Delhi High Court
Samir Mukherjee vs Davinder Kumar Bajaj on 23 January, 1998
Equivalent citations: 71(1998)DLT477, 1998(44)DRJ673, (1998)118PLR73
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT Devinder Gupta, J.
1. This appeal by the defendant/appellant is against the decree passed on 4.9.1997 by Ms. Manju Goel, Additional District Judge, Delhi in favour of plaintiff/respondents by allowing their application under Order 12, Rule 8, C.P.C
2. The suit was filed by the plaintiff/respondents against the appellant for grant of decree for recovery of possession by eviction from premises measuring 6359.85 sq. ft. forming part of property bearing No. 71/2, Industrial Area, Najafgarh Road, New Delhi, shown as red in the plan attached with the plaint and for recovery of Rs. 3,51,000/-. In addition decree for recovery of damages manse profits from 1.5.1995 till such time the premises are vacated was also prayed. It was alleged that the premises were let out to the appellant at a monthly rent of Rs. 9,500/-. The tenancy was terminated through registered notice dated 16.3.1995 w.e.f the close of 30.4.1995. Despite service of notice, the premises are vacated and even rent from 1.3.1992 till 30.4.1997 had not been paid. In addition to claiming decree for possession, decree for arrears of rent and for future mesne profits, as aforementioned was prayed.
3. The suit was contested by the defendant/appellant on a number of grounds. While admitting the plaintiffs to be the owner and, that the premises had been let out on a monthly rent of Rs. 9,500/-, it was stated in the written statement that the intention of the parties at the time of creation of the tenancy was to grant tenancy permanently and not for any temporary period because lease was granted in favour of the appellant for manufacturing purposes and since the inception of tenancy, the appellant has been carrying on his business of manufacturing Transmission Towers and Railway Electrification Fittings. As such lease would be deemed to be from year to year as per the provisions of Section 106 of the Transfer of Property Act. While admitting the receipt of notice dated 16.3.1995, it was pleaded that the said notice was not in accordance with Section 106 of the Transfer of Property Act. The notice ought to have been for six months expiring on the last day of the year of tenancy.
4. In view of the pleas taken by the defendant in his written statement, the plaintiff filed an application under Order 12, Rule 6 of the Code of Civil Procedure stating that there was a clear admission in the written statement on the part of the defendant. As such, decree for possession was liable to be passed on such admission. The said application was also contested by the defendant.
5. Through the impugned judgment dated 4.6.1997, the Trial Court proceeded to hold that there was no material dispute. The defendant had admitted itself to be a tenant in respect of the suit property. The validity of notice of termination stood established. The plaintiff admittedly was the landlord and thus was entitled to recover possession from the defendants on termination of tenancy. It was also held that all conditions necessary for judgment under Order 12, Rule 6, C.P.C. were fulfillled. Accordingly, the Trial Court proceeded to pass decree for eviction directing the defendant/appellant to hand over peaceful vacant possession to the plaintiff/respondents. The question of quantum of arrears of rent and mesne profits, which was in dispute was kept pending for trial.
6. We have heard learned Counsel for the parties at length at the admission stage. Having considered the submissions, we are of the view that the judgment of the Court below calls for no interference.
7. Learned Counsel for the appellant has vehemently contended that though the receipt of notice dated 16.3.1995 was admitted but the same was not in consonance with law. The admission of the defendant had to be taken as a whole and could not have been split in parts. There was a plea raised by the defendant in the written statement that the intention of the parties, at the time of creation of tenancy was to create permanent tenancy and not a tenancy for a temporary or limited period because the lease was granted for manufacturing purposes. Since the inception of the tenancy the defendant has been carrying on the business of manufacturing Transmission Towers and Railway Electrification Fittings. Notice terminating the tenancy ought to have been of six months expiring on the last day of the year of the tenancy. In view of this legal question which was raised in the written statement, the Court ought not to have disposed of the matter under Order 12, Rule 6, C.P.C. instead an issue ought to have been framed and decided in accordance with law.
8. Learned Counsel for the appellant referring to the provisions of Section 106 of the Transfer of Property Act urged that since the lease was for manufacturing purposes, legal presumption as envisaged in Section 106 of the Act would apply under which such tenancy has to be regarded as a tenancy from year to year terminable by six months notice and not by 15 days notice. It was further contended that no doubt under Section 107 of the Act a lease from year to year can be made only by a registered instrument but Section 107 of the Act in no way controls the presumption laid down in Section 106 of the Transfer of Property Act. As such the notice was bad in law. Such a contention though raised was not decided by Constitution Bench in Allenbury Engineers Pvt. Ltd. v. Shri Ram Krishna Dalmia and Ors., .
9. The trial Court while decreeing the suit for possession followed the ratio of the decision of a learned Single Judge of this Court in Jagat Taran Beri v. Sant Singh, , which decision was duly approved by a Division Bench in The tea Industrial Heating Equipments (P) Ltd. v. Harvinder Singh, . In addition to relying upon the above decision in Jagat Taran Beri's case(supra), the Trial Court also held the notice to be valid by the ratio of decision of this Court in State Bank of India v. Ashok Kumar Gupta and Anr., 47(1992) D.L.T. 679 and in D. Rani Puri v. Chanan Lal, 1987 II AD (Delhi) 679.
10. Admittedly, no written lease deed or agreement was executed. The premises were let out orally. A lease of immovable property from year to year or for a term exceeding one year, under Section 107 can be made only by a registered instrument and any lease of this kind would be void unless it is created by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession. Whose Section 106 of the Act refers to the duration of certain leases in the absence of written contract or local usage, Section 107 lays down the mode how the leases are to be made. An oral lease for manufacturing purposes cannot be deemed to be a lease from year to year for the purposes of notice of termination, in view of the provisions contained in Section 107 of the Act. In the case of a lease for manufacturing purpose, the absence of registration itself would imply that parties entered a contract to the contrary and without any registered instrument, tenancy would be deemed to be from month to month and not from year to year, for which 15 days notice will be a valid one. The decision of the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb and Anr., relied upon by learned Counsel for the appellant was duly and rightly considered in Jagat Taran Beri's case.
11. In Jagat Taran Beri's case (supra), learned Single Judge held that there can never be a conflict between Sections 106 and 107 of the Transfer of Property Act. On an analysis of the two provisions, it was observed:
"Under Section 107 the parties have an option. They can negotiate a lease of a duration mentioned in the first paragraph. If they decide upon such a lease, they must execute a registered instrument. Alternatively, they can decide to have a lease for a shorter period. In that event they can create the lease with or without executing a registered instrument. Whenever, a lease is created without a registered instrument the inevitable conclusion must be that the parties have so to speak, opted out of the first paragraph. They have negatived any intention of creating a lease of the duration therein mentioned. Or, to put it in positive form, they have agreed upon a lease of a duration coming within the second paragraph. This is, or must be deemed to be a conscious decision on their part. It is, therefore, indicative of a contract between them. That contract is that the lease will not be of a duration mentioned in the first paragraph of Section 107 Such a contract will always be a 'contract to the contrary' envisaged by the opening words of Section 106. The Supreme Court has said that a 'contract to the contrary' can be implied, and need not be express. So, from the single fact that a registered instrument is not executed, one can, and should, immediately deduce a contract to create a lease of the kind that can be created without such an instrument. Thus, if the lease is for, agricultural or manufacturing purposes' and there is no registered instrument, that fact itself is conclusive to establish a 'contract to the contrary'. Considering that it was always open to the parties to execute a registered instrument but they chose not to do so, this inference accords with their intention, whether actual or ascribed."
The aforementioned observations were quoted with approval in The tea Industries' case (supra) and a reference was also made to the decision of Supreme Court in Shri Janki Devi Bhagat Trust, Agra v. Ram Swamp Jain, . The Supreme Court held that a manufacturing lease, which is not from year to year, does not require six months notice for termination. It will fall in the second half of Section 106' requiring fifteen days notice of termination.
12. In so far as the Trial Court is concerned, it rightly followed Jagat Taran Beri's case (supra), which was duly approved by a Division Bench of this Court in The tea Industrial Heating Equipments (P) Ltd. (supra), which in turn also relied upon the decision in Janki Devi Bhagat Trust's case. As such there was no question of law arising for determination and the Trial Court was not obliged to frame an issue on the alleged legal proposition. The Trial Court in view of the law declared by this Court rightly on the facts admitted proceeded to pass decree for possession of the premises.
13. Consequently, the appeal, which has no force, is dismissed.