posting the notice by registered post.
11. In the case of Parivar Seva Sansthan Vs. Veena Kalra, 2000 (86) DLT 817, it had been held that for invocation of Order XII Rule 6 CPC, the admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on part of admission ignoring the other part. Also was held that aforesaid provision of law confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings.
12. Summons of the suit were served upon the defendant on 23.09.2016 for date of hearing 28.09.2016. In terms thereof, such service of summons in this suit are taken as service of notice under Section 106 of Transfer of the Property Act, 1882 for termination of the tenancy by the landlord in view of the CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 16 of 19 law laid in aforesaid pronouncements. Even otherwise, the five year term of the lease stands expired by efflux of time on 02.03.2017.
13. The elicited averments of the pleadings of the parties makes it crystal clear that defendant admits of existence of relationship of landlord and tenant between the parties to the suit in respect of suit property; execution of lease deed which embodies the lease term of five years, which expired on 02.03.2017 during the pendency of the suit besides the rate of monthly rent of Rs. 51,000/ at the time of inception of lease. The lease expired by efflux of time on 02.03.2017 during the pendency of the suit. The suit was filed on 19.08.2016. These are unequivocal, clear and categorical admissions made by defendant in the written statement. The disputed fact interse parties, as asserted by defendant is of the payment of the rent in cash. Plaintiff claims defendant to be in arrears of rent w.e.f. period July 2013 onwards whereas defendant alleges of having paid of rent due and payable.
14. In registered lease deed, copy on record, there is no covenant agreed between the parties entitling defendant, lessee to withhold possession of the property after termination of lease, either by efflux of time or by notice. Even assuming for sake of CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 17 of 19 arguments that notice terminating the tenancy was not served upon the defendant, the tenancy would stand terminated by service of notice of suit on defendant on 23.09.2016 in terms of law laid in the case of Nopani Investments Pvt. Ltd. (supra). The defendant had with him 15 days clear and reasonable time in terms of Section 106 of Transfer of Property Act after service of notice of the suit on 23.09.2016 for handing over the possession of the suit property to plaintiff. Having not done so, in view of law elicited in the case of Chittraroopa Palit (Supra), the plaintiff is entitled for judgment on clear and unambiguous admissions of defendant in respect of claimed relief of possession of the suit property.
15. I accordingly hold plaintiff entitled for recovery of possession of the suit property i.e. basement of the property bearing no. D 26, South Extension, PartI, New Delhi - 110049 measuring about 2000 Sq. ft. (super area) (as shown in red colour in site plan annexed with plaint) from the defendant, for which the judgment on admissions under Order XII Rule 6 of CPC is passed. The defendant is directed to handover the possession of the suit property to the plaintiff within a period of one month from the date of this judgment, failing which plaintiff would be at liberty to seek execution. The application under Order XII rule 6 CPC stands disposed off. Decree sheet be drawn CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 18 of 19 accordingly. For further claimed reliefs, the suit would continue and would be decided on the basis of evidence.
Announced in the open (GURVINDER PAL SINGH) Court on 23.08.2017. Additional District Judge 01(SE), Saket Courts, New Delhi.
CS -211149/2016 Parveen Kumar Kataria Vs. Vijay Kumar page 19 of 19