* HIGH COURT OF DELHI : NEW DELHI
Judgment pronounced on: 18.07.2011
+ IA No. 9097/2009 in CS (OS) No. 2056/2008
SMT. NARGIS KHANNA ... Plaintiff
Through: Mr Bakshi Bikram Singh, Adv. with
Mr Harkirat Sawhney, Adv.
Versus
M/S WIN-MEDICARE PVT. LTD. & ANR. ... Defendants
Through: Mr Maninder Singh, Sr. Adv. with
Mr Vivek Singh and Mr Manish
Kaushik, Advs. for D-1.
Mr Pankaj Kapur, Adv. for D-3 & 4.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the application filed by the plaintiff under Order 12 Rule 6 CPC seeking relief to pass the judgment and decree on the basis of the admissions made by the defendant No.1 in the written statement.
2. The brief facts are that the plaintiff, Smt. Nargis Khanna, has filed the present suit for recovery of possession and for permanent CS(OS) No. 2056/2008 Page No.1 of 17 injunction against the defendants, i.e.,Win-Medicare Pvt. Ltd. and Sh. Prem Kumar Dewan who is the brother of the plaintiff.
3. The case of the plaintiff is that the plaintiff and defendant No.2 born out of the wedlock of Smt. Amrit Kala Dewan and Sh. Jagan Gopal Dewan and are Class-1 legal heirs of late Smt. Amrit Kala Dewan.
4. The property bearing No. N-47, Panchsheel Park, New Delhi (hereinafter referred to as suit property), was owned by the father of the plaintiff and defendant No.2. After the death of their father, the suit property devolved upon Smt. Amrit Kala Dewan, their mother, by virtue of a Will left behind by their father.
5. Smt. Amrit Kala Dewan died on 12.11.2005 leaving behind the plaintiff and defendant No.2 her only two Class-I legal heirs and therefore, after her death, the entire estate of their parents devolved upon the plaintiff and defendant No.2 in equal proportion. Thus, they became the owners of property No. N-47, Panchsheel Park, New Delhi.
6. Admittedly, the mother of the plaintiff and defendant No.2 during her life time, vide registered lease deed dated 08.12.2004, had let out the first floor with fittings and fixtures of suit property to the defendant No.1, i.e. M/s Win-Medicare Pvt. Ltd. on a monthly rent of Rs.50,000/- together with right of entrance, passage and other easements for a specific period of two years with effect from 01.12.2004. CS(OS) No. 2056/2008 Page No.2 of 17
7. As per the plaintiff, the defendant No.1 was to pay the actual water/electricity consumption charges to the authorities concerned and a security deposit of Rs.2,00,000/- towards the performance of the contractual obligation is lying with defendant No.2.
8. On 30.11.2006, the tenancy of defendant No.1 came to end by efflux of time. It is the admitted case of the parties that after the expiry of the said period, the plaintiff and defendant No.2 had not executed any fresh lease deed in favour of defendant No.1 which otherwise could be executed jointly.
9. The renewal option was not expressed by defendant No.1 and therefore, the case of the plaintiff is that the defendant No.1 had no right to remain in the premises after the expiry of the period on 30.11.2006.
10. The plaintiff says that the defendant No.1 did not vacate the premises by 30.11.2006, though no notice of vacation was otherwise required to be given to the defendant No.1, yet as an abundant precaution, the plaintiff, being co-owner of the suit property, gave a notice dated 29.03.2007 under Section 106 of the Transfer of Property Act, 1882 through her Advocate thereby calling upon the defendant No.1 to vacate the premises but the defendant No.1 failed to vacate the said premises and is continuing to remain in unauthorized occupation.
11. As the plaintiff was not on good terms with her brother, the defendant No.2, who was also not willing to take joint action along with CS(OS) No. 2056/2008 Page No.3 of 17 the plaintiff against the defendant No.1, therefore, the plaintiff, being one of the co-owners, has filed the present suit and her brother is impleaded as defendant No.2. The following reliefs have been sought by the plaintiff in the suit :
"a) pass a decree of possession in favour of the plaintiff and against the defendant no.1 thereby directing defendant no.1 to forthwith deliver the physical vacant possession of the premises i.e. first floor of property bearing no. N-47, Panchsheel Park, New Delhi-17.
b) a decree for Rs. 38 lakhs be also passed in favour of the plaintiff and against defendant No.1 on account of arrears of rent w.e.f. 01.11.05 till 30.11.06 and on account of arrears of damages w.e.f. 01.12.06 till 31.08.08 directing defendant No.1 to make payment of 50% of the amount in favour of the plaintiff and 50% in favour of defendant No.2, subject to defendant No.2 making payment of his share of the court fee to the plaintiff.
c) pass a decree of future damages/mesne profit @ 1,50,000/- per month from 01.09.08 till actual delivery of possession in favour of the plaintiff and against defendant No.1. The plaintiff undertakes to pay the actual court fee on the decretal amount at the time of passing of the final decree.
d) a decree of permanent injunction be also passed in favour of the plaintiff and against the defendants, their employees and representatives from harassing, interfering or obstructing in the peaceful enjoyment of the ground floor portion in occupation of the plaintiff and other portions of the said property by the plaintiff in any manner whatsoever.
e) Cost of the suit be also awarded in favour of the plaintiff and against the defendants."CS(OS) No. 2056/2008 Page No.4 of 17
12. The plaintiff has also claimed that the defendant No.1 is liable to pay the damages in terms of Clause II (3) of the lease which provides that in case of overstay beyond two years without the consent of the lessor, the lessee would be liable to pay a sum of Rs.5000/- per day, i.e., Rs.1,50,000/- per month for a period of overstay.
13. The plaintiff has given the detail of the amount recoverable from the defendant No.1 mentioned in para 9 of the plaint, details of which are as follows :
Rent from 01.11.2005 to 30.11.2006 Rs.6,50,000/-Damages from 01.12.2006 till 31.08.2008 @ Rs.1,50,000/- p.m. Rs.31,50,000/-
14. The defendant No.1 has filed the written statement and from plain reading of the same, it is clear that the defendant No.1 has not denied that the relationship of landlord and tenant. The defendant No.1 has also admitted that the premises were let out to the defendant No.1 by the mother of the plaintiff and defendant No.2 vide lease deed dated 08.12.2004 duly registered in the office of Sub-Registrar, Delhi, vide registration No.15750 in Book No.1, Volume No.4514 on page 183 to
188. It was also admitted that the lease was registered for the period of two years and was renewable for further period as per Clause II (3), subject to the enhancement of rent by 10%.
CS(OS) No. 2056/2008 Page No.5 of 17
15. It is also submitted by the defendant No.1 that even if it is assumed that the tenancy was not determinable and was actually determined, the alleged termination, if any at all, stood waived since the defendant No.1 complied with the terms of lease making payment of enhanced rent @ 10%. However, in the written statement, it is also stated that the plaintiff and defendant No.2 are acting under some game plan to dispossess the defendant No.1 from the tenanted premises.
16. As far as payment of rent is concerned, it is stated in the written statement that at the written request of the mother of the plaintiff vide letter dated 26.11.2004, the defendant No.1 was depositing the rent of the suit property directly in her saving account no.15288, Central Bank of India, Panchsheel Branch, Panchshel Club, New Delhi.
17. It is stated by the defendant No.1 that till November, 2006, the rent was deposited in the account of Smt. Amrit Kala Dewan. Thereafter, the defendant No.1 till March, 2007 deposited the rent with 10% increase in her account in terms of the lease. Therefore, the same is being deposited before this Court. Thus, the lease deed is continuing in view of renewal clause II (3) of the agreement and the plaintiff is entitled to any relief claimed in the present application.
18. It is also stated that the notice dated 29.03.2007 is defective on the face of it as the plaintiff in para 3 claims herself as 50% owner of the suit property and she has demanded the entire rent. She also claimed CS(OS) No. 2056/2008 Page No.6 of 17 herself to be the owner of the property. Even a fresh lease between the parties, i.e., the plaintiff, defendant No. 2 and defendant No.1 could not be executed due to the said dispute as after her death, the disputes arose between the plaintiff and defendant No.2 and they had reciprocal claims in respect of the suit property. The defendant No.2 in his suit, filed in the district court, has claimed that it is exclusively entitled to receive the possession of the suit property and in case the possession is handed over to the plaintiff, it shall be at the risk and liability of the defendant No.1.
19. The defendant No.2 has issued notice dated 19.7.2007 to the tenant of the second floor setting up contrary claim. The defendant No.2 has sold his undivided share in the property to one Sunit Seth on 23.06.2003. The said transaction was done in connivance with the plaintiff by defendant No.2 with ulterior motive. Mr. Sunit Seth has also filed suit for possession against defendant No.1 in which the plaintiff is also a party.
20. It is also stated that in the suit filed by the defendant No.1 in the court of Addl. District Judge, Tis Hazari Court, the parties were directed to maintain status quo with regard to the possession of the suit premises.
21. It is argued by the plaintiff that in the present case, the relationship of the landlord and tenant has been admitted by the defendant No.1. The lease deed dated 08.12.2004 which is registered CS(OS) No. 2056/2008 Page No.7 of 17 has also been admitted by the defendant No.1. The rate of rent has also been admitted in the written statement. The receipt of the legal notice dated 29.03.2007 for termination of the tenancy has also been admitted by the defendant No.1. Therefore, on the basis of these admissions made by the defendant No.1 in the written statement, the plaintiff is entitled for the decree of possession in respect of the suit property.
22. Mr Maninder Singh, the learned senior counsel appearing on behalf of the defendant No.1, has made his first submission that the reliefs sought by the plaintiff in the application cannot be granted as the defendant No.1 has challenged the validity of the notice under Section 106 of the Transfer of Property Act, 1882 which is defective as the same was issued by the plaintiff as co-owner against the law. The learned counsel for the defendant No.1 has relied upon the decision passed by this Court in the case of Smt. Radha Lal v. M/s. Jessop & Company; AIR 1992 Delhi 331.
23. The next submission is that the tenancy of the defendant No.1 with regard to the suit cannot be determined by notice as the same is defective, hence tenancy is subsisting even today and is determinable in nature. The learned counsel has relied upon the decision of the Supreme Court in the case Jeevan Diesels and Electricals Limited v. Jasbir Singh Chadha (HUF) and Another; (2010) 6 SCC 601, in support of his submissions.
CS(OS) No. 2056/2008 Page No.8 of 17
24. In the present case, it was not denied by the defendant No.1 that the lease deed executed between Smt. Amrit Kala Dewan and defendant No.1 was for two years which expired on 30.11.2006. It was a registered lease deed and it is also a matter of fact that after the expiry of the lease by efflux of time. The defendant No.1 has not pleaded or placed any material on record to show that the estate of the deceased devolved upon someone else other than the plaintiff No.1 and defendant No.2 or they are not class I legal heirs of Smt. Amrit Kala Dewan. It is also not disputed by the defendant No.1 that after the expiry of lease deed by efflux of time, there is no fresh lease deed or renewal thereto by mutual consent of the parties in writing or otherwise.
Clause II (3) of the lease deed reads as under:
"II (3). The lease is for the period of Two years. It is hereby explicitly agreed between both parties that the rent will be increased by 10% after two years on the last rent paid in case parties decide mutually in writing to renew the Lease for a further period of Two years. In case of overstay beyond 2 years without the consent of the Lessor, Lessee will pay a penalty of Rs.5,000/- per day for the period of such overstay."
25. By reading Clause II(3) of the lease deed, it is clear that it was agreed by both the parties that the lease deed can be renewed after two years, subject to 10% increase in the last rent paid in case parties decide mutually in writing to renew the lease deed for a further period of two years.
CS(OS) No. 2056/2008 Page No.9 of 17
26. In the case of Uptron Powertronics Ltd. Vs. Sh. G.L. Rawal, 1999 IV AD (Del) 861 wherein a suit for possession, mesne profits and damages was filed, before the framing of issues, the plaintiff moved an application under Order XII Rule 6 praying that in view of admissions made by the defendant, no evidence was required to be led and a decree may be passed for possession. The learned Division Bench observed that the lease was for a period of three years and renewal of the same was not registered. Hence, the lease became a lease on month to month basis under the Transfer of Property Act, 1882 and was terminated in accordance with law under Section 106 of the same Act.
27. In the case of National Insurance Co. Ltd. & Anr. Vs. Pahlad Tempo Service & Anr., 158 (2009) DLT 59, it has been held that "the object of Order XII Rule 6 is to enable the party to obtain a speedy judgment at least to the extent of the relief to which there are admissions in the documents or in the pleadings. The court cannot unduly narrow down the meaning of this Rule merely because the Defendant gives a different interpretation to the documents than that which the law permits. The court can hear the arguments on the issue of interpretation of documents and give its finding on the implications of such documents in view of the settled law."
28. In the case of R.N. Sachdeva & Ors. Vs. Ram Lal M. Trust; 1997 Rajdhani Law Reporter 357, it is laid down that in the face of a CS(OS) No. 2056/2008 Page No.10 of 17 document in writing, aforesaid pleas cannot be permitted to be taken and are barred by the provision of Section 92 of the Evidence Act. It has been held that the pleas of the defendant "are not borne out from the written agreement executed between the parties, no oral evidence can be lead in view of this written agreement on record and as such no bona fide triable issues arises which need investigation so far as the relief of possession is concerned and the suit to that extent is entitled to be decreed."
29. In the present case, admittedly neither there is any fresh lease nor any renewal by mutual consent of the parties. Therefore, on reading of Clause II(3), it is clear that the lease deed stood terminated by efflux of time after 30.11.2006.
30. As regards the first decision relied upon by the defendant No.1, i.e. Smt. Radha Lal (supra) is concerned, it is held that the notice could not have been issued by the plaintiff, being co-owner of the suit property being defective notice and the same was not valid under Section 106 of the Transfer of Property Act, 1882.
31. The said issue raised by the defendant No.1 has been dealt by the Apex Court and Division Bench of this Court. In the case of Sri Ram Paricha v. Jagannath and others; AIR 1976 SC 2335, it was held that it is not right to say that the co-owner of the property cannot issue the notice. The relevant para 29 of the said judgment reads as under: CS(OS) No. 2056/2008 Page No.11 of 17
"29. Jurisprudentially it is not correct to say that a co- owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.
32. Same issue again has been discussed in the case of Smt. Krishna Prakash and another v. Dilip Harel Mitra Chenoy; AIR 2002 Delhi 81, wherein the Division Bench of this Court referred to the judgment of the Supreme Court and decided the same point in favour of the plaintiff. Relevant paras are reproduced as under:
"16. It is not disputed by the defendants/appellants that after the death of late Shanta Simha Chenoy the rent of the premises was being paid or offered to be paid to the plaintiff/respondent and he was, thus, landlord of the premises. Further, the defendants/ appellants themselves admit the plaintiff/respondent as one of the co-owners and, thus, a co-landlord. Under the general law, in a suit between landlord and a tenant, the question of title to the leased property is irrelevant.
18. A Division Bench of this Court in "Mahavir Prasad Vs. Sukhdev Mongia & Another, 1990 (2) RCJ 254 Delhi, relying on the cased "Currimbhoy & Co. Ltd. Vs. L.A.Creet & Others, AIR 1930 Calcutta 133; Ram Niranjan Das Vs. Loknath Mandal, ; Ajmer Singh Vs. Shamsher Singh, ; and Pal Singh (supra), also held that a suit for possession by a co-owner against a CS(OS) No. 2056/2008 Page No.12 of 17 trespasser without impleading the other co-owners is maintainable. There is, thus, no substance in the plea raised against the maintainability of the suit."
33. The decision referred by learned counsel for defendant No.1 was passed by the Single Bench prior to the judgment delivered by the Division Bench of this Court, hence, it has no binding force. I am totally in agreement with the decisions referred to by the learned counsel for the plaintiff. I am of the view that notice of termination issued by the plaintiff was a valid notice of termination of tenancy.
34. As regards the second decision of Jeevan Diesels and Electricals Limited (supra), wherein the application of the plaintiff was dismissed by the Apex Court by setting aside the judgment under appeal passed by the Division Bench of this Court, it was noticed by the Apex Court in the judgment that it was specifically averred in the written statement that the tenancy was neither expired by efflux of time nor has it been terminated and there has been no determination of tenancy. It was observed by the Supreme Court that on perusal of the aforesaid averments in the written statement and in view of admission made by the plaintiff in the application that only question left for adjudication for the purpose of possession is whether the termination of the tenancy has been validly terminated, the application under Order 12 Rule 6 CPC was dismissed and further, the counsel appearing on behalf of plaintiff did not invoke the case of the plaintiff for admission, "otherwise than in CS(OS) No. 2056/2008 Page No.13 of 17 pleading". It is also held by the Apex Court that whether or not there is a clear unambiguous admission by one party and the case of the other party is essentially a question of fact and the decision on this question depends on the facts of the case.
In the present case, the defendant No.1 in para 8 of the preliminary objection has admitted that the suit property was let out vide registered lease deed dated 08.12.2004 for two years subject to renewal. The excuse given by the defendant No.1 is that it could not be renewed or fresh lease deed was executed on account of disputes between the plaintiff and defendant No.2 and further the tenancy is continuing as the enhanced rent was/is being deposited by the defendant No.1. And in view of above, the tenancy of defendant No.1 stood renewed w.e.f. December, 2006. It is the settled law that in the absence of contractual period of tenancy, as in the present situation, the defendant No.1 continues in possession of the premises but only as a month to month tenant. Admittedly, in the present case, the plaintiff had served the notice to the defendant No.1. The receipt of the notice is not denied by defendant No.1. The defendant No.1 in the written statement has admitted that the tenancy of the premises was expired by efflux of time and fresh lease was not renewed, thus, the decision referred by the counsel is not applicable to the facts of this case. In the case referred, the tenant in his case had pleaded in the written statement that the tenancy CS(OS) No. 2056/2008 Page No.14 of 17 was neither expired by efflux of time nor it has been terminated. The counsel for the plaintiff had also given up his case on admission made by the defendant. But in the present case, the facts are materially different.
35. There is no force in the submission that the defendant No.1 was depositing the rent with 10% increase in the account of mother and later on before this Court and it amounts to renewal of tenancy. I am of the considered view that in the absence of a contractual period of tenancy and without mutual consent in writing, the said issue raised by the defendant No.1 is meritless and the defendant No.1 cannot take any benefit of it.
36. The other issues raised by the defendant No.1 are also without any substance as whose occupation is unauthorized, cannot take the advantage of disputes if any pending between the co-owners nor unlawful occupant is entitled to raise its voice if co-owners are not in good terms or are making contradictory statements against each other in the pleadings. This court is of the view that in the absence of a contractual period of tenancy, the tenant is estopped from raising flimsy issues which do not go into the root of the case.
37. In the case of M/s. Emirates Vs. DLF Universal Ltd.; 169 (2010) DLT 604, it was held that in the absence of a contractual period of tenancy, the defendant as per the law is to continue in possession of the premises but only as month to month tenant. The tenancy is CS(OS) No. 2056/2008 Page No.15 of 17 terminable by the lessor on the service of notice. Admittedly, in the present case, notice was served upon the defendant by the plaintiff, the receipt of which is not disputed by the defendant.
38. Thus, I am of the view that the trial in the matter is not required as the parties are not at issue on any question of law or act to be determined further. The provisions of Order XII Rule 6 CPC are therefore applicable. The Court is empowered to pronounce the judgment under the said provision besides the provision of Order XV of the CPC.
39. Therefore, I allow the plaintiff's application under Order 12 Rule 6 CPC and a preliminary decree is passed in relation to vacation of defendant No.1 and delivery of possession of the suit premises.
40. The defendant No.1 shall vacate the first floor of the premises within two months and deposit the keys with the Registrar General of this Court along with an affidavit of compliance, failing which the plaintiff would be entitled to take the necessary steps in accordance with law.
41. As far as other relief of recovery of rent and damages claimed are concerned, the proceedings would continue for the said purpose and a final decree may be passed after the enquiry. CS(OS) No. 2056/2008 Page No.16 of 17 CS (OS) No. 2056/2008
42. List the matter before Joint Registrar on 20.10.2011.
MANMOHAN SINGH, J.
JULY 18, 2011 jk/dp/sa CS(OS) No. 2056/2008 Page No.17 of 17