* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: April 01, 2009
Date of Order: April 23, 2009
+ IA No.14253/2008 in CS(OS) No.1373/2008
% 23.04.2009
ANITA SURI ... Plaintiff
Through : Mr.Anil Kher, Sr. Adv. with Mr. Varun, Adv.
Versus
TEXTILE COMMITTEE & ANR. ... Defendants
Through: Mr. Ashwani Mata, Sr. Adv. with
Mr. Manish Sharma, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this application under Order 12 Rule 6 CPC read with Section 151 CPC, the plaintiff has asked for passing a decree for recovery of possession of the premises involved in the above suit on the basis of admissions made by the defendant in the WS.
2. The plaintiff filed a suit for recovery of possession and other reliefs in respect of the premises comprising of ground, mezzanine, first, second and third floor at 41 Community Centre, Naraina, Phase-I, New Delhi on the ground the lease of the premises was given in 1985 and thereafter it was renewed from time to time. The last renewal of the lease for a period of 3 years was effective from 1st May, 2005 till 30th April, 2008 at a monthly rent of Rs.1,12,000/- for the entire premises. The lease expired on 30th April, 2008. There was no agreement between the plaintiff and the defendant no. 1 with regard to the renewal of lease despite exchange of correspondence IA No.14253/2008 in CS(OS) No.1373/2008 Page 1 of 4 between them and defendant no. 1 did not agree to the terms as offered by the plaintiff for renewal of this. Thus, the lease of defendant no. 1 stood terminated by afflux of time. Defendant no. 1 did not hand over the possession of the premises. Thereafter a notice dated 21st May, 2008 was sent by the plaintiff to the defendant no. 1 specifically terminating the lease of the defendant in respect of property on the expiry of notice period, i.e., midnight of 30th June, 2008 and 1st July, 2008. Despite notice, the defendant failed to vacate the premises. The plaintiff filed the suit for recovery of possession, for mesne profits/damages from 1st May, 2008 onwards @ Rs.9,60,000/-, pendent lite interest and future interest.
3. In the written statement, the defendant no. 1 had taken objections that defendant no. 2 was not a necessary party and has been wrongly made as a party on merits. It was not denied that the premises in question was under tenancy of defendant no.1 at a monthly rent of Rs.1,12,000/-. It is also not denied that the tenancy came to an end on 30 th April, 2008 by afflux of time. Rather it is stated in the WS that the defendant o. 1 sent, on 14th March, 2008, a legal notice for renewal of the lease agreement in response to which, the plaintiff sent a letter dated 24th March, 2008 therein quoting market rate of the rent for renewal of the tenancy. This market rate of the rent as quoted by the plaintiff was not acceptable to the defendant no.1. A meeting was held between the plaintiff and the defendant no.1 on 8th April, 2008 regarding rent. The rent offered by defendant no. 1 was not acceptable to the plaintiff. Thereafter, a notice was received from the plaintiff through her Advocate terminating the tenancy.
4. The preliminary objections taken by the respondent is that suit was not maintainable in view of the fact that plaintiff had not served a notice to the defendant under Section 80 of the CPC as required under law. IA No.14253/2008 in CS(OS) No.1373/2008 Page 2 of 4
5. It is settled law when there is an unequivocal admission of 3 factors; i) existence of relationship of lesser and lessee in respect of suit property; ii) the rent being more than Rs.3500/- and iii) the determination of such relationship in any of the contingencies as envisaged in Section 111 of the Transfer of Property Act, the suit for possession of premises is liable to be decreed even if such admission is not expressly made in the pleadings and is made constructively through documents. In the present case, all the three above admissions have been made in the WS by the defendant. There is no dispute about the relationship of landlord and tenant, the rent being above Rs.3500/- and the tenancy having come to an end by afflux of time as well as by express determination through a legal notice by the plaintiff. I therefore consider that the application of the plaintiff under order 12 Rule 6 is liable to be allowed.
6. Counsel for the defendant, however raised objection regarding non-service of a notice under Section 80 of CPC. I consider that this objection is not tenable. It is the case of the defendant no. 1 itself that defendant no. 2, Union of India was not a necessary party and has been wrongly made as a party by the plaintiff and it was only defendant no. 1 who was tenant and was a necessary party. No doubt defendant no. 1, the Textile Committee was constituted under the Textile Act, 1963 and therefore is a legislative creature that does not mean that in order to file a suit for possession against the Textile Committee, in respect of the premises let out to it, Section 80 CPC notice is required to be given to the Union of India. A notice under Section 80 CPC is given so that unnecessary litigation is avoided and if the claim of the plaintiff is lawful, the government body/defendant without forcing the plaintiff to go to the Court should consider the claim and redress the grievance of the respondent. IA No.14253/2008 in CS(OS) No.1373/2008 Page 3 of 4
7. In the present case, the lease deed between the parties came to an end on 30th April, 2008 by afflux of time, the defendant thereafter had sufficient notice that it has to vacate the premises since the plaintiff had refused to renew the lease. The defendant had no option but to vacate the premises but the defendant did not do so. Therefore, the plaintiff has to serve a notice on the defendant terminating the lease with effect from midnight of 30th June, 2008 that also did not stir the defendant for vacating the premises. I consider that no separate notice under Section 80 was required to be served upon the defendant no.1. The defendant no.1 had sufficient notice to act according to law. Since it failed to act according to law, the plaintiff was forced to file this suit.
8. I allow the application under order 12 Rule 6 CPC filed by the plaintiff. The suit of the plaintiff is partly decreed in following terms:
"a decree of possession in respect of premises comprising of ground, mezzanine, first, second and third floor at 41 Community Centre, Naraina, Phase-I, New Delhi is passed in favour of the plaintiff and against the defendant no.1"
CS(OS) No.1373/2008 The suit shall proceed further in respect of rest of the claims filed by the plaintiff. The matter be sent to the regular Bench for further proceedings.
Parties to appear before the regular Bench on 4th May, 2009.
April 23, 2009 SHIV NARAYAN DHINGRA J.
ak
IA No.14253/2008 in CS(OS) No.1373/2008 Page 4 of 4