Delhi District Court
Amar Subhag Maker vs Lt.Col.R.L.Vashisht on 10 September, 2008
1
IN THE COURT OF DR.SUDHIR KUMAR JAIN, ADDITIONAL
DISTRICT JUDGE, DELHI.
Suit No : 178/07
Amar Subhag Maker ... Plaintiff
Versus
Lt.Col.R.L.Vashisht ... Defendant
ORDER
This order shall decide an application u/O XII Rule 6 CPC r/w section 151 CPC dated 04.04.2008 filed by the plaintiff against the defendant wherein the plaintiff has prayed that decree of possession in respect of the premises bearing no. UG-38, situated at Ansal Chamber-II, 6 Bhikaji Cama Place, New Delhi-110066 measuring about 182 sq.ft.super area (hereinafter referred to as "premises in question") be passed on the basis of admissions made by the defendant in the written statement .
2. Briefly stated the relevant facts of the case are that the 2 plaintiff has filed a suit for possession, recovery of mesne profits and permanent injunction by pleading that the plaintiff has let out the premises in question to the defendant vide unregistered lease deed dated 21.10.2002 at a monthly rent of Rs.7,250/- excluding maintenance charges; initially the rate of rent was Rs.6,500/- w.e.f.21.10.2002 which was later on enhanced to Rs.6,750/- w.e.f.21.10.2003 and lastly @ Rs.7,250/- w.e.f.21.10.2004; the tenancy of the defendant was month to month commencing from Ist day of each English Calendar Month and expiring on the last day of same English Calendar month; the plaintiff has terminated the tenancy vide notice dated 02.05.2007 u/s 106 of the Transfer of Property Act, 1882 whereby the defendant was asked to vacate the premises in question after expiry of 15 days from the date of notice; the defendant has not vacated the premises in question despite notice dated 02.05.2007. Hence, the plaintiff has filed the suit and made the following prayer:--
a) pass a decree of possession in favour of the plaintiff and against the defendant thereby directing the defendant to hand over the physical and vacant 3 possession of the suit property bearing no.UG-38, Ansal Chambers-II, 6 Bhikaji Cama Place, New Delhi- 110066.
b) Direct an enquiry for the ascertaining quantum of damages payable by the defendant to the plaintiff in terms of order 20 Rule 12 CPC.
c) Pass a final decree of damages in favour of the plaintiff and against the defendant after the aforesaid enquiry.
d) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his representatives and/or any other person acting for and on behalf of the defendant from parting with the possession of the suit property to any person other than the plaintiff.
e) Award costs of the suit in favour of the plaintiff.
f) Pass such other or further order(s) which this Hon'ble Court may deem fit and proper in the fitness of the facts and circumstances of the case.
3. The defendant has filed the written statement. The defendant has alleged that the plaintiff has not paid the appropriate court fee as the plaintiff is required to pay the court fee on the market value of the suit property; the plaint is not accompanied by site plan; no valid notice regarding termination of tenancy qua premises in question has been served upon the defendant before the institution of the suit; the suit is liable to be dismissed.
4. The plaintiff in the application under disposal stated that the 4 defendant in the written statement has admitted the relationship of landlord and tenant, rate of rent and service of notice dated 02.05.2007 a such decree of possession be passed in favour of the plaintiff and against the defendant on the basis of admissions.
5. The defendant has filed the reply to the application. The defendant has alleged that after considering the written statement as a whole, there is no admission on the part of the defendant in terms of Order XII Rule 6 CPC; the defendant has alleged triable issues in the written statement; the plaintiff has not paid the court fee as per the market value of the suit property; and the application is liable to be dismissed.
6. Sh.Naresh Gupta, Advocate for the plaintiff and Sh.B.P.Gupta, Advocate for the defendant heard. Record perused.
7. Order XII Rule 6 of the Code of Civil Procedure, 1908 reads as under:
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 5 question between he 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.
8. It was held in case of Raj Kumar Chawla V M/s Lucas Indian Services, AIR 2006 Delhi 266 as under:--
The provisions of Order XII are intended to provide expeditious grant of decree in favour of a plaintiff in a suit or proceedings where the defendant has made any admission in the pleadings or otherwise, orally or in writing of any amount due. The plaintiff would be entitled to a decree on the basis of such admission without waiting for completion of the trial. The provisions of Order XII Rule 6 were incorporated by way of amendment. The legislative object of these provisions is to curtail the period for determination of disputes between the parties to a suit and ensure that a decree on admission is passed without any unnecessary hindrance. The expression 'Admission' has been given a wider meaning and connotation so as to take within its ambit admissions made by a party in pleadings or otherwise, orally or in writing. These provisions thus are capable of liberal construction and without imposition of any unreasonable restriction, must be permitted to operate but the Courts have to be careful while passing a decree on admission. The Court essentially should look into the fact that all essential ingredients of an admission are satisfied before such a decree is passed in favour of any of the 6 parties to the suit. Admission has to be unambiguous, clear and unconditional and the law would not permit admission by inference as it is a matter of fact. Admission of a fact has to be clear from the record itself and cannot be left to the interpretative determination by the Court, unless there was a complete trial and such finding could be on the basis of cogent and appropriate evidence on record. Rule 6 of Order XII certainly enables a party to obtain a speedy judgment fully or partially to which according to the admission of the defendant the plaintiff is entitled to.
9. It was also observed in case of Rajiv Sharma & Anr. V Rajiv Gupta, 2004 (72) DRJ 540 (DB) that the purport of Order XII Rule 6 of CPC is to enable the party to obtain speedy justice to the extent of the relevant admission which, according to the admission of the other party, he is entitled for. Admission on which judgment can be claimed must be clear and unequivocal one and such admission must be either of the entire claim made in the suit or even for a party of the claim for which decree can be passed.
10. i) Relationship of Landlord and Tenant The plaintiff has pleaded that the premises in question was let out to the defendant vide unregistered lease deed dated 21.10.2002 at a monthly rent of Rs.7,250/- per month excluding 7 maintenance charges. The plaintiff further pleaded that the tenancy was month to month basis commencing from Ist day of each English Calendar Month and expiring on the last day of same English Calendar Month.
The defendant has admitted that the defendant has initially taken the premises in question on rent. There is no specific denial by the defendant regarding the relationship of landlord and tenant between the parties in respect of the premises in question. There exists relationship of landlord and tenant between the parties.
ii) Rate of Rent The plaintiff has pleaded that the premises in question was let out to the defendant vide unregistered lease deed dated 21.10.2002 and the defendant has lastly paid rent of Rs.7,250/- per month excluding maintenance charges. The defendant has admitted that the defendant was paying the rent in respect of the premises in question @ Rs.7,250/- per month. The defendant has only disputed liability to pay maintenance or any other charges. Accordingly, rate of rent in respect of the premises in question was Rs.7,250/-per month. 8
iii) Termination of Tenancy Section 106 of Transfer of Property Act, 1882 deals with the duration of certain leases in absence of written contract or local usage. It provides that the lease of immoveable property in the absence of contract between the parties other than the agricultural or manufacturing purposes shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee by 15 days notice. It means that if there is no contract for the creation of tenancy, then the tenancy will become month by month which is terminable by giving 15 days notice. In the present case it is not the case of either of the party that the tenancy was created by virtue of written agreement. There was no written agreement for the creation of tenancy being executed between the parties. It means that the tenancy between the plaintiffs and the defendant was month by month and is liable to be terminable by giving 15 days notice.
11. The plaintiff has stated that lease in respect of the premises in question in favour of the defendant was terminated vide notice dated 02.05.2007 u/s 106 of the Transfer of Property Act, 1882 and the defendant was given 15 days time to vacate the premises in question. 9 The defendant has not vacated the premises in question as such plaintiff has filed the suit. The plaintiff further pleaded that use and occupation of the defendant in respect of the premises in question is illegal, unauthorized and in the capacity of trespasser.
12. The defendant in the written statement alleged that no valid notice regarding the termination of tenancy qua the premises in question has ever been served upon the defendant before the institution of the suit and due to this reason, suit is liable to be dismissed. The defendant has not specifically disputed the service of notice dated 02.05.2007 but only stated that valid notice has not been served upon the defendant before the institution of the suit.
13. Section 106 of the Transfer of Property Act, 1882 does not prescribe any particular form in which notice to quit should be issued. All that the provision stipulates is that every notice must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. The predominance of legal opinion 10 in the country is that the notice to quit should not be interpreted in a way so as to find fault with it. It should be interpreted in a manner so as to ascertain whether the person receiving the notice understood the same.
14. In Bengal Electric Lamp Works Ltd. V Sukhdev Chandra Sinha, AIR 1983 Calcutta 389 the Kolkatta High Court held that a notice to quit must be construed ut res magis valeat quampereat (that an act may avail, rather than perish).
15. There was considerable judicial authority for holding that requirement of Section 106 of the Act is mandatory in so far as the expiry of the notice with the end of the month of the tenancy in cases where the tenancy is a month to month tenancy. That position is now substantially altered by the amendment to Section 106 of Transfer of Property Act Amendment Act No.3 of 2003 after which the provision reads thus :
106. Duration of certain leases in absence of written contractor local usage --
(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, 11 by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section 91) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where the suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section(1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
16. The legislative change is also thus indicative of diluting the requirement of Section 106 making the breach towards validity of the notices more liberal. The notice to quit served upon the defendant was sufficient to terminate the tenancy and that the requirement of Section 106 of Transfer of Property Act, 1882 thus stood satisfied.
17. The defendant has not disputed the service of notice dated 02.05.2007 but only alleged that no valid notice regarding termination 12 of tenancy has been served before the institution of the suit. The notice dated 02.05.2007 is perused. There is no legal infirmity in the notice dated 02.05.2007 and the notice dated 02.05.2007 is in conformity with the provisions of Section 106 of the Transfer of Property Act, 1882.
18. The counsel for the defendant has argued that the plaintiff has not paid the proper court fee on the plaint; service of notice dated 02.05.2007 has not been admitted by the defendant; the lease deed is unregistered; and there are no clear admissions on the part of the defendant as such the application is liable to be dismissed.
19. The argument advanced by the counsel for the defendant are without force and does not stand legal scrutiny. The plaintiff has paid the appropriate court fee and there is no specific denial of service of notice dated 02.05.2007 by the defendant. The plaintiff has admitted that the lease deed dated 21.10.2002 is unregistered and as such plaintiff has pleaded that tenancy is month to month commencing from Ist day of each English Calendar Month and expiring on the last day of same English Calendar Month. The defendant has not disputed all the averments made in the plaint except the validity of notice dated 13 02.05.2007. The arguments as such advanced by the counsel for the defendant are without any basis.
20. There is no dispute regarding the relationship of landlord and tenant between the parties in respect of the premises in question. Rate of rent is more than Rs.3,500/- as such benefit of the Delhi Rent Control Act, 1958 is not available to the defendant. The tenancy of the defendant stand terminated vide notice dated 02.05.2007. The admissions made by the defendant in the written statement are clear, specific, unambiguous regarding the relationship of landlord and tenant, rate of rent and service of notice dated 02.05.2007. The application of the plaintiff u/O XII Rule 6 CPC is allowed. Accordingly, a decree of possession is passed in respect of the premises in question bearing no. UG-38, situated at Ansal Chamber-II, 6 Bhikaji Cama Place, New Delhi-110066 measuring about 182 sq.ft.super area in favour of the plaintiff and against the defendant with proportionate cost. The decree sheet be prepared accordingly. Announced in the open court (Dr.Sudhir Kumar Jain) Dated: 10.09.2008 Additional District Judge, Delhi 14 10.09.2008 Present: Sh.Naresh Gupta, Advocate for the plaintiff.
No further arguments are required.
Put up at 12.00 p.m. for order.
(Dr.Sudhir Kumar Jain) Additional District Judge, Delhi At 12.35 p.m. Present: None for the plaintiff.
Sh. Sukrant Vashishth, Advocate for the defendant. Vide separate order, the application of the plaintiff u/O XII Rule 6 CPC is allowed. Accordingly, a decree of possession is passed in respect of the premises in question bearing no. UG-38, situated at Ansal Chamber-II, 6 Bhikaji Cama Place, New Delhi-110066 15 measuring about 182 sq.ft.super area in favour of the plaintiff and against the defendant with proportionate cost. The decree sheet be prepared accordingly. Put up on 07.01.2009 for replication, documents, admission/denial and issues.
(Dr.Sudhir Kumar Jain) Additional District Judge, Delhi 16