Shri Bhanu Mehra vs Shri Dato Brij Kishore And Others
2001 Latest Caselaw 680 Del

ORDER

Devinder Gupta, J.

1. The defendant/appellant has preferred this appeal against the judgment and decree passed by Shri A.K.Garg, Additional District Judge, Delhi in suit No.391 of 1999 decreeing the suit of the plaintiff/respondent for possession of the suit premises on the alleged admission of the defendant/appellant keeping the other questions relating to damages etc. pending consideration.

2. Facts in so far as are relevant for the purpose of deciding this appeal are that on 20.8.1999 suit was filed by the plaintiffs against the defendant seeking a decree for possession of house No.M-97, Greater Kailash-I, New Delhi, as shown in red colour in the plan attached to the plaint: a decree for damages for use and occupation from 1.7.1999 to 18.8.1999 at the rate of Rs.40,000/- per month; a decree for recovery of Rs.1,40,000/- towards water charges: a decree for Rs.55,750/- towards electricity charges: and decree for use and occupation from the date of institution of the suit till recovery of possession.

3. The plaintiffs alleged that the suit premises was let out to the defendant for a period of nine years with effect from 1.7.1990 on the basis of a registered sale deed dated 19.7.1990 on payment of Rs.6,250/- per month, as rent payable on or before 7th day of each month, subject to enhancement by 15% after every three years. Lastly the rent payable was Rs.8,254/- per month besides electricity and water charges. Breach was committed by the defendant of the terms of the lease in as much as substantial damage had been caused to the premises. The defendant has been using the electricity more than the sanctioned load and had not been paying electricity and water charges. A sum of Rs.87,010.67 was paid by the plaintiff towards electricity charges for the period from 4.12.1998 to 31.1.1999. Copies of the bills were sent to the defendant and by notice sent under registered A.D. cover on 16.2.1999, the defendant was called upon to pay 50% of the electricity charges towards his share and further notifying that they were not interested to keep the defendant as their tenant and called upon him to vacate the premises on the expiry of the lease period. The defendant was further notified that after the expiry of the tenancy period. the defendant should not deposit rent in their bank account and in case any amount is deposited by the defendant, the same would be treated as damages for use and occupation. The notice was received back with the endorsement "refused". The second notice dated 22.4.1999 was sent to the defendant under registered A.D. cover reiterating the contents of the earlier notice. The said notice was also received back with the similar endorsement.

4. Plaintiffs further alleged that the tenancy of the defendant came to an end by efflux of time on 30.6.1999 and thus he became liable to hand over vacant possession to the plaintiff on 1.7.1999. The defendant vide the two notices had also been informed that the plaintiffs were not prepared to renew the lease any more and has called upon him to hand over the vacant possession. upon him to hand over the vacant possession. Since possession has not been delivered, the defendant became liable to pay damages for use and occupation and was also liable to pay his share of electricity and water charges.

5. The suit was resisted by the defendant by filing written statement on 20.12.1999 pleading that the premises were taken by the defendant from the plaintiffs on 1.7.1990 at a monthly rent of Rs.6250/- with the condition to increase the rent by 15% after every three years. The lease was in perpetuity with an obligation to renew the lease after every 9 years. Before expiry of the period as specified in the lease deed dated 19.7.1990 the defendant contacted the plaintiffs on various occasions for renewal of lease and to get the same registered but inspite of repeated requests of the defendant, the plaintiffs did not perform their part of the contract for renewing the lease after enhancing the rent by 15% after every three years. The defendant was and has always been ready and willing to perform his part of the contract for renewal of lease for a further period of nine years. The defendant also pleaded that he had already filed a civil suit in this court for grant of a decree for specific performance and permanent injunction against the plaintiffs. In view of the pendency of the said suit for specific performance, the suit of the plaintiff for possession against him on the ground that the tenancy had come to an end by efflux of time was not maintainable. The defendant specifically denied that he committed any breach of the terms of the tenancy or misused the electricity. It was alleged that the defendant had regularly been paying electricity and water charges and as per actual consumption and already paid the charges and was still prepared to continue paying for actual consumption in future. The defendant denied that the plaintiff sent a registered A.D. notices on 16.2.1999 and 22.4.1999 and also denied receipt of such notice or that he h ad refused to receive the same. Since the lease was renewable after expiry of a period of every nine years and as the plaintiffs despite repeated requests had failed to get a fresh lease registered and did not show any interest in renewing the lease, a notice dated 16.7.1999 was sent to the plaintiffs through registered post praying for renewal of lease. When the plaintiff despite service of legal notice did not show any interest for renewal of lease. the defendant had to file a suit for specific performance as well as for permanent injunction. The defendant pleaded that since he was willing to perform his part of the contract by opting and renewing the lease for a further period of 9 years in accordance with the conditions laid down in the registered lease deed, his possession was not unlawful and was still a statutory tenant under the plaintiffs.

6. On 22.3.2000 replication was filed. Learned trial court after going through the pleadings observed that as far as issue of possession is concerned, no evidence is required to be led by the parties. The same has to be decided purely on the question of law as no disputed fact was involved. He also noticed the fact that the defendant had also filed a suit for specific performance, which was pending in High Court. Therefore, he directed the suit to be posted for arguments on the issue of possession and also framed the following issues, which according to him had arisen on the pleadings of the parties:-

1. Whether the plaintiff is entitled to damages w.e.f. 1.7.1999, If so, at what rate? O.P.P.

2. Whether the plaintiff is entitled to electricity and water charges of Rs.56,790/-? O.P.P.

3. Relief.

7. Before argument could be addressed, an application was moved by the plaintiffs on 31.3.2000 praying that the defendant be directed to deposit the accrued arrears of damages for use and occupation at the rate of Rs.8,265/- per month till date and he be further directed to continue depositing in Court damages for use and occupation at the said rate every month by 15th of the month. It was also prayed that the defendant be directed to pay 50% of the electricity and water charges. No reply was filed by the defendant to this application. On 30.5.2000 an order was passed. The defendant was directed to pay use and occupation charges at the rate of Rs.8,265/- per month during pendency of the suit and continue to pay use and occupation charges by 7th of each month. On 24.7.2000 the defendant filed an application along with Bank Pay Order for Rs.1,07,445/-. No order was passed on this application. On 7.8.2000 arguments were heard and case was posted for 21.8.2000 for orders. On 21.8.2000 the trial court issued some directions with respect to payment of electricity and water charges and again fixed the case for arguments observing:-

"This is a suit for recovery of possession and damages etc. The case of the plaintiff is that the lease determined by efflux of time. The defendant has admitted the execution of lease deed but he has taken the stand that the lease was renewable for the further period of nine years. The question is whether the plaintiff is entitled to a decree for possession on these admitted facts. Put up on 21.9.2000 for arguments on this question."

8. Arguments were then heard on 23.11.2000 and the impugned order was passed on 28.11.2000 decreeing the suit for possession. Suit on the remaining issues was adjourned to 8.3.2001 for plaintiff's evidence.

9. In the impugned judgment learned trial court after dealing with the respective case of the parties observed that the question involved was whether the lease was to be compulsorily renewed for a further period of nine years and if t hat be really so, the defendant would, of course, not be liable to vacate, Simultaneously, it was observed that lease deed provides that in case of renewal, fresh lease deed would be drawn up on the requisite stamp papers and would be got registered and since the formalities of renewal have not been performed by the parties so far, therefore, it cannot be said that renewal of lease has taken place after expiry of the original lease. He also took notice of the fact that a suit for specific performance had been filed by the defendant. Despite that the fact is that there was not renewal of lease and the original lease had come to an end by efflux of time, therefore, the defendant is liable to vacate the premises. In addition to this, learned trial court observed that in para 9 of the written statement the defendant had pleaded that he was still a statutory tenant and since provisions of Rent Control Act are not applicable, therefore, "I have not been able to understand as to what the defendant means by claiming to be statutory tenant". After posing this question the trial court recorded its opinion that the defendant by claiming to be a statutory tenant had made an implied admission of the fact that he was no longer a contractual tenant. After ceasing to be a contractual tenant, his possession is that of a trespasser and is liable to vacate the premises. Accordingly, a decree for possession was passed against the defendant.

10. Learned counsel for the parties took us through the entire pleadings. Mr.J.K.Seth, appearing for the plaintiffs, vehemently contended that in view of the admitted position the plaintiffs were entitled to a decree for possession. Defendant had admitted the existence of lease, period of which had come to end on 30.6.1999. Two notices were sent to the defendant under registered post, which were received back with endorsement of refusal. Thus there was presumption of those have been duly served upon the defendant. Request from the defendant for renewal of lease was received by the plaintiffs in the month of November, 1999 by notice dated 16.7.1999, which appears to have been posted only on 18.9.1999. Suit for specific performance was filed much later than the plaintiffs filed suit for possession. Therefore, filing of suit for specific performance on 15.12.1999 by the defendant was of no avail. Even at the time of filing of the suit, requisite court fee was not affixed on the plaint by the defendant, which was affixed only on 5.4.2000. The defendant had committed breach of the covenants of registered lease, therefore, the defendant was not entitled to claim renewal of the lease under the terms of the registered lease deed. There was nothing wrong in the trial court having passed decree for possession on the admitted facts.

11. Learned counsel for the defendant vehemently urged that there was no admission. The defendant had denied the receipt of the notices or of the fact that the notices were offered to him by the postal authorities. Thus there was no question of presumption being raised that notices were served on him. The defendant also denied having committed any breach of the terms of lease.

12. We have perused pleadings and considered the respective submissions. Learned trial court proceeded on the assumption that the period of original lease had come to an end by efflux of time on 30.6.1999, therefore, the defendant was liable to vacate the premises. He also proceeded on the assumption that since formalities for renewal have not been complied with, filing of suit by the defendant was of no effect and there was implied admission on the part of the defendant that he was no longer a contractual tenant.

13. In case the trial court had to exercise power, as envisaged under Rule 6 of Order 12 of the code of Civil Procedure (for short "C.P.C"). which the trial court purported to exercise suo moto, it was necessary that there ought to have been admission of facts made either in the pleadings or otherwise. Power could not be exercised in case it was an implied admission. Admission on which a judgment can be passed under Rule 6 of Order 12 C.P.C. has to be clear and unequivocal one. Rule 6 refers only to the admission on point of fact and no admission on point of law. Learned trial court did not consider the pleadings as a whole but took notice of only one line of para 9 of the written on merits that the defendant had admitted himself to be a statutory tenant, without looking into the remaining part of the said paragraph. In fact the defendant has alleged in para 9 of the written statement as under:-

"the cause of action neither arose in favor of the plaintiffs and against the defendant to file the present suit nor tenancy of defendant came to end by efflux of time and, therefore, the question of vacating the premises does not arise because the defendant is still statutory tenant under the plaintiffs and is willing to perform his part of contract by opting and renewing the aforesaid lease dated 19.7.1990 for further 9 years in accordance with the condition laid down in the aforesaid agreement. But the plaintiffs have completely failed to perform their part of contract for getting registered the further lease deed inspite of repeated requests of defendant and sending of legal notice by defendant herein. At last, therefore, the defendant had to file a civil suit for specific performance and permanent injunction against the plaintiffs herein before the Hon'ble High Court of Delhi and the same is still pending for disposal."

(Emphasis supplied)

14. In the aforequoted para the defendant pleaded that he was still a lawful tenant and was not liable to be evicted. He did not admit that tenancy had come to an end. Learned trial court assumed that there was an implied admission. On the alleged implied admission also, power could not have been exercised by the trial court. A covenant for renewal contained in the lease deed though dose not ipso facto extend the tenure or term of the lease but entitles the lessee to obtain fresh lease in due satisfaction of the law governing making of leases. Such a covenant providing for renewal of lease does not create any interest in property but confers a right, which right can be enforced in accordance with law. The lease deed contains the following covenant providing for renewal :-

"The parties hereto have agree that the lease hereby granted will be renewed after every nine years on the same terms and conditions subject, however, to the observance of the covenants contained herein in case of such renewal a fresh lease deed would be drawn on the requisite stamp papers and would be got registered."

15. No time is mentioned for exercising option and in such like situation where no time is mentioned for giving notice it will suffice if notice is given within a reasonable time. Such a question that whether notice ought to have been given within a reasonable time prior to the date of expiry of the term of lease deed or even subsequent thereto within a reasonable time will have to be examined in the suit for specific performance filed by the defendant and not in this suit. In this suit, we may take notice of the fact that admittedly the two notices, alleged to have been sent by the plaintiffs were not actually served on the defendant. Plaintiffs have alleged that the notices were received back with the endorsement of refusal. The defendant has denied that the same were offered to him by the postal authorities. It will be a question of fact to be determined by the Court during trial of the suit as to the effect of the report of refusal by the postal authorities. Needless to add that when covenant of renewal is subject to certain conditions precedent, the right of renewal arises only when notice is given to the Lesser by the lessee in terms of the renewal clause and the lessee has perform all the conditions precedent as provided in renewal clause. The renewal clause provide that lease will be renewed after every nine years on same terms and conditions subject to observance of the covenants contained. It is also a question of fact that whether or not the defendant had violated the covenants of the registered lease deed. In view of the disputed questions of fact and law, it was necessary for the trial court to have framed issues thereon and then proceeded with the trial of the suit on merits in accordance with law instead of making his own observations that the plaintiff was entitled to a decree for possession on the alleged implied admission, which is impermissible in law.

16. Consequently, the appeal is allowed. Impugned judgment and decree is set aside with direction tot he trial court to proceed to dispose of the suit in accordance with law after framing appropriate issues arising from the pleadings of the parties. Needless to add that the observations made by us while disposing of the appeal will not prejudice either of the parties on the merits of suit.