Smt Shakuntala Devi & Anr vs M/S Seven Star Electircals (P) Ltd ...
2008 Latest Caselaw 1325 Del

 *      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       IA.Nos.3703/2008 & 3704/2008 in CS(OS) 49/2008

%                                        Date of decision :       12.08.2008

SMT SHAKUNTALA DEVI & ANR                                         ....... Plaintiffs
                        Through:     Mr. A.K. Singla, Sr Advocate with Mr Pankaj Gupta,
                                     Advocate.

                                           Versus

M/S SEVEN STAR ELECTIRCALS (P) LTD & ORS                          ........ Defendants
                        Through : Mr. R.M. Sinha with Ms Namita Sinha, Advocates.




CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     1.

Whether reporters of Local papers may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported YES in the Digest?

RAJIV SAHAI ENDLAW, J

1. The plaintiffs, in this suit for ejectment of tenant after

determination of tenancy and for mesne profits, seek a decree for

ejectment on admissions.

2. The plaintiffs No. 1 and 2 claim to be owners of 195.55 sq yds

each of a plot of land admeasuring 391 sq yds situated in village Jhilmil

Tahirpur, G.T. Road, Dilshad Garden, Delhi vide separate sale deeds

executed in their favour by defendants No 2 and 3 respectively. The

plaintiffs claim that the defendant No.1 was a tenant under them in the

property built on the entire plot of land admeasuring 391 sq yds as one,

at a rent of Rs 90,000/- per month payable in equal amounts of Rs

45,000/- to each of the plaintiffs. The plaintiffs claim that the said

tenancy of the defendant No.1 was for a limited term from 11 th July,

2005 to 31st March, 2006 under separate Rent Agreements executed by

Defendant No.1 with each of the Plaintiffs. The plaintiffs also claim to

have, by way of abundant caution, determined the said tenancy by a

notice dated 1st December, 2007 (on behalf of both Plaintiffs) and the

present suit was filed on or about 8th January, 2008.

3. The defendants No. 1, 2 and 3 have filed a common written

statement and counter claim. The defendants have, in their written

statement, stated (i) that the suit is bad for misjoinder of parties and

causes of action inasmuch as the plaintiffs are owner of separate

portions under separate sale deeds and as per the averments of the

plaintiffs themselves, there is separate contract of tenancy by each of

the plaintiffs as landlord; (ii) that the sale deeds with respect to the

property were executed by the defendants No. 2 and 3 in favour of the

plaintiffs No. 1 and 2 respectively by way of security for the monies

advanced by the plaintiffs No. 1 and 2 to the defendants No. 2 and 3 and

each of the defendants No. 2 and 3 had agreed to pay Rs 10,000/- per

month to the plaintiffs No. 1 and 2 respectively towards interest, though

to be shown as rent; (iii) The defendants No. 2 and 3 had, in fact, filed

CS(OS) 1388/2007 and CS(OS) 1390/2007 against the plaintiffs No. 1

and 2 respectively challenging the sale deeds executed in favour of the

plaintiffs No. 1 and 2 but subsequently claim in suits was confined to the

relief of permanent injunction restraining the plaintiffs No. 1 and 2 from

forcible dispossessing the defendants No. 2 and 3 from the property (iv)

it was agreed between the defendants No. 2 and 3 with the plaintiffs No.

1 and 2 respectively vide letters dated 9th April, 2007 that the lease of

the defendants No. 2 and 3 will be for infinity or at least for life of the

defendants No 2 and 3; (v) the defendants No. 2 and 3 also, by way of

counter claim, claimed the relief of declaration declaring the rent deeds

both dated 15th July, 2005 set up by the plaintiffs as null and void being

manipulated and fabricated documents and of mandatory injunction

directing the plaintiffs No. 1 and 2 to register both the lease agreements

contained in the letters dated 9th April, 2007 and of specific performance

of the agreement contained in the letters dated 9th April, 2007.

4. The plaintiffs besides the present application filed

IA.No.3705/2008 under Order 7 Rule 11 of the CPC for rejection of the

counter claim, inter alia, on the ground that the counter claim on behalf

of the defendants No. 2 and 3 was not maintainable inasmuch as the

documents dated 15th July, 2005 with respect to which declaration was

sought and the letters dated 9th April, 2007 with respect to which

mandatory injunction and specific performance was claimed were of the

defendant No.1 and not of the defendants No. 2 and 3 and as such the

defendants No. 2 and 3 could not maintain a counter claim with respect

thereto. During the hearing of the said application, held on the same

day as of this application, the counsel for the defendants stated that the

counter claim may be treated as on behalf of the defendant No.1 also

and the pleadings made in the counter claim be read as made on behalf

of the defendants.

5. The senior counsel for the plaintiffs relied upon :

1. Sudershan Sinha & Anr v Kuldeep Singh : 133(2006) DLT 183;

2. Central Bank of India v Lalit Kumar Bhargava (HUF) :129 (2006) DLT 338 (DB);

3. Union Bank of India v Sushila Goela & Ors : 125(2005) DLT 161 (DB);

4. K.N. Chibber & Anr v SAE India Limited & Anr: 2003(68) DRJ 795;

5. G.M. Enterprises Pvt Ltd v Sem Tian Exports & Hotels Pvt Ltd : 118(2005) DLT 500

The counsel for defendants relied upon:

1. Eureka Forbes Ltd & Anr v Hindustan Unilever Ltd : 2008 IV AD (DELHI) 235;

2. Smt Sneh Vasih & Anr v M/s Filatex India Ltd : 2002 I AD (DELHI) 885.

6. The defendants No. 2 and 3, in the suits filed by them against

the plaintiffs No. 1 and 2 respectively, had sought to challenge the sale

deeds executed by them in favour of the plaintiffs No. 1 and 2.

However, when the said suits came up for admission before this court on

1st August, 2007, the counsel for the defendants No. 2 and 3, while

addressing arguments on the maintainability of the suits, made a

statement that they did not press the relief in respect of the sale deeds

dated 4th July, 2005 executed in favour of the plaintiffs No. 1 and 2 to be

declared as null and void and confined the suit only to restrain plaintiffs

No. 1 and 2 from forcibly dispossessing them from the property. It was

only upon such statement of the defendants No. 2 and 3 (plaintiffs in

those suits) being recorded that the notice of the said suit was issued to

the plaintiffs No. 1 and 2 (defendant in those suits). Even though while

disposing of those suits on 5th February, 2008 as aforesaid, the rights of

the defendants No. 2 and 3 to take any defence in this suit were

preserved but the defendants No. 2 and 3 have, while preferring the

counter claim in the present suit, not made any claim with respect to

sale deeds but have, on the contrary, made a counter claim only for

declaration and continuing in possession as a tenant for infinity / for

their life time.

7. In the aforesaid factual matrix it is to be seen whether, in so

far as the relief of ejectment is concerned, the defence of the defendants

raises any triable issue. Under Order XV Rule I of CPC, where it

appears that the parties are not at issue on any question of law or fact,

the court can at once pronounce judgment. The plaintiffs by their

application claim that the defence raised in written statement raise no

issue and the admissions made, entitle them to a decree.

8. The courts, in such like suits between land lord - tenant has

been applying provisions of Order 12 Rule 6, even after issues have been

framed and when it is brought to the courts attention that the defence

raised and on which issues were framed is in fact no defence; see

Charanjit Lal Mehra v Kamal Saroj Mahajan : AIR 2005 SC 2765. In

Uttam Singh Duggal & Co Ltd v United Bank of India : (2000) 7

SCC 120 it was held that object of Order 12 Rule 6 CPC is to enable

speedy judgment.

9. That though the defendants in the written statement have

made averments with respect to sale deeds in favour of the plaintiffs No

1 and 2 but in the face of the defendants not making any counter claim

with respect to the sale deeds and the defendants having earlier

instituted suits for declaration with respect to sale deeds and having

given up the said relief, the defendants are now not entitled to challenge

the said sale deeds. Even otherwise, the plaintiffs have instituted the

present suit not on the basis of their title as owner under the said sale

deeds but on the basis of their title as landlord of the defendant No.1.

In such a suit, the title of the plaintiff as owner is not relevant and need

not be established. As far as the relationship of landlord and tenant is

concerned, the defendants by making the counter claim have admitted

the relationship of landlord-tenant with the plaintiffs.

10. The jurisdiction of the civil court to pass an order of ejectment

of tenant is only in cases where the rent payable by tenant is in excess of

Rs 3500/- per month. Though the plaintiffs claim the defendant No.1 to

have been a tenant @ Rs 90,000/- per month, but the defendants

contended to be tenants @ Rs 10,000/- per month each. Thus, it is

nobody's case that the rent is less than Rs 3500/- per month or that this

court does not have the jurisdiction to pass an order of ejectment.

11. The next question is with respect to the determination of

tenancy. The parties are at issue as to the document under which the

tenancy is claimed by the plaintiffs to have expired by efflux of time;

though the defendants admit their signatures on the said documents but

have set up a case that the same was signed in blank by them.

Irrespective of the ultimate merits of the said plea of the defendants, the

decree for ejectment under Order 12 Rule 6 cannot be passed on the

basis of plea of the plaintiffs of determination of tenancy by efflux of

time. However, the plaintiffs have in the alternative also set up a case

for determination of tenancy by a notice dated 1st December, 2007 under

Section 106 of the Transfer of Property Act. The service of the said

notice on the defendants is not under challenge. In fact, the defendants

claim to have sent a reply dated 11th January, 2008 to the said notice.

There is no pleading that the determination of tenancy vide the said

notice is not in accordance with provisions of Section 106 of the

Transfer of Property Act. It has been held by a Division Bench of this

Court in the judgment Chandra Kanta Singhal v Kapadia Exports

(1996) V AD Delhi 108 that the defendant must specifically plead as to

with which of the ingredients of Section 106 of the Transfer of Property

Act, the notice does not comply with and in the absence of such specific

pleadings, the determination of tenancy cannot be challenged.

Moreover, Section 106 of the Transfer of Property Act was amended

w.e.f. 31st December, 2002 and which amendment has virtually done

away with all defences as to the validity of a notice under Section 106 of

the Transfer of Property Act. All that is now required is that the suit

must have been filed after 15 days of issuance of the notice and which

has been done in the present case. I have perused the copy of the notice

dated 1st December, 2007 filed by the plaintiffs in the court. The same

notifies the defendant No.1 that in accordance with Section 106 of

Transfer of Property Act notice was given to it and the defendant No.1

was called upon to vacate and hand over possession upon expiry of 15

days or by 31st December, 2007. The suit was filed on or about 8th

January, 2008. It is not the case of defendants that 15 days from receipt

of notice had not expired on the date of institution of suit.

12. Thus, the three ingredients of (i) existence of relationship of

landlord-tenant; (ii) rent in excess of Rs 3500/- per month and (iii)

determination of tenancy, entitling the plaintiffs to a decree for

ejectment, are made out on admissions and/or on a meaningful reading

of the pleadings in the present case and no trial is required. However,

as noticed above, the defendants have also raised the pleas of mis-

joinder and of being entitled to continue in possession of the premises.

It is to be seen whether these pleas of the defendants raise any triable

issue. If they do raise a triable issue, again the plaintiffs would not be

entitled to a decree for ejectment without trial.

13. With respect to the plea of mis joinder, the plaintiffs have in

para 4 of the plaint pleaded that though different sale deeds with

respect to the different portions of the property were executed in favour

of the plaintiffs No. 1 and 2 but the property is constructed as one on

entire land admeasuring 391 sq yds with a provision of single staircase

and a single lift connecting all the floors in the property and the

property is also provided with common electric and water connection.

The defendants in their written statement have replied to paras 3 to 5 of

the plaint in a single paragraph and though have generally denied the

contents of paras 3 to 5, have not specifically denied the aforesaid

averments in para 4 of the plaint. The plaintiffs have filed site plan of

the property showing a basement, ground floor and second floor

comprising of a hall on each floor and without any demarcation of

separate properties. The defendants during the admission/denial of

documents admitted the said site plan which has been exhibited as

Exhibit P1. The plaintiffs have also filed a photograph of the said

property which has also been admitted by the defendants and is

exhibited as Exhibit P2 and which also is in consonance with the site

plan. With this, the objection as to the misjoinder disappears and, in

fact, does not require any trial. Moreover, the defendants themselves

have preferred a single counter claim against the plaintiffs. Even

otherwise, the allegations of the defendants are such as to belie any

case of misjoinder of parties or causes of action. The Division bench of

this court has in Mercury Travels India Ltd v Mahabir Prasad 89

(2001) DLT 440 held relying on Section 107 of Transfer of Property Act

that a lease of immovable property may be made by more than one

instrument and that merely because there are two lease deeds in

respect of premises it does not follow that intention was to create two

tenancies. In the present case from the admission of site plan and

photograph it is clear that the nature of premises is such which can be

let out as one only. I have also not been shown any material/case law

that even if there were to be two tenancies, how the plaintiffs are barred

from joining, in suing for ejectment. If the plaintiffs were to institute

separate suits, the same would involve common question of law and

facts and in fact seeing the nature of premises, it may not be possible to

pass order of ejectment in one suit without simultaneous decision of

other. I, on demurrer also hold that just as the defendants have made

one counter- claim against plaintiffs, so are plaintiffs entitled to

maintain this suit and plaintiffs cannot be denied relief for reason of

misjoinder.

14. The defendants have put up a defence as well as have made the

counter claim of being entitled to remain tenant in possession of the property

for infinity or for their life time at a rent of Rs 10,000/- each per month.

Though at first blush it appears that, in the face of the counter claim, a decree

for ejectment cannot be passed without trial but on scrutiny it is found that the

counter claim also does not raise any issue whatsoever. The said

counter claim is for mandatory injunction and specific performance of

identical letters dated 9th April, 2007 written by the defendant No.1 to

each of the plaintiffs separately and which are reproduced for ready

reference :

"Ms. Shakuntla Devi W/o Sh Dwarka Prasad Tayal C-32, Surajmal Vihar, Delhi-110 092 Sub: Payment of Rent

Madam, Please find enclosed herewith Cheque No.671259 dated 9.4.2007 of Canara Bank, Dilshad Garden, Delhi-110 095 for the amount Rs 1,20,000/- (Rs. One lac twenty thousand only) being the rent for the period 1.4.2006- 31.3.2007.

Please acknowledge the receipt.

Yours truly For SEVEN STAR ELECTRICALS PVT LTD "

And

"Mr Sunil Tayal C-32, Surajmal Vihar, Delhi-110 092

Sub: Payment of Rent

Madam, Please find enclosed herewith Cheque No.671258 dated 9.4.2007 of Canara Bank, Dilshad Garden, Delhi-110 095 for the amount Rs 1,20,000/- (Rs. One lac twenty thousand only) being the rent for the period 1.4.2006 - 31.3.2007.

Please acknowledge the receipt.

Yours truly For SEVEN STAR ELECTRICALS PVT LTD "

15. The said letters, during admission/denial, have been proved as

Exhibits P3 and P4 and the defendants copy of the same bearing the

signatures of the plaintiffs have been proved as Exhibit D1 and D2.

16. The defendants are claiming specific performance of the

agreement contained in the aforesaid documents. Since, the defendants

are claiming specific performance they cannot plead outside the

documents. I have carefully perused the written statement of the

defendants. The defendants have based their case solely on the

aforesaid documents and not on any other agreement or document. The

plea of the defendants in this regard is as under:

"11. On the contrary, it was agreed that rent vide offer dated 09.04.2007 by both the defendants No. 2 and 3 as well as the acknowledgement both dated 09.04.2007 executed by the plaintiffs respectively clearly shows that the alleged rent for the period of 01.04.2006 to 31.03.2007 was Rs.1,20,000/- for each premises i.e. Rs.10,000/- per month and the lease was for indefinite period i.e. at least for life. Therefore, the documents i.e. both the offers dated 09.04.2007, 09.04.2007 as well as both the acknowledgement executed by the plaintiffs are unimpeachable and unequivocal documents and constitute the lease for infinity or at least for life of the defendants No 2 and 3.

But the leases of both the premises in favour of the defendants No 2 and 3 respectively are of leases for life.

Since lease agreements vide proposal dated 09.04.2007 and acknowledgement dated 09.04.2007 were for infinity therefore, the plaintiffs herein deserves to be directed to get the same registered and plaintiffs are in obligation to treat the lease agreements i.e. vide proposal dated 09.04.2007 and its acknowledgement dated 09.04.2007 to be as lease at least life of defendants No 2 and 3 respectively by way of decree of specific performance."

17. Can the parties be ordered to go to trial on the aforesaid pleas.

The answer has to be in the negative. Firstly, the documents do not

contain any agreement of the defendants being lessees for infinity or for

their life time nor any agreement of the plaintiffs to grant such lease to

the defendants. Secondly, a lease for infinity or for life time can be only

by a registered document. The letters of which specific performance is

claimed are merely letters by the defendant No.1 forwarding cheques

for rent to the plaintiffs. Exhibits D3 and D4 are receipts issued by the

plaintiffs of the rent received from the defendant under the said letters.

Neither the letters nor the said receipts contain any agreement of the

plaintiffs agreeing to allow the defendant No.1 to continue in possession

of the premises, lest for infinity or for life time of the defendants. Under

Section 107 of Transfer of Property Act a lease of immovable property

for any term exceeding one year can be made only by a registered

instrument. The documents of which specific performance is claimed are

not only themselves unregistered but also do not envisage/provide for

execution of a further document of grant/creation of any lease. The

documents said to be creating a lease for infinite / for life time, are

required to be compulsorily registered and being unregistered cannot be

looked into as held by Division Bench of this court in Modern Food

Industries India Ltd v I.K. Malik (2002) VIII AD DELHI 88.

18. The Apex court in T. Arvindam v T.V. Satyapal AIR 1977 SC

2421 has held that if on a meaningful-not formal-reading, claim is

manifestly vexatious and meritless in the sense of not disclosing a clear

right to sue, the trial court should ensure that bogus litigation is shot

down at the earliest stage. Again in Liverpool & London S.P. & I

Association Ltd v M.V. Sea Success I & Another (2004) 9 SCC 512 it

was held that when no cause of action is disclosed, the courts will not

unnecessarily protract the hearing of suit - the courts should interpret

the provisions in such a manner so as to save expenses, achieve

expedition and avoid the courts resources being used up in cases which

will serve no useful purpose. It was further held that a litigation which

in the opinion of the court is doomed to fail should not further be

allowed to be used as a device to harass.

19. In my considered opinion, applying the aforesaid principles,

the counter claim of specific performance of documents does not

disclose any cause of action or right to sue for the relief and is vexatious

and meritless and trial thereof will serve no useful purpose. Not only is

the same liable to be rejected, but the same need not deprive the

plaintiffs of the order of ejectment forthwith. The judgment in Sneh

Vasih relied upon by counsel for defendants, as also noted therein was

on its own peculiar facts. Eureka Forbes Ltd was not a case between

landlord-tenant and Division bench found legal and factual questions

required to be adjudicated. In the present case, the counter claim of

the defendants on a bare reading thereof alongwith a reading of the

documents on the basis of which the counter claim is filed, do not raise

any triable issue whatsoever.

20. I may at this stage also note that the notice of determination of

tenancy is addressed to the defendant No.1 only. The counter claim as

aforesaid was initially filed by the defendants No. 2 and 3 only but

subsequently on statement is now on behalf of all

the defendants. However, the documents of which specific performance

is claimed are of defendant No.1 only and do not show the defendants

No. 2 and 3 to be the tenants in the premises. The documents of which

specific performance is claimed do not show any contract of tenancy

with defendants No. 2 and 3. The tenancy of the defendant No.1 has

been determined as already noticed above.

21. Thus, as far as the relief of ejectment is concerned, no trial

being required, the plaintiffs are entitled to a decree forthwith.

Accordingly a decree for ejectment is passed in favour of the plaintiffs

and against the defendants with respect to the property Nos. 1/488 to

1/504 situated on land admeasuring 391 sq yds carved out of Khasra No

386/301 situate at village Jhilmil Tahirpur, G.T. Road, Dilshad Garden,

Delhi along with whole of the structure constructed thereon and as

shown in the site plan exhibit P1. However, since the monetary claims

of the plaintiffs for mesne profit remain to be adjudicated, presently the

parties are left to bear their own costs and the costs to be assessed at

the time of adjudication of the monetary claim/mesne profits.

IA.No. 3704/2008

The plaintiffs, in this suit for ejectment of a tenant after the

determination of tenancy and for recovery of mesne profits, have sought

an order for payment on admissions. Vide separate order on IA.No.

3703/2008 a decree for ejectment has been passed in favour of the

plaintiffs and against the defendants. The plaintiffs claim that the

defendants were tenant under the plaintiffs at the rate of Rs 90,000/-

per month. The defendants controverted the said position and claimed

to have been tenants in the property @ Rs 20,000/- per month. It is

however admitted that payment is due since 1st April, 2007. The

respective pleas of the parties cannot be adjudicated without trial.

Under Order 39 Rule 10 of the CPC, order with respect to the admitted

claims only can be passed and no trial on affidavits or preference of one

claim over the other on a prima facie view of the matter is contemplated.

The senior counsel for the plaintiffs has contended that in the face of

admission by defendants of signatures on the documents dated 11 th July,

2005 and which documents show the agreed rent to be total of Rs

90,000/- per month, order for payment at the said rate should be made.

However, the said documents are challenged by the defendants and till

the said challenge is adjudicated, at this interim stage it cannot be said

that there is any admission within the meaning of Order 39 Rule 10 CPC.

Since order for ejectment has been passed, it is not as if, considering

that mesne profits are likely to accumulate, order at increased rate is

called for.

Accordingly, the defendants are directed to pay to the

plaintiffs an amount calculated @ Rs 20,000/- per month w.e.f. 1st April,

2007 till date within four weeks here from and are further directed to

continue to pay the sum of Rs 20,000/- per month to the plaintiffs in

advance for each month by the 15th day of the month till the date of

delivery of possession of the property to the plaintiffs. This shall be

without prejudice to the respective pleas of the parties. It is further

clarified that upon failure of the defendants to comply with this order,

the defence, if any, of the defendants to the claim of the plaintiffs for

mesne profit shall stand struck off.

                                         RAJIV SAHAI ENDLAW,
August 12, 2008                               JUDGE
M