Anita Suri vs Textile Committee & Anr.
2009 Latest Caselaw 1611 Del

      *         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Reserve: April 01, 2009
                                         Date of Order: April 23, 2009

+ IA No.14253/2008 in CS(OS) No.1373/2008
%                                                          23.04.2009

      ANITA SURI                                         ... Plaintiff
      Through :  Mr.Anil Kher, Sr. Adv. with Mr. Varun, Adv.

      Versus

      TEXTILE COMMITTEE & ANR.                             ... Defendants
      Through:  Mr. Ashwani Mata, Sr. Adv. with
                Mr. Manish Sharma, Adv.

      JUSTICE SHIV NARAYAN DHINGRA

1.    Whether reporters of local papers may be allowed to see the
      judgment?

2.    To be referred to the reporter or not?

3.    Whether judgment should be reported in Digest?

      JUDGMENT

1. By this application under Order 12 Rule 6 CPC read with Section

151 CPC, the plaintiff has asked for passing a decree for recovery of

possession of the premises involved in the above suit on the basis of

admissions made by the defendant in the WS.

2. The plaintiff filed a suit for recovery of possession and other

reliefs in respect of the premises comprising of ground, mezzanine, first,

second and third floor at 41 Community Centre, Naraina, Phase-I, New Delhi

on the ground the lease of the premises was given in 1985 and thereafter it

was renewed from time to time. The last renewal of the lease for a period of

3 years was effective from 1st May, 2005 till 30th April, 2008 at a monthly

rent of Rs.1,12,000/- for the entire premises. The lease expired on 30th April,

2008. There was no agreement between the plaintiff and the defendant no.

1 with regard to the renewal of lease despite exchange of correspondence

between them and defendant no. 1 did not agree to the terms as offered by

the plaintiff for renewal of this. Thus, the lease of defendant no. 1 stood

terminated by afflux of time. Defendant no. 1 did not hand over the

possession of the premises. Thereafter a notice dated 21st May, 2008 was

sent by the plaintiff to the defendant no. 1 specifically terminating the lease

of the defendant in respect of property on the expiry of notice period, i.e.,

midnight of 30th June, 2008 and 1st July, 2008. Despite notice, the defendant

failed to vacate the premises. The plaintiff filed the suit for recovery of

possession, for mesne profits/damages from 1st May, 2008 onwards @

Rs.9,60,000/-, pendent lite interest and future interest.

3. In the written statement, the defendant no. 1 had taken

objections that defendant no. 2 was not a necessary party and has been

wrongly made as a party on merits. It was not denied that the premises in

question was under tenancy of defendant no.1 at a monthly rent of

Rs.1,12,000/-. It is also not denied that the tenancy came to an end on 30 th

April, 2008 by afflux of time. Rather it is stated in the WS that the defendant

o. 1 sent, on 14th March, 2008, a legal notice for renewal of the lease

agreement in response to which, the plaintiff sent a letter dated 24th March,

2008 therein quoting market rate of the rent for renewal of the tenancy.

This market rate of the rent as quoted by the plaintiff was not acceptable to

the defendant no.1. A meeting was held between the plaintiff and the

defendant no.1 on 8th April, 2008 regarding rent. The rent offered by

defendant no. 1 was not acceptable to the plaintiff. Thereafter, a notice was

received from the plaintiff through her Advocate terminating the tenancy.

4. The preliminary objections taken by the respondent is that suit

was not maintainable in view of the fact that plaintiff had not served a notice

to the defendant under Section 80 of the CPC as required under law.

5. It is settled law when there is an unequivocal admission of 3

factors; i) existence of relationship of lesser and lessee in respect of suit

property; ii) the rent being more than Rs.3500/- and iii) the determination of

such relationship in any of the contingencies as envisaged in Section 111 of

the Transfer of Property Act, the suit for possession of premises is liable to

be decreed even if such admission is not expressly made in the pleadings

and is made constructively through documents. In the present case, all the

three above admissions have been made in the WS by the defendant. There

is no dispute about the relationship of landlord and tenant, the rent being

above Rs.3500/- and the tenancy having come to an end by afflux of time as

well as by express determination through a legal notice by the plaintiff. I

therefore consider that the application of the plaintiff under order 12 Rule 6

is liable to be allowed.

6. Counsel for the defendant, however raised objection regarding

non-service of a notice under Section 80 of CPC. I consider that this

objection is not tenable. It is the case of the defendant no. 1 itself that

defendant no. 2, Union of India was not a necessary party and has been

wrongly made as a party by the plaintiff and it was only defendant no. 1 who

was tenant and was a necessary party. No doubt defendant no. 1, the

Textile Committee was constituted under the Textile Act, 1963 and therefore

is a legislative creature that does not mean that in order to file a suit for

possession against the Textile Committee, in respect of the premises let out

to it, Section 80 CPC notice is required to be given to the Union of India. A

notice under Section 80 CPC is given so that unnecessary litigation is

avoided and if the claim of the plaintiff is lawful, the government

body/defendant without forcing the plaintiff to go to the Court should

consider the claim and redress the grievance of the respondent.

7. In the present case, the lease deed between the parties came

to an end on 30th April, 2008 by afflux of time, the defendant thereafter had

sufficient notice that it has to vacate the premises since the plaintiff had

refused to renew the lease. The defendant had no option but to vacate the

premises but the defendant did not do so. Therefore, the plaintiff has to

serve a notice on the defendant terminating the lease with effect from

midnight of 30th June, 2008 that also did not stir the defendant for vacating

the premises. I consider that no separate notice under Section 80 was

required to be served upon the defendant no.1. The defendant no.1 had

sufficient notice to act according to law. Since it failed to act according to

law, the plaintiff was forced to file this suit.

8. I allow the application under order 12 Rule 6 CPC filed by the

plaintiff. The suit of the plaintiff is partly decreed in following terms:

"a decree of possession in respect of premises comprising of

ground, mezzanine, first, second and third floor at 41

Community Centre, Naraina, Phase-I, New Delhi is passed in

favour of the plaintiff and against the defendant no.1"

CS(OS) No.1373/2008

The suit shall proceed further in respect of rest of the claims

filed by the plaintiff. The matter be sent to the regular Bench for further

proceedings.

Parties to appear before the regular Bench on 4th May, 2009.

April 23, 2009                                     SHIV NARAYAN DHINGRA J.
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