Amar Chand Talwar And Ors. vs M/S. Export Promotion Council For ...
1999 Latest Caselaw 78 Del

ORDER

M.S.A. Siddiqui, J.

1. The plaintiffs have filed the application (IA No. 4545/98 under Order 12, Rule 6 CPC for judgment on admissions.

2. To appreciate the merits of the controversy, it will be necessary to give brief narrative of the material facts. The plaintiffs filed the present suit for eviction of the defendant from the 1st floor of the premises No. 6, Community Centre, Basant Lok, Vasant Vihar New Delhi (hereinafter called the 'suit premises') and for recovery of Rs. 8,47,520/ as compensation for use and occupation of the suit premises from 1.7.1995 to 31.8.1995 besides future mesne profits @ Rs. one lac per month. According to the plaintiffs, initially, the suit premises were leased out to the defendant at a monthly rent of Rs. 19,800/, which was increased subsequently to Rs. 23,760/ per month. Since the defendant's tenancy was from month to month, the same was terminated w.e.f. 28.2.1995 by the notice dated 11.1.1995. Despite service of the said notice under Section 106 Transfer of Property Act, the defendant did not vacate the suit premises.

3. The defendant resisted the suit and in the written statement apart from raising other objections regarding maintainability of the suit for nonjoinder of M/s. P. Talwar & Co. it was asserted that the notice dated 11.1.1995 is invalid as the tenancy was not terminated by M/s. P. Talwar & Co., one of the joint landlords and further the contract of tenancy stands renewed till 31.1.1998 and thus the plaintiffs' suit for eviction is premature. It was also asserted that the amount of mesne profits claimed by the plaintiffs is highly excessive.

4. It is an admitted position that in the year 1991, the suit premises were leased out to the defendant at a monthly rent of Rs. 19,800/ subject to increase of 20% rent after three years. It is also undisputed that the rent last paid by the defendant was Rs. 23,760/ per month. Learned counsel for the defendant contended that since the defendant has been paying increased rent to the plaintiffs, the contract of tenancy stands renewed till 31.1.1998 and that being so, the notice dated 11.1.1995 is invalid and the present suit for eviction is premature. I am unable to accept the aforesaid submissions of the learned counsel. It is pertinent to mention that there is no documentary evidence on record to prove the contract to tenancy. The lease agreement dated 3.6.1986 is in respect of the 2nd floor of the same building, which is subject matter of suit No. 38/97. Moreover, the said document is an unregistered document. Section 107 of the Transfer of Property Act postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. In view of the said provision, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by the plaintiffs and the defendant. In the absence of registered instrument, the lease shall be deemed to be "lease from month to month". There is no document on record to show that the contract of tenancy stands renewed upto 31.1.1998. Consequently, I find and hold that in the instant case, the lease was from month to month, terminable, on the part of either lessor or lessee by 15 days notice under Section 106 of Transfer of Property Act expiring with the end of a month of the tenancy.

5. Learned counsel for the defendant further contended that since M/s. P. Talwar & Co. was one of the jointlandlords, the suit is bad for nonjoinder of the necessary party to the suit. It is undisputed that M/s. P. Talwar and Co. had undertaken to render certain services to the defendant. There is no document on record to show that there was a contract of tenancy between M/s. P. Talwar and Co. and the defendant. In this view of the matter, I find and hold that M/s. P. Talwar & Co. was not one of the joint landlords of the suit premises and so the suit is not bad for nonjoinder of the necessary party.

6. Next it was contended by the learned counsel for the defendant that notice dated 11.1.1995 is invalid and ineffective on the following grounds :

(a) that the plaintiffs have been accepting increased rent from the defendant and so the contract of tenancy stands renewed till 31.1.1998.

(b) that by accepting rent from the defendant, the plaintiffs have waived the notice to quit;

(c) that no notice was given on behalf of M/s. P. Talwar & Co. for termination of the tenancy.

7. As regards the contention for renewal of the contract of tenancy, learned counsel for the defendant contended that since the plaintiffs have been receiving increased rent, it would be presumed that the contract of tenancy was renewed upto 31.1.1998. It is undisputed that initially the suit premises were let out at a monthly rent of Rs.19,800/ and the rent last paid by the defendant was at the rate of Rs. 23,760 per month. According to the learned counsel, rent of Rs. 23,760/ per month represents the increased rent in terms of the agreement. There is no document on record to substantiate the said contention of the learned counsel. I have already held that in the instant case, the lease was from month to month, terminable on the part of either lessor or lessee by 15 days' notice under Section 106 of the Transfer of Property Act. In this view of the matter, it cannot be held that the contract of tenancy stands renewed till 31.1.1998 and further that three months' notice was necessary for its termination.

8. As regards the ground (d), I have already held that there was no contract of tenancy between M/s. P. Talwar & Co. and the defendant. That being so, no notice was necessary on behalf of M/s. P. Talwar & Co. for terminating the defendant's tenancy.

9. As regards waiver of notice dated 11.1.1995, it is an admitted position that after institution of the suit, the plaintiffs have received the amount for use and occupation of the suit premises. It is well settled that mere acceptance of rent by the landlord does not amount to waiver of notice to quit under Section 106 of the Transfer of Property Act. That apart, by the orders dated 16.5.1997, the plaintiffs have been permitted by this Court to collect the cheques representing the rent/compensation from the office of the defendant. Consequently, it cannot be held that the notice dated 11.1.1995 has been waived by the plaintiffs as alleged by the defendant.

10. Admittedly, the notice dated 11.1.1995 was received by the defendant. It is also undisputed that the defendant's tenancy commenced on 1st day of each month. By the notice dated 11.1.1995, the defendant's tenancy was terminated with the end of the month of tenancy. I, therefore, find and hold that the defendant's tenancy was validly terminated by the plaintiffs vide notice dated 11.1.1995. Viewing the aforesaid admissions in the pleadings, the plaintiffs are entitled to judgment on admissions under Order 12, Rule 6 CPC regarding the defendant's eviction from the suit premises. As regards the claim of mesne profits for use and occupation of the suit premises, there is a dispute between the parties, which necessitates an inquiry under Order 20, Rule 12 CPC.

11. For the foregoing reasons, the application (IA No. 2545/98) is allowed under Order 12, Rule 6 CPC to the extent indicated above.

12. It is, therefore, ordered and decreed that the defendant shall deliver vacant and peaceful possession of the suit premises to the plaintiffs. As regards the plaintiffs' claim for recover of mesne profits, an inquiry shall be held under Order 20 Rule 12 CPC. A decree be drawn up accordingly.