Delhi District Court
Smt. Asha Chopra vs The National Co - Operative Consumer'S ... on 16 July, 2011
Asha Chopra v. National Co-Operative Consumer's
Federation of India
IN THE COURT OF SH. SANJAY SHARMA, JSCC-
CUM-ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No.851/08
Unique Case ID No.02401C0565722007
Smt. Asha Chopra
W/o Late Sh. T. R. Chopra
R/o B - 4/7, Model Town - I,
Delhi - 110009. ......Plaintiff
Versus
The National Co - Operative Consumer's Federation of India
Through its Chairman/Managing Director
6th Floor, DEEPALI Building,
92, Nehru Place,
New Delhi - 110019.
Also at:
Flat No.605, DEEPALI,
92, Nehru Place,
New Delhi - 110019. .....Defendant
Date of filing of the application : 05.07.2008
Date of reserving order : 02.06.2011
Date of pronouncement : 16.07.2011
JUDGMENT
1. In the suit for possession, recovery of arrears of rent and mesne profits/damages, the plaintiff filed an application under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred as 'the Code') for a decree of possession in respect of the Flat no.605, measuring 749.49 square yards, Deepali, 92, Nehru Place, New Delhi - 110019 (Hereinafter referred as "the suit property").
Suit no.851/08 Page no.1 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
2. Precisely stated, the plaintiff is the owner and landlady of the suit property. The defendant was a tenant in the suit property for the last several years and the tenancy was renewed from time to time. It is stated that a fresh lease was executed as and when the tenancy was renewed. It is stated that lastly, the suit property was let out to the defendant @ Rs. 3,725/- per month excluding electricity and water charges for a period of 3 years with effect from 01.04.2001 vide lease deed dated 07.05.2002. The defendant was liable to handover the vacant of the suit property on the expiry of the lease on 31.03.2004. The plaintiff had called upon the defendant to handover the possession of the suit property vide letter dated 12.04.2004. The defendant neither vacated the suit property nor enhanced the rent despite letter dated 06.05.2004, 20.12.2004 and 31.07.2004. The plaintiff through her counsel had terminated the tenancy vide 15 days notice dated 15.03.2007 and asked the defendant to handover the vacant possession of the suit property. The plaintiff had inadvertently enchased the cheque towards the rent for the month of April, 2007 and therefore, in order to avoid any objection and by way of abundant precaution, the plaintiff through her counsel again terminated the tenancy vide notice dated 25.04.2007 and called upon the defendant to handover the vacant possession of the suit property on expiry of 15 days from the date of receipt of the said notice. The defendant was called upon to pay market rate of rent of the suit property @ Rs.85/- per sq. ft per month as damages for unauthorized occupation of the suit property after termination of tenancy. The notice of termination of the tenancy was sent to the defendant vide registered post and Suit no.851/08 Page no.2 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India courier on 26.04.2007.
3. The case of the plaintiff is that the defendant failed to vacate and handover the possession of the suit property despite service of the notice dated 25.04.2007 and therefore, the defendant is an unauthorized occupant of the suit property. The defendant is liable to pay Rs. 63,730/- per month on account of damages @ Rs.85/- per sq. ft. per month. Hence, the plaintiff filed the suit for possession and mesne profits/damages against the defendant.
4. In the Written Statement, the defendant contended that the subsisting tenancy of the defendant has not been determined by any mode. It is stated that the said notice is neither legal nor valid. The tenancy of the defendant is continuing. According to the defendant, a fresh tenancy was created/ renewed between the parties with effect from 01.04.2004 and the defendant has been making payment of the agreed rent and the plaintiff has been accepting the said rent without any objection. The defendant is holding over the suit property against payment of rent in derogation of expiry of the lease by efflux of time. It is stated that the defendant is holding over the suit property and making continuous payment of the agreed rent of Rs. 3,725/- per month to the plaintiff w.e.f. 01.04.2007. The plaintiff has accepted the said amount without any objection or condition and therefore, a fresh tenancy w.e..f. 01.04.2007 was created/ renewed by virtue of the agreement and conduct of the parties in derogation and waiver of the notice dated 15.03.2007. The fresh tenancy created between the parties w.e.f. 01.04.2007 at the agreed rent of Rs.3,725/- per month is continuing and Suit no.851/08 Page no.3 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India valid. The suit is malafide and actuated by ulterior motive to increase the rent of the suit property.
5. According to the defendant, the plaintiff has no right to sue as she had un-conditionally accepted the rent without any objection for the period subsequent to 01.04.2004 and also 01.04.2007, and subsequent to the notice dated 15.03.2007. The plaintiff by her conduct waived the notice dated 15.03.2007. The plaintiff is estopped by her conduct and acquiescence. The defendant has denied the issuance of, and receipt of the notices dated 15.03.2007 and 25.04.2007. It is stated that the said notices are invalid, illegal and not in accordance with the tenancy month and agreement between the parties. The suit is not maintainable for want of service of statutory notice under Section 115 of the Multi-State Co-Operative Societies Act, 2002.
6. The defendant has not disputed the relationship of landlord and tenant. It is stated that the defendant is a tenant in the suit property since 04.03.1976. The lease was renewed from time to time on enhanced rent but a written lease deed was not executed always on such renewals, and renewal of the tenancy in April, 2001 by virtue of lease deed dated 07.05.2002 was one of the renewals. The lease deed dated 07.05.2002 is inadmissible being un-registered and unstamped. It is denied that the notice dated 25.04.2007 was sent by the plaintiff or served upon the defendant. It is denied that the tenancy of the defendant was terminated vide notices dated 15.03.2007 and 25.04.2007. It is denied that the defendant is an unauthorized occupant of the suit property. The defendant is a lawful tenant of the suit Suit no.851/08 Page no.4 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India property by virtue of the agreement/conduct of the parties and holding over of the suit property. The plaintiff is not entitled to mesne profits/damages from the defendant.
7. In the replication, the plaintiffs denied the contentions of the defendant and re-affirmed the averments in the plaint. It is stated that the tenancy was created by way of un-registered lease deed dated 07.05.2002 and therefore, it was a month to month tenancy terminable by way of notice under section 106 of the Transfer of Property Act (Hereinafter 'the T.P.Act'). The tenancy was terminated vide written notice dated 25.04.2007 which was sent by way of registered post and courier to both the addresses of the defendant. The plaintiff has not accepted the rent after 25.04.2007. The plaintiff is entitled to claim market rate of rent.
8. In the application under Order 12 Rule 6 of the Code; the plaintiff stated that the defendant has admitted the relationship of the landlord and tenant between the parties and the rate of rent of the suit property @ Rs.3,725/- per month. The defendant has not denied the execution of the lease deed dated 07.05.2002. It is stated that the tenancy of the defendant with respect to the suit property was terminated vide notice dated 25.04.2007. The said notice was sent through registered AD Post and Courier. The plaintiff has not accepted the rent after 25.04.2007. The postal receipt of the said notice is produced by the plaintiff. The said notice was sent at both the addresses of the defendant. The defendant has not denied the addresses mentioned in the said notice. The said notices were delivered at the addresses of the defendant. The postal Suit no.851/08 Page no.5 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India authority vide letter dated 17.12.22007 confirmed the service of the said notice. It is stated that no credence can be given to denial of the defendant. The defendant has no defence in respect of the relief of possession of the suit property.
9. In the reply, it is contended that the defendant has not made any un-equivocal or un-ambiguous admission in the written statement. The pleadings must be construed as a whole. The plaintiff cannot take one or two lines out of the context from the written statement and treat them as an admission. The defendant has not made any admission acknowledging the claim of the plaintiff. There are numerous disputed and complex questions of law and facts arising for determination by trial. The tenancy has not been determined by any mode. The defendant is a contractual tenant of the suit property. The fresh tenancy was created between the parties w.e.f. 01.04.2004 and also w.e.f. 01.04.2007 on acceptance of rent by the plaintiff without any objection. The defendant is a tenant of the suit property by holding over the suit property. The plaintiff has admitted acceptance of rent since April, 2007. The application on the strength of the service report dated 17.12.2007 is not maintainable. The said service report is not a cogent piece of evidence and it is required to be subjected to the test of cross-examination. The presumption of the service of the said notice is a rebuttal presumption. The defendant has a right to disprove the same by leading evidence during the trial of the suit. The burden to prove her case is upon the plaintiff. The said notice is illegal and invalid, and it does not determine the tenancy of the defendant. The defendant has been continuously making the payment of the rent to the Suit no.851/08 Page no.6 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India plaintiff. The defendant is a lawful contractual tenant of the suit property. The defendant is holding over the suit property on account of payment of rent and renewal of the tenancy. It is stated that the application under Order 12 Rule 6 of the Code is liable to be dismissed.
10. I have heard argument of Sh. Kamal Bansal, Advocate for the plaintiff and Sh. Preetjit Singh, Advocate for the defendant. I have perused the suit file and written arguments and case law relied by the parties.
11. Learned Counsel for the plaintiffs argued that the relationship of landlord and tenant between the parties is admitted. He argued that the defendant has admitted that the rent of the suit property is above Rs.3,500/- per month. He argued that the defendant has denied the service of the notice dated 25.04.2007. He argued that the said notice was sent to the defendant by way of registered AD Post and courier on 26.04.2007. He argued that the defendant has not disputed the correctness of the address to which the said notice was addressed. He argued that the defendant has denied the service of the said notice for the sake of denial. He argued that such an evasive denial is no denial in the eyes of law. He argued that the postal authority vide letter dated 17.12.2007 has confirmed that the said notice was delivered on 27.04.2007. He relied upon the judgment of Hon'ble High Court in Jindal Dyechem industries Pvt. Ltd. v. Pahwa International Pvt. Ltd.; 2009 (113) DRJ
214. He argued that the tenancy of the defendant was from month to month. He argued that the tenancy was validly terminated vide 15 days notice dated 25.04.2007 as per section 106 of the T.P.Act. He argued that the defendant is Suit no.851/08 Page no.7 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India an unauthorized occupant of the suit land property. He argued that the plaintiff has not raised any dispute relating to the constitution of the defendant and therefore, Sec. 115 of the Multi-State Co-Operative Societies Act is not applicable. He argued that plea of renewal of the tenancy and holding over the suit property cannot co-exist.
12. Ld. Counsel for the plaintiff relied upon Nopany Investment (P) Ltd. v. Santokh Singh, (2008) 2 SCC 728 that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, no notice of quit was necessary under Section 106 of the T. P. Act in order to enable the plaintiff to get a decree of eviction. He relied on Delhi Jal Board v. Surendra P. Malik, 2003 (68) DRJ 284 (DB) and Punjab National Bank v. Riviera Apartments Pvt. Ltd. 2007 (140) DLT 649 that "mere acceptance of rent could neither renew the tenancy nor create a new one. Notice under Section 106 TPA was sent to the tenant by registered AD post which was returned to the landlord and therefore, presumption of due service was raised. He relied on Mrs. Achamma Thomas v. E. R. Fairman, AIR 1970 Mysore 77; Dineshwar Prasad v. Manorama Devi, AIR 1978 Patna 956; Sushila Devi v. Manohar Lal, AIR 1985 All 78 and M/s Madan & Co. v. Wazir Jaivir Chand, AIR 1989 SC 630 that the presumption of due service can be raised where the notice was sent through registered AD post at the correct address of the tenant and mere denial of service is not enough to rebut the presumption. He referred Jeevan Diesels & Electricals Ltd. v. M/s Jasbir Singh Chadha, AIR 2010 SC 1890; Uttam Singh Duggal & Co. Ltd. v. United Bank of India (2007) 7 SCC 120; Rohini Varshnei v. R.B.Singh, 155 (2008) DLT 440 DB; Sharex v.
Suit no.851/08 Page no.8 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India Sudershan Suri, 170 (2010) DLT 600, Kamal Kishore Manchanda v. S. D. Technical Services Pvt. Ltd., 121 (2005) DLT 98 and Rajiv Saluja v. M/s Bhartia Industries Ltd., AIR 2003 DELHI 142. He argued that the plaintiff is entitled to a judgment on admissions in respect of relief of the possession of the suit premises under Order 12 Rule 6, CPC.
13. Ld. Counsel for the defendant argued that the application under Order 12 Rule 6 of the Code filed by the plaintiff is an argumentative application. He argued that the plaintiff has not pointed any specific admission in the written statement. He argued that the power under Order 12 Rule 6 of the Code is discretionary, and it is not mandatory for the Court to pass judgment. He argued that the plaintiff cannot seek a judgment on admissions as a matter of right. He argued that the defendant has not made any un-ambiguous, un-equivocal and clear admission in the written statement. He argued that the judgment cannot be passed in the absence of un-equivocal, un-ambiguous and clear admission of the claim or relief. He argued that pleadings must be read and construed as a whole and a line or two cannot be taken out of context and used against the defendant. He argued that the defendant has able to raise objections which go to the root of the matter. He argued that the defendant has raised triable issues which require evidence. He argued that the defendant cannot be denied right to lead evidence in the absence of un-equivocal admissions on his part. He argued that the lessee does not become a tenant at sufferance after expiry of the un- registered lease. He argued that the defendant is in occupation of the suit property after expiry of the lease as a Suit no.851/08 Page no.9 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India tenant by holding over and a suit for ejectment without notice to quit under Section 106 of the T. P. Act is not maintainable. He argued that un-registered lease deed cannot be considered in view of Section 17 and 49 of the Registration Act. He argued that the term of a lease is not a collateral purpose and therefore, it does not come to an end by efflux of time and notice to quit under Section 106 of the T. P. Act is mandatory.
14. Ld. Counsel for the defendant argued that the tenancy of the defendant has not been legally terminated. He argued that the defendant has not admitted the service of notice of termination of the tenancy. He argued that the plaintiff has not filed any returned AD Card. He argued that the plaintiff has relied upon a certificate issued by the postal authority. He argued that the defendant had no opportunity to contest the postal certificate as it was filed after filing of the written statement. He argued that the document downloaded from internet cannot be relied upon to presume service of the notice upon the defendant. He argued that internet downloaded postal certificate is not admissible in evidence. He argued that the said certificate was not addressed to the plaintiff. He argued that plaintiff has not produced the letter regarding complaint no. 110300 - 22628 which is mentioned in the document dated 17.12.2007. He argued that the said document must be proved during the trial. He argued that the case law relied by the plaintiff with regard to presumption of service of notice sent through registered post are post-trial judgments. He argued that the presumption under Section 27 of the General Clauses Act is a rebuttal presumption. He argued that the lease deed dated 04.03.1976 has a renewal clause. He argued that the Suit no.851/08 Page no.10 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India lease can be renewed as per renewal clause in the lease. He argued that the lease deed executed between the parties does not bar the renewal of the tenancy. He argued that there was renewal of the tenancy w.e.f. 01.04.2004 and also w.e.f. 01.04.2007 by the act and conduct of the parties. He argued that the defendant is entitled to test the veracity of the plaintiff's case at the touchstone of the cross- examination.
15. Ld. Counsel for the defendant further argued that the plaintiff has admitted that she had deposited the rent sent by the defendant in respect of the month of April, 2007. He argued that the act and conduct of the parties shows that the lease of the defendant in respect of the suit property is still continuing. He argued that the defendant is a contractual tenant of the suit property. He argued that the issue as to whether the acceptance of the rent was un- conditional or intentional cannot be gone into at this stage. He argued that the plaintiff has not served any notice under Section 115 of the T.P.Act. He argued that the defendant is holding over the suit property. He argued that the issue of holding over, and waiver of the notice under Section 116 and 113 of the T.P.Act are triable issues and can only be during the trial of the suit.
16. Ld. Counsel argued that the defendant has categorically denied the service of notice. He argued that no reliance can be place on the alleged notice and postal certificate at this stage. He argued that the validity and legality of the notice cannot be determined summarily. He argued that the proof of the service of the notice is utmost necessity. He argued that the plaintiff must prove the Suit no.851/08 Page no.11 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India determination of the tenancy during the trial of the suit and thereafter, the defendant will have the right to depose. He argued that the affidavit in support is not in accordance with Order 19 Rule 3 of the Code as the plaintiff has not specifically stated that the paragraphs of the application based upon her knowledge and belief. He argued that the affidavit. He argued that the suit involves complex issues of law and fact which cannot be decided without trial, and prayed for dismissal of the application u/O.12 R.6, CPC.
17. Ld. Counsel for the defendant relied on Union Bank of India v. Annapurna Udyog, 2008 (1) Banker's Journal 194; Mrs. Vijay Gupta & Ors. v. Ashok Kumar Gupta, AIR 2007 Delhi 166; Radha Lal v. M/s Jessop & Company, AIR 1992 Delhi 331; Satish Chand Makhan & Ors. v. Govardhan Das Byas & Ors., AIR 1994 SC 143; Anthony v. K. C. Ittoop & Sons and Ors., (2000) 6 SCC 394; He relied on Inmacs Ltd. v. Prema Sinha & Ors., 2008 (153) DLT 311; that no reliance can be placed on the information downloaded from the website. He relied on Surener Bala v. M/s. Sandeep Foam Industry (P) Ltd., 85 (2000) DLT 478 (DB); to contend that no presumption of due service nor any benefit of Section 27 of the General Clauses Act can be drawn at this stage as no evidence has been adduced by the plaintiff. He relied on Dipendra Nath Sarkar v. State of Bihar, AIR 1962 Patna 101 and Bishaka Rani Ghose v. Satish Chandra Roy Singha, AIR 1956 Calcutta 496 to contend that the affidavits filed in support of the plaint and the application under Order 12 Rule 6 of the Code do not confirm the requirement of Order 19 Rule 1 of the Code.
Suit no.851/08 Page no.12 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
18. Ld. Counsel for the defendant contended that the ratio of Delhi Jal Board v. Surender P. Malik (supra) is not applicable as there was no plea of creation of new lease and holding over the suit property under Section 116 of the T.P.Act. He contended that judgments referred by the plaintiff for raising presumption of service were delivered after recording evidence of the parties and they are in- applicable at this stage. He distinguished M/s Jeevan Diesel (supra) that the matter was remanded back to the trial court as the tenant had disputed the termination of the tenancy.
19. Ld. Counsel for the defendant distinguished Chiranjit Lal Mehra v. Kamal Saroj Mahajan (supra) that the issue of non-registration of the lease was raised before the Supreme Court for the first time whereas in the present case, the defendant has raised the issue of non-registration of the lease dated 07.05.2002 at the first opportunity in the written statement. He distinguished Rohini Varshney v. R. B. Singh (supra) that the case related to a registered lease deed for a period of two years and no fresh lease deed was executed on expiry of the lease, and legal notice was admitted by the tenant and further, there was no plea of holding over. He distinguished Jindal Dyechem Industries v. Pahwa International (supra) that there was an original Acknowledgment Card regarding service of notice under section 116 of the T. P. Act whereas there is no AD Card in the present case. Secondly, the tenant had not raised the plea of holding over. He distinguished Kamal Kishore Manchanda v. S. P. Technical Services (supra) that the service of legal notice was not denied, no plea of holding over was taken and plea of licensee was raised.
Suit no.851/08 Page no.13 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
20. Before adverting to the issue under consideration, it will be apposite to refer Order 12 Rule 6 of the Code;
"6. Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
21. A bare reading of Order 12 Rule 6 would show that the Court either on the application of any party or on its own motion and without waiting for determination of any other question between the parties proceed to give judgment, as it may think fit, having regard to the admission.
22. In Gulab Singh & Sons Pvt. Ltd. v. New India Assurance Co. Ltd. [164(2009) DLT 43]; It was held:
"13. An established principle of law relating to decree on admissions is that the Court has to read the pleadings of the parties meaningfully. The pleas of the defendants in a case have to be clear and unambiguous; disputes if any raised in Suit no.851/08 Page no.14 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India regard to facts to fall within the scope of the order, should be such, as do not call for any trial whatsoever. The object of the provision is to curtail the period for determination of disputes and to see that a decree on admission is passed without any unnecessary hindrance. 'Admission' comprehends admission by a party in pleadings or otherwise, orally or in writing. Another cannon of interpretation here is that the provisions are to be liberally construed. The Court should satisfy itself that all the elements which constitute admission are present, before issuing a decree. An admission to enable the plaintiff, to relief, should be unambiguous, clear and unconditional."
23. Object of Rule 6 of Order 12 Rule 6 of the Code of Civil Procedure is to enable a party to obtain speedy judgment at least to the extent of the relief, which, according to the admission of the other party, he is entitled. Admission on which judgment can be pronounced must be clear and unequivocal one and such an admission must be either of the entire claim made in the suit or even for a part of the claim for which decree can be passed separately.
24. In Surjit Sachdev Vs Kazakhstan Investment Services Pvt. [66 (1997) Delhi Law Times 54], Delhi High Court enumerated the factors which deserve to be taken into consideration for passing a decree in plaintiffs favour as regard possession in such suit:
(a) Existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as a tenant;
Suit no.851/08 Page no.15 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
(b) Determination of such relation in any of the contingency, as envisaged in Section 111 of the Transfer of Property Act.
Only on unequivocal admission of the above two factors will entitle the plaintiff to a decree on admission.
25. In the background of the pleadings of the parties, the question arisen for determination is that whether there was any admission or not so as to entitle the plaintiff to a judgment on admissions for the relief of possession under Order 12 Rule 6 of the Code of Civil Procedure, 1908.
26. It is an admitted fact that initially the suit premises was let out by the plaintiff to the defendant vide Lease Agreement dated 04.03.1976 for a period of three years with a clause providing for renewal of lease for a further period of three years. Lease Agreement dated 04.03.1976 was not a registered instrument. The tenancy of the defendant in respect of the suit property was not created by a registered instrument. It is an admitted fact that lastly, the suit property was let out to the defendant vide un-registered lease deed dated 07.05.2002 for a period of three years w.e.f. 01.04.2001 at the rate of Rs. 3,725/- per month. The defendant has stated in the para no.2 of the reply on merits that the lease deed 07.05.2002 is inadmissible for want of registration and proper stamp. Under Section 107 of the Transfer of Property Act, a lease of immovable property for any term exceeding one year can be made only be a registered instrument. In the absence of registered instrument, lease of the defendant in respect of Suit no.851/08 Page no.16 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India the suit premises was a month-to-month tenancy.
27. In Gulab Singh & Sons Pvt. Ltd. v. New India Assurance Co. Ltd. (supra); It was held:
"12. It can be said, on the basis of the acknowledged facts, that the absence of a registered lease meant that the tenancy was month-to-month (Bharat Petroleum Corporation Ltd. v. Khaja Midhat Noor, AIR 1988 SC 1470 where it was held that a fixed term lease for a period exceeding one year - oral or in writing, if not registered will be deemed to be a tenancy from month-to-month terminable by 15 days notice). Thus, the lease dated 08.02.1993 is not a fixed term lease for five years and would be deemed to be one from month-to-month."
28. As already stated above that lease for immovable property exceeding one year can only be created by a registered instrument. It is an admitted fact that no registered lease deed was executed between the parties for the said period of 3 year ending on 31.03.2004. The defendant was a month to month tenant in respect of the suit property since the inception of the tenancy. The lease was one from month-to-month, terminable, by either party by 15 days' notice under Section 106 of the Transfer of the Property Act.
29. The defendant in the para no.2 of the reply on merits of the written statement that 'it is not denied that the agreed rate of rent of Rs.3,725/- per month is exclusive of water and electricity charges.'
30. It is, therefore, evident that there is no dispute Suit no.851/08 Page no.17 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India with regard to the relationship of the landlord and tenant between the plaintiff and the defendant and the rate of rent of the suit property above Rs.3,500/- per month.
31. The issue before the Court is that whether the defendant has made categorical admission with regard to the service of the notice of the termination of the tenancy.
32. The case of the plaintiff is that she had terminated the tenancy of the defendant vide notice dated 25.04.2007. It is stated that the said notice was sent to the defendant through registered post and courier. It is stated that the defendant was duly served with the said notice but the defendant has not vacated the suit property after expiry of 15 days period. The plaintiff has placed on record the postal receipts and courtier receipts dispatched on 26.04.2007.
33. The plaintiff has placed on record the certificate dated 17.12.207 issued by the postal authority that the registered letters vide RL AD no.2472 and 2475 dated 26.04.2007 were delivered on 27.04.2007. The said delivery report was given by the postal authority in response to the complaint dated 24.10.2007 lodged by Ld. Counsel for the plaintiff as the plaintiff had neither received back the registered envelope nor Acknowledgment Card thereof.
34. In response to the averments made by the plaintiff with regard to the service of notice dated 25.04.2007 through registered AD post and Courier, the defendant besides challenging the legality and validity of the said notice, stated in the para no.5 of the reply on merits of the written statement that 'it is wrong and denied Suit no.851/08 Page no.18 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India that any notice dated 25.04.2007 was either sent by the plaintiff or received by the defendant, as alleged or otherwise. The contents of the alleged notice dated 25.04.2007 are wrong and denied. It is categorically denied that the tenancy of the defendant was terminated/determined, as alleged or otherwise.'
35. It is evident that the defendant has not denied the averments made in the para no.5 of the plaint that the notice dated 25.04.2007 was sent through registered AD post as well as courier. The defendant has not stated that the said notice was not sent at its correct addresses. The defendant has not disputed the correctness of its addresses mentioned in the notice and the postal receipts. The defendant has not stated that the postal receipt are forged and fabricated. The defendant has not disputed the authenticity of the delivery report dated 17.12.2007 given by the postal authority.
36. It is therefore, evident that the defendant has made an evasive, vague and general. Order 8 Rule 3 provides that 'it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically each allegation of a fact of which he does not admit the truth, except damages. In the present case, the defendant has made a general denial that 'it is wrong and denied that any dated 25.04.2007 was either sent by the plaintiff or served upon the defendant'. Order 8 Rule 4 provides that the defendant must not deny an allegation of fact evasively, but answer the point of substance. In this case, the defendant has not disputed the correctness of its addresses mentioned Suit no.851/08 Page no.19 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India in the postal receipt and in the notice, the authenticity of the postal receipts and dispatch thereof to its addresses. An evasive denial is no denial in the eyes of law. Moreover, In his reply to the application under Order 12 Rule 6 of the Code, the defendant has not stated that the delivery report is forged and fabricated and further, the postal authority had not delivered the articles vide no.2472 and 2475 at his addresses mentioned in the postal receipts. Order 8 Rule 5 of the Code provides that every allegation of fact in the plaint, if not denied specifically in the pleadings of the defendant, shall be taken to be admitted. Therefore, the fact that the plaintiff has sent the notice dated 25.04.2007 to the defendant vide registered AD post and courier shall be taken as admitted. In the presence of evasive denial of the defendant regarding the service of the notice and delivery report issued by the postal authority, the general and evasive denial regarding non-service of the notice does not displace the onus to rebut the presumption of service.
37. The Judgment in the case of Jindal Dyechem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd. (supra) is squarely applicable to the present fact situation. In the said case, the plaintiff had filed a suit for possession and damages against the defendant after termination his tenancy vide notice. The tenancy was created by way of an oral agreement and it was a month to month tenancy. The relationship of the landlord and tenant, and the rate of rent above Rs.3,500/- was not disputed. The defendant had disputed the fact of service of notice of termination of tenancy. The plaintiff had filed an application under Order 12 Rule 6 of the Code for judgment on admission. Hon'ble High Court after noticing the conditions and underlying Suit no.851/08 Page no.20 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India objective of Order 12 Rule 6 of the Code observed as under:
"9. The moot question which arises for consideration in this application is whether the notice dated 09.10.2007 would amount to be served upon the defendant or not?
10. Ld. Counsel of the defendant has denied the service of notice of termination of tenancy, it is contended by the defendant that the AD Card that has been produced by the plaintiff does not bear any signature of the receiver. Further with respect to the notice dated 27.07.2007 no AD Card has been filed by the plaintiff. Ld. Counsel has further contended that in terms of Section 27 of the General Clauses Act, 1897 the presumption of service by registered post is a rebuttable presumption. To support his contention he has relied upon the judgment of Tele Tube Electronics Ltd. v. Delhi Sales Tax, 2002 (101) DLT 337 (DB) and Ram Murti v. Bhola Nath, 1982 (22) DLT 426 and further contended that the defendant has discharged the initial burden of proof by denying the receipt of the notice in its written statement, accompanied by an affidavit, the burden to prove the valid service and the receipt of notice now shifts on the plaintiff, which can only be discharged by leading evidence in this regard.
11. In support of proof of service of Notice of termination of tenancy plaintiff has placed on record the copy of notice dated 09.10.2007, original postal receipt in respect of the notice dated 09.10.2007, original AD, Copy of the letter dated 24.10.2007, original Suit no.851/08 Page no.21 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India postal receipts in respect of the above letter. I have perused the record and found that all the documents placed on record are bearing correct address of the defendant.
12. In view of the record placed by the plaintiff and in light of the fact that the notice was dispatched to the defendant's correct address through registered AD post and the AD card was received back from the defendant, the denial in respect of the said notice by the defendant has no value. The rebuttal in this case, does not go beyond a bald and interested denial of service of the notice by the defendant, which does not displace the onus to rebut the presumption of service. I am unable to accept the arguments advanced by the defendant before this court that by merely saying the AD card bears somebody else's signature, they have discharged the initial burden to rebut the presumption."
38. In Jindal Dyechem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd. (supra), Hon'bel Delhi High Court had allowed the application under Order 12 Rule 6 of Code with the observation that "in view of the documents placed on record by the plaintiff, the denial of service of termination of notice is sham and false denial, such kind of bald denial should be ignored in such kind of circumstances. Hon'ble High Court had taken note of decision in the case of Rajiv Saluja v. Bhartiya Industries Ltd., AIR 2003 Delhi 142 that "Mere denial of denial of receipt of such notice cannot come to the rescue of defendant no.2. Denial is far outweighed by not only postal receipts proving the dispatch at all the Suit no.851/08 Page no.22 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India addresses of the defendant but also through a certificate from the postal authorities as to the receipt of notice by the defendants at the suit premises." and the decision in Rama Ghai v. U. P. Handloom Corporation (2001) 4 AD (DEL) 471 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 notice or as to the nature of tenancy."
39. The decision in Hill Elliot & Co. v. Bhupinder Singh, 2011 (121) DRJ 438 (DB) squarely applies to this case. In the said case, the appellant was a month to month tenant and its tenancy was terminated by way of notice. The said notice was sent by way of registered AD Post and Courier. The AD cards for the notice were not received back. The respondent had written a letter to the postal authorities to give the service report about the notice. The postal authorities through its letter informed the respondent that the notice sent through postal receipt had been duly delivered to the addressee.
40. Hon'ble Delhi High Court held in the para no.15 of the judgment that "the denial of service of notice shall be treated as a vague denial, thus deemed to have been admitted." In the para no.18 of the judgment, Hon'ble High Court observed that "If in a given case like the present case, a dishonest litigant is permitted to delay the judgment on the ground that the he would show during the trial that he had not received the notice. The very purpose of the amendment in the provision would be frustrated." It was also observed that "some of the litigants have scant respect Suit no.851/08 Page no.23 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India for the Court and the course of justice and they can take any stand to suit their interest unmindful of the fact that they can be prosecuted for making false averments in the Courts of Law."
41. Therefore, in view of the general, un-specific and evasive denial about the service of the notice dated 25.04.2007 and in the presence of the postal receipts, courier receipts, notice dated 25.04.2007 and the service report dated 17.12.2007, the fact of the service of notice dated 25.04.2007 are taken to be admitted, and no other proof is necessary.
42. In so far as contention that the notice dated 25.04.2007 is not valid and legal, and not in accordance with the month of the tenancy is concerned, it can be stated that the notice 25.04.2007 was issued on behalf of the plaintiff by her Counsel Sh. Rishi Kapoor, terminating the tenancy of the defendant on the expiry of 15 days from the date of the receipt of the notice, and asking the defendant to deliver the vacant possession of the suit property. The defendant has neither stated nor demonstrated during arguments that the said notice did not fulfill the requirements of Section 106, T. P. Act.
43. Section 106 of the Act stipulates that the notice under the section has to be in writing which should be signed by or on behalf of the person giving it and is to be served on the party either by post or tendered or delivered in person. Consequently, I hold that notice 25th April, 2007 terminating the tenancy and duly served on the defendant was valid and the tenancy stood lawfully terminated as Suit no.851/08 Page no.24 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India envisaged under Section 111(h) of the Act.
44. The factum of tenancy and rate of rent of the suit property above Rs. 3,500/- is not in dispute. The denial to the termination of the tenancy is evasive, dishonest and general in the presence of the notice dated 25.04.2007, valid postal receipts coupled with the delivery report dated 17.12.2007 and shall be taken to be admitted. The tenancy is proved to be terminated by serving a valid legal notice under Section 106 of the T. P. Act and therefore, the plaintiff is entitled to a judgment on admissions under Order 12 Rule 6 of the Code in respect of relief of possession of the suit property.
45. So far as contention of the defendant that the presumption of service by registered post u/s 27 of the General Clauses Act is a rebuttable presumption and the defendant is entitled to rebut the presumption by leading evidence during trial and further, that the factum of the termination of the tenancy require investigation and proof is concerned, it can be stated that the plaintiff has placed on record sufficient material to raise strong presumption under Section 27 of the General Clauses Act that the notice dated 25.04.2007 was served upon the defendant through post on 27.04.2007. Mere denial of service of notice would not displace the presumption.
46. In Jindal Dyechem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd. (supra), Hon'ble Delhi High Court considered the similar arguments:
"10. Ld. Counsel of the defendant has denied the service of notice of termination of tenancy. It is contended by the Suit no.851/08 Page no.25 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India defendant that the AD card that has been produced by the plaintiff does not bear any signature of the receiver. Further, with respect to the notice dated 27.07.2007 no AD Card has been filed by the plaintiff. Ld. Counsel has further contended that in terms of section 27 of the General Clauses Act, 1897 the presumption of service by registered post is a rebuttable presumption. To support his contention he has relied upon the judgment of Tele Tube Electronics Ltd. v. Delhi Sales Tax, 2002 (101) DLT 337 (DB) and Ram Murti v. Bhola Nath, 1982 (22) DLT 426 and further contended that the defendant has discharged the initial burden of proof by denying the receipt of the notice in its written statement, accompanied by an affidavit, the burden to prove the valid service and the receipt thereof now shifts on the plaintiff, which can only be discharged by the plaintiff by leading evidence.
11. In support of proof of service of notice of termination of tenancy, the plaintiff has placed on record the copy of notice dated 09.10.2007, original postal receipt in respect of the notice dated 09.10.2007, original AD, Copy of the letter dated 24.10.2007, original postal receipts in respect of the above letter. I have perused the record and found that all the documents placed on record are bearing correct address of the defendant.
12. In view of the record placed by the plaintiff and in light of the fact that the notice was dispatched to the defendant's correct address through registered post and the AD card was also received back from the defendant, the denial in respect of the said notice by the defendant Suit no.851/08 Page no.26 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India has no value. The rebuttal in this case, does not go beyond a bald and interested denial of service of the notice by the defendant, which does not displace the onus to rebut the presumption of service. I am unable to accept the arguments advanced by the defendant before this Court that merely saying the AD card bears somebody else's signature, they have discharged the initial burden to rebut the presumption.
47. In Hill Elliott & Co. Ltd. v. Bhupinder Singh (supra); Hon'ble Delhi Court had dealt with the contention that the presumption under Section 27 of the General Clauses Act is rebuttable with the following observations:
"15. Coming to the presumption of service of notice dated 09.08.2008, the notice was sent to Hill Elliott by registered AD post, speed AD post, UPC and by courier service. It was specifically pleaded that the Hill Elliott had refused to accept the notice sent by the courier service whereas a confirmation was given by the Postal Authorities regarding delivery of he notice (article through postal receipt No.4527 and 4528 datd 09.08.2008) on 12.08.2008. It has been submitted by Sh. G. L. Rawal, learned senior counsel for the Appellant that presumption under Section 27 of the General Clauses Act is a rebuttable presumption and since Hill Elliott has denied service of notice dated 09.08.2008 it became a triable issue and the learned Single Judge committed a grave error in presuming service of the notice upon Hill Elliott. In support of his contention, the learned senior counsel has referred to Tele Tube Electronics Ltd. v. Delhi Suit no.851/08 Page no.27 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India Sales Tax Appellate Tribunal & Ors., 101 (2002) DLT 337; D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456; Green View Radio Service v. Laxmibai Ramji & Anr., AIR 1990 SC 2158. There is no dispute about the preposition of law that the presumption of service of notice under Section 27 of the General Clauses Act is rebuttable presumption. However, the facts of each case have to be seen to reach the conclusion whether any rebuttal is forthcoming from the party who is deemed to have been served. We have already referred to hereinbefore as to how the notice terminating the tenancy was sent to Hill Elliott. A perusal of the relevant paragraphs of the written statement filed by Hill Elliott would show that it had simply denied the receipt/service of notice. The circumstances under which the notice dated 09.08.2008 was not received by Hill Elliott were not stated either in para 7 of the Preliminary Objections of the written statement or in reply to Para 5 of the Plaint. Hill Elliott has not stated that the premises during the period the notice is purported to have been served were lying locked; that no responsible person of Hill Elliott was present in the premises during this time or there was any other reason by which the normal course of business of service of notice was prevented. Thus, the denial of service of notice shall be treated as a vague denial, thus deemed to have been admitted.
17. In the absence of specific denial, we find no merit in the contention raised on behalf of Hill Elliott that the presumption being rebuttal, opportunity should have been given to the Appellant to prove that the notice has Suit no.851/08 Page no.28 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India not been served.
18. The purpose of the enactment of provision of Order 12 Rule 6 CPC is to give the plaintiff a right to speedy judgment. The thrust of amendment is that in an appropriate case a party on the admission of the other party can press for judgment as a matter of right. If in a case like the present one, 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 in the provision would be frustrated."
48. In Jindal Dyechem Pvt. Ltd. v. Pahwa International Pvt. Ltd. (supra); Hon'ble High Court held in the para no. 15 that "It is apparent from the reading of the section that service shall be deemed to be effectuated by properly addressing, pre-paying and posting by registered post, a letter containing the notice. This presumption is no doubt rebuttable but unless it is disproved, dispelled or rebutted, the court can treat the presumption as tantamounting to proof."
49. In so far as contention that in Jindal Dyechem Pvt. Ltd. v. Pahwa International Pvt. Ltd. (supra), the AD Card was received back and there was no plea of holding is concerned, it can be stated that service report from postal authorities stands on equal pedestal, and the tenancy had come to an end with the service of notice u/s 106 of the T. P. Act.
50. Contention that the document dated 17.12.2007 provided by the postal authorities is inadmissible in Suit no.851/08 Page no.29 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India evidence as it was downloaded from internet is concerned, it can be stated that the said confirmation was issued by Senior Superintendent of Post Offices, New Delhi (Central) and certified by Ms. Aparana Kumari, Inspector PO's (PG-II) New Delhi Central Division, New Delhi - 110001. Mere fact that the said document makes reference to the website of the postal department regarding the Grievances Handling System is not sufficient to doubt the authenticity of the said document. Moreover, the said document was issued by Senior Superintendent of Post Offices and certified by Inspector (Post Office). The defendant has not placed any material on record to the contrary despite the fact that the said document was filed on 16.07.2008. The defendant in their reply to the application under Order 12 Rule 6 of the Code had ample opportunity to contest the authenticity of the said report but besides stating that the said document is inadmissible in evidence, the defendant has not stated that the said document is forged, or no such report has ever been given by the postal authorities.
51. Reliance on the judgment in INMACS V. PREMA SINHA 2008 (153) DLT 311; would not advance the case of the defendant. In the said case, a local commissioner was appointed to conduct an inquiry and submit a report on fair market rental of the flat. Ld. local commissioner based his report on information available on the website of M/s Magicbricks.com and M/s 99acres.com. Therefore, the High Court held that no reliance can be placed on the information downloaded from the website for the reason the websites contain an invitation to offer and obviously a lessor would like to receive the highest rent possible. It was held that the Suit no.851/08 Page no.30 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India evidence of fair market rental has to be cogent and clear with reference to actual letting of similar properties. In this case, the certificate of delivery of the registered post has been en issued by the postal authorities in their usual course of business. In so far as contention that the service report dated 17.12.2007 was addressed to Sh. Rishi Kapoor, Advocate and not to the plaintiff, and bears three dates, the said Advocate has not filed his affidavit regarding service of notice, and the report is not in original is concerned, it can be stated that the plaintiff had issued the notice dated 25.04.2007 through her Counsel Sh. Rishi Kapoor, Advocate and the complaint was also made by Sh. Rishi Kapoor, Advocate and therefore, the genuineness of the report dated 17.12.2007 cannot be doubted on this score. Further, perusal of the report shows that the report was prepared on 17.12.2007and signed by Senior Superintendent of Post Offices on 18.12.2007 and thereafter, certified by Inspector (Post Office) on 18.03.2008. Movement of file and approval by Senior Officers takes time in usual course of the government business.
52. In so far as contention that the suit is not maintainable for want of statutory notice under Section 115 of the Multi-State Co-Operative Societies Act, 2002 is concerned, it can be stated that the said provision stipulates 90 days notice in writing to the defendant - society in respect of any act touching the constitution, management or the business of the society. The present suit for possession against the defendant - society is not covered by the said provision.
Suit no.851/08 Page no.31 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
53. In so far as contention that the affidavits filed in support of the plaint and the application under Order 12 Rule 6 of the Code has not been verified and sworn in accordance with the provisions of Order 19 Rule 3 of the Code as the plaintiff has not stated the paragraphs which were true to her knowledge and belief respectively is concerned, it can be stated that the plaintiff has stated in the verification clause of the affidavits accompanying the plaint and said application that contents of the contents of the para no.1 and 2 of the affidavits are true and correct. The plaintiff is seeking a decree of possession and mesne profits on the basis of the documentary evidence. The tenancy of the defendant was created for a period of three years by way of an un-registered lease deed dated 04.03.1976. The lease deed 07.05.2002 was also unregistered. The defendant was a month to month tenant since the inception of the tenancy for want of a registered lease. The plaintiff is the landlady of the suit property. The two of the three ingredients for seeking judgment on admissions have not been disputed by the defendant. The plaintiff had sent the notice dated 25.04.2007 through her counsel Sh. Rishi Kapoor, Advocate and relied upon service report dated 17.12.2007 given by the postal authorities to prove the delivery of the said notice on 27.04.2007. I have perused the verification clause. There is no defect in the verification clause of the affidavit accompanying the plaint and the application under Order 12 Rule 6 of the Code. There is no substance in the contention of the defendant that the application is liable to be dismissed for want of proper verification. Moreover, such a technical plea cannot non-suit the plaintiff.
Suit no.851/08 Page no.32 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
54. Dealing with a similar contention in Hill Elliott & Co. Pvt. Ltd. v. Bhupinder Singh (supra), Hon'ble Delhi High Court observed:
"19. We have perused the averments made in the Application under Order 7 Rule 11 CPC and the Affidavit filed along with the plaint before the Learned Single Judge. The plea of the Appellant is that the Affidavit filed by the plaintiff is no Affidavit in the eyes of law as the plaintiff has not stated in the Affidavit as to which paragraph of the plaint is true to his knowledge and which paragraph of the plaint has been averred on the basis of information/advice received.
20. A perusal of the supporting Affidavit would show that the averments have been made on the basis of the record.
21. In our view, there is no defect in the Affidavit. The instant case of possession and mesne profits is based on the documents right from inception of the tenancy which was created through a lease deed dated 16.10.1982 followed by earlier litigation between the parties and then service of notice terminating the tenancy. There is no merit in the plea raised on behalf of the Hill Elliott that the plaint was liable to be rejected as the supporting affidavit was defective. "
55. Accordingly, the plea of the defendant that the affidavit supporting the plaint and the application under Order 12 Rule 6 is not in consonance with the provisions of Order 19 Rule 3 is hereby rejected.
Suit no.851/08 Page no.33 of 34 Asha Chopra v. National Co-Operative Consumer's Federation of India
56. In so far as contention that the defendant was holding over the suit property since 01.04.2004 and also from 01.04.2007 against payment of rent, and in derogation and waiver of notice dated 15.03.2007 and the suit for possession without notice is not maintainable is concerned, it can be stated that even if the defendant's case that he was a tenant by holding over the suit property under Section 116 of the T. P. Act is accepted, its tenancy was liable to, and accordingly, terminated by a valid and legal notice dated 25.04.2007 under Section 106 of the T. P. Act. The plaintiff has not accepted the rent after April, 2007 and filed the present suit for possession and mesne profits on 31.05.2007 after expiry of 15 days period from the date of the receipt of the notice dated 25.04.2007.
57. Accordingly, the Application under Order 12 Rule 6 of the Code of Civil Procedure, 1908 filed by the plaintiff for judgment on admission in respect of relief of possession of the suit property is allowed.
58. A decree of possession in respect of the Flat no. 605, measuring 749.49 square yards, Deepali, 92, Nehru Place, New Delhi - 110019 is passed in favour of the plaintiff and against the defendant.
59. Decree Sheet be drawn up accordingly.
Order announced in the open (SANJAY SHARMA)
Court on 16th July, 2011 JSCC-Cum-ASCJ-Cum
GUARDIAN JUDGE (West)
Delhi
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