Delhi District Court
Sh.Jasvinder Singh vs Suresh Kumar Tanwar on 3 September, 2011
1
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE(WEST)
TIS HAZARI : DELHI
RCA No.07/2010
Sh.Jasvinder Singh
S/o Late Jhhanda Singh
R/o WZ-843, Ch. Amar Singh Building,
Nangal Raya, New Delhi-110046.
....Appellant
Versus
Suresh Kumar Tanwar
S/o Late Amar Singh
R/o WZ-1292,
Nangal Raya, New Delhi-110046.
...Respondent
Date of Institution of Petition : 06.04.2010
Date of reserving the Judgment : 25.08.2011
Date of passing the Judgment : 03.09.2011
JUDGMENT:
This appeal coming up for disposal, has been filed against the judgment and decree of Ld. Civil Judge-cum-Rent Controller, (West) District, dated 04.03.2010, whereby the suit for recovery of possession, arrears of rent with future damages and mesne profits has been decreed in favour of the respondent /plaintiff .
Jaswinder Singh Vs. Suresh Kumar Tanwar 2
2. The defendant/appellant has mainly taken grounds of appeal as that the impugned judgment and decree is not in accordance with the material on record, in as much as, the fact, that the Notice of termination dated 01.03.2001, was not acted upon for more than 5 years, and that the plaintiff-respondent had been receiving rent from the father of the appellant/defendant, thus thereby waiving the said notice of termination,has been ignored by ld. Trial Court. It is also contended that the plaintiff-respondent had increased the rent by 10% as provided by DRC Act, w.e.f. April 2004 and thus enhancement of the rent by the respondent-plaintiff during the life time of appellant's father implied a fresh contract between the respondent-plaintiff and the appellant/defendant with fresh terms and conditions and thus the plaintiff was estopped from filing the suit on the same Notice which had been waived by him.
3. After hearing Ld. Counsel for appellant-defendant, a notice of the appeal was issued by Ld. Predecessor and on the next date, an application under Section 340 Cr.P.C. was filed by the respondent.
4. However, the said application was deferred for final disposal at the final stage, and arguments were heard on the appeal.
5. A short question of law involved in the appeal is, as to whether by enhancement of rent by the respondent/plaintiff during the life time of the father of the defendant and continued acceptance of the rent by respondent/plaintiff from the Jaswinder Singh Vs. Suresh Kumar Tanwar 3 appellant/defendant amounted to a waiver of notice of termination of tenancy dated 01.03.2001.
6. It is the case of the appellant-defendant that it was during the life time of his father, the original tenant, that the rate of rent had been increased after issuance of notice. Respondent-plaintiff in its reply has taken the stand that the legal notice of termination of tenancy was not waived by mere acceptance of enhanced rent and further more that the increase in rent was negligible that is from Rs.200 per month to Rs.220 per month as was prevailing at the relevant point of time.
7. The thrust of arguments on behalf of appellant was the implied waiver of the notice of termination by the plaintiff-respondent which according to him was apparent from the conduct i.e. acceptance of the increased rent; while Ld. Counsel for respondent in addition to his plea taken in the reply, that waiver of notice could not be implied from mere acceptance from rent, also argued that no such plea of waiver of notice had been taken by the defendant-appellant at the trial and this was totally a new plea being put forth at the appellate stage. Ld. Counsel for appellant/ defendant on the other hand countered that a point of law can be raised at any stage.
8. On merits, reliance was placed by the appellant on the provisions of Order 113 Transfer of Property, Act. Ld. Counsel for appellant defendant also placed reliance on the following judgments:-
Jaswinder Singh Vs. Suresh Kumar Tanwar 4
(i) Bbuneshwar Prasad & Anr. Vs. United Commercial Bank JT 2000(9)SC 392,
(ii) Vijay Shree Commercial Pvt. Ltd. Vs. Tika Jagjit Singh Bedi - 66 (1997) DLT 359 DB, While the respondent-plaintiff placed reliance on C.Albert Morris Vs. K.Chandrasekaran And Ors. - (2006) 1 SCC 228, Sh.Fateh Chand Vs. Sh.Purshottam Dass & Anr. RSA No.224/2004 & CM No.13881/2004, L.T.Thadani Vs. Yogeshwar Dayal - SAO.107 of 1970.
9. The factual backdrop, in which this appeal has arisen, in brief, is that plaintiff's father was the owner/landlord of the suit property wherein the late father of the defendant namely Sh.Jhanda Singh was the original tenant, in respect of one room, adjacent veranda, one kitchen, bathroom and toilet with courtyard shown in red in the site plan annexed to the plaint. The suit property was let out for a monthly rent @ Rs. 200/- per month for a residential purpose and wherein the father of the defendant was residing along with his wife and 4 sons namely Sh. Rajinder Singh, Narinder Singh, Jatinder Singh and defendant. In due course, three brothers got married and left their parents to stay elsewhere and suit property remained in possession of defendant and his parents. The mother of the defendant expired in May, 2005 and subsequently his father, the tenant also expired on 23.08.2005. It is further the case of the respondent/plaintiff Jaswinder Singh Vs. Suresh Kumar Tanwar 5 that before the death of the father of the appellant/defendant, the tenancy had been duly terminated vide legal notice dated 01.03.2010 and as such at the time of his death the defendant was only a statutory tenant and right of tenancy did not pass on to any of his heirs except to the defendant and that too for a limited period of one year. It is further the case of the respondent-plaintiff that the said period of one year expired on 23.08.2006 and thereafter the defendant has become an unauthorized occupant of the suit property liable to hand over the possession to the plaintiff and also liable for damages for illegal use and occupation @ 1,000/- per month.
10. The appellant/defendant raised preliminary objections that he was a permitted tenant under the DRCA as he had inherited the tenancy from his father and he also denied the legal notice dated 01.03.2011 whereby the tenancy of his father was terminated. Defendant alleged the said document to be false and forged document. At the same time the defendant also took an alternative plea that the said notice even if issued was of no consequences as it was never acted upon by the landlord father of the respondent/plaintiff and deemed to have been abandoned. Further elaborated therein that after the alleged termination of tenancy, a fresh tenancy was created on fresh terms and conditions between father of the respondent/plaintiff and appellant/defendant as such the defendant became a contractual tenant in respect of the suit property in his own right. It has also been pleaded that defendant tried to tender rent to the plaintiff but he did not Jaswinder Singh Vs. Suresh Kumar Tanwar 6 accept the same with malafide intentions. Also other objections were taken like the suit was barred by the provisions of DRCA.
11. With this stand of the parties, Ld. Trial Court vide order dated 08.03.2007, framed the following issues:
(i) Whether the suit is barred by the provisions of Delhi Rent Control Act?
OPD
(ii) Whether the suit is properly valued for the purpose of court fees? OPP
(iii) Whether the plaintiff is entitled for decree of possession, as prayed for? OPP
(iv) Whether the plaintiff is entitled for recovery of arrears of rent, as prayed for?OPP
(v) Whether the plaintiff is entitled for damages/mesne profits, if yes then at what rate and for what period?OPP
(vi) Relief.
12. The appellant has come in this appeal mainly challenging on the ground of the implied waiver of the notice of termination of tenancy dated 01.03.2001 and there having been a fresh contract of tenancy between the plaintiff-defendant and further that the impugned judgment and decree cannot transgress beyond the scope of provisions of Delhi Rent Control Act.
Jaswinder Singh Vs. Suresh Kumar Tanwar 7
13. The ratio underlying the decisions of the Hon'ble Supreme Court and also of our own Hon'ble High Court cited at bar by the Ld. Counsels of both parties as to whether the notice of termination was waived or not, whether the fresh tenancy was created or not by acceptance of rent, or on increase of rent would ultimately be a matter of fact in each individual case, to be deduced from the conduct of the parties. In other words, it would have to be seen as to whether the parties were intending to waive the notice by mere paying the rent by the tenant and by acceptance by the landlord.
14. In the first judgment, where as "Bhuneshwar Prasad & Anr. Vs. United Commercial Bank & Ors. (SUPRA) relied upon by the appellant/tenant, it was a case where the request to review the lease had been specifically declined and tenant had deposited rent in the account of the landlord but without his consent. Tenant has been claiming the tenancy on month to month basis and rent at increased rate deposited without the consent of the landlord, had been withdrawn by the landlord. It was held in the circumstances by the Hon'ble Supreme Court, that acceptance and withdrawal of the increased rent was an indication by the landlords to tenant to continue in possession of the premises after the expire of the lease, thereby creating tenancy from month to month basis. Referring to the provision of Section 116 of the Transfer of Property Act, it was held that an agreement creating fresh tenancy within the provision of Section 116 of T. P. Act can be implied from the conduct of the parties as laid down in the case of "Kai Jaswinder Singh Vs. Suresh Kumar Tanwar 8 Khushroo Bezonjee Capadia Vs. Bai Jarbai Hirjibhoy Warden & Anr" [1979 Federal Court Reporter 262] and in "Gangal Dutt Murarka Vs. Kartik Chandra Das and Ors"
[1961 3 SCR 813].
15. In Vijay Shree Commercial Pvt. Ltd. Vs. Tika Jagjit Singh Bedi (SUPRA), it was held that the sole payment of amount collected for one month rent and received as damages cannot be treated as manifestation of the intention to treat the lease as subsisting. The reliance by the ld. counsel for appellant on this judgment is misplaced in as much as the ratio above referred would support the case of the respondent / landlord.
16. However, in the said judgment reference was made to in another case i.e. Kapoor Chand Vs. Congi, 1959 AP 346, it was as per the facts therein that the landlord had accepted the rent for Seven months exclusively for the period after the notice to quit and DB treated it as a circumstance going to show that the landlord undivided to once again continue with the tenancy waiving the notice. Reference has also made in similar cases on facts and thereafter it was observed by their lordship of the DB in Vijay Shree Commercial Pvt. Ltd. Vs. Tika Jagjit Singh Bedi case that from both the above said judgments it was clear that it was a continuous or regular course of conduct on the part of the landlord manifesting an intention of the landlord to treat the tenancy as subsisting which was treated as evidence of waiver in the case cited before their lordship. And Jaswinder Singh Vs. Suresh Kumar Tanwar 9 thereafter held that whether an act of the landlord in receiving an amount sent as rent or receiving an amount sent without any statement at all under Section 113 of the T. P. Act, is one from which there can be deduced an intention of creating or renewal of the tenancy or treat the the tenancy still subsisting which however would be purely a question of fact in each case.
17. On the other hand in the judgment relied upon by the ld. counsel for respondent in "C. Albert Morice Vs. K. Chandrasekaran & Ors" [2006 1 SCC 228] case as above referred, it was held that in a case where a tenant was holding over despite landlord's protest and the lease period having expired, landlord required the tenant to vacate the premises and even intimated him that no amount paid by them after expiry of the lease period would be adjusted against the possession and should not be treated as landlord's consent for tenancy and it was held that in such circumstances, mere acceptance of rent by the landlord would not be viewed to confer on the erstwhile tenant, the status of a tenant or the right of possession.
18. In the second case relied upon on behalf of the respondent/plaintiff; a judgment from our own hon'ble High Court, it was also the case where the agreement with tenant was that the present rate of rent had been increased by the landlord and by increased rent the landlord; the defendant had become a tenant by holding over as the plaintiff had already increased the rent even after the filing of the present suit and as Jaswinder Singh Vs. Suresh Kumar Tanwar 10 such the notice of termination issued would stand waived. The plaintiff / landlord in that case further relied upon the judgment in "PAWANJEE LAKANJEE" contending that the act of holding over by the tenant after the expiry of the term does not create a tenancy and if a tenant remains in possession after the termination of the lease, the common law rule is that he is tenant of sufferance.
19. The tenant / applicant in the said case also relied upon a judgment in "Bhuman Prasad Vs. Union Commercial Bank" (above referred). It was held by the hon'ble High Court that the amount increased or deduction of rent does not necessarily imply surrender of the existing tenancy or creation of new tenancy and mere increase of rent would not be indicate that there was a new contract.
20. The pleadings of the parties have been conspicuously silent on the rate of last paid rent, particularly the respondent/plaintiff, and the appellant/defendant has also remained silent about in what manner and on what basis he could say that a fresh tenancy had been created on fresh terms. Defendant has not referred to anything in his WS about the rent having been enhanced after termination of the tenancy.
21. It is in his affidavit Ex.P1 that the plaintiff has stated for the first time that the last paid rent was Rs.220/- per month and he has referred to the rent receipts dated 02.03.2004 and 03.08.2005 i.e. Ex. PW1/2 & 3. He also produced the counter file book of the rent receipts which are Ex. PW1/3A. Apart from this the plaintiff PW1 has Jaswinder Singh Vs. Suresh Kumar Tanwar 11 emphasised on the aspect that the defendant was not financially dependent upon his father when he passed away and in fact he had been financially independent since long, ever since the retirement of his father.
22. In his cross-examination, PW1 has admitted it to be correct that the father of the defendant had sent a reply through his counsel, to the legal notice of termination Ex.PW1/5 and which reply was Ex.PW1/D1. However, he denied the suggestion that since he was not in need of disputed premises for his bonafide needs, he did not file any petition (eviction) against the father of the defendant.
23. Although in his affidavit, the PW1 stated in Para 2 that the last paid rent was Rs.220/- per month, he has admitted in the cross-examination that the rent at the time when notice of termination was sent was @ Rs.200/- per month. He has also admitted that rent was enhanced to Rs.220/- per month after service of the legal notice of termination and receipt of reply of the same.
24. However, yet again, in the further part of the cross-examination he has denied not only the suggestion that a fresh tenancy had been created in favour of deceased father of the defendant, after the service of the notice of termination; but PW1 has also denied that rent was fixed at Rs.220/- per month contrary to the earlier admission above referred.
25. The other witness of the plaintiff, PW2 has deposed on the aspects of the Jaswinder Singh Vs. Suresh Kumar Tanwar 12 financial independence of the defendant ever since he became major.
26. The defendant also, in his affidavit first time spoke about the rent rate being Rs.220/- per month. In Para 5 of his affidavit he has stated that a fresh tenancy was created on fresh terms and conditions as plaintiff accepted the enhanced rent after the said legal notice.
27. On the other hand in Para 6 of the same affidavit Ex.DW1/A, the defendant has stated that after the death of Sh.Jhanda Singh, he tendered the rent to the landlord but the plaintiff did not accept the rent. Apart from this he had deposed about his having been financially dependent on his father 'for residence'. Defendant has stated that he used to assist his father in keeping/maintaining his mother and do other household works.
28. In the cross-examination, defendant has come out with an admission that rent rate as in the year 2001, (i.e. the year when the notice of termination had been served) was Rs.220/- per month thereafter, he changed his statement and to say that he could not say as to what was the rate of rent in the year 2001. The defendant replied similarly with respect to the year 2005 stating that he could not say what was the rent rate in the said year. He has further admitted it to be correct that landlord used to issue rent receipts to his father when he was alive and also that the landlord did not issue any rent receipts to the defendant since he (landlord) never came to him (defendant) to ask Jaswinder Singh Vs. Suresh Kumar Tanwar 13 for the rent. It was vol. however, he (defendant) had sent the rent three times to the landlord by money order but he refused to accept the same. Again he has also replied that he did not know what was the rate of rent between 2001-2005. He was not even able to reply as to whether the rate of rent during that period was Rs.220/- per month or not. Defendant has replied that he sent the rent @ 220/- per month to the plaintiff by way of money order and further that he came to know about the rate of rent upon going through the legal notice dated 01.03.2001 of termination of tenancy. In the later part of cross-examination again the defendant admitted that the rate of rent was Rs.220/- per month from 2001 up till August 2005.
29. As regards his alleged financial dependency upon his father, the defendant in cross-examination has admitted that far from him having been financially dependent on them, it was the other way round in as much as he has admitted that it was his parents who were financially dependent upon him.
30. In view of the ever conflicting and contradictory oral statements of both parties on the point of enhancement of rent and acceptance thereof, it is only the documentary evidence that is to be looked into and which would be decisive on the controversy. The legal notice dated 01.03.2001, in question that is Ex.PW1/5, however, specifically mentions the rent rate as Rs.200/- per month exclusive of electricity and water charges. In the reply thereto, which is Ex.PW1/D1, it has been Jaswinder Singh Vs. Suresh Kumar Tanwar 14 mentioned in Para 1, the later part, that few months back when the landlord had repaired the courtyard, the tenant had agreed to enhance the rent to Rs.200/- per month and as such it can be said that the rate of interest as mutually agreed between the landlord and the tenant i.e. the father of the plaintiff and father of the defendant, both deceased, had been Rs.200/- at the time when the notice in question was issued.
31. The rent receipts/counter foils in original, on record i.e. Ex.PW1/3A continue to show the rate of rent as same i.e. Rs.200/- as per receipt dated 05.10.2003, issued to the deceased father of the defendant. The said counter foils are in a bound book containing counter foils of receipts issued to other tenants as well and the same is serial-wise and date-wise in continuity, and thus shows that this record was maintained by the father of the plaintiff i.e. the original landlord in the ordinary course of business. Another receipt dated 03.02.2004 bearing serial no.1217 again states the rent rate to be Rs.200/- per month. However, as per receipt serial no.1285, dated 03.08.2005, the rate of rent has been mentioned as Rs.220/- per month i.e. for the month of August, 2005, as per Ex.PW1/3.
32. The other book of counter foils also part of Ex.PW1/3A colly., contains receipts counterfoils ranging over a long period of time, from the year 1999 onwards till the year 2006 and showing a steady increase in rent from time to time, the rent in the year 1999 being only Rs.10/-, Rs.30 in the year 2000, and from 14.03.2000 onwards it is Jaswinder Singh Vs. Suresh Kumar Tanwar 15 showing an increase from Rs.10 to Rs.200/- per month. This continued at the same rate till 05.07.2001 as per serial no.998.
33. What emerges clearly from the record is that the rent had been increased from Rs.200 per month to Rs.220/- per month the first time on 03.08.2005 i.e. as long as four years after service of the termination notice, and reply thereto.
34. Section 113 of Transfer of Property Act, 1882, clearly lays down that a notice given under Section 111 Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it, showing an intention to treat the lease as subsisting. The illustration (a) cites a specific example i.e. A, the lessor, gives B, the lessee, notice to quit the property leased, the notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice, the notice is waived.
35. This Section and illustration do not speak even about the enhancement of the rent being necessary to deduce an intention to waive the notice. In fact the section and illustration render, mere tendering and mere accepting of the rent itself as sufficient for holding the notice to have been waived. As such, the enhancement or non- enhancement of the rent would not be relevant. Mere acceptance of the rent as it stood at the time of service of the notice would be sufficient to imply the waiver of the notice. It would imply an intention to treat the lease as subsisting. In the present case, not only Jaswinder Singh Vs. Suresh Kumar Tanwar 16 that the rent was accepted once or twice but for a long period of four years i.e. right from 2001 till 2005, the rent was continued to be accepted by the father of the plaintiff from the father of the defendant, after service of the notice of termination way back in the year 2001. Not only this, but in the present case even the enhancement of the rent has been established by the documents that have been brought on record by the plaintiff himself.
36. Section 91 Evidence Act, provides that a fact which is contained in written document, cannot be proved by oral deposition that too contrary to the contents of the document. Section 91 specifically lays down that when terms of a contract, or of a grant have been reduced to the form of a document,....no evidence shall be given in proof of the terms of such contract or of such matter, except the document itself or secondary evidence of its contents in cases in which the secondary evidence is admissible.
37. Section 92 makes it further clear that when the terms of any such contract grant or other disposition of property or any matter required by law....have been proved according to the previous Section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instruments or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.
38. In the present case, the receipts/counter foils book, Ex.PW1/3A and the Jaswinder Singh Vs. Suresh Kumar Tanwar 17 counterfoils particularly Ex.PW1/3, filed by the plaintiff himself, are sufficient material to show the continued acceptance of the rent by the father of the plaintiff from the father of the defendant, for as long a period as of 4 years right up till August 2005, whereas the termination notice was served way back in the year 2001. By no stretch of imagination, can it be said that the original landlord i.e. the father of the plaintiff had any intention to act on the said notice. On the other hand, the conduct of the father of the plaintiff in accepting the rent for many years thereafter showed his implied consent to treat the lease as subsisting between him and the father of the defendant and thus it is very clear that the notice of termination was waived.
39. Section 113 CPC does not require any agreement in writing, conduct of the parties is sufficient to draw the inferences.
40. In view of the above discussion, since it has been established from the record produced by the plaintiff himself that the notice of termination of tenancy stood waived by the landlord who issued the said notice, defendant would be very well entitled to succeed to the tenancy rights without any time limitation and he becoming the tenant in his own right and thus, entitled to the protection under the DRC, Act.
41. Though, no doubt there were major contradictions in the statements and replies of the defendant during evidence, the documents on record which speak about the intention of the actual parties concerned, i.e. the father of the plaintiff and father of the Jaswinder Singh Vs. Suresh Kumar Tanwar 18 defendant, should have been looked into by Ld. Trial Court to find the truth of the controversy and not merely referring to the oral testimonies of the parties ignoring the documents which spoke for themselves.
In view of the above discussion, allowing the present appeal with costs, the impugned judgment and decree dated 04.03.2010 passed by Ld. Civil Judge-cum-Rent Controller (West) is hereby set aside, thus holding the suit as filed by the respondent/plaintiff as dismissed.
Decree sheet be drawn.
Trial Court record be returned along with copy of the judgment/decree. Appeal file be consigned to record room.
Announced in the open court (SUJATA KOHLI)
today i.e on 03.09.2011 ADJWEST)/DELHI
Jaswinder Singh Vs. Suresh Kumar Tanwar