Delhi District Court
Mca No.15/2013: "Ramesh Narang vs Vinod Kumar Gupta" Date Of Order: ... on 3 April, 2013
MCA No.15/2013: "Ramesh Narang V/s Vinod Kumar Gupta" Date of Order: 03.04.2013
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEIV:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Miscellaneous Civil Appeal No.15/2013
In the matter of:
Shri Ramesh Narang,
S/o Shri R.D Narang,
C145, PhaseI, Naraina Industrial Area,
New Delhi110 028.
.....Appellant
(Through Shri Bhagwati Prasad, Advocate)
Versus
Shri Vinod Kumar Gupta,
S/o Late Shri Pyare Lal Gupta,
C145, PhaseI, Naraina Industrial Area,
New Delhi110 028.
.....Respondent
(Through Shri A.S Kulshrestha, Advocate)
Date of Institution of Appeal : 15.01.2013
Date of reserving judgment : 03.04.2013
Date of pronouncement : 03.04.2013
"Misc. Civil Appeal Dismissed" Page 1 of 6
MCA No.15/2013: "Ramesh Narang V/s Vinod Kumar Gupta" Date of Order: 03.04.2013
APPEAL U/s 96 CPC r/w ORDER 41 CPC AGAINST THE IMPUGNED JUDGMENT
Dtd.26.11.2012, PASSED BY Ld.ACJcumARC (SOUTHWEST), DWARKA DISTRICT COURTS
IN SUIT No.61/2011, TITLED AS, "SHRI RAMESH NARANG V/s SHRI VINOD KUMAR GUPTA"
03.04.2013
O R D E R (ORAL):
This order shall decide the appeal filed by the defendant in Civil Suit No.61/2011, titled as, "Vinod Kumar Gupta V/s Ramesh Narang", pending before the Ld.Trial Court, against the order/decree dated 26.11.2012, passed by the Ld.Trial Court on an application U/o 12 Rule 6 CPC, filed on behalf of plaintiff, whereby decree of possession in respect of the suit property was passed in favour of plaintiff and against the defendant (hereinafter referred to as the "impugned judgment/decree").
2. I have heard arguments advanced at bar by Shri Bhagwati Prasad, learned counsel for the defendant and Shri A.S Kulshrestha, learned counsel for the plaintiff. For the sake of convenience, the parties in this order are being referred to as per their respective status before the Ld.Trial Court. The learned counsel for the defendant has very vehemently argued that the Ld.Trial Court, at the time of passing the "impugned judgment/decree" has misdirected herself by not appreciating the contention of the defendant about holding over tenancy and she further failed to consider the effect of Section 116 of the Transfer of Property Act (hereinafter referred to as the "Act") in the facts and circumstances of the case. "Misc. Civil Appeal Dismissed" Page 2 of 6 MCA No.15/2013: "Ramesh Narang V/s Vinod Kumar Gupta" Date of Order: 03.04.2013
3. The facts of the case, as borne out from the trial court record are that defendant has been a tenant in respect of the portion admeasuring 30' x 35', out of 1/3rd portion of property bearing No.C145, PhaseI, Naraina Industrial Area, New Delhi, suitably detailed in site plan, filed on record (hereinafter referred to as the "suit property"). Admittedly, the tenancy of the defendant in respect of the suit property commenced in the year 1987 through oral lease agreement. At that time, the agreed rent was Rs.4,000/ per month and there was also a stipulation that after every two years the rent would be enhanced @ 10%. On 30.07.2010, the plaintiff terminated the tenancy by serving a legal notice U/s 106 of the Act upon the defendant, thereby asking him to vacate the suit property on or before 28.02.2011, i.e, after the expiry of a period of six months on the premise that the suit property was being used for manufacturing activities. The said termination notice was duly replied to by the defendant. The defendant continued to occupy the suit property and as such, the plaintiff filed suit for recovery of possession and mesne profits against him on 10.05.2011, wherein the defendant filed written statement on 20.10.2011, interalia admitting the landlordtenant relationship, the rate of rent being more than Rs.3,500/ per month as also the termination of tenancy vide legal notice dated 30.07.2010, however, a plea was taken that w.e.f May' 2011, the defendant started paying rent at the enhanced rate, i.e from Rs.10,300/ to Rs.11,330/, which the plaintiff started receiving and as such, there was creation of a new oral tenancy and subsequent thereto, the tenancy was never terminated and as such, the defendant continues to be a tenant in the suit property by virtue of plaintiff having received the rent at the enhanced rate from him w.e.f May' 2011.
"Misc. Civil Appeal Dismissed" Page 3 of 6 MCA No.15/2013: "Ramesh Narang V/s Vinod Kumar Gupta" Date of Order: 03.04.2013
4. On an application U/o 12 Rule 6 CPC, filed on behalf of plaintiff, the Ld.Trial Court after considering the pleadings of the parties in detail came to the conclusion that there was existence of relationship of landlord and tenant between the parties, the rate of rent was more than Rs.3,500/ and as such, the defendant did not have protection under Delhi Rent Control Act. The Ld.Trial Court further held that the tenancy of the defendant was duly terminated by way of Notice U/s 106 of the Act and has allowed the said application on the basis of unequivocal, clear and unambiguous admission of facts made by defendant.
5. The learned counsel for the defendant has very vehemently argued that Section 113 of the Act allows a tenant to waive off the notice and Section 116 contemplates the effect of holding over. The learned counsel for the defendant has also relied upon judgment reported as, "(2000) 7 SCC 232", titled as, "Bhuneshwar Prasad & Anr. V/s United Commercial Bank & Ors.", to buttress his argument that the defendant is a tenant by holding over and as such, he has the protection under the law and he cannot be evicted without legal termination of his tenancy.
6. I have gone through the "Bhuneshwar Prasad's" judgment. The law laid down in the aforesaid judgment is not applicable to the facts and circumstances of the present case, as in the present case, the tenancy of the defendant was duly terminated by the plaintiff vide notice dated 30.07.2010, whereas in the case before the Hon'ble Supreme Court, the landlord there had never terminated the tenancy and he accepted the rent on enhanced rates and later termed the said receipt of rent at enhanced rates to be without his consent. The Hon'ble Supreme Court under the "Misc. Civil Appeal Dismissed" Page 4 of 6 MCA No.15/2013: "Ramesh Narang V/s Vinod Kumar Gupta" Date of Order: 03.04.2013 said circumstances did not believe the stand of the landlord in that case for the simple reason that the rate of rent at enhanced rate was being received by him as legal dues and not as statutory dues.
7. Reliance upon Section 113 and 116 of the Act by the defendant is clearly misplaced. Section 113 of the Act deals with a situation where the landlord either in expressing words or impliedly gives consent for the continuation of tenancy in the suit property. As far as the case of holding over is concerned, here is a case where the tenancy of the defendant was duly terminated. Even if the argument of learned counsel for the defendant is admitted that after May' 2011, the tenancy of the defendant was never terminated, even then, in terms of the law laid down by the Hon'ble Supreme Court in case reported as, "AIR 2008 SC 673", titled as, "M/s Nopani Investment (P) Ltd. V/s Santokh Singh (HUF)", mere service of summons of a suit for ejectment is treated as a valid service for termination and after six months of the receipt of summons by the defendant in the said case, he should have vacated the same. Even otherwise, it is settled law that acceptance of damages/use & occupation charges at the enhanced rate by the landlord would not create fresh tenancy in the case where the landlord had terminated the tenancy. The Ld.Trial Court has also made reference to the aforesaid judgment in the impugned judgment/decree.
8. Therefore, I do not find any infirmity in the impugned judgment/decree; same is based upon proper appreciation of the pleadings of the parties as also the law applicable in the facts and circumstances of the case. The appeal being meritless stand dismissed, leaving the parties to bear their own costs. "Misc. Civil Appeal Dismissed" Page 5 of 6 MCA No.15/2013: "Ramesh Narang V/s Vinod Kumar Gupta" Date of Order: 03.04.2013
9. Trial Court Record be sent back to the Ld.Trial Court forthwith alongwith a copy of this order. Parties are directed to appear before the Ld.Trial Court for the date already fixed.
10. Appeal file be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 03.04.2013 Addl. District JudgeIV/SouthWest
Dwarka District Courts: New Delhi
"Misc. Civil Appeal Dismissed" Page 6 of 6