I.T.D.C. Ltd. vs Chander Pal Sood & Son
2000 Latest Caselaw 121 Del

JUDGMENT

S.K. Agarwal, J.

1. Admit.

Learned Counsels for the parties stated that as the point involved in the appeal is very short the same be heard and finally decided at this stage itself; accordingly, by this order we propose to dispose of this appeal.

2. The appeal is directed against the judgment and decree dated 3rd April, 1999 passed by the Court of Additional District Judge, Delhi decreeing the suit of the respondent (plaintiff) for possession and mesne profits against the appellant (defendant) under Order 12, Rule 6 of the Code of Civil Procedure, 1908 (for short 'CPC').

3. Facts giving arise to this appeal briefly are that respondent (plaintiff) filed a suit on 4th May, 1998 against the appellant (defendant) for recovery of possession and for damages mesne profits for unauthorised use and occupation of flat No. 9, 3rd floor, admeasuring about 721 sq. ft. in New Delhi House, Barakhamba Road, New Delhi (hereinafter referred to as the suit premises) alleging therein that the respondent was the landlord / owner of the suit premises which were in occupation of the appellant/tenant on a monthly rent of Rs. 5,000/-; although the tenancy had expired by efflux of time on 13th April, 1997, yet by way of abundant caution, fresh notice dated 3rd March, 1998 was issued terminating the tenancy with effect from 31st March, 1998 and calling upon the appellant to hand over vacant possession of the suit premises. Same was not done, therefore, on 4th May, 1998 the suit was filed for possession also claiming damage mesne profits at the rate of Rs. 80,000/- per month for illegal use and occupation of the suit premises.

4. Appellant (tenant) while contesting the suit in the written statement pleaded that the suit premises were initially occupied in 1975 on the basis of a lease deed in their favour; in 1991 the respondent/owner filed a suit for eviction alleging therein that though the rent was fixed at the rate of Rs. 2,820/ - per month, the owner increased the rent to Rs. 3,102/- per month, which was not paid, therefore, the respondent/owner sought the eviction.

5. In 1994 respondent/owner withdrew this suit and a settlement was arrived at under which respondent/owner received and accepted Rs. 67,760/- for the past arrears and entered into a fresh rent agreement with effect from 1st May, 1994 for a period of three years, at a monthly rent of Rs. 5,000/-; it was also agreed that the lease can be renewed for a period and on rental, terms and conditions mutually agreed' upon between them.

6. It was further pleaded in the written statement that despite this renewal the respondent/owner got issued a notice on 24th August, 1994 requiring appellant/ tenant to vacate the suit premises, and second suit for possession and mesne profits at the rate of Rs. 65,000/- with effect from 13.95 was filed on 27th March, 1995. This suit was decreed in favour of the respondent/owner on 31st July, 1997. The appellant/tenant filed an appeal against this order in the High Court (RFA 319/97) which was admitted and impugned judgment was stayed. However, the appeal became infructuous and did not survive consequent upon the respondent/owner making a statement withdrawing the suit itself on 28.2.1998.

7. It was also pleaded in the written statement that the respondent/owner was estopped from terminating the tenancy after having increased the rent from Rs. 2820/- per month to Rs. 5,000/- per month on 1.5.1994; that the notice was not addressed to the proper person; that defendant being a Government organisation having established their office in suit premises since 1975, it was not open to the respondent/owner to determine the tenancy on their whims and fancy.

8. After pleadings were completed respondent/owner filed on application under Order 12, Rule 6 of CPC submitting therein that the appellant/tenant in written statement had admitted the factum of the respondent being the owner; service of notice of termination of tenancy, and that the rent of the premises being more than Rs. 3,500/-. On these admissions a decree for eviction was prayed for.

9. Learned Trial Court vide impugned judgment decreed the suit of the respondent/plaintiff. Aggrieved by the same, the appellant/tenant has filed this appeal. We have heard the learned Counsels for the parties and have been taken through the record.

10. Learned Counsel for the appellant/tenant argued that the suit could not be decreed under Order 12, Rule 6 of the CPC as in the Written Statement it was pleaded that the respondent/owner was estopped from terminating the tenancy and that the respondent/owner made a false plea in plaint that the tenancy had expired by efflux of time on 30th April, 1997 which was in contradiction to the stand in the earlier suit wherein it was pleaded that tenancy of the appellant/tenant was terminated on 3rd Septemebr, 1994 vide notice dated 24th August, 1994; and that since the very foundation of the suit was patently false, therefore, the suit could not be decreed without trial. Learned Counsel for the respondent argued to the contrary.

11. In order to appreciate the rival contentions, it would be appropriate to summarise the pleas raised by the appellant/tenant in the written statement also stating the facts about the earlier two rounds of litigation between them which is as under:

(i) In December, 1991 respondent/owner filed an eviction petition in the Court of Rent Controller, Delhi on the ground of non-payment of rent alleging therein that though the rent was fixed initially @ Rs. 2,820/- per month vide lease agreement dated 13th January, 1975 it was increased to Rs. 3,102/- per month which was not paid. This suit was dismissed as withdrawn. After the withdrawal of the said suit the rent was increased. The respondent/owner accepted Rs. 63,760/- towards rent for the past years. Fresh lease agreement was executed, Rent was fixed at Rs. 5,000/- per month. The tenancy was agreed to be for 3 years w.e.f. 1.5.94. This ended the first round of litigation.

(ii) The respondent/owner despite settlement, again sent a notice dated 27.6.94 terminating the tenancy of the appellant/tenant and filed suit on 27.3.95 which was decreed on 31st July, 1997; Appeal was filed by the appellant/tenant in the High Court of Delhi. However, on 27th February, 1998 the same was dismissed as withdrawn after Counsel for the respondent/owner made a statement "In view of the fact that after service of notice of termination of the lease the rent remitted by the appellant was accepted for several months, notice of the termination of tenancy stood waived. The respondent wants to withdraw the suit filed against the appellant therein". Consequently, the appeal filed by the appellants did not survive as the suit was dismissed as withdrawn. This ended second round of litigation.

(iii) Respondent/owner again issued a notice of termination of tenancy dated 3.3.98 calling upon appellant/tenant to vacate the tenanted premises by the end of tenancy in the month of March, 1998 which was duly served. The respondent/tenant failed to hand over the vacant possession of the premises, therefore, on 12th May, 1998 a suit for eviction was filed (suit No. 418/97).

The appellant/tenant in the written statement admitted service of notice to quit. No legal defect in the notice was pleaded. Relationship of landlord and tenant was also admitted However, a plea was raised there is a renewal clause in the lease agreement the respondent/plaintiff estopped from terminating the tenancy, and that the stand taken in the plaint regarding the termination of the lease was in contradiction with the stand taken in the earlier suit.

12. Admittedly appellant came in possession of the suit property in 1975. Respondent filed a petition seeking eviction of the appellant before the Additional Rent Controller, Delhi in 1991. Parties entered into some settlement. Rent was enhanced from Rs. 2,820/- to Rs. 3,102/- and in May, 1994 a fresh lease was entered into for a period of three years with a renewal clause with mutual consent. However, in 1995 respondent filed a suit which was decreed in their favour on 31st July, 1997. Tenant preferred an appeal against this judgment and decree. While the appeal was pending respondent/owner made a statement that as he had been accepting rent for several months after the termination of tenancy therefore, the notice stood waived. The suit was withdrawn and thus the appeal became infructuous.

13. Section 106 of the Transfer of Property Act, 1882 (for short the Act) provides for duration of leases in the absence of written contract. Section 107 of the Act provides that in case of a lease exceeding a period of one year, it is required to be through registered instrument only. In the absence of a registered instrument the lease has to be construed as a lease from month-to-month basis. These sections read as under:

106. Duration of certain leases 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 from month-to- month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy.

Every notice under this section must be in writing signed by or on behalf of the person giving it either be sent by post to the party by 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.

107. Leases how made--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.

All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by a registered instrument, such instrument or/ where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

Provided that the State Government may, from time-to-time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year-to-year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

14. In this case admittedly Lease agreement was entered between the parties on 1.5.94. Lease was for a period of 3 years at a monthly rent of Rs. 5,000/-. What was pleaded in the written statement was that the rent was agreed to be increased @ 10% after every three years; further admittedly, no fresh lease was executed after the expiry of the said lease. Therefore, lease has to be construed as a lease on month-to-month basis. The same could thus be validly terminated by giving 15 days notice. The plea of the appellant that the plaintiff was estopped from terminating the tenancy cannot be sustained as there cannot be any estoppel against the statute.

15. Reference in this regard can be made to the following observations of Supreme Court in Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. v. Khaja Midhar Noor and Ors., :

"In view of the paragraph 1 of Section 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be "lease from month-to-month". It is clear from the very language of Section 107 of the Act which 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. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month-to-month. The High Court so found. We are of the opinion that the High Court was right."

16. Next it was argued that the stand of the respondent/tenant that the tenancy had expired and terminated by efflux of time on 30th April, 1997 was in contradiction to the stand of the respondent in the earlier suit in which it was pleaded that the tenancy was terminated through notice dated 28th August, 1994 with effect from 30th September, 1994, again can be of no help to the appellant/tenant. It may be noticed here that as per the statement made by the respondent/tenant as they continued to accept the rent for several months after the service of notice of termination dated 24th August, 1994, therefore, the notice to quit stood waived. It was on account of the waiver of the notice that respondent/tenant made the statement in the High Court withdrawing the suit on 28.2.97 despite decree of possession.

17. Relying upon Dudh Nath Pandey v. Suresh Chandra Bhattasali, learned Counsel for the appellant also argued that the plea raised in the written statement has to be taken as a whole before invoking Order 12, Rule 6, CPC and that it was not permissible to rely upon a part of admission ignoring the other part. There also cannot be any dispute about the preposition of law that the admission of some facts favourable to the plaintiff and ignoring of other facts which are unfavourable to the plaintiff, is not permissible. Order 12, Rule 6 of the Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application of any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing. The judgment on admission is certainly not a matter of right. The admission has to be taken as a whole. The discretion is required to be exercised judicially.

18. It may be recalled that in the written statement filed by the appellant relationship of landlord and tenant was admitted; service of notice dated 3rd March, 1998 from the respondent terminating the tenancy of the appellant/tenant requiring it to vacate the premises by the end of the tenancy in the month of March, 1998 was also admitted. In the face of these admissions, and of the fact that the tenancy of the appellant was on month-to-month basis nothing else survived in the defense of the appellant as decree for possession could be passed on these admitted facts. Other pleas raised in the written statement are really not relevant and in our considered view clear and unequivocal admissions noticed above are enough to decee the suit for possession of the respondent/plaintiff in respect of the said property. Only a decree of Rs. 5,000/- for the month of April, 1998 with proportionate costs was passed by the learned Trial Court. Under the circumstances, finding recorded by the learned Trial Court are valid and in accordance with and do not call for any interference.

19. For the foregoing reasons we do not find any merit in the appeal. The same is hereby dismissed. As the appellant is a Government owned company and is stated to be in the suit premises since 1975 in the interest of justice three months deserves to be provided to it to vacate the premises. While dismissing the appeal it is ordered that decree for possession will not be executed for a period of three months from today. No order as to costs.