Delhi District Court
Mayur Finance Ltd. vs . M/S Esquire Service Co. & Ors. on 24 September, 2011
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL
DISTRICT JUDGE01 : SOUTH DISTRICT : SAKET COURTS :
NEW DELHI
Suit No.385/11
Mayur Finance Ltd. Vs. M/s Esquire Service Co. & Ors.
24.09.2011
ORDER :
1 Vide this order, I shall decide the application of the defendants filed under Order 6 Rule 17 CPC for amendment of their WS whereby the defendants have sought replacement of para No.2 of preliminary objection of WS and para No.9 of reply on merits.
Para No.2 of preliminary objection of WS :
"That even otherwise the lease / tenancy has not been legally and validly terminated and the lease / tenancy is continuing month by month and the lease money is being paid regularly. As such there is no cause of action to file suit for possession."
Proposed amended Para No.2 of preliminary objection of WS :
"That no notice of termination has been served by the plaintiff upon the defendants, as such tenancy of the defendants has not been terminated. The lease / tenancy is continuing month by month and the Contd....P..1 of 5 : 2 : lease money is being paid regularly. As such there is no cause of action to file suit for possession."
Para No.9 of reply on merits :
"In so far as it relates to alleged termination by the said notice, it is stated that even otherwise the lease / tenancy has not been legally and validly terminated and the lease / tenancy is continuing month by month and the lease money is being paid regularly."
Proposed amended Para No.9 of reply on merits :
"Para No. 9 of the plaint is wrong and denied. It is denied that the plaintiff through legal notice dated 01/03/11 has terminated their tenancy with effect from 31.03.11 with an option to the defendants that in case they consider any other day to be the last day of the tenancy month in such an eventuality their tenancy shall be deemed to have been terminated on such day falling immediately after the expiry of 15 days from the receipt of the said notice. The defendants have however neither replied the said notice nor complied with the demand therein. The allegations made in para No.9 of the plaint are false and incorrect. The lease / tenancy is continuing month by month and the lease money is being paid regularly."
Contd....P..2 of 5 : 3 : 2 A perusal of proposed para No.2 reveals that the defendants seek to submit that no notice of termination has been served by the plaintiff upon the defendant. And a perusal of proposed para No.9 reveals that the defendants have not denied the receipt of legal notice rather the defendants are submitting that their tenancy does not terminate by the said notice as in the proposed para the defendants have submitted that the defendants have neither replied the said notice nor complied with the demand therein. It has also been submitted in the proposed para that the lease / tenancy is continuing month by month and the lease money is being paid regularly. Defendants have submitted that the amendment sought is by way of elaboration and clarification and it does not introduce any new defence or plea and it also does not change the nature of the pleadings. Ld. counsel for defendants argued that the previous submissions in the WS were not made elaborately due to inadvertence.
3 Plaintiff has strongly opposed the present application as in the garb of this application, the defendant is seeking to withdraw the admissions made by him regarding receipt of termination notice. Ld. counsel for plaintiff has further argued that the application has been moved as an after thought after the plaintiff filed an application under Order 12 Rule 6 CPC.
4 I have heard the arguments and perused the material placed on record.
Contd....P..3 of 5 : 4 : 5 In the WS filed on 09.06.11, in para No. 10 the defendants have submitted that the said notice is misconceived, uncalled for and is of no legal consequence which read with para No.2 of preliminary objections and para No. 9 of reply on merits leads to an inference that the notice of termination was received by the defendants. The amendment has been sought as an after thought to defeat the submissions of the plaintiff in regard to receipt of the notice of termination and the amendment application has been filed after the plaintiff filed the application under Order 12 Rule 6 CPC.
6 The amendment proposed to be incorporated that no notice of termination has been served by the plaintiff upon the defendants does introduce the new plea / defence and does change the nature of the pleadings. It is a well settled law that amendment in pleadings cannot be allowed so as to change the nature of the pleadings. No reasons have been given by the defendants as to why the amendment sought was not incorporated at the time of filing of original WS. It has been held in B.K.N. Pillai Vs. P. Pillai AIR 2000 SC 614; that "The principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and that courts are more generous in allowing amendment of written statement as the question of prejudice is less likely to operate in that event. It is further stated that the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious Contd....P..4 of 5 : 5 : injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn."
7 It has also been held in Heera Lal Vs. Kalyan Mal and Others AIR 1998 SC 618, that "An inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement, cannot be allowed. If such amendments are allowed in the written statement, plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the defendants."
8 In light of observations made herein and the law laid down in the above quoted judgments, the application of amendment is dismissed.
Dictated and announced in the open court on 24.09.2011 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 24.09.2011 Contd....P..5 of 5 : 6 : IN THE COURT OF DR. NEERA BHARIHOKE, ADDITIONAL DISTRICT JUDGE01 SOUTH DISTRICT : SAKET COURTS : NEW DELHI Suit No.385/11 Mayur Finance Ltd.
.... Plaintiff Versus M/s Esquire Service Co. & Ors.
.... Defendant 24.09.2011 ORDER :
1 Vide this order I shall dispose of the present application filed by the plaintiff under Order XII Rule 6 CPC.
2 Plaintiff has filed the present suit for possession, recovery of arrears of rent, mesne profits and damages. It is submitted by the plaintiff that plaintiff is the owner of part of property No. D42, South Extension, PartI, New Delhi (hereinafter referred to as suit property) and defendant No.1 as a partnership firm of defendants No. 2 & 3 were inducted as tenants in a portion ground floor of suit property for a period of two years w.e.f. 01.07.1998 at a monthly rent of Rs.8000/ in terms of lease agreement dated 01/07/1998. 3 The plaintiff has filed the present application under Order 12 Rule 6 CPC for recovery of possession of suit property in view of the admissions made by the defendants.
Contd....P..6 of 5 : 7 : 4 Ld. counsel for plaintiff invited attention of the court to para No.2 of the preliminary objections in WS wherein it has been stated by the defendants that the lease / tenancy is continuing month by month. Attention of the court was also drawn to para No.2 of reply on merits in WS wherein it is written that the plaintiff is the landlord is not denied. In para No.3 of reply on merits in WS, the defendants have admitted that rent amount is Rs.10,000/ per month. Attention of the court was also invited to para No. 9 and 10 of the reply on merits to show that the defendants were duly served with legal notice of termination dated 01.03.11.
5 Defendants have submitted that there are no admissions made on their behalf and the present application has been filed by the plaintiff to harass the defendants to enhance the rent from Rs.10,000/ to Rs.15,000/. Defendants have also contended that there is a renewal clause in the lease agreement and accordingly the plaintiff cannot terminate the tenancy. Ld. counsel for defendants argued that the tenancy in favour of defendants is perpetual and there was a clause for enhancement of rent every renewal of tenancy for two years. Ld. counsel for defendants also argued that it is rather the plaintiff who has committed breach of contract. Ld. counsel for defendants relied on judgment of Hon'ble High Court of Delhi in Bhanu Mehra Vs. Dato Brij Kishore & Others as reported in 2001 (60) DRJ 1(DB).
6 Arguments advanced by both the Ld. counsels for the parties heard. Record perused carefully.
7 For passing a judgment on admissions in the facts of the present matter, admission required to have been made by the defendants are :
(1) There must be an admission of landlord and tenant relationship Contd....P..7 of 5 : 8 : between the parties.
(2) The rent of the suit property must be above Rs. 3,500/. (3) Valid termination of tenancy.
8 In the matter of Puran Chand Packaging Ind. P. Ltd. vs. Sona Devi and others, 154 (2008) DLT 111 (DB), Hon'ble High Court of Delhi held as :
''Before passing judgment on admission, document to be read as a whole and court is not to take out one or two sentences so as to treat it as admission."
9 Defendants in paragraph no. 2 of preliminary objections and para No. 2 of reply on merits in Written Statement has accepted the relationship of landlord and tenant. The amount of rent is admitted to be Rs.10,000/ in para No.3 of the reply on merits in WS. Thus the rent of the suit property was admittedly more than Rs. 3,500/.
10 In view of the law laid down in Puran Chand Packaging Ind. P. Ltd. vs. Sona Devi and others (Supra), a perusal of the whole W/S needs to establish the admissions on part of the defendant. The defendant, in his whole Written statement, has averred that his possession in the suit premises is that of tenant and also that monthly rent is above Rs.3500/.
11 It needs to be considered whether the tenancy has been legally terminated.
12 In the matter of Surjit Sachdev vs. K I S Pvt. Ltd. and Others, 66 (1997) DLT54 (DB), Hon'ble High Court of Delhi held that:
"Admission need not be made expressly in the pleadings. Even on constructive admissions, court can proceed to pass a decree in plaintiff's favour."
Contd....P..8 of 5 : 9 : 13 In para No. 2 of preliminary objections, the defendants have averred that tenancy has not been legally and validly terminated. In para No.9 of reply on merits, the same thing has been reiterated as Para No.9 of reply on merits.
14 In so far as it relates to alleged termination by the said notice, it is stated that even otherwise the lease / tenancy has not been legally and validly terminated and the lease / tenancy is continuing month by month and the lease money is being paid regularly.
15 In para No. 10 of WS, the defendant has submitted that the said notice is misconceived, uncalled for and is of no legal consequence. A combined reading of these three paras establishes that the notice of termination dated 01.03.11 was duly served upon the defendants. The said notice is for a period of 15 days from the receipt of the notice.
16 The defendant has denied the receipt of legal notice of termination of tenancy, dated March 1, 2011 when the arguments were advanced by ld. counsel for defendants. Ld. counsel for defendants sought reliance on the averments made in regard to nonreceipt of the said notice in the proposed amended WS. Vide a separate order, the amendment application of the defendants has been dismissed.
17 Otherwise also, plaintiff has placed on record copy of the notice to quit. The documents placed on record in proof of service of the defendants by plaintiff are registered AD post, speed post and UPC. Plaintiff has also placed on record the original acknowledgments received back which are addressed to the defendants and bear the signatures of recipients. There is no averment in the WS as well as in the proposed amended WS that the said signatures have been Contd....P..9 of 5 : 10 : denied.
18 It has been observed by Hon'ble High Court of Delhi in Atma Ram Properties(P) Ltd. vs. Pal Properties (India) Pvt. Ltd. and others, 91(2001)DLT438, that:
"Coming to the service of the notice, the plaintiff has placed on record the copy of the notice sent to the defendants under section 1060f Transfer of Property Act. The plaintiff has also placed on record the postal receipts in original by which notice were sent by registered post to the defendants. The plaintiff has also produced on record the original acknowledgment received back which is addressed to Pal Properties (India) Pvt. Ltd...Address is rightly mentioned as H72, Connaught Circus, New Delhi. It bears stamp and is signed by some person acknowledging the receipt of the letter. In view of these documents on record, it cannot be said that the notice was not received by the defendants. Bare denial will not serve any purpose."
19 As per Section 27 of General Clauses Act, if the notice is addressed at the correct address then the same is deemed to have been duly served / delivered to the addressee. In view of the observations made herein and in view of the law laid down in judgments cited above, the legal notice of termination of tenancy was duly served on the defendants.
20 Defendants have sought reliance on judgment of Bhanu Mehra Vs. Dato Brij Kishore and others, (Supra) to plead that their tenancy was perpetual in view of renewal clause in the lease deed. The law laid down therein is not relevant in the facts of this case. In that matter, there was a registered lease deed while in the present case lease deed is unregistered and, therefore, is hit by section 49 of Registration Act. Consequently, the lease deed does not affect immovable property as well as cannot be received as evidence of any transaction affecting such property. In the absence of registration of the lease deed, it is a settled law that lease is from month to month basis and even Contd....P..10 of 5 : 11 : the defendants have admitted in para No.2 of preliminary objections and para No. 9 of reply on merits that tenancy is from month to month. Accordingly, the submission of the defendants that the lease deed is in perpetuity is untenable.
21 The notice of termination has been given as per section 106 of Transfer of Property Act wherein the defendants have been given a notice of 15 days to vacate. The defendants have contended that the said notice of termination is misconceived, uncalled for and is of no legal consequence. However, notice issued in the present matter cannot be viewed with faulty eye. No averment of flaw in the legal notice in context of section 106 of T.P. Act has been made. In view of these observations, the defendants were duly served with a valid notice of termination.
22 In Pooja Aggarwal vs.Sakata Inx (India) Ltd., 2008 X AD (Delhi) 846, Hon'ble High Court of Delhi has held that in order to invoke the provisions of Order 12 Rule 6 CPC, the court has to scrutinize the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of the notice or as to the nature of tenancy.
23 After careful perusal and examination of the documents placed on record, I am of the considered opinion that all the ingredients of Order 12 Rule 6 are satisfied and accordingly a decree of possession in favour of plaintiff and against defendant is passed and defendant is directed to handover peaceful vacant possession of the suit property to the plaintiff by 31st October, 2011. Decree sheet be drawn accordingly. Application of the plaintiff under Order 12 Rule 6 CPC is disposed of as allowed.
Contd....P..11 of 5 : 12 : Dictated and announced in the open court on 24.09.2011 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 24.09.2011 Contd....P..12 of 5