Delhi High Court
Rajiv Saluja vs Bhartia Industries Limited And ... on 7 May, 2002
Equivalent citations: AIR 2003 Delhi 142, 98 (2002) DLT 720
Author: J Kapoor
Bench: J Kapoor
JUDGMENT
J.D. Kapoor, J.
1. This is an application under Order 12 Rule 6 CPC seeking interim decree for possession on the basis of admitted facts.
2. There is no dispute as to the relationship of the landlord and tenant between the parties. The only dispute is with regard to the nature of tenancy and the service of notice determining the tenancy.
3. The application is being resisted mainly on the ground that as per own understanding of the plaintiff the tenancy created by way of registered lease deed ended on 31.8.99 but was orally extended up to 29.2.2000 for a period of six months and, therefore, the possession of the defendant was by way of a month to month tenancy which was terminable in terms of Section 106 of the Transfer of Property Act, 1882 and since in the instant case the service of notice of termination of tenancy has not been proved no decree under Order 12 Rule 6 CPC can be passed as such a decree can be passed only on the premise of admitted facts.
4. According to the plaintiff the notice of termination of tenancy was duly served upon the defendants at both the addresses including the demised premises. The certificate obtained by the plaintiff from the Postal Authorities with regard to the service of registered notice dated 8th June, 2000 shows that the notice addressed to Mr. O.P. Bhartia, defendant No. 2 was duly received and served at the demised premises. He was referred as a Chairman of defendant No. 1 company in whose favor the tenancy was created.
5. In support of the contention that the occupation of the lessee after the expiry of the lease period amounts to holding over as a tenant on month to month basis as contemplated under Section 116 of the Transfer of Property Act, Mr. Nayyar, learned senior counsel for the defendants has placed reliance upon Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors. wherein a view was taken that in a case where a tenant continues to be in occupation after the expiry of the lease period, he holds over as tenant from month to month under Section 106 of the Act.
6. The averment of the plaintiff that he at first instance had verbally terminated the tenancy on 1.9.99, but allowed the request of the defendant to extend the tenancy for another six months on compassionate grounds was met with the plea of bald denial as to either verbal termination of tenancy or verbal extension of tenancy period for another six months.
7. In order to appreciate the rival contentions the relevant paras of the pleadings viz. plaint and written statement need to be reproduced. These are:-
Plaint Written statement
3. That the plaintiff 3. Para 3 of the plaint, as
verbally terminated the stated, is wrong and denied.
tenancy of the defendants It is denied that the tenancy
on 1.9.1999 and called of the defendant No. 1 was
upon him to deliver the terminated, as alleged, or in
vacant and peaceful any manner and on the dates
possession of the stated in the paragraph under
aforesaid property reply. It is denied that there
bearing No. 89-A, Sainik were oral requests made as
Farm, New Delhi-110 062 stated in the paragraph under
The defendants made a reply. On the contrary, it is
request to the plaintiff submitted that the defendant
for extending the tenancy no. 1 had, acting upon the
for another six months. license and consent granted by
On this verbal request the plaintiff, made various
and on compassionate structural changes in the suit
grounds, the lease period property and executed works of
was extended with effect permanent character after
from 1.9.1999 to incurring expenses in the
29.2.2000 for a period of execution thereof. Without
six months. The tenancy prejudice to what has been
of the defendant stood stated hereinabove, it is
terminated with effect submitted that the license from
29.2.2000." granted by the plaintiff in
this regard to execute works of
permanent character has now
become irrevocable and the
plaintiff is not entitled to
the possession of the
suit property from the defendant
No. 1. The defendant craves
leave to place the complete
particulars relating to the
execution of such works and the
expenses thereof before this Hon'ble Court during the trial of the suit."
"5. That the plaintiff did "4 to 6 - Paragraphs 4 to 6 of
not want to retain the the plaint, as stated, are
defendants as his tenant wrong and denied. It is denied
in the premises in that the lease period expired
question. The lease by means of an alleged notice
period had also expired dated 8.6.2000 or that the
by means of notice dated tenancy of the defendant was
8.6.2000. The plaintiff terminated by the aforesaid
terminated the tenancy of notice or that the alleged
the defendants. The notice of termination was duly
notice of termination of served on the defendant. It is
tenancy was duly served denied that the possession of
upon the defendants at the defendant No. 1 in the
both the addresses. No premises in question after such
reply to the aforesaid alleged termination of tenancy
notice has been received is illegal or unauthorised or
by the plaintiff." that the defendants are liable
to pay damages for use and
occupation at the rate of Rs.
2 lakhs per month."
8. That the defendants "8. In reply to paragraph 8 of
have been sending the the plaint, it is submitted
cheques but the same have that the defendant had been
not been got encashed by sending cheques which were not
the plaintiff with effect encashed by the plaintiff.
from 1.3.2000 after the However, the sending of such
tenancy came to an end." cheques was without prejudice
to the rights of the parties as
stated herein."
8. As is apparent from the denials made in the written statement, these are unspecific and evasive and therefore no denials in the eyes of law. Order 8 Rule 5 of Code of Civil Procedure lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
9. The observations of the Supreme Court in this regard made in Badat and Company, Bombay v. East India Trading Company need to be quoted and are as under:-
"Rules 3, 4 & 5 of Order 8 of CPC form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."
10. Since the denial by the defendant to the specific averment of oral extension of the tenancy by the period of six months is not in accordance with Order 8 Rule 5 CPC being unspecific and evasive, the averment of the plaintiff in this regard has to be taken to be admitted.
11. Though the tenancy was otherwise terminated by the efflux of time but by way of abundant precaution the plaintiff also served a notice of termination as provided under Section 106 of the Act dated 8.6.2000 before filing of the suit and moreover the defendant has no where taken the plea that before the expiry of the contractual lease he had become a tenant on month to month basis by virtue of holding over and therefore in the given facts and circumstances there was even otherwise no need for giving notice of termination of tenancy.
12. As regards the contention of Mr. Nayar that in the absence of notice under Section 106 the instant suit was not maintainable nor is the plaintiff entitled to seek decree for possession and since in the instant case the plaintiff has prima facie failed to prove the service of notice no such relief can be granted to the plaintiff, Mr. Vijay Kishan, learned counselt for the plaintiff has relied upon the postal receipts vide which the said notice was dispatched at as many as three different addresses and the certificate of the Postal Authorities to the effect that the registered notice dated 8.6.2000 was duly served upon defendant No. 2. Certificate is as under:-
To
Mrs. Kochar,
117, Supreme Court,
New Delhi.
No. CR/05/02 Dtd. 10.01.2002
Sub: D/o AD No. 7834 of dt. 8.6.00 at Sh. O.P. Bhatia 89/A/119 Sainik Farms, N. Delhi-62.
Madam,
W.R.T. your letter dated 10.1.02 it is to inform you that as per records the AD R.L. U/R stands delivered to the addressee at this end on 10.6.2000 pl.
Yours faithfully,
Sd/-
Sub-Post Master
13. Though the question whether the service upon defendant No. 2 amounts to service upon defendant No. 1 need not be gone into at this stage still the fact remains that defendant No. 2 is noneless but the Chairman of defendant No. 1. As per Section 106 of the Act service of notice must be in writing, signed by or on behalf of the person giving it and amounts to having been served if it is received by one of his family members or servants at his residence or affixed at a conspicuous place of the property. Defendant No. 2 is not only the Chairman of the defendant No. 1 but was the occupant of the premises. There can be no better case of service of notice upon defendant No. 1 - Company when it is served upon its Chairman.
14. Thus the notice which has been delivered to defendant No. 2 in his capacity as Chairman of defendant No. 1 is the sufficient service upon defendant No. 1 for the purpose of Order 12 Rule 6 CPC. Even otherwise the notices were also served at the commercial premises of the defendants 1 & 2. Original postal receipts filed by the plaintiff are prima facie proof of dispatch. Bonafideness of the plaintiff in serving the notice upon the defendant is projected from the certificated obtained by him from the postal authorities after great efforts and that too after an year.
15. Almost in an identical case Smt. Shanti Devi v. Amal Kumar Banerjee AIR 1981 SC 1550 wherein the landlord filed a suit for ejectment and also pleaded that he had sent a notice to the defendant under Section 106 determining the tenancy with the expiry of the month of April, 1970 and the defendant contested the claim of the plaintiff on various grounds, the main ground of contest being that no valid notice under Section 106 of the Transfer of Property Act was served upon him and therefore the suit was not maintainable, it was held that before deciding the validity of the notice the Court should first decide whether Section 106 is applicable or not.
16. Though in the instant case the service of notice under Section 106 of the Act was not at all necessary because the tenancy had expired by efflux of time by virtue of Section 111-A of the T.P. Act but to be on the safer side the plaintiff served notice under Section 106. Mere denial of receipt of such notice cannot come to the rescue of defendant No. 2. Denial is far outweighed by not only postal receipts proving the dispatch at all the addresses of the defendant but also through a certificate from the postal authorities as to the receipt of the notice by the defendants at the suit premises.
17. I have taken a view in Rama Ghai v. UP State Handloom Corporation 2001 IV AD (DELHI) 471 that in order to invoke the provisions of Order 12 Rule 6 CPC the Court has to scrutinise the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of notice or as to the nature of tenancy.
18. If the landlord either under the legal advice or by way of abundant precaution sends notice for termination of tenancy under Section 106 of the T.P. Act after the expiry of tenancy by way of efflux of time his intention is not to terminate the tenancy but to insist and impress upon the tenant to hand over the possession after the expiry of agreed period of tenancy.
19. In the instant case the evasive denial by the defendants to the creation or a tenancy for six months has the effect of termination of tenancy by efflux of time. Whenever the period of lease was extended for a year, the plaintiff got the lease deed registered. It is unscrupulous on the part of the defendant to deny the extension of lease orally for a period of six months on compassionate ground as the petitioner did not feel the need of getting the lease registered and rightly so as such on extension of tenancy could have been agreed orally and even without unregistered lease deed under the provisions of Section 116 of the T.P. Act. Even on the premise of its own defense that the tenancy became monthly tenancy after the expiry of the registered lease period, the defendants stand on sticky wicket as even the said tenancy was validly terminated by the notice under Section 106 of the Act and, therefore, the occupation of the defendant after that period was unauthorised.
20. The aforesaid reasons pursuade me to allow the application and pass decree for possession which will be executable after two months from today.
