Delhi High Court

Mr. Pran Chopra vs Mr. Malkiat Singh Bawa on 6 August, 2010

Author: J.R. Midha

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +       CS(OS)No.1509/2007

                                   Date of Decision : 6th August, 2010
%

       MR. PRAN CHOPRA                           ..... Plaintiff
                Through : Mr. Rajiv Dutta, Sr. Adv., with
                          Mr. Kumar Dushyant Singh, Adv.

                     versus

       MR. MALKIAT SINGH BAWA                       ..... Defendant
                      Through : None.

CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA

1.       Whether Reporters of Local papers may                 YES
         be allowed to see the Judgment?

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

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


                          JUDGMENT (Oral)

1. The plaintiff has filed this suit for possession and mesne

profits in respect of the second floor of property bearing No.

F-7/7, Vasant Vihar, New Delhi.

2. The plaintiff is the owner of suit property bearing

No.F-7/7, Vasant Vihar, New Delhi. The second floor of the suit

property was let out to the defendant on 18th October, 2005 for

a period of two years vide lease agreement dated 24th October,

2005. According to the plaintiff, the defendant paid the rent up

to May, 2007 and the defendant's lease was terminated vide

notice dated 16th July, 2007.

3. The summons of the suit were duly served on the

defendant through courier on 30th June, 2008. However, the

defendant failed to appear despite service and was proceeded

ex-parte vide order dated 16th April, 2009.

4. The plaintiff examined the following two witnesses to

prove his case:-

(i) PW-2, Pran Chopra was the owner of the suit property at

the time of filing of the suit. PW-2 let out the second floor of

the suit property to the defendant in October, 2005 for a period

of two years from 18th October, 2005 to 17th October, 2007 vide

lease agreement dated 24th October, 2005 at a monthly rent of

Rs.10,000/- per month for the first six months, Rs.11,000/- per

month for the next six months and Rs.12,000/- per month

thereafter. The defendant stopped staying in the suit premises

from May, 2007 and was not traceable. The defendant also

stopped paying electricity and water charges from June, 2007

onwards. Vide legal notice dated 16th July, 2007, PW-2

terminated the lease of the defendant and filed the present

suit. During pendency of the suit, PW-2 sold the suit property

to PW-1 vide sale deed dated 11th June, 2008 and filed an

application for substitution of PW-1 in place of PW-2 which was

allowed by this Court vide order dated 23rd December, 2009.

(ii) PW-1, Iqbal Chand Khurana purchased the suit property

from PW-2 vide sale deed dated 11th June, 2008. The original

lease agreement dated 24th October, 2005 between PW-2 and

the defendant has been proved as Ex.PW1/1. The legal notice

dated 16th July, 2007 has been proved as Ex.PW1/2 and the

original A.D. Card in respect of said legal notice has been

proved as Ex.PW1/3.

5. Mr. Rajiv Dutta, the learned Senior Counsel for the

petitioner submits that the lease has been validly terminated

vide notice - Ex.PW1/2 and, therefore, the plaintiff is entitled to

the decree for possession and mesne profits in respect of the

suit property.

6. The lease agreement - Ex.PW1/1 purports to create a

lease in respect of the suit property for a period of two years.

However, the lease agreement - Ex.PW1/1 being unregistered

is hit by Section 49 of the Indian Registration Act, 1908 and is,

therefore, inadmissible as evidence of any transaction affecting

the suit property. In terms of the principles laid down by the

Hon'ble Supreme Court in the case of Burmah Shell Oil

Distributing vs. Khaija Midhat Noor, AIR 1988 SC 1470,

the lease shall be deemed to be a lease from month to month

terminable by notice under Section 106 of the Transfer of

Property Act.

7. The defendant's lease has been terminated by the

plaintiff vide notice - Ex.PW1/2 dated 16th July, 2007 served on

the defendant on 24th July, 2007 vide A.D. Card - Ex.PW1/3.

The said notice records that the relationship of landlord and

tenant between the parties has ceased on 10th July, 2007 on

account of non-payment of rent for the month of June, 2007

and July, 2007 and, therefore, the defendant should

immediately vacate the suit property. The notice further calls

upon the defendant to immediately pay the arrears of rent and

other charges and the legal action shall be initiated against the

defendant upon failure to comply with the notice within 15

days of the receipt of the notice.

8. Mr. Rajiv Dutta, the learned Senior Counsel for the

plaintiff submits that the notice - Ex.PW1/2 is valid in as much

as the plaintiff's intention is clear from the said notice and the

plaintiff has given 15 clear days to the defendant to comply

with the notice. The learned Senior Counsel for the plaintiff

submits that notice under Section 106 of the Transfer of

Property Act is not to be scrutinized by hair splitting precision

and should be liberally construed. It is submitted that the

purpose of the notice is to communicate the intention of the

owner and to give sufficient time to the tenant to vacate the

premises. It is further submitted that the notice is valid so long

as the person whom the notice is served understands that his

tenancy has been terminated and he should vacate the

premises at the end of the period of notice. It is submitted that

the notice, Ex.PW1/2, clearly shows the intention of the plaintiff

and further grants 15 days time to the tenant to comply with

the notice. The learned Senior Counsel for the plaintiff refers

to and relies upon the Division Bench judgment of this Court in

the case of Union Bank of India vs. Sushila Goela, 125

(2005) DLT 161 (DB) in which this Court held as under:-

"14. In law the object of a notice is to inform the other party as to the intention of the person issuing the notice i.e. that he wants the premises back. In our opinion, this intention was clearly communicated to the defendant bank. This is evident from the bank's letter which stated 'it (bank) does not intend to vacate the same at your whims, nor the bank is liable to pay any compensation." This is also obvious from the reply of the bank dated 27.6.2001 Exhibit P7 that the defendant clearly understood that the landlord wanted it to vacate the premises and hand over peaceful vacant possession on the expiry of 30th June, 2001. Thus the intention was clearly conveyed by the notice. It is settled position of law that notice under Section 106 Transfer of Property Act is not to be scrutinized by hair splitting precision. It is not a pleading but a mere communication of the intention to the recipient.

15. A Division Bench of this court in Capital Boot House v. Intercraft Limited, 1999(51)DRJ245 (DB) while dealing with a similar notice held that the idea of a notice is only to communicate the intention of the owner and the object of the notice is to give sufficient time to vacate. Such notice is to be liberally construed. The court further held that the real point in such cases was that the person on whom the notice is served should understand that his tenancy has been terminated and he should vacate at the end of the period of tenancy.

16. Similarly in V. Kamalaksha Pai v. Keshava Bhatia, AIR1972 Kerala 110 it was held that as long as the notice does not mislead it is valid in law."

9. The learned counsel for the plaintiff next submits that any

objection to the invalidity or insufficiency of the notice under

Section 106 of the Transfer of Property Act should be

specifically raised in the written statement failing which it shall

be deemed to have been waived. The learned counsel refers to

and relies upon the following two judgments in this regard:-

(i) Dharam Pal vs. Harbans Singh, (2006) 9 SCC 216 -

The Hon'ble Supreme Court rejected the objection of

the tenant as to the invalidity of the notice under

Section 106 of the Transfer of Property Act on the

ground that tenant did not raise the plea in his

written statement. It was further held that the plea

as to the insufficiency of the notice should be

deemed to have been waived by the tenant. The

findings of the Hon'ble Supreme Court in this regard

are as under :-

"7. Learned counsel for the appellant submits that none of the two recitals contained in the notice can fulfil the requirement of Section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of the receipt of the notice. Both are bad in the light of the requirements spelled out by Section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant". The thrust of the plea raised by the defendant-appellant in his

written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that it did not give 15 clears days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy, has not been taken in the written statement.

8. Obviously for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage. No fault can be found with the judgment and decree of the High Court as also of the two courts below upholding the termination of tenancy and the plaintiff-respondent's entitlement to evict the tenant."

(ii) Parwati Bai vs. Radhika, (2003) 12 SCC 551-

The Hon'ble Supreme Court rejected the objection of

the tenant as to the invalidity of the notice under

Section 106 of the transfer of Property Act on the

ground that such objection should be raised

specifically and at the earliest failing which it shall

be deemed to have been waived even if there exists

one. The findings of the Hon'ble Supreme Court in

para 6 of the judgment are reproduced hereunder:-

"6. The singular question to be examined in the present case is whether the tenancy was terminated in

accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 T.P. Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Exh. P-4."

10. In view of the aforesaid judgments, notice, Ex.PW1/2 is

held to be valid and the plaintiff is entitled to the decree of

possession of the suit property. The plaintiff is also claiming

the rent at the rate of Rs.12,000/- per month for a period of

three months and the mesne profit at the rate of Rs.3,00,000/-

per month. The plaintiff is also claiming Rs.2,296/- towards the

arrears of electricity and water charges for the period from

March, 2007 to August, 2007. With respect to the arrears of

rent, both PW-1 and PW-2 have stated that the defendant

stopped paying rent from June, 2007. The defendant is,

therefore, liable to pay arrears of rent with effect from 1st June,

2007. However, no evidence has been led by the plaintiff as to

quantum of mesne profits in respect of the suit property.

Similarly, no evidence has been led with respect to the arrears

of electricity and water charges. In the absence of any positive

evidence, it is held that the plaintiff shall be entitled to mesne

profits equal to the last agreed monthly rent of Rs.12,000/- per