Deepak Chopra (Huf) And Ors. vs Raj Kumar Adhupia
2003 Latest Caselaw 221 Del

JUDGMENT

Vikramajit Sen, J.

1. By this Order I shall dispose of the present application filed by the Plaintiff under Order XII Rule 6 praying for the passing of a decree of ejectment against the Defendant. In paragraph 2 of the plaint it has been pleaded that the "premises was let out by the Plaintiff No. 1 to the Defendant along with fittings, furniture and electrical equipment etc. for a period of five years commencing from 1st day of April, 2000 at a total monthly rent of Rs.33,000/- ....". A Lease Deed was entered into between the parties but it is neither adequately stamped nor is it registered. It, therefore, cannot be read in evidence. Along with the Lease Deed, however, two Agreements of even date were also executed pertaining (i) to the hire of furniture, fittings and (ii) to maintenance. The hire charges were fixed at Rs.7000/- per month and the maintenance charges were fixed at Rs.18,000/-. By deduction, therefore, the rent is Rs.8,000/- per month.

2. A legal Notice to Quit dated 10.12.2001 has been issued which has been admitted as well as replied to in terms of the letter of Shri Gagan Gupta dated 3.1.2002. The statement pertaining to the Lease, Hire and the Maintenance Agreements have been spelt out in the legal Notice to Quit dated 10.12.2001.

3. The short question is whether a decree for ejectment can be passed. It has been contended on behalf of Defendant that firstly the Lease Agreement can be relied upon under Section 53-A of the Transfer of Property Act. Reliance has been placed on Nathulal v. Phoolchand, and Technicians Studio Private Limited v. Lila Ghose & Anr., . In situations where a document is required to be compulsorily registered and has not been so done, it is well settled that a party can still rely on it as a shield. However, this issue pales into insignificance in view of the averments in the plaint itself, to the effect that the period of letting was for five years. Apart from the said Lease Deed, the tenure of the lease agreed to between the parties can also be determined from other documents which do not suffer from any legal disability on the ground of their non-registration. In this case these are the Hire and the Maintenance Agreements. The Maintenance Agreement specifically states that it is for a period of five years.

4. Counsel for the Plaintiff has submitted that it has also been averred in the plaint that the tenancy is for month to month. The Plaintiff may eventually succeed in making good this plea, however hard it may appear at the present moment keeping the other statement that the lease was for a period of five years. The fact remains that at this stage a decree cannot be passed on alleged admissions or on the grounds that the tenancy was from month to month.

5. The other ground for terminating the lease is that the Defendant has stopped paying rent, and this has been specifically alleged in the notice mentioned above. In the Reply to the Notice as also in the Written Statement these averments have been traversed and it has been stated that the payment of rent, hire fees and the maintenance charges were discontinued due to certain events. These events cannot be brushed aside at the present stage of the suit, and the suit cannot be decreed under Order XII Rule 6.

6. Reliance has been placed by counsel for the Plaintiff on M/s. S.L. Associates Pvt. Ltd. v. Karnataka Handloom Dev., , Zamila Begum v. Union of India & Ors., , Surjit Singh v. H.N. Pahilaj (Deceased) through L.Rs., , Theeta Industrial Heating Equipments (P) Ltd. v. Harvinder Singh & Ors., , R.N. Sachdeva v. Ram Lal Mahajan Charitable Trust, , SAB Industries Ltd. v. Chief Executive Officer, CGEWHO, , Lakshmikant Shreekant (HUF) through its Karta L.K. Jhunjhunwala v. M.N. Dastur & Company Pvt. Ltd., , Samir Mukherjee v. Davinder Kumar Bajaj & Ors., . Bombay Ammonia Pvt. Ltd. v. M/s. Blue Diamond Ice Factory & Ors., , Amar Chand Talwar & Ors. v. M/s. Export Promotion Council for Handicrafts, , Parivar Seva Sansthan v. Dr. (Mrs.) Veena Kalra & Ors., . Learned counsel for the Defendant has also relied on Paivar Seva Sansthan's case (supra). Counsel for the Plaintiff relies on the decision of a Single Judge of this Court in Surjit Singh's case (supra). It is his submission that the ratio of that judgment is that the Lease Agreement as well as other Agreements if executed at the same time cannot be read in isolation. Accordingly if the lease can be terminated, that would also put an end to the other agreements and all the engagements would be coterminous. The question before me is totally different, that is whether a tenancy for a period of five years could be terminated by a simple issuance of a notice. In fact decision in Surjit Singh's case (supra) would operate to the benefit of the Defendant inasmuch as the other documents must also be read and taken into consideration in order to determine the tenure of the lease. These documents indicate that the engagement or lease was agreed to for a period of five years. Reliance has also been heavily placed on Parivar Seva Sansthan's case (supra) in which the Division Bench of this court had passed a decree of ejectment under Order XII Rule 6. The facts in that case are different on one significant ground and that is that there was no admission in the plaint itself, as in the case at hand, that the tenure of the lease was for a period which had not yet expired. Order XII cannot be availed of in such circumstances. The Lease could have been legally terminated on grounds other than its having come to an end by efflux of time, such as, for instance, non-payment of rent. But this ground has yet to be proved.

7. What has to be seen at this stage is whether any issue has been raised which can be properly decided only after the reception of evidence. In the present case it would not be open to the Plaintiff to determine a lease treating it as a month to month tenancy when in fact it may have been for a longer period i.e. five years. As regards the question of non payment of rent this is clearly a ground which would have to be substantiated by leading of evidence and thus only thereafter, if the Court comes to the conclusion that the tenant had in fact defaulted in the payment of rent, could a decree of ejectment be passed against him. Law does not envisage that on the mere issuance of a Notice to Quit on grounds which require proof, a decree for ejectment could nonetheless be passed.

 8.   At this  stage, therefore,  it is not possible  to   grant    the relief prayed for in the application. 
 

 9.    The application is  accordingly dismissed. 
 

 Suit  No.  406 of 2002   
 

 10.  I have heard  the  parties   at   some length in the course of arguments addressed in I.A. 11438/2002.    The question which is  in issue is whether  the Defendant is liable   to pay the maintenance   charges in view of the   Defendant's assertion that maintenance services were not provided  with effect   from  June 2001.     
 

 11.     There  seems to  be  no    reason why  the Defendant   should withhold the rent as well as  the   hire charges in   respect of fixtures and fittings in relation to  which there are no disputes. Accordingly the Defendant  is   directed to pay the rent and the hire  charges with  effect   from  November 2001 within six weeks from today.  This shall  be  without  prejudice  to the rights   and   contentions    of    either  of   the      parties.  The  Defendant shall   continue to pay   rent and hire charges  month  by month on the 7th day of  each calendar month. 
 

 12.   Renotify the matter for   further consideration on 7.7.2003.