Delhi District Court
Senior Civil Judge-Cum-Rentcoller vs Sh. Deepak Waswani @ Deepak Wigh on 29 January, 2019
IN THE COURT OF NAVEEN K. KASHYAP,
SENIOR CIVIL JUDGE-CUM-RENTCOLLER, NORTH-WEST,
ROHINI COURTS COMPLEX, DELHI.
(Plaintiff is a very senior citizen of about 85 years old)
CS. NO. 862/18
Bansilal Bhatia
S/o. Sh. Ram Dass Bhatia
R/o. A2/616, Tower 7,
Purvanchal Royal Park,
Sector-137, Noida-201305 ......Plaintiff
Versus
Sh. Deepak Waswani @ Deepak Wigh
S/o. Sh. Ashwani Waswani Wigh
R/o. Front side, Ground Floor,
G-121, Ashok Vihar, Phase I,
Delhi-52. ......Defendant
Date of Institution of the case : 08.06.2018
Date of decision : 29.01.2019.
Decision : Suit Partly Decreed.
JUDGMENT UNDER ORDER 12 RULE 6 CPC
1. This is a suit for possession, permanent injunction and
recovery of arrears of rent filed by plaintiff against defendant,
whose tenancy as per the plaintiff stands determined regarding
the suit property i.e. front portion, ground floor, G-121, Ashok
Vihar, Phase I, Delhi-52, as shown in red colour in the site plan
filed with the plaint.
2. In nutshell, it is stated in the plaint that defendant entered
CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 1 of 17
into lease/rent agreement dated 07.10.2014 with the plaintiff
regarding the suit property for three years commencing from
01.11.2014 to 31.10.2017 at monthly rent of @ Rs. 20,000/- per
month excluding electricity and water charges. That it was agreed
that after the expiry of three years, defendant would hand over
the vacant physical possession of the suit property to the plaintiff
and in case both the parties with mutual understanding want to
extend the tenancy period, the same will be done with the
execution of fresh agreement with consent of both the parties. It is
further stated that no further agreement was executed between
parties to extend such tenancy which has come to end on
31.10.2017. A copy of such lease deed is placed on record. That
now plaintiff needs the suit premises for his son who at present is
living on rent in Delhi NCR. That despite request made, defendant
failed to vacate the suit premises.
That in November, 2017, the defendant came to residence
of plaintiff and handed over a cheque of rent amount with 10%
increase which was taken under protest by the plaintiff who was
alone at home. That such cheque was posted back by the plaintiff
to the defendant but thereafter unilaterally the defendant
transferred an amount equal to rent with 10% increase in bank
account of plaintiff at PNB Bank since November, 2017.
As such, the plaintiffs issued a legal notice dated 14.12.2017 to
the defendant through his counsel calling upon the defendant to
vacate the suit property. Although such notice was replied vide
reply dated 06.01.2018. Thereafter, the plaintiff sent a legal notice
U/s. 106 of TP Act dated 30.03.2018. But it is claimed that despite
CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 2 of 17
that the defendant failed to handover the vacant possession
within 15 days of receiving of such notice. Instead thereafter in
the month of April, 2018, defendant alongwith his father contacted
plaintiff to execute a fresh lease/rent agreement but plaintiff
refused the same. Under these circumstances, plaintiff filed the
present suit.
3. Written Statement filed by the defendant on 20.08.2018.
4. After going through such WS, it is argued by counsel for
plaintiff that a judgment on admission be passed, in view of the
pleadings and admission by the defendant side including in such
W.S.
5. I have heard the learned counsel for the plaintiff as well as
the defendant in detail and have carefully gone through the
record. I have further gone through the written arguments filed by
defendant side.
6. At this stage, it would be fruitful to refer to Order XII Rule 6
of the Code of Civil Procedure which provides as under :-
"6. Judgment on admission. - (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 given 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 accor-
dance with the judgment and the decree shall bear
the date on which the judgment was pronounced."
CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 3 of 17
(emphasis added)
7. In the judgment titled as "Charanjit Lal Mehra v. Kamal
Saroj Mahajan" reported as AIR 2005 SUPREME COURT
2765, the Hon'ble Supreme Court held:
2. ".......In fact, Order XII, Rule 6, C.P.C. is
enacted for the purpose of and in order to expedite
the trials if there is any admission on behalf of the
defendants or an admission can be inferred from
the facts and circumstances of the case without
any dispute; then, in such a case in order to
expedite and dispose of the matter such admission
can be acted upon. In the present case, looking at
the terms of lease deed, there can be no two
opinions that the tenancy was joint /composite and
not individual one. Therefore, on these admitted
facts the view taken by learned single Judge of the
High Court appears to be justified. In this
connection, a reference may be made to a decision
of this Court in the case of Uttam Singh Duggal and
Co. Ltd. v. United Bank of India and others,
reported in 2000 (7) SCC 120. Their Lordships
have held as follows:
3. "In the Objects and Reasons set out
while amending Rule 6 of Order 12, CPC it is
stated that 'where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and
to pass a decree on admitted claim. The object of
the Rule is to enable to the party to obtain a
speedy judgment at least to the extent of the relief
to which according to the admission of the
defendant, the plaintiff is entitled."......"
(emphasis added)
8. Adverting to the facts of the present case, on a bare
reading of W.S., the defendant has admitted the landlord tenant
relationship between plaintiff and himself. Further, he admitted
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that the initially rate of rent @ Rs. 20,000/- per month. Further, he
admitted that there was a registered rent agreement between
them in this regard. But it is claimed that on expiry of tenancy on
31.10.2017, plaintiff offered that defendant can continue in the
tenancy that to for an another three years from 01.11.2017 to
31.10.2020.
9. At this stage it is very relevant to note, keep in mind and
follow the directions and observations by three judges bench of
Hon'ble Supreme Court of India in the judgment of " Maria
Margadia Sequeria Vs. Erasmo Jack De Sequeria
(D)"[ decided on 21 March, 2012 in Civil Appeal No-2968 of 2012,
arising out of SLP (C) No. 15382 of 2009]:
".........30. The appellant submitted that for more than two
decades the appellant is without the possession of her own
house despite the fact that she has valid title to the suit
property.
Truth as guiding star in judicial process.
31. In this unfortunate litigation, the Court's serious
endeavour has to be to find out where in fact the truth lies.
The truth should be the guiding star in the entire judicial
process.
32. Truth alone has to be the foundation of justice. The
entire judicial system has been created only to discern and
find out the real truth. Judges at all levels have to seriously
engage themselves in the journey of discovering the truth.
That is their mandate, obligation and bounden duty.
33. Justice system will acquire credibility only when people
will be convinced that justice is based on the foundation of
the truth.
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34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1)
SCC 271, this Court observed that in such a situation a
question that arises for consideration is whether the
presiding officer of a Court should simply sit as a mere
umpire at a contest between two parties and declare at the
end of the combat who has won and who has lost or is there
not any legal duty of his own, independent of the parties, to
take an active role in the proceedings in finding the truth and
administering justice? It is a well accepted and settled
principle that a Court must discharge its statutory functions-
whether discretionary or obligatory-according to law in
dispensing justice because it is the duty of a Court not only
to do justice but also to ensure that justice is being done.
68. In order to do justice, it is necessary to direct the parties
to give all details of pleadings with particulars. Once the title
is prima facie established, it is for the person who is
resisting the title holder's claim to possession to plead
with sufficient particularity on the basis of his claim to
remain in possession and place before the Court all
such documents as in the ordinary course of human
affairs are expected to be there.
Only if the pleadings are sufficient, would an issue be
struck and the matter sent to trial, where the onus will be
on him to prove the averred facts and documents.
69. The person averring a right to continue in possession
shall, as far as possible, give a detailed particularized
specific pleading along with documents to support his
claim and details of subsequent conduct which
establish his possession.
70. It would be imperative that one who claims possession
must give all such details as enumerated hereunder. They
are only illustrative and not exhaustive.
(a) who is or are the owner or owners of
the property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to
possession;
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(e) the date of entry into possession;
(f) how he came into possession - whether
he purchased the property or inherited or got the
same in gift or by any other method;
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how much is
the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist
on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or
otherwise living with him, in what capacity;as
family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might
have extinguished his entitlement to possession or caused
shift therein; and
(k) basis of his claim that not to deliver possession
but continue in possession.
71. Apart from these pleadings, the Court must insist on
documentary proof in support of the pleadings. All those
documents would be relevant which come into existence
after the transfer of title or possession or the encumbrance
as is claimed. While dealing with the civil suits, at the
threshold, the Court must carefully and critically
examine pleadings and documents.
72. The Court will examine the pleadings for specificity as
also the supporting material for sufficiency and then pass
appropriate orders. .
.
.
.
76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 7 of 17 basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence...."
(emphasis added)...............
10. Thus, until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence. Furthermore, it may be repeated that it is held in the judgment of "Charanjit Lal Mehra(supra)" that admission can be inferred from the facts and circumstances of the case without any dispute. And in the facts and circumstances of present case, there is clear cut admissions, as also appears during course of arguments, regarding landlord tenant relationship and rate of rent @ Rs.20,000/- per month. Thus, in order to expedite and dispose of the matter such admission can be acted upon.
11. At this stage it would also be fruitful to refer to Hon'ble Delhi High Court judgment in "Mrs. Kamal Saroj Mahajan vs Mr. Charanjit Lal Mehra And Ors. [113 (2004) DLT 788, 2004 (77) DRJ 82]:
".......5.A bare perusal of Order 12 Rule 6, re-produced above makes it clear that the emphasis is on admission of relevant facts. If the relevant facts have been admitted, the mere fact that the defendants have tried to put their own interpretation to those facts with a view to defeat the claim of the plaintiff would not be a sufficient ground to decline relief under Order 12 Rule 6, CPC. Reference in this connection may be made to some decisions of this Court. In the case of R.N. Sachdeva v. Ram Lal Mahajan Heritable Trust, 1997 III AD (Delhi) 997, it was found on facts CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 8 of 17 that the premises were let out to the defendant, although agreement was ostensibly described as an agreement of collaboration. The defendant admitted the collaboration agreement but contended that the agreement had been extended for indefinite period and therefore plaintiff were not entitled for possession so long as nursing home is being run in the premises. Proper issues had been framed in the case and thereafter the petitioner filed an application under Order
12 Rule 6, CPC. The application was allowed by this Court being of the view that relevant facts have been admitted. It was held that basically it was an agreement of tenancy which stands duly terminated by service of the notice. In another case reported in Atma Ram Properties (P) Ltd. v. Pal Properties (I) Pvt. Ltd., 91 (2001) DLT Page 438, the facts were that the, plaintiff filed a suit for possession of the property bearing No. H-72, Connaught Circus. Defendant Nos. 1 to 3 were tenants of the said property, part of the said property had been sub-let to defendant No. 4. Tenancy was created by a registered lease deed for a fixed term and the lease expired by efflux of time. Defendant Nos. 1 to 3 had sub-let the premises to defendant No. 4 on monthly rent @ Rs. 24701 /-. The tenancy was terminated by notice dated 11.7.97. In the written statement, defendants took the stand that agreed rent between them and the plaintiff was only Rs. 1400/- per month which is below Rs. 3500/-, therefore, the suit is barred under Section 50 of Act. ownership of the plaintiff was also denied. Even service of notice under Section 106, TP Act was denied. After completion of pleadings, plaintiff filed an application under Order 12 Rule 6, CPC which was opposed on the similar grounds. The Court observed that the sale deed executed by previous owners has been acted upon in other proceedings, therefore, passing of decree under Order 12 Rule 6, CPC CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 9 of 17 need not be deferred only for formal proof of sale deed. On the point of termination of tenancy it was held that the lease has expired as it was a fixed term tenancy created by a registered deed. Besides, notice under Section 106, TP Act was duly served. Postal receipt have been placed on record. The plea regarding rent being less than Rs. 3500/- was negated on the strength of the decision of the Supreme Court in the case of P.S. Jain Company Ltd. v. Atma Ram properties (P) Ltd., reported in 65 (1997) DLT 307 (DB), wherein it was held that since the tenant himself had sub-let a part of demised premises @ Rs. 24701/- per month the case is not covered under the provisions of Delhi Rent Control Act. A.K. Sikri, J. repelled the contention of the defendant that the decree under Order 12 Rule 6, CPC should not be passed as the resolution authorising plaintiff's attorney to institute the suit and the notice under Section 106 of the TP Act has to be formally proved. It was observed that once the relevant facts are admitted, there is no need to defer passing of decree under Order 12 Rule 6, CPC if on proper interpretation of relevant documents the petitioner is entitled to the decree. .............."
(emphasis added)..................
12. Thus, in any case if the relevant facts have been admitted, the mere fact that the defendant has tried to put their own interpretation to those facts with a view to defeat the claim of the plaintiff would not be a sufficient ground to decline relief under Order 12 Rule 6, CPC.
13. At this stage, it may be noted that it is argued by counsel for defendant that there is no clear cut admission in as much as it is the stand of the defendant that plaintiff extended the tenancy for a further period of three years and even accepted rent after CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 10 of 17 31.10.2017. But he further stated that plaintiff further showed his unwillingness to execute new rent agreement. On the other hand, it is argued by counsel for plaintiff that defendant has admitted that para 3 on merit of plaint, in his W.S. Further, it is argued that execution of initial rent agreement as well as rate of rent are admitted. As such, it is argued that there is no substance in such submissions by the defendant side.
14. At this stage, thus, it is pertinent to note that it is not the case of the defendant that any fresh lease/rent agreement for three years was in fact executed between the parties. Thus, it would be fruitful here to advert to the settled proposition of law on the point.
15. In this context decision reported as Burmah Shell Oil Distributing vs. Khaja Midhat Noor AIR 1988 SC 1470 can be fruitfully referred.
The facts were as follows: The lessee came in possession of the property in question on 16th Jan. 1958 by a lease deed. The lease was for a period of ten years with a right of renewal for a further period of five years. After the expiry of ten years, no instrument was executed by the parties and the lessee continued to remain in possession of the suit property. The lessor accepted the rent and allowed the lessee to continue. The question was whether the tenancy could be renewed for further five years on oral terms. This is what was observed by Hon'ble Supreme Court :
5. In view of the paragraph 1 of S. 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 11 of 17 registered instrument, the lease shall be deemed to be "lease from month to month". It is clear from the very language of S. 107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right.
6. xxxxxxxxxxxxxxxx
7. It was submitted before the High Court that this was not a case of continuing of old tenancy for a period of five years but in view of the clear provisions of S. 107 which we have noted herein before and in the absence of a registered instrument, it must be held that it was holding over and not continuation of old tenancy for a further period of five years.
That would be the harmonious construction of S. 107 read with S. 116 in the facts of this case. We are of the opinion that the High Court was right that the tenancy was automatically determined on the expiry of ten years which was stipulated in Ext. 4. Thereafter the lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month to month because it was not the case of any party that it was for agricultural purposes.
16. Thus, even if it is presumed for the sake of arguments only that plaintiff "accepted" the rent for few more months(which fact is otherwise vehemently denied by plaintiff), the same of no material consequence. As the categorical stand of plaintiff even during his examination in Court itself is that he already revoked the tenancy in question.
17. It must also be remembered that 'renewal' or 'extension' of CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 12 of 17 a lease is really a fresh lease. In Delhi Development Authority vs. Durga Chand, AIR 1973 SC 2609 it was observed:
A renewal of a lease is really the grant of a fresh lease. It is called a 'renewal' simply because it postulates the existence of a prior lease which generally provided for renewals as of right. In all other respects, it is really a fresh lease.
18. It is thus clear that there could not have been any oral extension of the lease period without execution of a fresh lease deed in this regard. In the facts of the present case, there could not have been any oral extension of the tenancy in view of the ratio in Burmah Shell Oil Distributing (Supra). No fresh lease agreement was executed between the parties and as such there is no merit in the argument of the defendant that the lease was extended for further period of three years. Further, in any case, such arguments for extension of tenancy for three years is not legally sustainable, as even otherwise, any lease deed for residential purpose for three years has to be by registered lease deed only, as per provisions of Registration Act.
19. It is to be noted that a similar contention like this one was advanced in the case of R. M. Mehta v. H. P. F. M. Co. Ltd. AIR 1976 Mad 194 which was rejected by holding as follows:
Therefore, looked at from any point of view, I am of the opinion that once a renewed lease comes within the scope of S. 107 of the Transfer of Property Act, such a lease can be made only by a registered instrument. I am emphasizing that notwithstanding the option conferred on the lessor or the lessee, in the light of the judgment of the Federal Court referred to above, it is a new lease that comes into existence as a result of the exercise of CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 13 of 17 the option for renewal and that too by the bilateral acts of the parties and consequently the new lease is made within the scope of the expression occurring in S. 107 of the Transfer of Property Act and therefore it has to be only by a registered instrument.
To similar effect is decision reported as Hindustan Petroleum Corpn. Ltd. v. Vummidi Kannan, AIR 1992 Mad 190 wherein it was held:
But, a bare exercise of option for renewal could not be of any avail to the defendant, because the law is well settled that a covenant for renewal contained in a lease does not ipso facto extend the tenure or term of the lease, but only entitles the lessee to obtain a fresh lease. If there is a clause for renewal in the original lease, and that clause has been taken advantage of and any option pursuant thereto has been properly exercised it only gives a lever for the lessee to obtain a new lease in accordance with and in due satisfaction of the law governing the making of leases. If to the renewed lease, the requirements of the first part of S. 107 of the Transfer of Property Act are attracted, as obviously are in the present case, no valid lease would come into existence unless the said requirements are satisfied. So far as present case is concerned, even if the defendant is stated to have exercised its option for renewal, which position we have accepted, it has not improved the lot of the defendant to say that there had been a renewed lease, which had ensured in its favour, because admittedly the requirements of Section 107 of the Transfer of Property Act were not satisfied. What is therefore also clear that a bare exercise of option for renewal in a lease deed is of no avail to the defendant because the law is well settled that a covenant for renewal contained in a lease does not ipso facto extend the tenure or term of the lease, but only entitles the lessee to obtain a fresh lease. It only gives a lever for the lessee to obtain a new lease in CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 14 of 17 accordance with and in due satisfaction of the law governing the making of leases. In the present case, such an extension of the lease for any further period could only have been by way of a registered instrument and in the absence thereof, the tenancy of defendant is deemed by implication of law to have been renewed from month to month basis.
In Central Bank of India vs. Rajat Kumar Talpatra 1991 (1) BLJR 426 it was held that renewal of lease is a fresh grant and where renewal of lease is to exceed one year such a deed renewing the lease is compulsorily registrable and non-existence of registered instrument would make the tenancy month to month.
In view of the foregoing discussion, it is manifestly clear that any lease whether it be by way of extension/renewal, for a year or more has to be by way of a registered instrument. By an oral agreement, parties cannot create or extend or renew a yearly lease. If the parties create a lease for a year or more without any registered instrument, the same has to be treated as a month to month tenancy. Therefore, the tenancy of the defendant after expiry of period of tenancy on 31.10.2017 has to be treated by implication of law, in the absence of any deed extending the lease, as month to month.
20. Further, as far as rate of rent is concerned, on the basis of pleadings and admission of defendant it is @ Rs. 20,000/= per month. Consequently, it is held that as such suit premises in question does not fall within the ambit of Delhi Rent Control Act.
CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 15 of 1721. Further, the identity and description of suit premises in question is also admitted by the defendant.
22. Further, the defendant even admitted that he received legal notice in question by which the tenancy of the defendant was terminated and he was asked to handover the vacant physical possession of the suit premises to the plaintiff. In fact, he even replied to the same.
23. On termination of tenancy the status of the defendant in the suit premises has been reduced to that of an unauthorized occupant/ trespasser. The result is that the defendant is liable to hand over the vacant and peaceful possession of the suit premises to the plaintiff. The plaintiff is thus entitled to decree of ejectment in terms of Order XII Rule 6 CPC. Reference may also be made to the judgments titled as Ved Prakash v. Marudhar Services [ 2000 (54) DRJ 654] and Mani Mann v. Ram Dulari [2001 (90) DLT 305]. As such the present suit deserves to be partly decreed. Accordingly, the plea under order XII Rule 6 CPC is allowed.
RELIEF:
24. A decree of possession is passed in favour of the plaintiff and against the defendant, thereby directing the defendant to hand over the vacant physical peaceful possession of the suit premises i.e. suit property i.e front portion, ground floor, G-121, Ashok Vihar, Phase I, Delhi-52, as shown in red colour in the site plan filed with the plaint which is Ex. P-1 today for the purpose of identification.
CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 16 of 1725. The suit is partly decreed in favour of the plaintiff and against the defendant in these terms under order XII Rule 6 CPC. Costs shall be determined at the time of final disposal of the entire suit. Decree sheet be prepared accordingly.
Announced in the open Court NAVEEN NAVEEN Digitally signed by KUMAR on 29th January, 2019 KUMAR KASHYAP Date: 2019.01.30 (This order contains 17 pages) KASHYAP 15:02:39 +0530 (NAVEEN K. KASHYAP) SCJ-Cum- Rent Controller: North-West: Rohini: Delhi CS No. 862/18 Bansilal Bhatia Vs. Deepak Waswani @ Deepak Wigh Page 17 of 17