Delhi High Court

Mukesh Chander Kumar vs Smt.Suman Beniwal & Anr. on 6 August, 2010

Author: Indermeet Kaur

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment : 06.08.2010


+                   RSA.No.151/2010


MUKESH CHANDER KUMAR                             ...........Appellant
           Through:                 Mr.Manu Sishodia, Mr.Paresh
                                    Sishodia, & Mr.Awadesh Bhakta,
                                    Advocates.

                    Versus

SMT.SUMAN BENIWAL & ANR.             .......Respondents

            Through:     Mr.Sanjay Jain, Sr.Advocate,
                         With Mr.R.C.Gupta, Mr.Naresh
                         Kumar Beniwal & Ms.Ruchi
                         Jain, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

2. To be referred to the Reporter or not? Yes

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

Yes

INDERMEET KAUR, J.(Oral)

CM.14019/2010

Allowed, subject to just exceptions.

RSA.151/2010 & CM.14018/2010

1. The plaintiff Suman Beniwal had filed a suit for possession

of shop No.4 in property Khasra No.460/1, situated by the side of

State Bank of Patiala, Rama Market, Pitam Pura, Delhi. This

property had been leased out to the defendant Mukesh Chander at

a monthly rental of Rs.3,777/-. Since 15th August, 2008, the

defendant had not paid rent to the plaintiffs. Legal Notice dated

12.2.2009 had been sent to the defendant, pursuant to which he

had remitted a sum of Rs.22,662/- to the plaintiffs, but not the

entire arrears. Thereafter, another legal notice dated 21.2.2009

had been sent to the defendant terminating his tenancy with the

expiry of the midnight of 31st March, 2009.

2. Written statement had been filed.

3. Counsel for the plaintiff had, thereafter, moved an

application under Order XII Rule 6 of the Code of Civil Procedure

(hereinafter referred to as „the Code‟) seeking a decree in view of

the admissions made by the defendant in his written statement.

The Trial Judge vide judgment dated 25.2.2010 decreed the suit of

the plaintiff for possession. It was held that there were clear and

unequivocal admissions made by the defendant in his written

statement entitling the plaintiffs to a decree of possession. The

relevant extract of the said finding, inter alia, reads as follows:

".....it is clear from the record that the relationship of landlord and tenant is there between the parties, rate of rent per month is more than Rs.3,500/- and even the certified copy of the sale deed has been filed on record and there is admission of the legal notice dated 22.02.09 terminating the tenancy......."

4. This finding of the Trial Judge was endorsed by the first

appellate court in the impugned judgment dated 18.5.2010. The

argument of the learned counsel for the defendant that disputed

questions of fact had arisen going to the root of the case and as

such the decree passed by the Trial Judge under Order XII Rule 6

of the CPC is liable to be set aside, was rejected. The appellate

court in the impugned judgment had noted the fact that the plea

of waiver of notice sought to be set up before the first appellate

court had never been raised in the written statement, nor did it

find mention in the reply to the application under Order XII Rule 6

of the CPC. In view of unequivocal and clear admissions made by

the defendant, it was held that the judgment of the trial court

decreeing the suit of the plaintiffs for possession under Order XII

Rule 6 of the Code did not call for any interference.

5. Before this Court, it has been urged by the learned counsel

for the appellant that the preliminary objections in the written

statement had clearly stated that since the rent already stood paid

by the defendant, the notice dated 12.2.2009 stood waived. This

written statement further stated that thereafter a second notice

dated 21.2.2009 had been received, to which an appropriate reply

had been given on 9th March, 2009. The written statement further

states that rent had been paid upto 28th February, 2009 through a

money order. It is vehemently contended by the learned counsel

for the appellant that after the acceptance of this rent by the

landlord, the legal notice stood waived and this is a disputed

question of fact which requires a trial, and in this view of the

matter, the courts below decreeing the suit of the plaintiff on an

application under Order XII Rule 6 CPC was an illegality.

6. Learned counsel for the appellant has supported his

submission by relying upon two judgments reported in 154 (2008)

DLT 111(DB), Puran Chand Packaging Industrial P. Ltd. Vs.

Sona Devi & Another, as also the second judgment reported in

86 (2000) DLT 817 (DB), Parivar Seva Sansthan Vs. Dr.(Mrs.)

Veena Kalra & Others.

7. The arguments have been countered by the learned counsel

for the respondent, who had appeared pursuant to a caveat. The

learned counsel for the respondent has submitted that the orders

of the two courts below call for no interference as all the

necessary ingredients for a decree to follow on an application

under Order XII Rule 6 of the CPC had been met.

8. The record shows that the relationship of the landlord and

tenant between the parties is admitted. The rate of rent is also

more than Rs.3,500/- per month. The last rent is 3,777/- per

month. The legal notice dated 21.2.2009 has also been admitted

and reply dated 9.3.2009 to the said notice had been sen t by the

defendant. On 9th March, 2009, no dispute was raised by the

defendant that the acceptance of rent by the plaintiff/landlord

amounted to a waiver of the notice. A perusal of this legal notice

shows that the tenancy of the tenant had been terminated with

effect from the midnight of 31st March, 2009; i.e. the last day of

the tenancy month; advance notice period of 15 days was

contained; the twin requirements essential for a notice under

Section 106 of the Transfer of Property Act, (hereinafter called the

„TP Act‟) stood met.

9. The impugned judgments of the two courts below call for no

interference in view of unequivocal and clear admissions made by

the defendant in para 4 of the written statement, which had

culminated into this decree.

10. The judgments relied upon by the learned counsel for the

appellant are distinguishable. In the first judgment of Puran

Singh (supra), the tenant had raised a dispute that after the

service of the legal notice the plaintiff/landlord had increased the

rent by 30% which had been accepted and as such acceptance of

the enhanced rent amounted to a waiver of the notice. Further

the plaintiff/landlord had not provided the agreed load of

electricity on account of which the premises could not be gainfully

utilized. There were questions of fact which could be decided by

the court only after the parties were permitted to lead evidence.

Facts of the instant case are distinct. In this case, legal notice

terminating the tenancy of the defendant had been given on 21 st

February, 2009 terminating the tenancy of the tenant with effect

from the midnight of 31st March, 2009. Even as per the admitted

case of the tenant, he had paid rent prior thereto, i.e., upto 28th

February, 2009. There was no dispute on the rate of rent; further

it is also not the case of the appellant that the landlord had

accepted the rent after the date of the termination of the tenancy.

11. The second judgment relied upon by the learned counsel for

the appellant in Parivar Seva Sansthan (supra), is also distinct. In

this case, the dispute raised by the defendants was that they had

become contractual tenants after 1995 and thereafter plaintiffs

started accepting rent in their two individual names; these were

held to be questions of fact, which required evidence and could

not amount to an unequivocal or a positive admission. The facts of

this case are again distinct and as such the ratio deduced

therefrom cannot be applied.

12. In 80 (1999) DLT 706 (DB), Uptron Powertronics

Limited Vs. G.L.Rawal, the Division Bench of this Court had the

occasion to deal with the provisions of Order XII Rule 6 of the

Code, where a suit for possession had been decreed. Para 7 of the

judgment is relevant, which reads as under:

"In spite of the termination of the tenancy, the appellant continued in possession and occupation of the suit premises and the respondent continued to accept the rent tendered by the appellant. Therefore, to avoid any plea of waiver, the respondent once again terminated the tenancy of the appellant by a notice dated 5 th November, 1997 or in the alternative last hours of 1 st December, 1997."

In the concluding paragraph of the judgment, i.e., in

paragraph 27, the court has held that this notice dated 5 th

November, 1997 was a valid notice under Section 106 of the TP

Act. The decree passed by the courts below under Order XII Rule

6 CPC had been upheld.

13. The ratio of this judgment clearly shows that even where the

landlord had accepted the rent tendered by the tenant, but

thereafter in order to avoid the plea of waiver, he had sent a

second notice dated 05.11.1997 to terminate the tenancy of the

tenant on the last date of the tenancy month it was held to be a

valid notice; this was to avoid the plea of waiver of the earlier

notice.