Delhi District Court
Smt. Krishna vs Surjit Singh on 14 May, 2011
IN THE COURT OF SH. ARUN GOEL, CIVIL JUDGE,WEST
TIS HAZARI COURTS, DELHI
SUIT NO: 461/07
Date of Institution : 17.10.2007
Arguments heard on : 14.05.2011
Date of decision : 14.05.2011
PARTIES IN THE PRESENT SUIT ARE:
Smt. Krishna
W/o Late Sh. Shyam Sunder
R/o 40114018, Gali Ahrian,
Pahari Dhiraj, Sadar Bazar,
Delhi - 110006. ...Plaintiff
VERSUS
1. Surjit Singh
S/o Sh. Mahender Singh
R/o 0114018, Gali Ahrian,
Pahari Dhiraj, Sadar Bazar,
Delhi - 110006 .
2. Arjun Singh
S/o Mahinder Singh
R/o 4280/1, Gali No. 3, Shimla Puri,
Gill Road, Ludhiana, Punjab. ...Defendants
SUIT FOR POSSESSION.
JUDGMENT :
BRIEF FACTS OF THE PRESENT CASE ARE MENTIONED AS UNDER:
Suit No. 461/07 Page No. 11. That the husband of the plaintiff Late Sh. Shyam Sunder was the owner of the property no. 40114018, Gali Ahiran, Pahari Dhiraj, Sadar Bazar, Delhi - 6 (herein after referred as "suit property") and after the death of Sh. Shyam Sunder, the plaintiff has become the owner of the properties being wife of Late Sh. Shyam Sunder by virtue of relinquishment deed dated 06.09.2007, executed in favour of the plaintiff by other Legal heirs who are son and daughters of Late Sh. Shyam Sunder .
2. It is further submitted that the father of the defendants Late Sh.
Mahinder Singh was a tenant in respect of the two rooms on the ground floor of property bearing no. 4018, Gali Ahiran, Pahari Dhiraj, Sadar Bazar, Delhi - 6 (herein after referred as 'tenanted premises') and lastly the father of the defendants was paying Rs. 30/ as rent before his death.
3. It is further submitted by the plaintiff that the tenancy of Sh. Mahinder Singh was terminated during his life time vide notice dated 05.07.1995 and the said notice was duly served upon the said Mahinder Singh. It is further submitted that the Mahinder Singh expired on 06.01.2006 at Delhi leaving behind the defendants as the only legal heirs, as the wife of Sh. Mahinder Singh expired during his life time.
4. It is further submitted that after the termination of the tenancy of Late Sh. Mahinder Singh, he was a statutory tenant and as such the tenancy of Late Sh. Mahinder Singh does not stand inherited by the defendants and therefore, the defendants are in unauthorized occupation of the tenanted premises which was under occupancy of Late Sh. Mahinder Singh after the expiry of one year. It is further submitted that the defendants are liable to vacate the premises and are liable to pay the damages for Suit No. 461/07 Page No. 2 unauthorized use and occupation of the portion of the suit property and they are liable to pay damages / mesne profit @ Rs. 40/ per month w.e.f 06.01.2007 to 05.09.2007 amounting to Rs. 320/.
5. The plaintiff has filed the present suit and has prayed that the decree of possession be granted in favour of the plaintiff in respect of the one room on the ground floor of property bearing no. 4018, Gali Ahiran, Pahari Dhiraj, Sadar Bazar, Delhi - 6. They have further prayed for money decree for Rs. 280/ in favour of the plaintiff on account of damages / mesne profits. Plaintiff has further prayed for a decree in favour of the plaintiff against the defendant at the rate of Rs. 40/ per month at the time of disposal of the suit .
6. Summons of the suit were issued upon the defendant, who appeared and filed his Written Statement (herein after referred as W/S). The defendant has denied the contentions of the plaintiff and has submitted that the suit of the plaintiff is without cause of action. They have further stated that the suit is barred under section 75 of Delhi Rent Control Act 1995 and as such is not maintainable. They have submitted that Late Sh. Hazoora Singh, the grand father of the defendants, took the tenanted premises on rent from the then landlord more than 120 years ago. They have submitted that their father late Sh. Mahinder singh was born in the tenanted premises and he died in the same tenanted property on 06.01.2006. They have further submitted that their father has applied for electricity and water connection and he got them sanctioned in his name.
7. They have further submitted that it was the regular practice of the then landlord, after his death by the husband of the landlady i.e Suit No. 461/07 Page No. 3 Sh. Shyam Sunder and after his death the present landlady i.e plaintiff to accept the rent. They have further submitted that the Sh. Shyam Sunder never issued any notice dated 05.07.1995 to the father of the defendants. They have denied the contention of the plaintiff that tenancy was ever terminated during the life time of Late Sh. Mahinder Singh. It is further stated that even after the service of termination notice the plaintiff has accepted the rent from the defendants which clearly amounts to waiver of notice to quit. The defendants has denied rest of the allegations of the plaintiff and has prayed that on the basis of aforementioned facts, suit of the plaintiff is liable to dismissed.
6. Replication has been filed by the plaintiff who has reaffirmed the stand taken in the plaint and has denied the contentions stated in the w/s by the defendant.
7. On completion of pleadings on 06.04.2009, Ld. Predecessor of this court framed following issues on the basis of pleadings of the parties:
1) whether the present suit is barred under section 75 of DRC Act ad as such not maintainable ? OPD.
2) whether the plaint discloses any cause of action? OPP.
3) Whether the plaintiff is entitled to a relief of possession on the basis of notice dated 05.07.1995? OPP.
4) whether the tenancy was renewed afresh by the plaintiff as alleged by the defendant in his written statement? OPD.
5) whether the plaintiff is entitled for damages/ mesne profits from the defendant for Rs. 200/?OPP.
6) Relief.
8. Matter was then listed for plaintiff's evidence. In support of his case, plaintiff has examined herself as PW1. He filed his affidavit Suit No. 461/07 Page No. 4 for evidence on record exhibited as Ex.P1 and has relied upon the documents such as carbon copy of the notice served upon Sh. Mahinder Singh as PW1/A, postal receipts as Ex. PW1/B, UPC as Ex. PW1/C, acknowledgment as Ex. PW1/D, site plan as Ex. PW1/E. Thereafter, vide order dated 08.07.2010, Plaintiff's evidence was closed and the matter was listed for defendant's evidence.
9. Thereafter, the defendant examined himself as DW1, who tendered his affidavit of evidence as Ex. DW1/A and has relied upon the documents such as rent receipts vide no. 192 and 193 are already admitted by the plaintiff in her cross examination as Ex. PW1/DX1 and PW1/DX2 (filed in another connected suit no. 460/07)respectively which are dated 01.09.1997 and thereafter, vide order dated 18.09.2010, D.E was closed and the matter was fixed for final arguments.
8. I have heard the counsels for the parties and have perused the record carefully. My issue wise findings is as follows: ISSUE No. 1, 2, 3 and 4 are decided together.
1. whether the present suit is barred under section 75 of DRC Act ad as such not maintainable ? OPD.
2. whether the plaint discloses any cause of action? OPP.
3. Whether the plaintiff is entitled to a relief of possession on the basis of notice dated 05.07.1995? OPP.
4. whether the tenancy was renewed afresh by the plaintiff as alleged by the defendant in his written statement? OPD. In the present case the in the issue no1 the objection has been raised by the defendant in his written statement that the suit of the plaintiff is barred by the section 75 of the Delhi Rent Control Suit No. 461/07 Page No. 5 Act (herein after referred as 'DRC Act'). But it should have been that the suit of the plaintiff is barred by section 50 of the Delhi Rent Control Act . Accordingly the issue no 1 is corrected and is framed as: whether the present suit is barred under section 50 of DRC Act ad as such not maintainable?
In the present case, The plaintiff has stated that the suit property was initially rented out to the father of the defendant for the monthly rent of Rs. 26/. However, the said tenancy was terminated by him through legal notice dated 05.06.1995, which is Ex. PW1/A. He has filed on record the receipt and UPC as well as postal receipt which are Ex. PW1/B to PW1/C. The defendants have admitted that Ex. PW1/B bears the signature of their father and the address mentioned on both the receipts are correct. In such case, the presumption arises that the notice Ex PW1/A is duly received by the father of the defendants and his tenancy stands terminated w.e.f 31.08.1995. The plaintiff has further stated that as the tenancy of the father of the defendants was terminated, he had become statutory tenant in respect of the tenanted premises and statutory tenancy is not the inheritable tenancy. After death of the father of the defendant they were entitled to reside at the suit property for the period prescribed under the DRC Act and after the expiry of the period prescribed under the DRC Act the defendant have become the illegal occupants.
However, the Ld. Counsel for the defendant has denied that they are statutory tenant with respect to the suit property. It is stated by the Ld. Counsel that after even if it is admitted for the sake of argument that the tenancy of the father of the defendant stood Suit No. 461/07 Page No. 6 terminated after the receipt of termination notice Ex. PW1/A. Even then after the termination of the tenancy, the plaintiff had received the rent from the defendant. In such case, the new contractual tenancy has been created between. However, it has been submitted by the Ld. Counsel for the plaintiff that by receiving of the rent after the termination of tenancy from the father of the defendant, no inference can be drawn that new contractual tenancy has been created. Ld. Counsel for the plaintiff has placed reliance on the judgment of Hon'ble High court of Himachal Pradesh titled as "Dev raj Vs. Lajwanti & ors reported in AIR 2010 Himachal Pradesh 72"
However the contention raised by the Ld. Counsel for the defendant that new tenancy has been created by mere acceptance of rent after termination of tenancy is not tenable. Mere receipt of the rent even after the termination of the tenancy cannot amount to the renewal of the tenancy. One has to see the intention of the parties to arrive at the conclusion as to whether new tenancy has been created or not. Reliance is also placed on the judgment of Hon'ble Delhi High Court reported as "INMACS LTD v/s PREMA SINHA & ORS in 153 (2008) DLT 311 (DB)" where in the court observed: " Dealing with the issue whether accepting rent after serving upon the tenant a notice to quote amounts to a waiver under Section 113 of the Transfer of Property Act, in the decision reported as 2006 (4) SCC 205, Sarup Singh Gupta Vs. S Jagdish, their Lordships of Supreme Court held: "6 ... A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111, Clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown Suit No. 461/07 Page No. 7 an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere factthat rent has been tendered and accepted, cannot be determinative. 7 A somewhat similar situation arose in the case reported in Shanti Prasad Devi vs Shankar Mahto 2005 (5) SCC 543. That was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal, of the lease. Negativing the contention, this Court observed that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the premise even, after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. Their RFA No.341/2007 page No.16 of 27 Lordships noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease. 8 In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on 261979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the Suit No. 461/07 Page No. 8 contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise." Para 26"
Thus it is well settled that mere acceptance of rent after the termination of tenancy will not amount to the creation of new tenancy. But here in the facts are that not only the rent has been accepted by the plaintiff but it has also been increased from Rs 26 to 30. The Ld. Counsel defendant has suggested that it amount to creation of new tenancy and it is wavier under section 113 of the Transfer of property Act, 1882.
On the other hand Ld. Counsel for the plaintiff has denied the contention of the plaintiff .It is stated by the Ld. Counsel for the plaintiff that he was entitled to increase the rent under the provision of the DRC Act By 10% after the expiry of 3 years. The section 6 (A) and section 8 of the Delhi Rent Control Act provides the power of the plaintiff and method of increase of rent by the landlord. It states as: "6A. Revision of rent. Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in re spect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent. every three years"
8. Notice of increase of rent. (1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recov erable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.Suit No. 461/07 Page No. 9
(2) Every notice under subsection (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in section 106 of the Transfer of Property Act, 1982 (4 of 1882)"
Perusal of the above said Sections clearly reveals that only when the notice is served upon the tenant and after the expiry of 30 days from the service of notice , the rent is increased by 10%. Herein, the plain tiff has not filed on record any documents to show the service of no tice to prove that the rent was increased only as per the provisions of DRC Act. Moreover, if the notice is given, it is a clear case that the tenancy is subsisting between the parties. In such, case the tenancy was subsisting, the father of the defendant was a contractual tenant and not a statutory tenant as alleged by the plaintiff. From the perusal of Ex. PW1/DX1, which is dated 01.09.1997, it is clear that the rent has been increased from Rs. 26 to Rs. 30/ which was done after the notice of termination of tenancy was given by the plaintiff to the defendant. In such case, it is clearly a waiver of no tice as contemplated under Section 113 of the Transfer of Property Act, 1892. Ld. Counsel for the defendant has also relied upon the two judgments such as:
1) Ramesh Chand Vs. Radha Kishan, 1980 Punjab Law Reporter
351.
2) Shiv Nath Vs. Ram Bharosy AIR 1969 ALL 333.
In the first judgment, Ramesh Chand Vs. Radha Kishan,(SUPRA) in Para 3 of the said judgment the Hon'ble Punjab and Haryana has observed as follows: "A tenancy is created on the basis of a contract inter parties such as a contract is subject to legal incidents like novation. When one of the terms of the earlier contract s changed, a new contract comes into being. I , therefore, affirm the view taken by the Ld. lower ap pellate court that because of the change of monthly rent a new ten Suit No. 461/07 Page No. 10 ancy came into being. Admittedly, this tenancy was from month to month. In Smt. Darshan Devi Vs. Smt. Kaushalya Devi and Shiv Nath Vs. Sgh. Ram Bharosey Lal, a firm view has been taken that such a tenancy can be inherited by the heirs of the deceased." Perusal of the above said judgment reveals that by accepting the in creased rent, novation of original contract of tenancy has taken place and new tenancy has created in this case. The case of the de fendant is also supported by the judgment reported in AIR 1969 ALLAHABAD 333 (V. 56 C 58) "Shiv Nath v. Ram Bharosey". In this judgment the rate of rent was increased from Rs. 5 to Rs. 10/. The Hon'ble High Court held that by increase of rent new tenancy has come into existence. The Hon'ble High court has observed as: "The lease (Ex. 1) was for a period of 11 months. The rate of rent was Rs. 5/p. m. But it is stated in the plaint that Baldeo Das was a tenant of the shop on a monthly rent of Rs. 10/. It, therefore, ap pears that rent was enhanced after the expiry of the period of 11 months mentioned in Ex. 1. Enhancement of rent suggests a fresh contract of tenancy......."Para 30 In view of above stated discussion, after the termination of tenancy , new tenancy was created by accepting increased rate of rent. There fore, the father of the defendant was contractual tenant and not the statutory tenant as stated by the plaintiff. The defendants have in herited contractual tenancy from their father. The tenancy of the defendants is subsisting and the plaintiff has no cause of action against the defendant, as no notice for termination of tenancy has been given to them. Accordingly, all these issues are decided against the plaintiff.
Suit No. 461/07 Page No. 11ISSUE No. 5.
whether the plaintiff is entitled for damages/ mesne profits from the defendant for Rs. 200/?OPP.
In view of my finding on issues no. 1 to 4, this issue is also decided against the plaintiff.
Relief As per my finding on the issue no. 1 to 4, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room after making necessary compliance.
Announced in the Open Court (ARUN GOEL)
on 14th May, 2011 CIVIL JUDGE WEST
All Pages Signed D E L H I
Suit No. 461/07 Page No. 12