Dunlop India Ltd. vs Shri Sunil Puri And Others
2000 Latest Caselaw 1297 Del

ORDER

Devinder Gupta, J.

1. This is an appeal against the order passed on 25.7.2000 by Shri B.S. Chaudhary, Additional District Judge, Delhi disposing of an application under Order 12 Rule 6 of the Code of Civil Procedure (for short "C.P.C."). While allowing the said application the trial Court proceeded to dispose of the entire suit and pass a decree for possession in favor of the plaintiff/respondent against the defendant/ appellant allowing two months time to the defendant/appellant to hand over physical and vacant possession of the premises to the plaintiff along with a decree for arrears of mesne profits at the rate of Rs.12,000/- per month with interest at the rate of 12% p.a. on the arrears.

2. Facts in brief are that a suit for recovery of possession and mesne profits was filed by the plaintiff against the defendant on 8.9.1997 inter alia alleging that the entire first and second floor portion besides garage on the ground floor and common use of passage for the necessary facilities was let out exclusively for residential requirement of appellant's Executives in August, 1995 on a monthly rent of Rs.8,000/- including property tax but excluding all other charges. The terms were reduced into writing on 12.11.1995, which was duly registered. The tenancy thus commenced on 1.9.1995 and was to expire on 31.8.1997. After expiry the defendant was required to hand over peaceful possession since the premises were required by the appellants for their own use and occupation and as the lease had also come to an end by efflux of time. On failure of the defendant to vacate, suit was filed claiming decree for possession and mesne profits. Defendant contested the suit and filed written statement wherein number of legal objections were raised. It was inter alia pleaded that the plaintiffs have no right to sue since it was obligatory on their part to renew the lease. As per the terms the lease was renewal at the option of the defendant. The defendant still continues to be the contractual tenant in view of the fact that the defendant had duly exercised its option to extend the lease initially for a period of two years. In view of the option having been exercised, the plaintiffs were obliged to execute a formal lease deed in favor of the defendant for a period up to 31.8.1999 and thereafter till 2007. Since lease was subsisting, there was no question of the defendant surrendering the possession. Entitlement of the plaintiff to claim mesne profit was also disputed.

3. Earlier the same Additional District Judge after hearing the defendant's application under Order 12 Rule 6 C.P.C. had proceeded to pass a decree in similar terms, which was set aside in appeal on 21.12.1999 (RFA No.303/99). While setting aside the decree a direction was issued to decide all pending applications including the application under Order 12 Rule 6 and Order 6 Rule 17 C.P.C. Now by a fresh order the applications have been decided again after hearing learned counsel for the defendant/appellant. On reference to the pleadings of the parties, the trial Court concluded that on admitted facts the tenancy came to an end on 31.8.1995 by efflux of time. Since the tenancy had expired and rent of the premises was more than Rs.3,500/- the plaintiffs were entitled to a decree for possession. On the plea of renewal of tenancy, it was held that in the absence of a registered lease deed executed for a fresh period, benefit could not be taken by the defendant of the alleged verbal assurance.

4. We have heard learned counsel for the plaintiff/appellant. It was urged before us that the defendant has been in occupation of the premises initially on payment of monthly rent of Rs.2200/-. Since monthly rent was less than Rs.3500/- eviction suit could not have been filed. Plaintiffs could not have evicted the defendants except by taking recourse to the provisions of the Delhi Rent Control Act. However, Shri R.N. Banerjee of the defendant got in contact with the plaintiff. An oral understanding was arrived at that if the rent is increased to more than Rs.3500/- no eviction suit would be filed so long Mr. Banerjee would remain in the premises or till 2007, whichever is earlier. Other officers of the appellant got involved surreptiously in the move of Mr. Banerjee. The defendant has now learnt that Mr. Banerjee, who at that time was Assistant Vice Chairman and was staying in the house and had executed lease deed dated 25.11.1995 was not authorised by the Board of Directors to agree to enhance the rent and execute the lease deed. The defendant has also decided to take action against Mr. Banerjee for his misconduct and exceeding the powers. The agreement was as a result of some understanding between the plaintiff and Mr. R.N. Banerjee. Thus a fraud was played on the defendant by increasing the rent from Rs.1,250/- per month to Rs.8,000/- per month. Since it was an oral understanding between the plaintiff and Mr. R.N. Banerjee not to evict the defendant till 2007, the suit was not maintainable.

5. Considering the submissions mad eat the bar, we are of the view that there is hardly any force in the appeal. We have gone through the entire written statement. Particulars of the alleged fraud have not at all been alleged. Assuming the case of the defendant at the highest that there was some oral understanding arrived at between the plaintiff and Mr. Banerjee, the same was not incorporated in the lease deed, which was duly registered. The period fixed in the registered lease deed stood expired on 31.8.1997. The terms of lease provided for an extension of two years at the option of the lessee to have the lease renewed on mutual terms and conditions. The said period has also expired on 31.8.1999. We are also informed that at one stage the defendant had given to understand that a suit for specific performance had been filed by the defendant. But it was pointed out by the plaintiff at the bar that no such suit was ever filed. The statement is not refuted by the defendant. A suit was filed by the defendant seeking a decree for declaration against the plaintiff not to rescind the alleged oral agreement of 1995. It is now stated that the said suit was also dismissed in default. Assuming that there was an oral arrangement not to evict the defendant till 2007, even in that case the defendant cannot successfully resist a suit for possession by the plaintiff in as much as the said oral arrangement was to made a part of the registered lease deed. No benefit or advantage could be taken by the defendant of the alleged oral understanding as a defense to a suit filed by the plaintiff seeking eviction of the defendant. Section 107 of the Transfer of Property Act require that a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by a registered instrument. In the absence of any registered instrument incorporating the alleged oral understanding, this plea itself will be of no avail and on this plea a suit for possession cannot be resisted. Particulars of fraud have also not been alleged. Plea of the alleged oral understanding not being tenable in law, there is no illegality and irregularity in the trial court's conclusion that on the admitted facts the tenancy having come to end the plaintiff is entitled to a decree for possession. To that extent the impugned judgment, which has granted a decree for possession in favor of the plaintiff against the defendant cannot be assailed. However, trial court was not justified in passing a decree for mesne profits without due trial. In view of the denial by the defendant of the quantum of mesne profits, the trial court ought to have kept the said part of the suit as regards the quantum of mesne profits pending to be decided after due trial.

6. Consequently, the appeal in so far as decree for possession is concerned is dismissed. The same is partly allowed in so far as it grant a decree of mesne profits. The suit to that extent is remanded for being tried in accordance with law on the entitlement of the plaintiff's for mesne profits.

7. Parties are directed to appear before the trial Court on 18.01.2001.