Delhi District Court
Smt. Isha Bedi vs Sh. Raj Kumar Dhingra on 2 September, 2008
IN THE COURT OF SMT. ASHA MENON
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO. :154/06
1. Smt. Isha Bedi
W/o Sh. Harinder Singh Bedi
2. Sh. Harinder Singh Bedi
s/o Sh. J. S. Bedi
Both R/o 161, Shakti Vihar
Delhi -110034 ...Plaintiffs
Versus
Sh. Raj Kumar Dhingra
S/o Late Sh. Nebh Raj
R/o 30, village Hauz Khas
New Delhi - 110016 ...Defendant
JUDGMENT
This order will dispose of the application moved by the plaintiffs Smt. Isha Bedi & Harinder Singh Bedi under Order 12 Rule 6 CPC read with Section 151 CPC.
I have considered the pleadings of the parties, the lease deed dated 08.11.05 and I have considered the submissions made by Ld. Counsel for the plaintifs and Ld, Counsel for the defendant.
The suit has been filed by Smt. Isha Bedi and Sh. Harinder Singh Bedi for recovery of possession, arrears of rent, damages / mesne profits and injunction against Sh. Raj Kumar Dhingra. They claim to be the absolute owners of the portion of the ground floor bearing private no. G-27 & G-28 measuing 108 sq. Feet each being part of property bearing no. D-15, situated at South Extension Part II, New Delhi . It is submitted that these portions had been let out to the defendant Sh. Raj Kumar Dhingra vide lease deed dated 08.11.05 duly registered with the Sub Registrar on 08.11.05. Vide this document the tenancy was recorded as commencing w.e.f. 01.09.05 at a monthly rent of Rs. 18,000/-. There were other covenants also included in this lease deed.
In the plaint it was alleged that the defendant though remaining in possession till the filing of the suit ( infact till today) had paid rent only up to January 2006. It is alleged for no reason the defendant stopped paying the rent w.e.f. 01.02.06. when the plaintiff demanded rent the defendant sent a letter dated 23.02.2006 intimating withholding of the monthly rent on mischievious and baseless grounds. This was duly replied by the plaintiffs vide their letter dated 27.02.06 explaining the entire position despite which the defendant continued remaining in the premises carrying out his activities therein without paying the rent to the plaintiffs.
It is stated by the plaintiffs that ultimately the plaintiff's terminated / canceled the lease in question vide notice dated 09.06.06 and directed the defendant to hand over the vacant physical peaceful possession of the demise premises to the plaintiffs failing which the penalty clause would be invoked and the defendant would be liable to pay Rs. 2,000/- per day. Arrears of rent was also demanded. When the notice did not elicit the desired response the present suit was filed by the plaintiffs praying for a decree for possession in respect of the ground floor portion bearing private no. G-27 & 28 being part of property no. D-15, South Extn., Part II, a decree for permanent injunction restraining the defendant his family members etc. from transferring/ alienating, assigning, subletting or creating any third party interest in the suit premises. A decree for recovery of arrears of rent for the period February 2006 to July 2006 and future damages / mesne profits @ Rs. 2000/- per day has also been prayed for.
The written statement was filed by the defendant submitting that improtant and material facts had been concealed. It is alleged that at the time of executing the lease deed none of the plaintiffs had informed the defendant that vide order dated 19.10.05 the Assistant Engineer (B-1) Builging Department, Central Zone, MCD had found gross non compoundable deviations in the suit property and had called upon the plaintiffs to comply with certain directions contained in the said order and the non compoundable deviations were subject to demolition. It is alleged that the plaintiffs till date had not regularized the compoundable deviations. It is claimed that if the defendant had known about these facts he would not have entered into the lease with the plaintiffs.
It is further stated that Under Section 108 (a) Transfer of Property Act 1882 a liability entrusted upon the lessor was to be disclosed to the lessee and all defects in the property was also to be disclosed to the lessee. However, in the present case these were all hidden from the defendant. It is alleged that there was no cause of action in favour of the plaintiffs and the plaintiffs were trying to gain premium on their illegal and unauthorized acts. It is further submitted that the notice of termiation of the lease was never served upon the defendant and thus the suit was not maintainable and was thus premature. It is submitted that the notice was otherwise defective and did not comply with the mandatory provisions of the Transfer of Property Act 1882.
On merits the defendant does not deny that a lease deed dated 18.11.05 was entered into between the plaintiffs and the defendant. However, the defendant claims that under Clause 10 of the lease deed the period for which the suit property was rendered unusable was to be excluded from the lease period and no rent was to be charged or paid for the said period. It is submitted that it was in February 2006 that the defendant came to know about the order of the MCD dated 19.10.05 and the defendant immediately on 23.02.06 categorically informed the plaintiffs that since the property had become unusable being declared unauthorized and illegal by the MCD the defendant was withholding the monthly rentals w.e.f. 01.02.06. It is further claimed that w.e.f. December'2005 the defendant had not been able to use the suit property as the MCD had undertaken substantial demolition of a part of the said property on account of unauthorized construction. Therefore the defendant claims he was justified in suspending the rent. It is submitted that the letter of the plaintiffs dated 27.02.06 was malafide, cunning and baseless.
The defendant further claims that he had invested more than Rs. 2,80,000/- in furnishing and interior decoration of the premises and was still unable to use the premises on account of the dishonest acts of the plaintiffs as a result of which the defendant was suffering huge financial losses on account of loss of business to the tune of approximately Rs. 10,00000/- per month. The defendant claims to have sent legal notice dated 02.06.06 in this behalf to which a false and frivolous reply was sent by the plaintiffs dated 06.06.06. The defendant denies that the lease had been terminated or cancelled or that any notice dated 09.06.06 had even been sent to the defendant or received by the defendant. It is therefore denied that defendant was under any obligation to hand over the vacant possession of the demised premises to the plaintiff. It has been denied that the plaintiffs were entitled to arrears of rent or mesne profits at punitive rates as claimed. The defendant has prayed for the dismissal of the suit.
It is in the background of these pleadings that the instant application Under Order 12 rule 6 CPC read with section 151 CPC has been moved by the plaintiffs seeking a decree on admissions. Plaintiffs have submitted that the defendant has admitted in para no. 1 of the written statement on merits that he had taken the suit premises on rent from the plaintiffs vide registered lease deed dated 08.11.05 for a period of 2 years commencing from 01.09.05. It is submitted that the lease period has since expired on 31.08.07 by efflux of the lease period and the defendant had become unauthorized and unlawful occupant of the suit premises w.e.f. 01.09.07. It is submitted that the lease deed had not been extended and renewed for any further period. It is submitted that even in the lease deed clause 5 (II) it had been agreed betwen the parties that the present lease was for a period of only 2 years commencing from 01.09.05 and the lease would not be renewed after the expiry of 2 years that is 31.08.07. It was thereafter agreed that in the even the vacant possession was not handed over the lessee would be liable to pay penalty @ Rs. 2,000/- per day. It is further submitted that with the amendment to the Transfer of Property Act the issues relating to termination of tenancy under Section 6 of the Act had also lost singificance now. In these circumstances, the plaintiffs have prayed for a decree of the suit for the recovery of possession of the suit property as described in the plaint.
In the reply filed by the defendant it is submitted that the application was not maintainable being legally unsustainable and factually untenable. It is submitted that the facts as have emerged from the pleadings of the parties, will unambigously manifest that the provisions of Order 12 Rule 6 CPC cannot be brought into play, in the present case and no decree could be passed in favour of the plaintiffs. It is submitted that there was no admission that was unequivocal clear and positive. It is submitted that the defendant had categorically denied the right of the plaintiff to seek ejectment of the defendant relying on the relevant provisions of the lease deed whereby the period for which the suit property was rendered unusable the defendant would be entitled to suspend rent and the said period would be excluded from the tenure of the lease. Hence it is submittted that since the suit property was rendered unusable for nearly 17 months the defendant was entitled to suspend payment of rent and exclusion of the period from the tenure of the lease. It is submitted that the pleadings have to be read as a whole and there were no admissions at all.
On merits it has been vehemently denied that the lease period has expired on 31.08.07. It is submitted that the parties had disputed and the defendant had already invoked clause X of chapter 5 of the lease deed by which the period for which the premises were rendered unusable had to be excluded from the tenure of tenancy. These contentions of the defendant have been disputed and denied by the plaintiffs. Therefore, without trial no judgment could be granted to the plaintiffs. According to the defendant the lease was still in currency and the suit was liable to be dismissed. In any case the decree as prayed for by the plaintiffs could not be given without evidence coming on the record. The plaintiffs have to prove termination of tenancy. Thus when all facts were under dispute there was no admission on the basis of which judgment under Order 12 Rule 6 CPC could be granted. Hence the defendant has prayed for the dismissal of the application.
I have heard the arguments of both counsel. There is no gainsaying that the lease deed dated 08.11.05 is an admitted document. This document has been relied upon by both sides. The entire basis of the interse relationship between the parties rests on this document that is lease deed dated 08.11.05. This is the document that has created the tenancy in favour of the defendant. The terms of this lease deed have not been disputed either by the plaintiff/ lessors or by the tenant/ defendant. Thus the admission in relation to the lease deed is clearly unequvivocal and unambiguous.
Thus it is clear that the spaces/ portions bearing private no. G-24 to G-28 belonging to the plaintiff as owners had been let out to the defendant for a period of 2 years commecing from 01.09.05 at a monthly rent of Rs. 18,000/-. The rent was payable by the 7th day of each month and delay was to invite interest @ 18% per annum. The electricity and security charges along with maintenance charges were to be paid directly by the lessee/ defendant.
It is the contention of the Ld. Counsel for the defendant that since the defendant had raised a dispute on the basis of clause 5 (X) there were no admissions on which a decree could be passed despite the admission of the creation of the tenancy for a period of 2 years on the basis of the registered lease ded dated 08.11.05. According to the Ld. Counsel for the defendant this clause extended the tenancy period by the period for which the suit premises was rendered unusable. This is challenged by the Ld. Counsel for the plaintiff submitting that the premises were never renderd unusable and there was no question of an extension of tenancy as this clause merely provided for the suspension of rent for the period the premises remained unusable. To better understand this submission this clause is reproduced as under :-
X) If building is sealed or made unusable by authorities i.e. MCD, DDA, FIRE, BSES RAJDHANI POWER LTD., etc. The period for which building is not usable will be excluded from lease period and no rent will be charged or paid for the same period. In addition to that the lessors cannot claim any amount, compensation from the lessors due to loss of business etc. On a plain reading of this clause the valiant attempt made by the Ld. Counsel for the defendant cannot come to the rescue of the defendant. The words used is if the building is sealed or made unusable by authorities ''the period for which the building is not usable will be excluded from the lease period and no rent will be charged or paid for the same period''. These words will clearly indicate that what was agreed between the parties was that out of the two year tenure of the lease deed and the lease, if the premises was sealed or rendered unusable by the authorities for a certain period, that period would be excluded from the lease period and no rent would be charged or paid for that same period. The exclusion of the period from the period of tenancy as well as the suspension of rent is a simulataneous adjunct of the sealing of the buidling by the authorities. The clause does not read that the period for which the building/ premises is rendered unusable will be excluded from the lease period and the period of lease would be extended while rent would not be chargable for the period the building/premises was rendered unusable.
In other words the plain reading of this term of the lease deed does not support the contention of the Ld. Counsel for the defendant that so far as the rent was not to be paid, it referred to the period in which the building remained unusable but the tenure of the tenancy would get extended by such period when the building remained unusable. Nothing prevented the parties to have clearly agreed to such terms particularly in the light of the submission made by the Ld. Counsel for the defendant that this clause had come into being consciously as properties were under threat of sealing and demolition on account of strict enforcement of construction bylaws.
What has been written has to be read as it is without importing other meanings or inferences. Therefore in the absence of the words clearly extending the lease by the very same period for which the premises were rendered unusable on account of acts of the Municipal authorities no such meaning can be imported into the words that the period of lease would exclude such period when the premises could not be used by the defendant.
Thus it is clear that the period of tenancy terminated by efflux of time on 31.08.07 as the lease was specifically for a period of 2 years w.e.f. 01.09.05. The suit was filed on 08.08.06 and at that time the question of proper service of notice of termination was to be pleaded. However, once the tenancy has expired on the basis of efflux of time no notice of termination of tenancy was necessary. Similarly, it has been held in Dunlop India Vs. Sunil Puri and ors. 2001 III AD (Del) 604 that where the lease had been created by a registered document the extension of such a lease had also to be through a registered instrument and in the absence of such a registered instrument a suit for possession cannot resisted. It has been held in Delhi Jal Board Vs. Surinder V Malik 104 (2003) DLT 151 (DB) that mere acceptance of rent could neither renew the tenancy nore create a new one. Thus the fact that the plaintiff has since received the rent pursuant to the orders of Hon'ble High Court dated 14.01.08 would not be a fact that would hinder the excercise of discretion by the Court to enter judgment under Order 12 Rule 6 CPC. The judgments relied upon by the Ld. Counsel for the defendant relate to the exercise of discretion under Order 12 Rule 6 CPC by the Court and the need of having clear, unambigous and unequivivocal admissions on the record before the Court should exercise its discretion under Order 12 Rule 6 CPC. There can be no difference of opinion in the position at law that without clear. unambiguous and unequivivocal admissions no judgment Under Order 12 Rule 6 CPC can be passed. Further the admissions made in the present case are not ambiguous or qualified as the basic document executed between the parties giving rise to thier legal relationship is an admitted document and the terms are also admitted.
At the most there can be a trial to determine whether the premises were rendered unusable as claimed by the defendant or whether the action of the authorities had no impact on the premises specifically let out to the defendant as claimed by the plaintiffs. The question which would constitute a matter of trial would not be the relationship and tenure of tenancy but only the question whether such a period as determined during trial when the premises were rendered unusable could be excluded from the tenancy for the purpose of payment of rent or whether the defendant would be liable to make payment of rent for the entire period during which the tenancy subsisted because the premises were never rendered unusable. There is no reason why the suit in so far as possession is concerned cannot or should not be decreed. It was observed in K. Kishore Construction Vs. Allahabad Bank 1988 RLR 248 case that if the tenancy period expires by efflux of time during trial the Court can consider this new fact to decree the suit under Order 12 Rule 6 CPC.
Thus following the judgment of the Hon'bleHigh Court as referred to hereinabove I am of the considered opinion that the suit can be partly decreed for possession as there are clear, unambiguous and unequvivocal admissions on the record that the lease deed entered into between the parties has terminated by efflux of time w.e.f. 31.01.08 and there being no renewal the plaitniffs are entitled to the possession of the suit property.
Application under Order 12 Rule 6 CPC is accordingly allowed. The suit is partly decreed for possession in respect of ground floor portion bearing private nos. G-27 & G-28 measuring 108 sq. feet each being part of the property bearing no. D-15, situated at New Delhi, South Extension Part II, New Delhi as shown in red colour in the site plan in favour of the plaintiff and against the defendant.
The defendant is directed to hand over the vacant possession of the suit property to the plaintiffs within one month of this order failing which the plaintiffs can execute this decree.
Decree sheet be prepared accordingly.
Announced in the Open Court on
this day of 2nd September 2008 Asha Menon
ADJ/DELHI