Delhi District Court
Anil Sharma vs Prahlad Sharma on 12 January, 2012
IN THE COURT OF HARJYOT SINGH BHALLA
CIVIL JUDGE-01, SOUTH DISTRICT, SAKET, NEW DELHI
Suit No. 126/2010
Case ID No. 02403C0069762009
Anil Sharma
S/o Late Sh. S.P. Ulfat
R/o 8/9, 2nd Floor, Jangpura Extension,
New Delhi-110014 .................Plaintiff
Versus
Prahlad Sharma
S/o Late Sh. M.L. Sharma
R/o 8/9, Ist Floor, Jangpura Extension,
New Delhi-110014. ..............Defendant
CIVIL SUIT FOR POSSESSION, RECOVERY OF RENT/DAMAGES/MESNE
PROFITS
Date of Institution : 12.12.2008
Date of reserving the Order : 17.12.2011
Date of pronouncement : 12.01.2012
JUDGMENT (ORAL):
By this judgment I shall dispose of the above suit filed by the plaintiff seeking the relief of Possession and Permanent Injunction. Averments Culled Out from the Pleadings:
Plaintiff's case as per Plaint 1 Plaintiff is the landlord/ owner of the property bearing no.8/9, Jangpura Extension, New Delhi and resides on the second floor. The defendant became a tenant under the plaintiff since the date of purchase of the property i.e. on 25/11/99 at the first floor of the said property (hereinafter referred to as suit property). The first floor comprises of three rooms, one Anil Sharma Vs. Prahlad Sharma Page 1 of 21 Suit No. 126/10 kitchen, one bath room and one toilet.
2 Property was purchased by way of registered Sale Deed. The tenancy was oral to begin with, however, later on a lease deed was executed on 15/09/04 between the parties. As per the lease deed the rate of rent was agreed as Rs.11,500/- which rent was to be paid w.e.f. 15/09/04. The lease was for 47 months. As per lease deed dated 15/09/04, this period could have been further extended by increasing the rent by 10% of the existing rate. The defendant was to pay electricity and water charges directly to the authorities. 3 Defendant was not regularly paying the rent nor the charges.
That on 16/11/07, the defendant started fixing tiles in his portion without the consent of the plaintiff. Again on 19/11/07 the defendant started the work which was got stopped. The defendant started compelling the plaintiff and his family members to sell the property to him. A complaint was lodged which was later on withdrawn. As the tenancy was about to expire on 14/09/08, the plaintiff showed his unwillingness for further extension of lease deed. The defendant started misbehaving with the plaintiff and even stopped paying the rent to have a fresh lease deed.
4 On 20/06/08, employees of BSES visited the property to change the electricity meter which was not permitted by the defendant as the Bills remained unpaid for long. The electricity supply was disconnected for 08/08/2008 and the plaintiff had to live without electricity even to his own premises even though he had paid his share of electricity Bill to the defendant. Plaintiff obtained a separate connection by paying the arrears of the bill, for that reason the defendant is liable to pay Rs.14,332/- to the plaintiff. The defendant started stealing the electricity and plaintiff lodged a complaint on 11/08/08 with the BSES and a raid was conducted and the Anil Sharma Vs. Prahlad Sharma Page 2 of 21 Suit No. 126/10 defendant was booked under the Delhi Electricity Act vide a legal notice dated 12/08/08.
5 The tenancy of the defendant was terminated with effect from the date of expiry of the lease deed i.e. 14/09/08 and the possession was demanded along with the arrears. The defendant replied to the notice. The defendant thereafter filed a civil suit for permanent injunction against the forcible dispossession. Defendant also filed another suit against BSES and the plaintiff herein challenging the theft case. Plaintiff sent another legal notice on 27/11/08 for this. It is stated that in the proceedings filed by the defendant, the rent has been claimed to be Rs.3000/- per month, contrary to the lease deed. It is stated that in view of the statement made by the defendant which was recorded before the Special Executive Magistrate in the kalandara proceedings of DD No.20 dated 21/06/08 PS: Hazrat Nizamuddin, the matter was compromised. The defendant has another house and is refusing to shift. There are several dues which is accounted including the electricity and water Bill till 14/09/08, the rent and mesne profits w.e.f., 15/09/08 @ Rs.1500/-. The defendant is a tress passer after termination of the lease and liable to vacate the possession. The cause of action arose on 25/11/99 when the plaintiff became owner/ landlord and defendant became his tenant. It arose when proper lease deed was executed on 15/09/08. It again arose when the written lease expired on 14/09/08 and on 12/08/08 when the legal notice was sent. Cause of action is still continuing. The suit has been valued for relief of possession at Rs.1,38,000/- on which advoleram court fees has been paid and for the purpose of arrears of rent w.e.f. 14/05/08 to 14/09/08 and for damages 15/09/08 till the filing of the suit Rs.1,15,000/- for the relief of recovery dues of electricity Bill, suit is valued at Rs.14,332/-, total Anil Sharma Vs. Prahlad Sharma Page 3 of 21 Suit No. 126/10 court fee of Rs.8650/- is paid.
Defendant' case as per Written Statement 6 The defendant entered appearance and filed his WS. The defendant has taken preliminary objections in the WS. It has been averred that there is a relationship of landlord and tenant between the plaintiff and the defendant and the defendant is a tenant for consideration of Rs.3000/- per month as rent. It has been submitted that the suit is therefore barred by Section 50 of the DRC Act.
7 The lease deed is unregistered and cannot be looked at. It is also not duly stamped.
8 On merits it has been submitted that the premises were let out to the defendant initially at the rent of Rs.2000/- per month and later on it was enhanced to Rs.3000/- per month and includes electricity and water charges. It has been denied that the lease was executed and the same is a manipulated document. The tenancy is stated to be oral and continuing. It is denied that the electricity and water was to be paid directly to the concerned authorities. It is denied that the rent has not been regularly paid. It is stated that the rent stands paid, however, no rent receipt were issued by the plaintiff despite repeated demands. With effect from 01.08.2008 to 30.09.2009 the rent totaling Rs.6000/- has been deposited in the court of Ld. Additional Rent Controller, Patiala House Courts, New Delhi. The lodging of the complaint dated 25.11.2007 by the plaintiff is stated to be a matter of record. However, it is submitted that the same was withdrawn by the plaintiff. It is denied that the lease expired on 14.09.2008 or the plaintiff showed unwillingness to extend the lease as no lease expired as alleged. It is denied that the defendant stopped paying rent or wanted to pressurize the plaintiff to execute a fresh Anil Sharma Vs. Prahlad Sharma Page 4 of 21 Suit No. 126/10 lease.
9 It is denied that defendant was in long arrears of electricity bill or the plaintiff was attacked. The preparation of the Kalandra and its disposal by SEM is admitted. It is stated that the rent stands paid till July, 2008 in cash and plaintiff failed to deposit electricity charges etc. The electricity was disconnected on 08.08.2008 and since then the defendant is without electricity. Defendant applied for fresh electricity connection, however, for want of NOC, defendant was constrained to file a petition under Section 45 of the DRC Act. It is stated that no arrears of electricity are payable to the plaintiff.
10 It is submitted that the raid at the premises was got arranged by the plaintiff in collusion of officials of BSES. A suit for declaration and injunction against BSES and plaintiff is also pending before the electricity court and no amount is payable by the defendant towards alleged theft of electricity.
11 The receipt of the legal notice has been admitted by the defendant and the reply to the same is also has been admitted. Defendant has averred that plaintiff had no right to terminate the tenancy as there was no adornment of tenancy in favour of the plaintiff on plaintiff purchasing the property. It is stated the plaintiff has no locus to seek details of bank accounts of the defendant and has no right to interfere into the loan transactions. The averments qua cause of action all have been denied.
12 On the basis of the pleadings of the parties, the following issues have been framed on 08.11.2010:-
1. Whether the suit is barred by the provisions of Section 50 of TRC Act? OPD
2. Whether the plaint has been insufficiently Anil Sharma Vs. Prahlad Sharma Page 5 of 21 Suit No. 126/10 stamped for the purposes of the court fees? OPD
3. Whether the plaintiff is entitled to decree of possession as prayed for? OPP
4. Whether the plaintiff is entitled to decree of recovery of arrers of rent and damages as prayed for? OPP
5. Whether the plaintiff is entitled to decree of recovery of Rs.14,332/- as prayed for? OPP
6. Whether the plaintiff is entitled to rate of interest as prayed? OPP
7. Relief.
13 The plaintiff and defendant have both led their respective evidence.
14 Plaintiff has entered the witness box. He was examined as PW2. Before the evidence of the plaintiff could be recorded, the evidence of a formal witness who was the official witness Ct. Ravinder Singh was recorded as PW1 only for the purpose of exhibiting the certified copy of the order sheets and statements recorded in the kalandra proceedings as Ex.PW1/11. Plaintiff also produced and exhibited the following documents :
1. Sale deed as Ex.PW1/1.
2. Lease deed as Ex.PW1/2.
3. The site plan as Ex.PW1/3.
4. Electricity bill receipts of payment.
5. Ex.PW1/4 to Ex.PW1/7, complaint and record pertaining to raid by BSES as Ex.PW1/8.
6. Legal notice dated 12.08.2008 as Ex.PW1/9.
7. Orders of Sh. Sandeep Yadav, Ld. Additional Rent Controller, New Delhi dated 05.06.2009 in a petition under Section 45 of Delhi Rent Control Act filed by the defendant as Ex.PW1/10.
8. The certified copy of the proceedings in the Kalandra in DD no. 20 dated 21.08.2008 as Ex.PW1/11.Anil Sharma Vs. Prahlad Sharma Page 6 of 21 Suit No. 126/10
15 The plaintiff also produced Sh. Kedar Nath Sharma, Record Room Keeper as PW3 who produced the records of the proceedings under Section 45 of Delhi Rent Control Act titled Prahlad Sharma Vs. Anil Sharma exhibited as Ex.PW1/10.
16 One Sh. Pradeep Helon who is the brother in law of the plaintiff also appeared as an attesting witness of the lease deed Ex.PW1/2. The witnesses were cross examined on behalf of the defendant. The defendant entered the witness box and was examined as well as cross examined. 17 Defendant exhibited the following documents :
1. The plaint of a suit for permanent injunction filed by him as Ex.DW1/1.
2. Rent receipt of Rs.6000/- as Ex.DW1/2.
3. Copy of petition under Section 27 of Delhi Rent Control Act as Ex.DW1/3.
4. Reply to the legal notice as Ex.DW1/4.
18 No other witness or documents was produced by the defendant. Submissions 19 Ld. Counsel for the plaintiff has argued that the description of the property has not been disputed by the defendant. The relationship of landlord and tenant has also not been denied. The receipt of legal notice dated 12.08.2008 has also not been denied by the defendant. The plaintiff has been able to prove that the rent of the suit property is Rs.11,500/- and he is entitled to a decree as prayed.
20 Counsel for the defendant has on the other hand raised a legal objection that the legal notice Ex.PW1/9 is not a valid legal notice as it fails to give 15 clear days notice. Counsel submits that notice is admittedly dated 12.08.2008 but was received on 18.08.2008 demanding possession within 30 days. It submitted that the plaintiff consented to continuance of tenancy for a Anil Sharma Vs. Prahlad Sharma Page 7 of 21 Suit No. 126/10 period of 30 days and a new tenancy came into existence. Ld. Counsel further argues that the plaintiff has not even disclosed that defendant was a tenant with the previous owner and elements of handing over of symbolic possession / attornment of lease rate of rent etc. have not been mentioned in the sale deed. The lease was orally executed and the lease deed relied upon by the plaintiff is neither registered nor properly stamped and cannot be looked at for any purpose. Ld. Counsel has argued that plaintiff is continuously changed his stand as to the date when the lease expired. He states in the legal notice that date was 14.08.2008 whereas in the plaint, it is averred that the lease was to expired on 14.09.2008. It is argued that in the proceedings under Section 27 of Delhi Rent Control Act where the rate of rent was held as Rs. 11,500/-, the order has been set aside in appeal and case remanded back. It is argued that the statement before the Special Executive Magistrate is not relevant and cannot be relied upon.
Ld. Counsel for the plaintiff in rebuttal stated that the notice cannot be treated as invalid after the amendment to the Section 106 of the Transfer of Property Act. Ld. Counsel for the plaintiff further submits that in the reply to the legal notice, which is dated 29.08.2008, the defendant has only raised objection to the right to terminate the tenancy and no objection has been raised as to the period being insufficient or a fresh tenancy having been created which is now being raised for the first time. Ld. Counsel relied on the Section 116 of Indian Evidence Act.
My issue-wise findings are as follows:-
21 Issue no. 1: Whether the suit is barred by the provisions of Section 50 of DRC Act? Onus of proving this issue was on the defendant.
The case of the defendant is that he was a tenant for rent of Rs.2000/- and Anil Sharma Vs. Prahlad Sharma Page 8 of 21 Suit No. 126/10 rent was subsequently increased to Rs.3000/- and continues to be so till date. Defendant denied the execution of the lease deed. However, in his cross examination dated 05.11.2011 the plaintiff was able to elicit following answers from the defendant :
"I have not filed any application to the SEM for correction of the manipulation in my statement recorded before him. I cannot say whether I have filed any appeal against the order of Sh. Sandeep Yadav, Ld. ARC, Saket Courts, whereby he has dismissed my application under Section 45 of Delhi Rent Control Act. It is correct that in the suit for permanent injunction filed by me which has been decided vide Ex.DW1/1, no decision regarding rate of rent has been made. I was a tenant under Sh. Raj Malhotra since March, 1997. I am not aware when the plaintiff has purchased the suit property. I started paying rent to the plaintiff after the death of his father. I cannot specify the date and the period when I first paid the rent to the plaintiff. I have no document with me to show that the rent was Rs. 2000/- per month including electricity and water charges. (Vol. The tenancy was oral tenancy). I cannot say when the rent has been enhanced to Rs. 3000/-. (Vol. The enhancement was also oral terms). It is wrong to suggest that the rent of the premises was not Rs. 2000/- or was not enhanced to Rs. 3000/- as stated by me). I have no document with me to show that the plaintiff has ever accepted rent from me @Rs. 3000/- pm. (Vol. Plaintiff has filed his statement of account on record and I rely upon the same to establish the payment of rent at Rs.3000/- pm). I used to pay the rent either by cheque or by cash. I have my bank statement to show the cheques of Rs.3000/- towards rent given to the plaintiff."
22 In response to further questions, the witness gave the following answers :
"It is wrong to suggest that the rate of rent is Rs. 11,500/- w.e.f. 15.09.2004. .......... It is correct that the plaintiff is contesting my application under Section 27 of Delhi Rent Anil Sharma Vs. Prahlad Sharma Page 9 of 21 Suit No. 126/10 Control Act pending before Sh. Sandeep Yadav, Ld. ARC, Saket Courts."
23 The statement of the defendant recorded before the Special Executive Magistrate Ex.PW1/11 was proved by the plaintiff through witnesses PW2 and PW1. During the examination of the defendant as a witness before the SEM, he was also put a suggestion that he was deposing falsely, which suggestion was denied by him before the Special Executive Magistrate. The relevant portion of the cross examination forming part of the record of proceedings in DD no. 12 of 2008 recorded on 07.01.2009, reads as follows :
"Q. 8/9, First Floor, Jangpura Ext ka kitna kiraya hai? Ans. Lease deed dinank 15-9-2004 ke anusar kiraya rupaye 11 hazar 500 sau prati mah hai. Aur 30-5-2008 tak ka kiraya de diya hai. Anil Sharma ne iski rasheed nahi dee."
24 Even though this statement had been duly proved before this court, the defendant made no attempt to explain away his admission in his affidavit by way of evidence except a bald averment that the same was manipulated. However, defendant led no evidence to show what was the manipulation and how the same had been managed. In fact, in para no. 21 of his affidavit the witness deposed that the "Kalandra has since been disposed off by the SEM concerned". Thus, the witness has himself accepted the proceedings before the Special Executive Magistrate without any challenge. In his cross examination before this court the witness admitted that he never applied for any correction to be made to his statement recorded before the Special Executive Magistrate. In my view, the plaintiff has been able to prove on preponderance of probabilities that the rent was Rs.11,500/- and defendant Anil Sharma Vs. Prahlad Sharma Page 10 of 21 Suit No. 126/10 has failed to prove that the rent was Rs.3000/- as alleged by him. 25 The Evidence Act allows full effect to be given to circumstances or conditions of probability or improbability. While deciding an issue of fact the Judges are bound to call into aid their experience in life and can test the evidence placed before them on the basis of probability and improbability. Reliance is placed on the decision in Gopeshwar Dutt vs B. Dutt XVI CWN 265 and Chaturbhuj Pande vs Collector, Raigarh AIR 1965 SC 255. 26 The finding that the rent was not Rs.3000/- and was Rs.11,500/- is supported by the following :
Firstly, the admission of the defendant recorded in the statement before the Special Executive Magistrate in the Kalandra proceeding arising out of the DD entry no. 20;
Secondly, that there has been no cross examination on para no. 21 of the affidavit of the plaintiff which deals with the admission made by the defendant as to the rate of rent;
Thirdly, the defendant has himself suggested during the cross examination of plaintiff that the plaintiff has received rent paid by the defendant at the rate of Rs. 11,500/- per month upto May, 2008;
Fourthly, the findings of the Ld. Additional Rent Controller in the petition under Section 45 of the Delhi Rent Control Act recorded in Ex.PW1/10 have attained finality wherein the Ld. Rent Controller concluded that the monthly rent was Rs.11,500/-;
Fifthly, the defendant has not filed any document to Anil Sharma Vs. Prahlad Sharma Page 11 of 21 Suit No. 126/10 show the rate of rent alleged by him.
Sixthly, the alleged enhancement of rent from Rs. 2000/- to Rs.3000/- is unbelievable in as much as Section 6A of the Delhi Rent Controller Act only permits 10% increase in rent. It was not even possible to increase the rent from Rs.2000/- to Rs.3000/- and no tenant under the protection of Delhi Rent Control Act would agree to such an increase and the story of the defendant is highly improbable. Defendant has not even given any date of the alleged enhancement of rent;
Seventhly, the defendant has also failed to show that he ever demanded any rent receipt from the plaintiff which was his statutory right in case, the tenancy was protected under the Delhi Rent Control Act. In fact, in his cross examination the defendant admitted that "I have not issued any letter, notice to the plaintiff demanding the rent receipts from him.";
Eighthly, the defendant has failed to discharge the onus placed on him by law that the civil court has no jurisdiction to entertain the present suit and the same is barred by provision of Section 50 of Delhi Rent Control Act. He has failed to prove that the property is covered by Delhi Rent Control Act.
27 In view of the above, this issue is decided against the defendant and in favour of the plaintiff.
28 Issue no. 2: Whether the plaint has been insufficiently Anil Sharma Vs. Prahlad Sharma Page 12 of 21 Suit No. 126/10 stamped for the purposes of court fees? Onus of proving this issue is on the defendant. There is a slight discrepancy in the deposition on affidavit of plaintiff vis-a-vis the averment made in para no. 27 of the plaint. The suit is properly valued as per the plaint and adequate court fees has been affixed in as much as relief for possession is valued at Rs.1,38,000/- on the basis of rent for one year, rent and damages from 14.05.2008 to 14.09.2008 and from thereafter till 15.09.2008 at Rs.1,15,000/-, arrears of electricity at Rs.14,332/-, and total court fee of Rs.8,650/- has been paid. The error in the affidavit is therefore immaterial and this issue is also decided against the defendant and in favour of the plaintiff.
29 Issue no. 3: Whether the plaintiff is entitled to decree of possession as prayed for? Onus of proving this issue was on the plaintiff. The parties are not in dispute as far as the fact of relationship of landlord and tenant is concerned. The rate of rent has already been held by me to be Rs. 11,500/- while recording my findings on the first issue. The receipt of legal notice is not in dispute. Ld. Counsel for the defendant has only raised objection to the validity of the legal notice Ex.PW1/9. Even though the case of the plaintiff is based on the unregistered lease deed Ex.PW1/2, in my view, the said lease deed cannot be looked at for any purpose as it purports to create a lease for a period exceeding eleven months i.e. 47 months. Even otherwise, it is the admitted case of defendant that the lease was oral and continued to be so as per para no. 10 of his affidavit.
30 Before examining the other aspects it may pertinent to take note of a relevant judicial pronouncement on the subject which has comprehensively dealt with the previous decisions on the subject. In order dated 27.2.2007 passed by Hon'ble Justice Vipin Sanghi in IA No.8256/07 in Anil Sharma Vs. Prahlad Sharma Page 13 of 21 Suit No. 126/10 CS (OS) No. 535/06 entitled Vijay Kr. Awasthi vs BSNL it has been observed:-
In Burma Shell Oil Distributing now known as Bharat Petroleum Corporation ltd. Vs Khaja Midhat Noor and Others reported as (1988) 3 SCC 44 it was held that where in the absence of the registered instrument of lease, after the expiry of the initial lease period the lessee continued to hold the property and the lessor accepted the rent, the lease would be renewed from month to month unless it was shown that it was for agricultural purposes. This was the effect of Section 107 when read with Section 116 Of the Transfer of Property Act. 20.
The aforesaid decision was followed by this court in Shukla Malhotra & Ors. Vs M/s. Vyasa Bank Ltd, 1998 III AD (Delhi) 628. This court while interpreting Section 107 of the Act held that the said section prescribes the mode of making leases. A lease of immovable property for a term exceeding one year can be made only by a registered instrument. This requirement of registration has to be adhered to strictly, failing which any instrument purporting to lease out the premises for a period exceeding one-year or extend it likewise orally or in writing would be void. The presumption as to duration of lease contained in Section 106 of the Act will apply. Accordingly the tenancy will be created from month to month terminable by 15 days notice as provided by section 106. In the said case the factum of possession as a tenant as well as receipt of notice of termination under Section 111 were both admitted by the defendant tenant. The court allowed the application under Order 12 Rule 6 of the Code of Civil Procedure and passed a decree for possession in favour of the plaintiffs and against the defendant.
Reliance was also placed on a division bench judgment of this court reported as Samir Mukherjee vs Devinder Kumar Bajaj & Ors., 71 (1998) Delhi Law Times 477. In Surjit Sachdev vs Kazakhstan Investment Services Pvt. Ltd., 1997 II AD (Delhi) 518 it was held that admission may not be made expressly in the pleadings and the court Anil Sharma Vs. Prahlad Sharma Page 14 of 21 Suit No. 126/10 can proceed to pass a decree in plaintiff's favour even on the basis of constructive admissions. The purport of Oder 12 Rue 6 of the Code is to enable a party to obtain speedy judgment at least to the extent of the relief, which, according to the admission of the other party he is entitled.
31 The court further observed:
In the present case, the relationship of landlord and tenant is not denied by the defendant, and the defendant admits that it was a tenant of the plaintiff in the premises in question. The rate of rent is undisputedly beyond Rs. 3500/- per month, even if it is taken for the purpose of this application of Rs. 72.85/- sq. ft., which translates to Rs. 2,18,550/- per month. The tenancy is not protected by the Delhi Rent Control Act, 1958. Admittedly, there is no registered lease deed, and consequently, the lease could only be from month to month, assuming for the sake of argument that, after the initial period of three years, when the defendant reduced the rent from Rs. 95/- per sq. ft. to Rs. 72.85/- per sq. ft., the tenancy of the defendant continued. The monthly tenancy, if any, could be terminated by issuance of a notice under Section 106 of the Transfer of Property Act.
32 Even though, the aforesaid judgment was passed under the provisions of Order 12 Rule 6 of CPC, the ratio of the said decision and the decisions cited therein is that an oral tenancy can be terminated by notice under Section 106 of Transfer of Property Act. Therefore, the fact that the lease would have expired on 14.08.2008 or 14.09.2009 as per the unregistered lease deed is irrelevant. The lease deed itself is irrelevant. The only question to be determined is whether the present oral tenancy was terminated by the legal notice dated 12.08.2008.
33 Section 106 of Transfer of Property Act reads as follows:
Anil Sharma Vs. Prahlad Sharma Page 15 of 21 Suit No. 126/10"106. Duration of certain leases in absence of written contract or local usage - (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice."
(2)Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3)A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
Prior to its substitution, S. 106 read as under :-
"106. Duration of certain lease in absence of written contract or local usage. - In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year,terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered Anil Sharma Vs. Prahlad Sharma Page 16 of 21 Suit No. 126/10 personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
34 Section 106 (1) of Transfer of Property Act (hereinafter the Act) clearly states that only 15 days notice is required to terminate a month to month lease. Section 106 (2) of the Act provides that the period of 15 days shall commence from the date of receipt of notice. Section 106 (3) of the Act provides that even if the period mentioned in the notice falls short of the 15 days period provided under Section 106 (1) of the Act, the notice shall not be invalid if the suit is filed after the expiry of period of 15 days from the date of notice.
35 It is pertinent to note that Section 106 of the Act was amended by Act 3 of 2003 w.e.f. 31.12.2002. The amendment was necessitated as the words "fifteen days' notice expiring with the end of a month of the tenancy"
were causing a lot of problem in termination of tenancy as the notice which was received by tenant when less than 15 days were left in a month were being treated as invalid. The purpose of this amendment was to remove the mischief by reducing the necessity to 15 clear days notice for terminating a tenancy. The idea was to make termination of tenancy easier by giving of a mere 15 days notice. In fact, the legislature went ahead and validated those notices also which failed to give clear 15 days notice and gave a period shorter than 15 days as long as the suit was filed after the expiry of 15 days. In my view, once the provision provides that 15 days notice is all that is required, it cannot be urged that any notice which gave more than 15 days would be invalid merely because it gives more than 15 days notice to a Anil Sharma Vs. Prahlad Sharma Page 17 of 21 Suit No. 126/10 tenant. The legislature has only laid down a minimum period and a tenant cannot be heard to say that the notice to him gives more than 15 days and is therefore invalid.
36 There is no substance in the argument that the notice was received on 18.08.2008 demanding possession within 30 days and since the plaintiff consented to continuance of tenancy for a period of 30 days a new tenancy came into existence. Since the tenancy was month to month,the same could have been and was terminated by legal notice under Section 106 of the Act.
37 It is pertinent to note that the plea that the lease got extended as the plaintiff had consented to the defendant continuing in possession even after the expiry of the lease, is irrelevant for that reason and even otherwise the said plea was never taken in the legal notice nor in the pleadings. The legal notice was admittedly received on 20.08.2008 as has been submitted by the counsel and is evident from the fact that the reply to the same had been sent by the defendant on 29.08.2008 Ex.DW1/4. The legal notice demanded possession within 30 days from the date of receipt, which is more than the 15 days period provided in Section 106 of the Act and therefore, there is no invalidity in the notice.
38 The submissions that the plaintiff has not even disclosed that defendant was a tenant with the previous owner and elements of handing over of symbolic possession / attornment of tenancy, rate of rent etc. has not been mentioned in the sale deed are also irrelevant. This issue is accordingly decided in favour of the plaintiff and against the defendant. 39 Issue no. 4: Whether the plaintiff is entitled to decree of recovery of arrears of rent and damages as prayed for? Onus of proving Anil Sharma Vs. Prahlad Sharma Page 18 of 21 Suit No. 126/10 this issue was on the plaintiff. Plaintiff has been able to prove that rate of rent agreed was Rs.11,500/- per month. The admitted position coming out from the evidence is that rent at the said rate stood paid to the plaintiff upto May, 2008 as it appears from the cross examination dated 28.05.2011 as well as cross examination of the defendant recorded before the Special Executive Magistrate on 07.01.2009. It is further admitted that rent has also been deposited before the Ld. Additional Rent Controller up till October, 2008 @Rs. 3000/- per month. For the period thereafter the defendant has already paid interim rent @Rs.3000/- per month upto October, 2011. The plaintiff is therefore entitled to decree for recovery of remaining arrears of rent for September, 2008 and damages from October,2008 up till the date of the filing of the suit and pendente lite damages at the same rate as agreed rate of rent till the handing over of possession @Rs.11,500/- per month. 40 Issue no. 5: Whether the plaintiff is entitled to decree of recovery of Rs.14,332/- as prayed for? Onus of proving this issues was on the plaintiff. Case of the plaintiff is that due to non payment of arrears electricity supply to the property was disconnected. The plaintiff had paid his share of the bill to the defendant, however, the defendant did not pay the electricity bill and it got disconnected. Plaintiff had to pay Rs.14,332/- to get a separate connection. However, the plaintiff admitted in his cross examination that he never gave any notice to the defendant regarding default in payment of electricity and water bills. The defendant had also suggested to the plaintiff that notice was not given because it was plaintiff who was supposed to deposit the amount. The plaintiff also deposed that he did not remember the exact date, month or period for which the defendant has not paid the electricity and water charges. He further deposed that he only got to know of Anil Sharma Vs. Prahlad Sharma Page 19 of 21 Suit No. 126/10 the dues when the electricity was disconnected on 08.08.2008. He further admitted in his cross examination that the bills were in the name of his brother. He denied the suggestion that payment of bills were his liability. However, the plaintiff has neither pleaded nor produced any evidence to prove what was the amount paid by him to the defendant towards his liability of the electricity. There are no pleadings to show how the sharing of the water and electricity bills was carried out and how the shares were determined. It is highly improbable that a landlord would pay the tenant from his own pocket expecting that the tenant shall deposit the electricity and water bills when none of the connections are in the name of the tenant. In the absence of material particulars, it cannot be believed that any amount was paid by plaintiff to the defendant. The claim for arrears towards electricity and water charges of Rs.14,332/- is liable to be rejected. This issue is decided in favour of the defendant and against the plaintiff.
41 Issue no. 6: Whether the plaintiff is entitled to rate of interest as prayed? Onus of proving this issue was on the plaintiff. In the legal notice the plaintiff has not demanded any payment of interest. However, it cannot be doubted that defendant has remained in arrears and has withheld amount legally due and payable to the plaintiff, therefore, the plaintiff shall be entitled to interest @6% per annum on the entire arrears decreed in his favour from the date of institution of the suit up till the date of payment. This issue is also decided in favour of the plaintiff and against the defendant.
42 Relief: The suit is decreed for the relief of possession of the suit property. Defendant is given three weeks to handover the vacant physical possession of the suit property bearing no. 8/9, First Floor, Jungpura Anil Sharma Vs. Prahlad Sharma Page 20 of 21 Suit No. 126/10 Extension, New Delhi-14 as shown in colour red in the site plan Ex.PW1/3. The suit is also decreed for the relief of recovery of arrears of rent for September, 2008 and damages from October,2008 up till the date of the filing of the suit and pendente lite damages at the same rate as agreed rate of rent till the handing over of possession @Rs.11,500/- per month. It is clarified that arrears of rent and damages from September, 2008 up till October 2011 shall be calculated after deducting the sum of Rs.3000/- already paid by the defendant. Plaintiff shall also be entitled to recover pendente lite interest @6% per annum on the entire arrears so arrived at up till the date of filing of the suit from the date of institution up till the date of payment. The plaintiff shall also be entitled to recover future interest from the date of decree uptill the payment of the total amount decreed towards pendente lite damages from the date of decree. Plaintiff shall also be entitled to costs of the suit. Decree sheet be drawn accordingly on plaintiff furnishing advaloram court fees on the same. File be consigned to record room.
Dictated in the open Court Harjyot Singh Bhalla,
On 12.01.2012 Civil Judge-1, South District,
New Delhi.
Anil Sharma Vs. Prahlad Sharma Page 21 of 21
Suit No. 126/10
Suit No. 126/2010
12.01.2012
Present: Counsel for the plaintiff.
Vide separate judgment of even date, the present suit has been decreed. Decree sheet be prepared accordingly. File be consigned to Record Room.
Harjyot Singh Bhalla, Civil Judge-1, South District, New Delhi/12.01.2012 Anil Sharma Vs. Prahlad Sharma Page 22 of 21 Suit No. 126/10