Delhi High Court
Mercury Travels (India) Ltd & Others vs Shri Mahabir Prasad And Anr on 21 December, 2000
Equivalent citations: 2001IIAD(DELHI)381, 89(2001)DLT440, 2001(58)DRJ781, 2001 A I H C 927, (2001) 58 DRJ 781, (2001) 1 RENCR 328, (2001) 89 DLT 440
Author: Arun Kumar
Bench: Arun Kumar, A.K. Sikri
ORDER Arun Kumar, J.
1. Respondents herein had filed suit for ejectment and for recovery of money and mesne profits against appellant herein. By impugned judgment dated 31st August, 1998 learned Additional District Judge has decreed the suit for recovery of possession of premises known as 2-A, Maharani Bagh, New Delhi also known as A-16, Maharani Bagh, New Delhi on a plot of land measuring 1800 sq.yds. with double storey building with cost. Decree for recovery of Rs.24,000/- and Rs.5,734/- is also passed in favor of the respondents herein. Mesne profits are awarded at the rate of Rs.12,000/-PM from 26th May, 1992 onwards till handing over the possession of the suit property. The decree also injuncts the appellant, its servant, agent and relative from transferring, alienating or parting with possession of the suit property mentioned in the plaint. Direction is also given to handover the vacant and peaceful possession of the property to the respondents within two months from the date of judgment. Appellant is aggrieved against the said judgment and decree and has filed RFA.630/98 against the same. Even respondents herein are not fully satisfied with this decree and they vent their grievance insofar as rate at which mesne profits are decreed. According to their estimation it is too inadequate. Therefore, they have also filed RFA.684/98 in which prayer is made that the mesne profits be awarded to them at the rate of Rs.80,000/-PM. Both these appeals were heard together and are being disposed of by this common judgment.
2. Facts, as they emerge from the pleadings and evidence of both the parties led before the Trial Court, may be stated before embarking upon the legal issues raised.
3. Father of respondent No.1, namely, late Shri Krishna Prasada was the owner of the suit property. The appellant herein approached him in the year 1978 for leasing out the suit property for a period of 10 years. After discussions the suit property was leased out to the appellant for a period of 9 years and 360 days commencing from 1st August, 1978. It is the case of the respondents herein that appellant requested the father of respondent No.1 that appellant was advised by his Income-tax Consultant to prepare two lease deeds in respect of the suit property instead of a single lease deed and, therefore, father of the respondent No.1 was requested by appellant to execute two lease deeds. Rent of the entire premises was agreed to be Rs.6,000/-PM. Accordingly, the suit property was let out in two parts and the lease deed in respect of front unit was executed and registered showing the rent of Rs.4,200/-PM and second lease deed for the rear unit was executed and registered showing rent of Rs.1,800/- PM. It may be mentioned here that one Mr.Netar S.Rana who was working as Executive Director with the appellant company at that time negotiated the deal on behalf of the appellant. After the agreement was reached in between the parties in July, 1978, and before it was formalised by registered Agreement dated 1st August, 1978 Mr. Netar S.Rana wrote letter dated 24th July, 1978 on behalf of the appellant to deceased Krishna Prasada. This letter reads as under:
"I am very happy that finally we have come to a stage where we have been able to draw an agreement for the lease for both the units of your house at 2-A Road, Maharani Bagh, New Delhi.
I wish to give you solemn assurance on my behalf and that of the company that at the end of the tenancy period you will get vacant possession of the entire premises. You may rest assured that there will be no default. I am going to construct my own bungalow which should be ready before the lease period of this agreement expires and I shall be moving into it".
4. It may be also mentioned at this stage that along with the registered Lease Agreements, the aforesaid letter dated 24th July, 1978 (Ex.DW1/X-4) was also registered. Thereafter, late Shri Krishna Prasada wrote letter dated 28th July, 1978 to Shri Netar S. Rana (Ex.PW1/3) stating as under:
"In regard to letting of my bungalow No.2-A Road, Maharani Bagh, New Delhi to M/s.Mercury Travels (I)Ltd., you have agreed that the rent will be Rs.6,000/-(rupees six thousand only) per month exclusive of Municipal Corporation rates, taxes, ground rent and maintenance charges due to the Maharanibagh House Building Cooperative Society.
Since the bungalow consists of two units, you have suggested that two separate rent deeds be executed and that the apportionment of the amount of rent be as follows:
For the Rear Unit :Rs.1800/-p.m. For the Front Unit :Rs.4200/-p.m. Since the apportionment is readily an internal concern of the Co. and is not material to me so long as I receive a total amount of rupees six thousand only as rent in my hands every month, I have no objection to the acceptance of the suggestion re-apportionment. Nor have I to the execution of the separate rent deeds".
5. In this background two Lease Deeds, both dated 1st August, 1978 were executed and registered as such. Reference to letter dated 24th July, 1978 finds mention in para-8 of both the lease deeds. Both the Lease Deeds were registered with the Sub-Registrar, Delhi on 21st August, 1978 and the period of these deeds expired with the close of 26th July, 1988. No further agreements were executed between the parties. It would also be relevant to mention here that there is a clause in both the lease deeds that appellant shall be entitled to sub-let the demised premises to anybody with prior consent which will not be withheld unreasonably.
6. The rear unit was occupied by Shri Netar S.Rana and front unit was let out by the appellant to M/s.Kusum Sahni Pvt.Ltd.(hereinafter to be referred as 'sub-tenant' for short) vide sub-lease executed on 1st February, 1979. There is a dispute as to whether this sub-letting was done by the appellant with the consent of late Shri Krishna Prasada. While the appellant maintained that it was with the consent of late Shri Krishna Prasada, respondents are disputing this fact. This aspect would be dealt with at the appropriate stage.
7. Shri Krishna Prasada died on 13th March, 1982. After his death the appellant started paying rent to the respondents. There are other legal heirs of late Shri Krishna Prasada as well. However, respondents claim that by will dated 28th January, 1982 late Shri Krishna Prasada bequeathed the suit property to both the respondents and therefore they have become the owners of the Suit property.
8. Objecting to the sub-letting of front unit by the appellant to Sub-tenant, respondent No.1 sent legal notice dated 12th August, 1987 to the appellant stating that since the appellant had let out the front unit of the premises unauthorisedly and without requisite consent, the appellant was liable to be evicted from the said premises i.e. front unit. Thereafter, on the basis of this legal notice dated 12th August, 1987, respondent No.1 filed eviction petition being E-301/87 before the Rent Controller, Delhi with respect to the front unit seeking eviction on the ground of sub-letting of the premises to sub-tenant who was earlier arrayed as Respondent No.2 in the eviction petition. On 14th December, 1988 when this petition was listed, question of its maintainability was raised in view of amendment in Delhi Rent Control Act w.e.f.1st December, 1988. Case was adjourned to 11th January, 1989 after counsel for respondent No.1 sought time to study the matter further. On 11th January, 1989 respondent No.1 (petitioner in that petition) made a statement that he wanted to withdraw the case and on his statement the said eviction petition was dismissed as withdrawn. Respondent No.1 thereafter filed suit for possession being Suit No.56/89 (subsequently registered as Suit No.352/90) before the Additional District Judge, Delhi on the ground of sub-letting. In the suit appellant was arrayed as defendant No.1 and Kusum Sahni Pvt.Ltd./sub-tenant as defendant No.2. This suit was also withdrawn on 25th January, 1992 with liberty to file a fresh one.
9. Now the foundation for the suit, out of which the present appeals are filed, starts. The respondents served notice dated 3rd April, 1992 upon the appellant terminating the tenancy. This notice was served under Section 106 of the Transfer of Property Act. In the notice two units are treated to be under one tenancy with rent of Rs.6,000/-PM. Notice is served on behalf of respondents 1 and 2. Appellant replied to the said notice through its counsel vide reply dated April 9, 1992 disputing the averment made in notice dated 3rd April, 1992 and stating, inter alia, that two distinct and separate tenancies could not be clubbed together or terminated in the manner done and that too by a single notice. Since appellant had lodged his protest to notice dated 3rd April, 1992 and instead of vacating the premises as demanded by the respondents vide notice dated 3rd April, 1992, disputed the claim of the respondents by reply dated April 9, 1992, respondents filed suit for possession and recovery of money and mesne profits. On notice being served of this suit upon the appellant, appellant filed its written statement taking various objections. Replication was filed by the respondents. On the basis of pleadings of the parties, certain issues were framed. However, as these issues did not cover the entire gamut of dispute, additional issues were framed on 15th March, 1996. Following are the issues framed by the Trial Court:
i. Whether this court got no jurisdiction to try the present suit as barred by D.R.C.Act?OPD.
ii. Whether the present suit is liable to be dismissed on account of non-joinder of necessary partios? OPD.
iii. Whether the present suit is bad for misjoinder of cause of action? OPD.
iv. Whether the suit is bad on the account of supersession of material facts? OPD.
v. Whether the plaintiff is entitled for the decree of possession of the suit property? OPP.
vi. Whether the plaintiff is entitled for the recovery of Rs.24,000/- along with interest at the rate of 18% P.A.? OPP.
vii. Whether the plaintiff is entitled for the permanent injunction as prayed for? OPP.
viii. Whether the plaintiff is entitled for the damages for the use and occupation charges of the suit property. if so at what rate and what amount? OPP.
ix. Whether the plaintiff is entitled for the recovery of sum of Rs.5734/- along with the interest with effect from 31st March, 1992? OPP.
Additional Issue:-
x. Whether there is a valid subletting with the consent of the landlord in the premises in dispute, which is based on para 5 of the preliminary objection of the defendant? OPD.
xi. Whether no valid notice was served upon the defendant, which is based upon para 3 of the preliminary objection? OPD.
xii. Whether there are two separate tenancies existing in the premises in dispute? OPD.
xiii. Relief.
10. During the pendency of the suit, two daughters of Govind Prasada son of late Shri Krishna Prasada, namely, Gita Chatterji and Jagriti Gaur filed applications under Order 1 Rule 10 CPC for impleading them as 'parties and claiming themselves to be legal heirs of late Shri Krishna Prasada and co-owner of the suit property. This was, however, dismissed by the learned Additional District Judge vide order dated 5th August, 1997. Similar attempt was made in this appeal. That application was also rejected. It may be mentioned at this stage that there are certain proceedings pending between the respondents herein and other legal heirs of late Shri Krishna Prasada in respect of estate of late Shri Krishna Prasada.
11. During the pendency of this suit even appellant filed Suit No.661/94 against sub-tenant of Kusum Sahni Pvt.Ltd. with respect to the front unit. The said suit is pending adjudication in this Court.
12. Insofar as the present suit is concerned, after framing the issues, matter went on for trial. Evidence on behalf of both the parties was recorded. Respondent No.1 appeared as PW-1. Three more witnesses were examined on behalf of respondents as PW-2 to PW-4. Shri Netar S.Rana appeared as appellant's witness. After hearing the arguments, impugned judgment and decree was passed by the learned Additional District Judge and terms of the said judgment and decree have already been stated in the beginning. By the impugned judgment and decree the learned Trial Court has held that both the units were let out to the appellant by way of one single tenancy, rent of which was Rs.6,000/- per month and, therefore, the Civil Court has the jurisdiction to try the suit. The suit was not barred by the provisions of Delhi Rent Control Act. The sub-letting of the part premises (front unit) to Sub-tenant was not with the consent of the landlord; that valid notice was served upon the appellant terminating the tenancy and the respondents were entitled to decree for possession of the suit property. Money decree as well as decree for mesne profits and permanent injunction was also passed deciding those issues in favor of the respondents herein.
13. Before us matter was argued exhaustively by counsel on the either side. Relevant pleadings and evidence were extensively read. Number of judgments in support of respective submissions were cited and relied upon by both the parties. We have given our anxious thought to the arguments advanced by both the parties and have also gone through and considered the material on record. It may not be necessary to deal with the case in this appeal issuewise. However, for convenience and better appreciation the areas of controversy can be compartmentalized in the following manner:
1. Re: Two separate tenancies.
2. Re: Right/locus standi of the respondents to file the suit.
3. Re: Validity of the notice.
4. Re: Sub-letting of the premises.
5. Re: Quantum of mesne profits.
No.1 Two Tenancies or one composite tenancy?
14. Deciding this point the learned Trial Court has taken issues No.1 and 12 together as they are inter-connected. In holding that the entire premises were subject matter of one tenancy for which rent was fixed at Rs.6,000/-PM and two lease deeds were executed for the sake of convenience of the appellant and rather as per the desire of the appellant, the learned Trial Court has relied upon letter dated 24th July, 1978 (Ex.DW1/X-4) written by Mr.Netar S.Rana on behalf of the appellant to late Shri Krishna Prasada which was made part of both the lease Deeds and also finds mention in para-8 of both these Deeds. In this letter it is stated by Shri Netar S.Rana that parties have been able to draw "an agreement" for the lease for both the units and assurance is given by Shri Netar S.Rana for himself and on behalf of his company to handover vacant possession of entire premises at the end of tenancy period. Conclusion is substantiated by placing reliance also on the letter dated 28th July, 1978 written by Krishna Prasada to Mr.Netar S.Rana which unambiguously states that letting is in respect of the entire bungalow for which rent is Rs.6,000/-PM exclusive of Municipal Corporation rates, taxes, ground rent and maintenance charges due to the Maharani Bagh House Building Cooperative Society. It further states that it is the appellant who has suggested two separate rent deeds and the apportionment, of the amount of rent of Rs.1,800/-PM for the rear unit and Rs.4,200/- for the front unit and that Shri Krishna Prasada was agreeing for this apportionment which was an internal concern of the appellant and was not material to him, so long as he was receiving total amount of Rs.6,000/-PM as rent in his hands every month. From this learned Trial Court concluded that intention was to create single tenancy in respect of the suit premises.
15. Mr.A.S.Chandhiok learned Senior Counsel appearing on behalf of the appellant submitted that the suit premises consist of two units which are complete in themselves and are independant of each other. These are two dwelling units and were let out to the appellant by two separate lease deeds, both registered. Thus with two lease deeds in respect of two different units/portions, two tenancies came to be created. Terms of one lease deed were not to be read into other nor they were inter-connected or inter-woven in any manner. They were not dependant on each other in order to exist and two separate families were residing in two units from beginning. In fact, it was submitted, right to sub-let was given in both the lease deeds, precisely for this, purpose as the appellant did not require both the units for its employee, namely, Mr. Netar S.Rana. That is why, according to appellant, the front unit was sub-let to sub-tenant with the permission of the landlord late Krishna Prasada.
16. It was further submitted that the respondents were giving false explanation for creation of two tenancies as there was no benefit to the appellant under the provisions of Income-tax Act for making such arrangement. On the other hand the explanation given by the appellant that the appellant did not require the entire premises and that is why two tenancies were created with permission to sub-let to enable the appellant to sub-let the portion was more probable and should be believed.
17. Towing this line of argument further, it was also contended that even the respondents understood that the premises were subject matter of two separate tenancies and acted as such. This could be seen from the legal notice dated 12th August, 1987 served by respondent No.1 through his counsel Mr.Kanwal Narain, Advocate claiming that appellant had sub-let the premises, namely, front unit to sub-tenant and, therefore, appellant was liable to be evicted from the said premises, namely, front unit. Had there been one tenancy, even for part sub-letting/parting of part possession the respondents would have sought eviction from the entire premises. Even the eviction petition which was filed related to front unit only on the ground of sub-letting and the sub-tenant was made party in this eviction petition. Even after withdrawing this eviction petition, Civil Suit for ejectment was filed in respect of front unit only on the ground of illegal sub-letting of the premises in which again Sub-tenant was imp leaded as defendant No.2. That suit was also withdrawn with permission to file a fresh suit and the reason stated in the application for withdrawal was that copy of the notice terminating tenancy and postal acknowledgement thereof had been misplaced and in the absence of these documents suit would fail. Therefore, according to the appellant, up to this stage even the respondents treated the premises to be under two different tenancies. It was also argued that from very beginning rent was paid by means of two separate cheques one in the sum of Rs.4,200/- in respect of front unit and other for Rs.1,800/- in respect of rear unit.
18. Challenging the findings recorded by the learned Trial Court in the impugned judgment, it was argued that reliance was wrongly placed on the letters which were exchanged between late Shri Krishna Prasada and Shri Netar S.Rana and these letters could not have been looked into at all for the purpose of determining the question of singularity or plurality of premises. It was submitted that insofar as letter dated 24th July, 1978 of Shri Netar S.Rana is concerned, it was a personal undertaking of Shri Netar S.Rana given to late Shri Krishna Prasada and therefore, it cannot be of any consequence. Similarly, letter dated 28th July, 1978 Ex.PW-1/3 had no relevance in view of the fact that ultimately two registered lease deeds both dated 1st August, 1978 were executed between the parties and whatever correspondence was exchanged between the parties prior to the execution of the lease deeds was not of any consequence. Once the agreement is concluded which is in writing and by means of registered lease deed, it is the lease deed which is only to be seen and not the pre-contract correspondence exchanged prior to agreement. Moreover, if letter dated 24th July, 1978 could form part of lease deed why letter dated 28th July, 1978 was not made part of the lease deed and it was, according to the appellant's counsel, significant and deliberate omission. It was also argued that the reference, if at all, can be made to pre-contract correspondence only to interpret any term of the contract if otherwise ambiguous or doubtful. However, if the written document is clear and explicit, such correspondence cannot be looked into. It was also submitted that letter dated 28th July, 1978 was not even put to the defense witness in cross-examination and, therefore, there was no question for the defense witness to explain the said letter. Once these letters are excluded, findings of the learned Trial Court would be based on no evidence. It was also submitted that issue regarding tenancy was in fact wrongly framed and onus to prove that there was one tenancy was on the respondents. In any case, after leading evidence by both the parties, the question of onus falls into the pale of insignificance. The appellant had discharged the onus by proving on record two separate lease deeds in respect of two units, both duly registered.
19. Refuting the aforesaid arguments of the appellant, Mr.Sandeep Sethi, learned counsel appearing on behalf of respondents submitted that the appellant had tried to set up entirely a new case in the appeal and in fact written statement filed by the appellant in the Trial Court does not contain these defenses which were sought to be raised or argued now. This submission of his was not confined to the aspect of one tenancy. In reply to other submissions of counsel for the appellant same argument was advanced. For this purpose the learned counsel referred to the entire pleadings, namely, the plaint and reply thereto by the appellant by way of written statement. In fact the respondents went on to the extent of submitting that appellant was dishonest litigant and the appeal was an abuse of the process of law. The details of this submission would be referred to and dealt with at the appropriate stage. Coming to the point in issue, it was submitted that the respondents had set up a specific case that appellant had approached the respondents for taking up the premises in question and that it was on the appellant's request that two lease deeds be executed giving the reason of benefit to appellant under the Income-tax Act. Specific averments to this effect were made in paras 3 to 8 in plaint which were not denied by the appellant in the written statement. It was further submitted that in fact there was income-tax benefit to the appellant by getting two lease deeds executed. Admittedly, the two portions i.e. front unit and rear unit were identical in all respects and when that was so, why the appellant insisted on the rent of the two units which was substantially different from each other. According to the respondents by showing the rear portion at Rs.1,800/- only which was to be occupied by Shri Netar S.Rana an employee of the appellant, he was getting advantage of paying less income-tax as the rent was to be added, as perquisites, to his salary as being given by the appellant company. Therefore, the rent for this portion was shown as very less as compared to rental of other portion. Moreover, by letting out the other portion for which the rent was shown to be much higher i.e. Rs.4,200/-, even the company was benefited, inasmuch as the income of the company from letting out the front portion would be the rent received from the sub-tenant minus the rent paid. It was submitted that otherwise if there was intention to create two tenancies, appellant would not have suggested such varying rent for two premises and it should have been Rs.3,000/- for each portion as two units were identical in all respects. Thus on the one hand there was advantage accruing to the appellant and its employee Shri Netar S.Rana and on the other hand landlord did not derive any benefit from this arrangement. It was for this reason that the landlord had written letter dated 28th July, 1978 (Ex.PW 1/3) clearly stating that the tenancy would be treated as one and bifurcation of the rent and execution of two deeds was an internal arrangement of the appellant company. So long as it was one tenancy for which landlord was receiving Rs.6,000/-PM as monthly rent, the landlord had no objection to such an arrangement. According to the counsel this letter in fact clinches the issue. It was further submitted that the agrument now advanced by the appellant, viz, there were two separate independent units and both were habitable and independent of each other and letters in question were only at negotiating stage and cannot be looked into, were not at all pleaded which can be seen from the written statement. All these are questions of fact and had there been a proper pleading, respondents would have explained these aspect in their evidence. Respondents cannot be taken by surprise, when no such argument was raised even before the Trial Court.
20. He further submitted that letters dated 24th July, 1978 and 28th July, 1978 clearly show that it was "one agreement" which was incorporated in two documents. Letter dated 24th July, 1978 clearly mentions that the agreement was arrived at between the parties and refers to one agreement. It is this agreement which was arrived at earlier in point of time and execution of lease deeds in respect thereof later on 1st August, 1978 was a mere formality. Even letter dated 19th August, 1978 Ex.DW1/X2(at Page-737 Lower Court record) speaks of one agreement. His further submission was that reading of Section 107 of Transfer of Property Act would make it clear that one agreement can be incorporated in more than one document.
21. It was also submitted that there was no plea that rent of the two premises was paid separately nor appellant led any evidence to this effect. Further the appellant had suo motu filed many documents subsequently after framing of issues, contrary to the provision of Order 13 CPC as there was no order of the Court permitting appellant to file these documents. Moreover 4 out of 5 documents in any case were photocopies of the original and original documents were not filed and, therefore, could not have been seen. It is for this reason that at the time of recording of evidence the respondents herein had taken objection regarding admissibility of the documents which was noted by the learned Trial Judge and, therefore, learned Trial Judge rightly did not rely upon and refered to these documents in his judgment.
22. Insofar as giving of earlier notice dated 12th August, 1987 by Shri Kanwal Narain, advocate and filing of eviction petition under Section 14(1)(b) of the Delhi Rent Control Act and thereafter ejectment suit in respect of front portion only, the learned counsel tried to explain that it was mistake on the part of their counsel and such mistake cannot haunt the respondents even when after Realizing earlier mistake present suit was properly filed setting up the plea of one agreement and terminating tenancy by notice dated 3rd April, 1992 given under Section 106 of the Transfer of Property Act before filing the present suit. It was submitted that question as to whether there was one agreement and one tenancy as contended by the respondents or there were two tenancies in the form of two lease deeds executed between the parties was a legal question to be answered on the basis of pleadings and evidence led in the case and it was not proper for the appellant to rely upon earlier notice or petition filed by respondent No.1 and take advantage of the mistake committed by respondents' counsel at that time.
23. Concluding the submission on this aspect it was submitted that purposive interpretation be given to the contract in question. Agreement was clearly with the object of payment of Rs.6,000/- as rent to the landlord. It is not an object of the Delhi Rent Control Act that person like the appellant should be given protection of such an act as it does not require any protection. In fact Delhi Rent Control Act was amended specifically for this purpose so that those tenants who have the paying capacity should not be given any protection of the Delhi Rent Control Act and the vires of the amendment were upheld by this Court as well as Supreme Court. Reliance was placed on the judgment of Supreme Court in the case of D.C.Bhatia and others Vs. Union of India and another reported in 56(1994)DLT 324 as quoted by the learned Trial Court also.
24. Admittedly, two lease deeds were executed and got registered in respect of two portions of the premises in question. First question which needs to be determined is as to whether the execution of two lease deeds would lead to inevitable and necessary conclusion that two tenancies were created? Further discussion on this aspect would depend on the outcome of this question. For answering this question one may refer to Section 107 of the Transfer of Property Act, 1882 which stipulates as to how leases are made. The operative portion of this Section reads as under:
"Section-107. Leases how made. .....Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one each such instrument shall be executed by both the Lesser and the lessee:...".
25. This section gives an indication that a lease of immovable property can be made by more than one instrument. It is also an accepted position that a contract may be incorporated in more than one instrument (REFER - TREITEL ON 'THE LAW OF CONTRACT' NINTH EDITION, 1995, PAGE-175-176) : (CHITTY ON CONTRACTS, TWENTY-SEVENTH EDITION, PAGE-588) : (CORPUS Jurisdiction SECUNDUM. VOL.51C, PAGES-540 TO 544 AND 609 TO 611) : (THE INTERPRETATION OF CONTRACTS, SECOND EDITION BY KIM LEWISON, Q.C. PAGES-25 TO 29).
26. In CHITTY ON CONTRACTS (supra), it is observed that where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to the case as if they were one deed. Similarly, KIM LEWISON, O.C. IN THE INTERPRETATION OF CONTRACTS (supra) has observed that a document executed contemporaneously with, or shortly after the primary document to be construed may be relied upon as an aid to construction, if it forms part of the same transaction as the primary document.
27. Many transactions take place by the entry into a series of contracts, for example a sale of land involving an exchange of identical contracts, a sale and lease-back of property; an agreement of sale and a bill of sale and so on. In such cases, where the transaction is in truth one transaction all the contracts may be read together for the purpose of determining their legal effect. In Smith v. Chadwick, Jessel M.R. said:
"...when documents are actually contemporaneous, that is two deeds executed at the same moment,... or within so short an interval that having regard to the nature of the transaction the Court comes to the conclusion that the series of deeds represents a single transaction between the same parties, it is then that they are treated as one deed; and of course one deed between the same parties may be read to show the meaning of a sentence and may be equally read, although not contained in one deed but in several parchments, if all the parchments together in the view of the Court make up one document for this purpose."
28. The rationale behind this principle was explained by Fletcher Moulton L.J. in Manks V.Whiteley as follows:
"...where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the others being executed also and is intended to spea only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole. It is not open to third parties to treat each one of them as a deed representing a separate and independent transaction for the purpose of claiming rights which would only accrue to them if the transaction represented by the selected deed was operative separately. In other words, the principles of equity deal with the substance of things, which in such a case is the whole transaction, and not with unrealities such as the hypothetical operation of one of the deeds by itself without the others"
29. Similarly, in Toyota (G.B.) Ltd. v. Legal & General Assurance (Pensions Management) Ltd.[1989] 2 E.G.I.R. 123 it is observed that a landlord granted to a tenant a lease for a term of 16 years, and a reversionary lease for a term of 34 years immediately following. The lease contained a rent review clause. It was held that for the purpose of interpreting the rent review clause, regard could be had to the fact that the two leases were executed as part of a single transaction.
30. From the aforesaid material one can conclude that merely because there are two lease deeds in respect of the premises, it will not necessarily follow that intention was to create two tenancies. Even for creating one tenancy, in a given case, two lease deeds can be executed. Therefore, we have to examine as to what was the intention of the parties in the case in hand. For ascertaining this intention one can look into the documents exchanged between the parties prior to execution of lease deeds. Letter dated 24th July, 1978 (EX.DW1/X-4) written by Shri Netar S.Rana on behalf of the appellant clearly uses the expression that the parties had been able to draw "an agreement" for the lease for both the units of the house in question. By this letter Shri Rana has given further assurance on behalf of himself and that of the company that at the end of the tenancy period landlord shall get vacant possession of the entire premise. Significantly this letter was made part of both the lease deeds and was registered along with both these deeds. This gives an impression that it was one agreement which was arrived at between the parties. Further letter dated 28th July, 1978 (Ex.PW1/3) expresses the intention of parties beyond doubt. This letter very clearly states that the agreement of lease is in respect of the entire bungalow No. 2A Road Maharani Bagh, New Delhi to be given to the appellant for a rent of Rs.6,000/- and only on the suggestion of the appellant that two separate rent deeds are executed and the rent apportioned in the manner as desired by the appellant. It further in no uncertain terms states that the apportionment is an internal concern of the appellant and landlord had no objection to the acceptance of suggestion of apportionment or execution of two rent deeds so long as he is receiving Rs.6,000/- as rent. This clearly shows that agreement was to let out the entire premises for a rent of Rs.6,000/- and the intention was to create one tenancy. Two separate rent deeds were executed only because appellant had suggested it to be so and not because there was any intention to create two tenancies. Otherwise the rent of the two premises should have been Rs.3000/- for each portion or even if the rent of front unit is treated to be higher, then that should have been marginally higher than the rear unit. By no stretch of imagination two tenancies could be created with separate agreements having such a substantial difference in the rent, namely, Rs.4,200/ PM for one unit and Rs.1,800/- for another unit thereby making rent of one unit almost two and a half times than the rent of the other unit. Not only this both the lease deeds are executed on same day i.e. 1st August, 1978 and also registered on 21st August, 1978. Therefore, these are contemporaneously documents evidencing one tenancy agreement. There is yet another letter dated August 19, 1978(EX.DW1/X-2) which points out to the same direction. This is a letter written by Mr. P.K.Ghosh, Manager of appellant and is addressed to the landlord. In this letter Mr. P.K. Ghosh is mentioning that through Power of Attorney he is empowered to sign on behalf of the appellant the "rent deed agreement" in respect of property in question and further mentions that "this agreement" will be ratified by the Board of Directors, if considered necessary. Thus even in this letter written after 1st August, 1978 and before the Registration of two lease deeds, reference is to one agreement for which two lease deeds were executed.
31. We are not convinced by the arguments of the counsel for the appellant that the aforesaid letters written prior to the execution of lease deeds dated 1st August, 1978 cannot be seen to interpret the documents. In fact by undertaking this exercise, we are not interpreting any clause of the lease deeds in question. What is being examined is as to whether intention was to create two tenancies in respect of two portions or it was one tenancy evidenced by two lease deeds. To ascertain such an intention, these letters can be looked into.
32. Insofar as act of the respondent No.1 in getting legal notice dated 12th August, 1987 served upon the appellant followed by eviction petition under Section 14(1)(b) of the Delhi Rent Control Act and thereafter by ejectment suit in respect of front unit only, we are inclined to agree with the submission of the respondents that if counsel for the respondents at that time committed mistake in understanding the nature of the agreement that would not bind the respondents as the question whether there is one tenancy or two tenancies is a legal question to be decided on the basis of the facts prevailing in this case. In fact if the appellant wants to bind the respondents by such an act then even the appellant is sailing in the same boat. It is a matter of record that appellant has filed suit against sub-tenant and in para-2 of the plaint appellant has stated as under:
"In June 1978 the plaintiff had taken on rent the property No.2-A, Maharani Bagh, New Delhi comprising a plot of land admeasuring approx. 1,800 sq. yds. and Double storeyed buildings including the main House Blocks and Garage/Servant Quarter Blocks for a period of approx. 10 years. The plaintiff had taken the said property from one late Shri Krishna Prasad for a period of 9 years and 360 days w.e.f. 1.8.78. Since the said property consists of two dwelling units, two lease deeds were executed between the plaintiff and Shri Krishna Prasad for a total rent of Rs.6,000/- for the said property be apportioned as follows:-
i) Front Unit - Rs.4,200/-p.m.
ii)Rear Unit - Rs.1,800/-p.m. But the said lease deed had a clause authorising the plaintiff to sublet the premises."
33. Thus in this suit filed by the appellant against Sub-tenant, it is the case of the appellant that there was one tenancy for which total rent payable was Rs.6,000/- and two lease deeds were executed only because it consisted of two dwelling units. Therefore, we have considered the question also by ignoring the acts of respondents in serving earlier notices and filing of earlier petitions as well as the act of appellant in filing the aforesaid suits and have examined the matter independent of all such acts and have tried to ascertain the nature of transaction from the documents of the relevant period when the lease deeds were executed and discussed the same at length above.
34. It is not necessary to go into the aspect as to whether the reason behind execution of two lease deeds was that appellant wanted benefit under the provisions of Income-tax Act or not. As independent of that, it is proved on record that intention was to create one tenancy of the entire premises with Rs.6,000/ as rent. However, the benefit under the Income-tax Act may provide motive for doing so insofar as appellant is concerned. It is not necessary to deal with the aspect in more detail inasmuch as letter dated 28th July, 1978, which is not in dispute, clearly shows that it was the request of the appellant to have two lease deeds in respect of the agreement in question.
No.2. Right/locus standi of respondents to file the suit
35. This point covers different facets and some of issues framed. It was the contention of the appellant that the respondents were not the only legal heirs of late Shri Krishna Prasada, there were other legal heirs also. There was litigation among the legal heirs and suit is pending in this Court. The will of late Shri Krishna Prasada which was projected by the respondents as per which suit property was bequeathed by late Shri Krishna Prasada in favor of the respondents and on the basis of which suit for ejectment was filed, was challenged by other legal heirs and, therefore, the suit filed by the respondents claiming themselves to be the owners of the suit property was not maintainable.
36. It was also submitted that the suit filed by the respondents without impleading M/s.Kusum Sahni Pvt. Ltd./sub-tenant as a party which according to the appellant was inducted as sub-tenant with the consent of late Shri Krishna Prasada the landlord, was not maintainable and bad for non-joinder of parties. Mis-joinder of causes of action was also alleged on the grounds that when there were two units leased to the appellant by two different agreements, one suit to evict the appellant from both the units was bad for joinder of two different causes of action and in support of this reliance was placed on the judgment of Ram Chandra Vs. Judge, Small Cause Court and others 1984 All.L.J. 143. It was submitted that the learned Trial Court had taken issue No.3 and 5 together and there was no discussion on Issue No.3 at all which related to this aspect.
37. Learned counsel for the appellant made reference to the judgments of the Supreme Court and various High Courts in the cases of Ratanlal Bansilal and others Vs. Kishorilal Goenka and others , Santilal Dulichand Shah Vs. Ramesh Chandra Guzrati , Mrs. Hem Nolini Judah Vs. Mrs. Isolyne Sarojbashini Bose and others , M/s.Parekh Brothers Vs. Kartick Chandra Saha and others , Nanalal Girdharlal and another Vs. Gulamnabi Jamalbhai Motorwala and others and Bali Ram Vs. Smt.Sunehru and another .
38. We do not find any force in any of these arguments. After the death of late Krishna Prasada,the appellant atoned in favor of Mahabir Prasada, Respondent No.1 and started paying rent to him. The appellant, therefore, accepted the respondents as its landlord. Therefore, the respondents filed the suit for possession and mesne profit against the appellant. Moreover, the respondents also pleaded that late Shri Krishna Prasada had executed the will in their favor as per which property in question stands bequeathed in their names. Merely because there is some litigation going on between the respondents and other legal heirs of late Shri Krishna Prasada, that does not mean that respondents would be precluded from filing ejectment suit till the litigation among the legal heirs of late Shri Krishna Prasada is given quietus. The contention of the appellant was that all legal heirs should have filed the suit against the appellant, at the same time accepting that there were disputes among them and therefore, the legal heirs being at loggerheads could not have filed one suit for ejectment against the appellant. This argument of the appellant was, therefore, self-serving argument in order to defeat the legitimate right of the respondents to file the suit for possession against the appellant. Admittedly when there is an admitted relationship of landlord and tenant between the appellant and respondents. It is that relationship between these parties which is determinative factor for deciding the locusstandi of the respondents to file suit against the appellant and appellant cannot bank upon or take advantage of any such litigation between respondents and other legal heirs of late Krishna Prasada.
39. Insofar as non-impleadment of sub-tenant is concerned, we are of the opinion that there was no such necessity to implead said M/s. Kusum Sahni Pvt.Ltd. a sub-tenant as a party. First of all, our findings are that sub-tenant is not inducted with the consent of the landlord and this aspect is dealt with in greater detail while discussing point No.4. Moreover, even otherwise it is not necessary to implead sub-tenant as it is not a necessary party to suit for ejectment/eviction. Law in this respect stands settled by series of judgments of the Apex Court and it would be suffice to refer to the following judgments:
1. Messrs. Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala and others .
2. Burmah shell oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and others JT 1988 (2) 429.
3. Rupchand Gupta Vs. Raghuvanshi (Private) Ltd. and another .
40. Insofar as the arguments of misjoinder of causes of action is concerned, this flows from the basic argument of the appellant that there were two tenancies created by two lease deeds dated 1st August, 1978. Once we have held that learned Trial Court was correct in holding that the agreement in question created one tenancy, may be evidenced by the execution of two lease deeds, this argument automatically falls flat. In respect of one tenancy, it would be one suit that would be necessary and not two suits. The judgment in the case of Ram Chandra Vs. Judge, Small Cause Court and others (supra) is, therefore, not applicable in the instant case inasmuch as in that case Court was deciding the question on the basis of an admitted fact that two different tenancies were created by two different lease deeds.
41. Various other judgments cited by the appellant also do not apply to the facts situation of the present case. In these cases there was a dispute about the relationship of landlord and tenant between the plaintiff and defendant (Ratanlal Bansilal and others Vs. Kishorilal Goenka and others (supra) and Santilal Dulichand Shah Vs. Ramesh Chandra Guzrati (supra) or the will in question projected by one of the parties which was not probated related to the case under Succession Act ( Mrs. Hem Nolini Judah Vs. Mrs. Isolyne Sarojbashini Bose and others (supra) or contract of tenancy was alleged to be made by three landlords but defendants were denying the existence of three landlords and were accepting only one of them as landlords. It was held that such person cannot succeed on admission of the defendants (M/s.Parekh Brothers Vs. Kartick Chandra Saha and others (supra). Likewise in Bali Ram Vs. Smt.Sunehru and another (supra) and Nanalal Girdharlal and another Vs. Gulamnabi Jamalbhai Motorwala and others (supra) where the question of necessary party arose when more than one persons were admittedly the co-owners.
No.3 Validity of the notice.
42. The validity of notice dated 3rd April, 1992 served upon the appellant by the respondents under Section 106 of the Transfer of Property Act was sought to be challenged on various grounds. It was contended by learned counsel for the appellant that contractual tenancy came to an end on filing petition by respondent No.1 under Section 14(1)(b) of the Delhi Rent Control Act and thereafter the appellant became tenant from month to month basis. Two tenancies could not be terminated by one notice. Tenancy in respect of front unit was terminated in 1987 during the subsistence of tenancy when petition under Section 14(1)(b) of the Delhi Rent Control Act was filed. As far as tenancy in respect of rear unit is concerned, that would be treated to be terminated by notice dated 3rd April, 1992. Therefore, dates of termination of both the tenancies are different. Thus the notice dated 3rd April,1992 is invalid. Moreover, it was a monthly tenancy on calendar month basis. However, notice dated 3rd April, 1992 did not terminate the tenancy at the end of tenancy month i.e. 26th May, 1992 as would be clear from the language of the notice. Even if it is to be treated that tenancy was so terminated by 31st May, 1992, the suit for possession which was filed on 29th May, 1992 i.e. before the expiry of the notice period was bad in law. Further, notice was not given by all the legal heirs of late Shri Krishna Prasada. The respondents have no locus standi to issue the notice and did not send the notice as landlord also they claimed themselves to be the owner of the property which was not correct.
43. It was submitted that the learned Trial Court wrongly decided the issue and put onus on the defendants. It was for the plaintiff to show how the notice was valid in law which was not done. Notice has to be strictly construed as held by Supreme Court in the case of Mangilal Vs. Sugan Chand Rathi (deceased) and after him his heirs and legal representatives and another and in the case of Harihar Banerji and others Vs. Ramshashi Roy and others AIR 1918 Privy Council 102. Number of other judgments in support of this plea were also relied upon.
44. Refuting the aforesaid contentions, learned counsel for the respondents argued that the pleas which were sought to be advanced now on the basis of which it was contended that notice dated 3rd April, 1992 was invalid, no such pleas were raised either in reply to the notice or in the written statement filed before the Trial Court. In reply to the notice, month of tenancy was not disputed. Moreover,no reliance could be placed on earlier notice which was regarding sub-letting and not a notice under Section 106 of the Transfer of Property Act. There was no occasion to give any such notice earlier as at that time tenancy of the appellant was protected by the provisions of Delhi Rent Control Act. In fact the tenancies with rental of more than Rs.3,500/- stood excluded from the purview of Rent Control Act only by amendment enforced w.e.f. 1st December, 1988. It was also submitted that the purpose of giving notice under Section 106 of the Transfer of Property was to make the tenant know of the intention of the landlord which should be clear i.e. landlord did not want the tenant to be in occupation of the premises any longer and it was necessary that this intention is made clear and unambiguous. Therefore, hair spliting is not to be done when the suit is filed and what is to be seen is that broadly the notice meets the basic requirement of Section 106 of the Transfer of Property Act. This notice when comes under judicial scrutiny has to be given liberal construction in favor of landlord. In the notice in question it was very clearly stated that the tenancy month was from 27th day of the English Calendar month to 26th day of the next month. This was sought to be demonstrated by submitting that when the tenancy was for a period of 9 years and 360 days, the period of tenancy expired on 26th day of last month and thereafter has no further agreement was executed between the parties. It became month to month tenancy starting from 27th day of a particular month and ending of 26th day of the next month and the tenancy, therefore, stood terminated by 26th May,1991. Thus it conformed to the provisions of Section 106 of the Transfer of Property Act.
45. In support of the aforesaid plea counsel for the respondents relied upon Bhagabandas Agarwalla, Vs. Bhagwandas Kanu and others , Smt. Chander Kanta Singhal Vs. M/s. Kapadia Exports 1996 V AD (DELHI) 108 and Capital Boot House & Ors, Vs. Intercraft Limited .
46. We agree with the submissions of learned counsel for the respondents. Tenancy month after the expiry of the period stipulated in the registered lease deeds, became monthly tenancy starting from 27th day of a particular month and ending of 26th day of the next month and, therefore, was rightly to be terminated w.e.f. 26th May, 1992 on the basis of the aforesaid notice which was validly served. We also agree with the submission of learned counsel for the respondents that the pleas which are sought to be raised now at the time of arguments were not raised either in reply to the legal notice or in the written statement. In fact it appears that no such arguments were advanced before the learned Trial Court and appellant is trying to become wiser now by raising such hyper-technical contentions on the basis of which notice is sought to be invalidated. Had there been any specific pleas which are raised now, the respondents would have got opportunity to explain these aspects by leading appropriate evidence and making submissions thereon. The respondents cannot be allowed to be taken by surprise by advancing such arguments regarding the validity of the notice in appeal for first time. We have held that in any case notice dated 3rd April, 1992 does not suffer any infirmity and these observations are in addition and independent of this finding.
No.4. Sub-letting of the premises.
47. On this issue also we agree with the findings of the learned Trial Court that sub-letting of the front unit of the tenanted premises was not with the consent of the landlord. The lease deeds dated 1st August, 1978 stipulates that the sub-letting would be with the consent of the landlord although such consent would not be denied unreasonably. However, the appellant could not prove on record any such consent, although the burden to prove the relevant issue No.10 to this effect was on the appellant. Further we find that case of the appellant was that late Shri Krishna Prasada gave consent on the letter in writing. However, no such document was produced. Moreover, reading of this letter does not show that any consent was given by late Shri Krishna Prasada. Learned counsel for the appellant could not successfully dislodge the finding of the learned Trial Court or dispute the aforesaid facts strongly in favor of the respondents.
No.5 Quantum of mesne profits.
48. The Trial Court in the impugned judgment has awarded mesne profits at the rate of 12,000/-PM. Aggrieved against that respondents have filed RFA.No.684/98. The respondents had claimed the damages at the rate of Rs.80,000/-PM. While awarding the damages at the rate of Rs.6,000/-PM, learned Trial Court has, in the impugned judgment, recorded as under:
"There is no documentary proof on record to prove the actual prevailing rent in the area. The suit property was admittedly let out in the year 1978 at the rate of Rs.6,000/-PM. The rent has been increased many times in Delhi. The claim of the plaintiff @ Rs.80,000./-PM is too excessive. In my opinion Rs.12,000/-PM instead of Rs.6,000/-PM is sufficient to meet the ends of justice. Thus, the plaintiff is entitled to damages @ Rs.12,000/-PM from 26.5.1992 onwards. Hence this issue is decided in favor of the plaintiff and against the defendant.
49. It was submitted by the learned counsel that there was no basis to award damages at the nominal rate of Rs.12,000/-PM only. In order to prove that the market rent was much more, the plaintiff had examined himself as well as Shri Manoj Kumar (PW-2) the property dealer who had stated that in the year 1982 rent of the like property was Rs.1 lakhs and in the year 1986-87 it was around Rs.3 lakhs. In any case, according to him, the clinching evidence was the suit filed by the tenant itself (i.e. appellant herein) against the sub-tenant itself in which damages at the rate of Rs.80,000/-PM were claimed for front unit of the tenanted premises. From that reckoning itself the reasonable damages for the use and occupation of the premises for the entire portion would be Rs.1,60,000/-(Rs.80,000 X 2). The claim of the plaintiff at the rate of Rs.80,000/-PM was, therefore, justified.
50. The arguments of the plaintiffs have force. As against the evidence led by the plaintiffs, there is no evidence led by the tenant/appellant on this account. Moreover, learned Trial Court was wrong in observing that there was no documentary proof on record to prove the actual prevailing rent in the area. There could not have been a better proof than the averment made by the tenant itself in the suit filed against sub tenant. The significant fact to be kept in mind is that the premises are on a land measuring 1800 sq.yds. with double storey building situated in a posh colony of Maharani Bagh. The entire property was let out to the appellant. However, we also have in that the premises were initially let out at a rent of Rs.6,000/-PM. although wayback in the year 1978 there was a leep upsurge in the rentals and last few years have seen downward rent again. Keeping all these factors in mind, we are of the view that award of mesne profits at the rate of Rs.60,000/-PM w.e.f. 26th May, 1992 till the handling over of the possession of the property would meet the ends of justice.
51. The result of the aforesaid discussion is that RFA.630 of 1998 filed by M/s. Mercury Travels (India) Ltd. is hereby dismissed. RFA.684 of 1998 filed by Shri Mahabir Prasad is hereby allowed to the extent indicated above. The landlords shall also be entitled to the costs of both the appeals. Counsel fee is fixed at Rs.20,000/-in both appeals. Decree sheet be amended accordingly.