Delhi High Court
Sh. Mohinder Pal Singh Khurana & ... vs M/S. Modi Alkalies & Chemicals ... on 30 July, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No. 131/2005
% Decided on: July 30, 2010
Sh. Mohinder Pal Singh Khurana & Anr. ...Plaintiffs
Through : Mr. Arun K. Verma with
Mr. Aman Anand, Advs.
Versus
M/s Modi Alakalies & Chemicals Ltd. & Ors. ...Defendants
Through : Mr. Rahul Gupta with
Mr. Rajnish Mishra, Advs.
AND
CS(OS) 206/2002
S. Mohinder Pal Singh ..... Plaintiff
Through : Mr. Arun K. Verma and Mr. Aman
Anand, Advs.
Versus
Modi Alkalies & Chemicals ..... Defendant
Through : Mr. Rahul Gupta and Mr. Rajnish
Mishra, Advs.
AND
CS (OS) No.594/1998
Sh. S. Mohinder Pal Singh Khurana & Anr. ...Plaintiffs
Through : Mr. Arun K. Verma with Mr. Aman
Anand, Advs.
Versus
M/s Modi Alakalies & Chemicals Ltd. & Ors. ...Defendants
Through : Mr. Rahul Gupta with Mr. Rajnish
Mishra, Advs.
CS(OS) No.131/2005 Page 1 of 56
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. The plaintiff No.1 and original plaintiff No.2 (since deceased
and now represented by his widow) after purchasing a plot of land from
D.D.A. by virtue of a perpetual lease dated 7th April, 1980 which is
exhibited as PW1/1 constructed a commercial building on 18,
Community Centre, New Friends Colony, New Delhi. The property
consisting of basement, ground floor, mezzanine floor and first floor
totally 9492.10 Sq. ft. (hereinafter referred to as suit premises) was
rented out to defendants in Suit No.131/2005.
2. The plaintiffs as mentioned above have filed three suits
against the defendants as per details given as under:
i) Suit No.131/2005 (original number 344/1998) for recovery of
possession of the suit premises.
ii) Suit No.594/1998 for recovery of Rs.25,44,000/- towards
mesne profits for unauthorized construction and its use by the
defendants and for mandatory injunction against the
defendants seeking removal of a large hoarding put up by
them on the suit premises.
iii) Suit No.206/2002 for mandatory and other injunctions to stop
the defendants from carrying out alterations, demolitions and
for stopping the use of part of the suit premises for a coffee
shop by the name of Barista Espresso Bar (Defendant No.4).
3. The said three suits filed by the plaintiffs herein were
consolidated by this Court vide order dated 8.8.2005. This Court was
further pleased to direct that CS(OS) 131/2005 (Old No.344/1998 &
174/2003), the suit for recovery of possession in respect of the aforesaid
property, would be treated as the lead suit.
4. The said suits of the Plaintiffs have been contested by the
Defendant No. 1 by filing its written statement.
5. The entire litigation between the parties revolve around the
document lease-deed which is the admitted document by the parties.
The tenancy was created by a Lease Deed dated 14.12.1981 Ex.PW1/2,
which was registered on 22.02.1982. Salient features of the Lease Deed
are:
a) The plaintiffs are the lessors.
b) The defendants in suit No.131/2005 are the lessee
being different companies of the Modi Group.
c) Commencement date of tenancy was 16.12.1981.
d) Total area rented out was 7647.12 Sq. ft. apportioned
amongst the three companies.
e) The rate of rent was Rs.3 sq. ft. payable monthly by
the 7th day of each month. After four years the rate of
rent was to be paid @ Rs.3.70 sq. ft. and then was to
increase by 10% every 4 years.
6. The relevant clauses of the lease deed are as follows:
―2. The tenancy will commence by the 16th of
December 1981 and after the expiry of first four
years the rent would be revised to Rs.3.70 paise per
sq ft, per month and would be revised by 10% on the
first of the expiry of every four years.
In case permanent electricity connection is not
provided by 16/12/1981 then the rent will be charged
from the date the permanent connection is given.
3. The tenants shall be entitled to make alterations in
the tenanted premises in accordance with the plan to
be approved by the Municipal and/or other authorities
but shall restore the same in the same conditions if
the tenants vacate the premises on their own. In case
of any illegal construction or alterations violating the
laws of DDA or municipal corporation, the penalty, if
any, levied would be paid by the Tenants.‖
4. The tenants shall be entitled to use the said
tenanted premises for commercial purposes and/or
for the purpose of running their offices and/or
carrying on business therein.
5. The Tenants, if they of their own decided to vacate
the premises, will be entitled to remove all fixtures,
fittings or additional equipment brought in by them
by way of air-conditioning or for any other purposes
in the tenanted premises. The Landlords will not in
any manner claim any ownership for retaining all
those fixtures and fittings and additional materials
brought in by the Tenants in the tenanted premises
and will not in any manner cause any difficulty in
their removal by the Tenants.
6. (iii) The Tenants will have the right to use the
whole or any part of the tenanted premises during the
tenancy for companies, firms, trusts, associates of the
Tenants. However, the responsibility of paying the
rent will be of the Tenants under this Dead.
7. The Landlords do hereby covenant with the
Tenants in the manner followings:
(a) the tenants paying the rent and other charges and
outgoings hereby reserved on the days and in the
manner hereinbefore mentioned and observing and
performing all covenants and conditions herein
contained and on their part to be observed and
performed shall peacefully and quietly held, occupy
and enjoy the tenanted premises and the said fittings
and fixtures free from all disturbances by the
Landlords or any person or persons rightfully
claiming from, under on in trust for the Landlords.
(b) To bear and pay the Municipal rates and taxes,
house-taxes any imposition by DDA or other
authority or authorities in respect of the tenanted
premises during the said term of tenancy.‖
7. In the Lease Agreement there was no clause for the
termination of lease by the Lessor. The Defendant No.1 in view of the
above terms and clauses of the lease agreement has set up the defence of
perpetual and permanent tenancy in its favour.
8. The parties also entered into a supplementary agreement of
tenancy dated 19.9.1985 Ex. PW1/4. As per the said supplementary
agreement of tenancy, the landlord leased out the extended area of 1845
sq. ft., which had been recently constructed on the mezzanine floor. It
was decided that for the extended portion too, the terms of the agreement
dated 14.12.1981 would be applicable. The rate of rent of the area was
Rs.6/- sq. ft. per month.
9. Total rent of the entire premises on the date of filing of the
suit was Rs.49,570/- per month.
10. The plaintiffs in the year 1997/1998 issued two notices to the
defendants for termination of lease and for recovery of possession of the
suit premises, the details of which are given as under:
i) First notice of termination of the lease deed was sent
by the plaintiffs to the defendants on 29.11.1997.
ii) As per the plaintiffs since the earlier notice could not
be served on the defendants properly another notice
without waiving the earlier notice was sent by the
plaintiffs to the defendants on 21.1.1998.
11. Despite due service of the Notice dated 21.1.1998, no reply
was given by the defendants and they failed to vacate the premises and
the plaintiffs filed Suit No.344/1998 (now numbered as Suit
No.131/2005).
12. The defendants No.2 and 3 were proceeded ex-parte in this
suit on 6.4.2000.
13. The main defences raised by the defendants in the first suit
are as under:
a) Tenancy in question is perpetual in nature and therefore
could not be terminated and the suit for possession filed
upon such a termination is liable to be rejected.
b) The plaint does not disclose any cause of action.
c) Notice of termination of tenancy was not served on the
Defendant No.1.
d) Suit is bad for mis-joinder and non-joinder of parties.
e) One suit is not maintainable against three companies.
14. On the pleadings filed by the parties, the following issues
were framed in CS (OS) No.131/2005 on 8.8.2005:
"1) Whether the plaintiff is entitled for recovery of
possession of property bearing no. 18, Community Centre,
New Friends Colony, New Delhi? OPP
2) Whether the tenancy in favour of the defendants was
perpetual and could not be terminated by the plaintiff as
stated in the preliminary objection of the written statement,
if so to what effect? OPD
3) Whether the plaint does not disclose any cause of action
as alleged in the preliminary objections of the written
statement? OPD
4) Whether notice for termination of tenancy was not served
on the defendant no. 1 as alleged in the written statement, if
so to what effect? OPD
5) Whether the suit is bad for mis-joinder and non-joinder
of causes of action? OPD
6) Whether the defendant Nos. 1 to 3 are three separate
independent companies and same suit for possession is not
maintainable against them? OPD
7) Relief"
15. The second suit bearing no. CS(OS) No.594/1998 was filed
by the plaintiffs for recovery of Rs.25,44,000/- towards mesne profits for
unauthorized construction and its use by the defendants and for
mandatory injunction against the defendants seeking removal of a large
hoarding put up by them on the suit premises. Issues were framed on
4.2.2000.
16. The third suit being CS (OS) No.206/2002 was filed by the
plaintiffs for mandatory and other injunctions to stop the defendants
from carrying out alterations, demolitions and for stopping the use of
part of the suit premises for a coffee shop by the name of Barista
Espresso Bar (defendant No.4). Issues were framed on 8.8.2005.
Evidence of the Plaintiff
17. CS (OS) No.131/2005 being suit for recovery of possession
was ordered to be treated as the main suit. The parties were directed to
lead their evidence in all the three suits together and they produced their
respective evidence in CS (OS) No.131/2005. Sh. Mohinder Pal Singh
Khurana, plaintiff No. 1, in his affidavit Ex. PW1/A deposes that the
deponent is the joint owner of the suit premises. The lease deed dated
December 14, 1981 has been admitted along with the fact that it was
registered on February 22, 1982. Rent of the suit premises was paid with
effect from February 1982 although possession was given on December
16, 1981. The increase of Rs. 3.70 paise as per the lease deed has been
admitted. It has been deposed that a supplementary lease deed was
executed on September 19, 1985 with regard to additionally constructed
1845 sq. ft. area on the mezzanine floor, which was leased out to the
defendants at Rs. 6/- per sq. ft. per month. Further, the rent of the suit
premises has always been paid by defendant no. 1 on behalf of all of the
tenants. Two notices dated November 29, 1997 and January 21, 1998
have been admitted to have been sent by the plaintiffs to the defendants
calling upon the latter to vacate the premises. It is also deposed that the
defendants have unauthorisedly trespassed over the roof of the first floor
for the construction of a room of about 1000 sq. ft. and a toilet of about
200 sq. ft. Damages have been demanded @ Rs. 48,000/- per month for
the unauthorizedly constructed area. The putting up of a hoarding has
been mentioned, for which damages of Rs.30,000/- per month has been
prayed for. Further, for wrongful removal of the water tanks on the
terrace, Rs. 24,000/- has been prayed for as damages. It has also been
deposed that the defendants have demolished three WCs on the first
floor and have removed and constructed new walls and changed the
colour scheme etc. of the entire suit premises. All the damages have
been prayed for a period of 3 years prior to the filing of the suit though
the illegal construction had been existent earlier.
17.1 During cross examination, Mr. Mohinder Pal Singh, PW1
stated that the lease deed dated December 14, 1981 was not intended to
be perpetual in nature. He further stated that no lease agreement was
executed after the above-mentioned lease deed on its expiration after
four years except the supplementary lease deed dated September 19,
1985. He further stated that the defendant no. 1 was the only lessee in
the original lease agreement. He then volunteered that all the three
defendants were joined and rent was paid by defendant no. 1. He denied
that the plaintiffs constructed any additional area in 1985 and gave the
same to the defendants vide supplementary lease deed. He then stated
voluntarily that the defendants have themselves secretly constructed the
newly constructed area without seeking any permission from the plaintiff
and in gross violation of the bye-laws of the DDA. He stated that he
made no complaint against the defendants for raising the unnauthorised
construction. He then stated voluntarily that he tried to make complaints
but was told that the same would be a waste of time. He denied that the
lease deed of December 1981 afforded no condition for the plaintiffs to
terminate the lease or raise any dispute in case of illegal construction by
the plaintiff. Further, he denied that legal notices were never sent to the
defendants as alleged by him in the plaint.
17.2 On being recalled for further cross examination, PW1 stated
that he did not remember the date and time when the defendants
companies got construction made on the terrace. He stated that he
seldom went to the suit property after 1981 and it was the other co-
owner Sardar Khushbir Singh Baweja (now deceased since May 18,
2004) who visited the same. He stated that he never interfered with or
enquired into the matter of the suit property, though he was told once by
the deceased co-owner that the guards did not allow him to enter the suit
premises. He has then stated that since his partner was taking care of the
matter, he has no idea when the alleged illegal construction was carried
out by the defendants nor does he know if the same has been stated in
the plaint or not. However, he has knowledge as to construction on the
ground floor of the suit premises, though the defendants have not
allowed him to enter the premises, as he has seen the same from outside.
He cannot tell if any written notice was sent to the defendants as his
partner (legal representatives of deceased partner) might have done so.
He could not point out the notices from the documents stating that he has
a poor eye sight due to glaucoma. He then stated that around 1981 there
was already existing construction on the first floor and neon sign,
however, the same may have been made of asbestos sheets. In the end,
when questioned whether the witness has any personal knowledge about
the three cases filed by him against the defendant companies, he replied
that he had no knowledge as regards the said cases.
Evidence of the defendants
18. On behalf of the defendants, affidavit has been filed by Mr.
S.K. Nair, Director of defendant no. 1 marked as Ex.DW-1/A, who has
deposed: ―that the lease deed and supplementary lease deed both created
perpetual tenancy in favour of the defendants as they were not
terminable. The 10% increase in rent every four years was agreed upon
by both parties and payment was made accordingly by the defendants to
the plaintiffs. He denied in his examination-in-chief that the defendants
ever received any notices dated November 29, 1997 and January 21,
1998 from the plaintiffs for vacation of the suit premises. He deposed
that illegal construction alleged by the plaintiffs to have been raised by
the defendants had existed since 1981 when the structure was made of
asbestos sheets. Further, as per the terms of the lease deed of December
1981, the defendants were liable to pay the penalty etc. for violation of
any MCD/DDA bye-law etc. The defendants were entitled to raise
hoardings on the suit premises as they were carrying on commercial
business at the same. Even if they were not, the plaintiffs never objected
to the same since 1981 and their suit is clearly time barred. Further, since
the plaintiffs have filed one suit for recovery of possession against three
companies which are three separate legal entities and independent
tenants, the suit is liable to be dismissed due to mis-joinder of parties. As
regards mesne profits and damages, no evidence or particulars have been
furnished.
18.1 In his cross examination, Mr. S.K. Nair stated that he was not
the Director of defendant no. 1 on December 14, 1981. However, he has
been an Officer working with defendant no. 1 from the first day that the
suit premises were leased out. He stated that he could not recall if the
lease deeds were signed or not. Further, as per him no specific areas
were demarcated for each of the defendants. Two temporary structures
on the terrace were also given to the defendants, though the same were
not mentioned in the lease deeds and it was understood between the
parties that the same would be used by the defendants.
18.2 On being recalled for further examination, Mr. Nair stated
that the words ‗perpetual lease' do not appear in the lease deeds as there
was no need for the same, considering that there was understanding
between the parties and there were huge investments made by the
defendants in the bare structure of the suit premises to make the same
usable. It is also mentioned that the rent was paid by defendant no. 1
alone due to some internal arrangement between the defendants.
Further, the three defendants are companies which belong to Modi
Group. However, he has stated that the tenancy was not a single tenancy
just because defendant no. 1 was paying the rent. On being further
questioned, Mr. Nair stated that it was wrong to suggest that his affidavit
was drafted by his counsel without his instructions and that the
construction over the terrace which is allegedly illegal existed since
1981. However, on being asked whether after 1981 the entire
construction on the terrace was carried out by the defendants, Mr. Nair
contradicted his earlier statement and said that it would be wrong to say
that the entire construction had been carried out by the defendants. When
questioned as to the size of the hoarding put up at the suit premises, he
seemed not to recall the detailed of the same. He admitted that Barista
was allowed to use the suit premises and that there was an agreement to
this effect. On being questioned whether the sale of coffee is an
authorized purpose in the memorandum of association of defendant no.
1, he stated that though it may not appear as a main or supplementary
object therein, there were enough clauses allowing the company to have
associates and new businesses which may sell coffee.
19. The other two witnesses Mr. Ashok Kumar and Mr. G. Raj
Kumar from the defendant No.1's company were not called upon by the
defendant No.1 for the purpose of cross-examination.
20. DW2, Sh. M.P. Singh, Assistant (Commercial land) DDA,
Vikas Sadan, I.N.A., New Delhi in his statement has stated as under:
―that as per records, the suit premises were in
the name of Smt. Harcharan Kaur and Sh.
Mohinder Pal Singh. As per records, the DDA
never received any complaint/notice of any
nature from the owners of the suit property. On
further examination, he stated that in the DDA
file of the suit property there is an office noting
on August 30, 1983 which states that on
inspection, misuse of the basement of the suit
premises were found and approval was sought
for determination of the lease. Thereafter, the
contents of a series of office notings of the
DDA as regards the suit premises have been
referred to by the cross-examiner and
confirmed by the witness DW2. Office noting
dated February 2, 1984 states that Modi
Alkalies is running its office in the basement of
the suit premises whereas as per office noting
dated May 8, 1985 the basement of the suit
premises could only be used for storage, and
the ground and the upper floors could be used
for shops and offices respectively. According
to office noting dated August 20, 1985 the
basement and ground floor of the suit premises
were being used as offices at that time. Further,
office noting dated August 22, 1985 states that
the misuse of the mezzanine and basement as
offices needs to be stopped. Office noting
dated March 27, 1986 states that two rooms
have been unauthorisedly constructed on the
second floor and are being used for residential
purposes and due to the same, a show cause
notice is to be issued to the plaintiffs. Further,
office noting dated January 17, 2003 states that
there is unauthorized construction of two
rooms and a toilet on the terrace of the suit
premises as well as misuse of the basement and
mezzanine floors and a show cause notice
dated February 24, 2003 as regards the former
was issued by the DDA to the plaintiffs. The
plaintiffs' reply to the said show cause is
located on page 109 of the DDA's records, and
the plaintiffs vide the said reply brought the
DDA's attention to the various instances of
misuse and unauthorized construction in the
said property which had been brought to the
DDA's notice on earlier occasions also. At the
end, the witness admitted that his statement
during examination-in-chief that the DDA
never received any complaint of any nature
from the owners of the suit property as regards
the suit property was incorrect.‖
21. The following documents have been filed and exhibited by
the plaintiffs:
i.) Exhibit PW1/1 is the copy of lease deed
dated 07.04.1980 between DDA and plaintiffs.
ii.) Exhibit PW1/2 is the photocopy of
agreement of tenancy dated 14.12.1981
between the parties.
iii.) Exhibit PW1/3 is the certificate issued by
the defendant confirming the agreement
between the parties.
iv.) Exhibit PW1/4 is the supplementary
agreement of tenancy dated 09.09.1985.
v.) Notice dated 29.11.1997 marked as Exhibit
P1/5 and its Regd A/D receipts marked as
Exhibit PW1/6 to 1/8A. Notice dated
21.01.1998 marked as Exhibit PW1/11 and its
Regd. AD marked as Exhibit PW1/12 to
PW1/16.
vi.) Notice dated 26.07.2000 to produce
original documents marked as Exhibit PW1/17.
vii.) Copies of sanctioned plans marked as
Exhibit PW1/18 to PW1/20.
Case of the defendants
22. The main submissions of the Defendant No.1 in the three
suits are:
I. That the lease created in favour of defendant No.1 was a
perpetual and permanent tenancy. From a mere reading of
the lease agreement dated 14.12.81 the following conditions
and also the intentions of the parties are clear--
(i) there is no time period prescribed in the lease for
its expiry,
(ii) there is not a single clause providing any right of
termination of tenancy on the part of the landlords
under any circumstances;
(iii) the terms in clause 2 clearly mentioned that on
revision of rent by 10% every four years the lease
will continue,
(iv) in terms of clause 3 of the lease agreement, the
defendant No.1/tenant had been authorized to
make alterations in the tenancy premises and to
restore the premises in the same condition if the
tenants vacate the suit property on their own. It
was even provided that any violation of DDA /
MCD Laws, the defendant No.1/tenant will apply
any penalty,
(v) in terms of clause 5 the defendant No.1/tenant had
been given the right to vacate the premises of its
own and without any right given to the plaintiffs
to recover back the possession of the premises,
(vi) in terms of clause 6(iii) defendant No.1 tenant has
been given the right to use the whole or any part
of the tenancy premises for companies, firms,
trusts, associates of the tenants. This clause also
make the intentions clear that the tenant would use
the tenancy premises either by itself or through
any of its associates. The defendant no.1 has been
able to prove its case by production of evidence as
per the case set-up in the written statement in the
matter.
II. From the beginning of the tenancy vide lease agreement
dated 14.12.81 till the time when the plaintiffs issued legal
notices dated 29.11.97 and 21.1.98 and filed the suit in the
year 1998, there had never been a single example of any
complaint or exchange of notice or any demand by the
plaintiffs, for a period of 16 years i.e. from 1981 to 1997, nor
a single document has been produced by the plaintiffs for 16
years to show that the plaintiffs had ever asked the defendant
No.1 to vacate the suit premises.
III. The suit filed by the plaintiffs against three separate and
independent companies i.e. defendants No. 1 to 3 and who
had been leased out separate specified areas and also since
rent was being paid separately by all the three companies, the
legal notices dated 29.11.97 and 21.1.98 issued by the
plaintiffs to only one of the three companies all show that the
single suit filed by the plaintiffs against all the three
companies is illegal and not maintainable in law.
IV. The plaintiffs stated to have terminated the tenancy of the
defendant No.1 to 3 vide legal notices dated 29.11.97 and
21.1.98 on the basis that the tenancy was month to month
commencing from 16.12.81. But the real matter is that
tenancy had not commenced from 16.12.81. The terms
continued in clause 2 of the lease agreement dated 14.12.81
clearly mention that in case permanent electricity connection
is not provided by 16.12.81 then the rent will be charged
from the date the permanent connection is given. Admittedly
in the present case the permanent connection had been
sanctioned and supplied and electricity started from the
month of February, 1982 and as such the defendant No.1 had
started making the payment of monthly rents only w.e.f.
February, 1982. As such the tenancy commenced between
the parties only w.e.f. February, 1982. Hence alleged
termination notices of tenancy are bad and the suit itself is
not maintainable.
23. Firstly, it is argued on behalf of the defendant No.1 that there
is no cause of action in favour of plaintiffs and against the defendants
because the lease was permanent and perpetual in nature and further
there was neither any clause in the lease agreement to terminate the lease
agreement nor any right to claim back possession by the plaintiffs. The
nature of the tenancy created must be determined by construing the
document as a whole. For determining whether the character of the
tenancy is permanent or perpetual in nature, entire clauses of the Lease
Agreement are to be examined in order to see the intention of the parties
as per facts of each case.
24. It is also argued that the statement of plaintiff's witness PW-1
Sh. Mohinder Pal Singh, who was cross-examined by the defendant
No.1, made total contradictory statements in evidence. In the plaint, the
case set up by the plaintiffs was that the tenancy in favour of defendants
was month to month commencing from 16.12.1981, whereas in the
affidavit by way of evidence filed by plaintiff No.1, he nowhere stated
that tenancy was month to month. On the contrary, the witness in his
cross-examination had stated that the tenancy was for 4 years period and
to be revived after 4 years with consent of the parties. Later during the
cross-examination PW1 answered one of the questions stating that he
had no knowledge about the 3 cases filed by the plaintiffs against the
defendants. As the plaintiffs only produced one witness PW-1 who had
failed to prove issue No.1, his evidence is not reliable and cannot be
relied upon, thus the suit of the plaintiffs is liable to be dismissed as the
plaintiffs here failed to discharge the burden of proving the case. The
answers given by him in the cross-examination were contrary to the
pleading and documents placed on record.
25. The learned counsel for the defendant No.1 has referred the
following judgments in support of his submissions:
i) In Mrs. Sapna Singh Pathania & Anr. Vs. Jagdish
Chander Mehta & Ors., 1998 (75) DLT 725, the Court
held that an affidavit must contain the evidence of
deponent as to such facts of which he is in a position to
speak of to his knowledge and such fact must be verified
on personal knowledge.
ii) In Ranjit Construction Co. Ltd. Vs. National Highways
Authority of India & Anr., 2003 (107) DLT 249 (DB), the
Court held that the affidavit should not be vague or
general. It should be confined to such facts as deponent is
able to take from his own knowledge to prove.
iii) In Pawan Kumar Vs. State of Haryana, 2003 11 SCC
241, the Court held that under Section 60 of Evidence
Act, 1872, Hearsay Evidence can be used only to
corroborate the substantive evidence.
iv) In Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank
Ltd. & Ors., 2005 (2) SCC 217, the Court held that a
Power of Attorney holder cannot depose on behalf of
principal of such acts of which only the principal had the
personal knowledge.
v) In Binapani Paul Vs. Pratima Ghosh & Ors., 2007 (6)
SCC 100, the Court held that in absence of any direct and
conclusive evidence a question has to be decided on
reasonable probabilities and legal inferences. The
intention of the parties have to be gathered from the
totality of the circumstances both preceding and
subsequent to the transaction.
26. In reply, learned counsel for the plaintiffs has argued that
PW1 has clearly stated in his cross-examination that matters related to
the suit premises were taken care of by his partner, i.e. the co-owner
Sardar Khushbir Singh Baweja. It is because of this that PW1 was
confused as regards the questions being posed to him. Secondly, PW1's
testimony was required only for two purposes being proving the factum
of issuance of the two notices of vacation and proving the case of the
plaintiffs in CS(OS) No. 206/2002 as regards unauthorized construction.
PW1 did not fault with the evidence in this regard and his testimony, as
far as it pertains to the same, should be accepted. In this regard, the case
of Nishi Kant Jha Vs. State of Bihar, AIR 1969 SC 422 was referred
which states that of the entire evidence placed before the court, the court
can take into account the circumstances under which evidence was
recorded and then take a decision as to which part of the evidence was
worthy of belief and which part should be ignored. Further, as per the
observation in Binay Kumar Singh & Ors.Vs. State of Bihar, (1997) 1
SCC 283, the procedure under Section 145 of the Indian Evidence Act
must be complied with before any benefit can be derived out of any
contradictions apparent from the cross-examination of a witness. Section
145 requires a confrontation of the said contradictions with the witness
and a subsequent opportunity to him/her to explain the said
contradiction. Only after the witness's failure to explain the
contradiction can the court either disregard his testimony or draw
adverse inference from the same.
27. The plaintiffs' counsel's contention is that in this case, the
procedure under Section 145 has not been followed and so, no adverse
inference may be drawn from PW1's testimony.
28. In the present case the plaintiffs have produced their evidence
by way of affidavit of PW-1 which show that it is similar to the
statement made in the plaint. It is mentioned that contents of the
affidavit are true and correct to the best of the witness's knowledge and
belief. The testimony of PW-1 shows that firstly he has tried to prove
the factum of the issuing and service of notice to quit on the defendants
and secondly to prove the case relates to the unauthorized construction
carried out by the defendant in the suit property.
29. Further in Suit No.206/2002 a Local Commissioner Sh.
Pawan Gulati, Adv. appointed by this Court has filed his report dated
24th April, 2003. In the said report it has been reported that structures
had been constructed on the terrace floor and certain walls were
demolished on the ground floor of the demise premises. Thus, despite
there being contradiction in the cross examination of PW-1 relating to
the unauthorized construction, the factum of issuing and service of
notice of quit and execution of lease deed between the parties is proved
evidence. In view of above, the argument of the defendants cannot be
accepted to the effect that the suit is not maintainable and liable to be
dismissed.
30. Now I shall deal with the submissions of the parties issues
wise. First I shall take up the issue No.4 which reads as under:
―4. Whether notice for termination of tenancy was not served
on the defendant no. 1 as alleged in the written statement, if
so to what effect?"
31. The defendant No.1 in its written statement as well as in its
deposition as DW-1 has deposed that no notices were received by the
defendant. The plaintiff No.1 has filed his affidavit by way of evidence.
In his affidavit statement has been made that the first notice dated
29.11.1997 Ex.PW-1/5 was issued by the plaintiff to the defendant. The
relevant postal receipts have been exhibited as Ex.PW-1/6, Ex.PW-1/7,
Ex.PW-1/8 and Ex.PW-1/8A. The second notice dated 21.1.1998 was
issued by the plaintiff as no acknowledgement due of first notice were
received by the plaintiff. The said notice is exhibited as Ex.PW-1/11 in
the affidavit of PW-1. The relevant documents i.e. postal receipts and
AD cards have been exhibited as Ex.PW-1/12, Ex.PW-1/13, Ex.PW-
1/14, Ex.PW-1/14A, Ex.PW-1/15 and Ex.PW-1/16 respectively. In the
evidence of DW-1 Sh. S.K. Nair which was produced by way of
affidavit although he has deposed that no notices were received by the
defendant but in cross-examination he admits the address of the
defendant No.1 on AD card Ex. PW-1/15 is correct. Thus, it appears
that the contention raised by the defendant No.1 is evasive and cannot be
accepted. In the case of Bhagabandas Agarwalla vs. Bhagwandas
Kanu & Ors., AIR 1977 SC 1120, it is held that notice to quit should be
dealt with positively. Thus, I hold that the notices as required under
Section 106 of Transfer of Property Act, 1882 have been proved and
served upon the defendant before filing of the suit. Issue No.4 is
accordingly decided in favour of the plaintiffs and against the
defendants.
Issues No.5 & 6:
―5. Whether the suit is bad for mis-joinder and non-joinder
of causes of action?
6. Whether the defendant Nos.1 to 3 are three separate
independent companies and same suit for possession is not
maintainable against them?‖
32. The above mentioned issues were framed on the basis of
preliminary objections raised by the defendant No.1 in its written
statement. The contention of the defendant is that since the lease deed
related to three individual tenants, single notice to all the defendants to
quit is invalid and the suit is also therefore bad for mis-joinder of parties.
33. It is not the disputed fact that all the three companies i.e.
defendants in the lease deed as lessees are related to each other and are
part of the Modi Group. The apportionment of the covered area amongst
the three companies in the lease deed was done for the purpose of
payment of rent. Admittedly, no separate areas were demarcated in the
leased premises for three different defendants. The defendants No.2 and
3 are already proceeded ex-parte vide order dated 6.4.2000. The reliance
has been placed by the plaintiff on Moti Lal and another Vs. Kartar
Singh and others, AIR 1930 Lahore 515 wherein it has been held that
when a lease is held by more than one person under one lease, the entire
body of tenants constitutes the single tenant qua a landlord. Therefore,
the present suit filed against all the three tenants on the basis of one
single lease deed is maintainable and is not bad for mis-joinder of parties
or cause of action.
34. In the other case of Ajit Kumar Roy and others Vs. Satya
Bala Dutt and others reported in AIR 1973 Calcutta 339, it has been
held that if a notice to quit is addressed to all the tenants (whether they
are joint tenants or tenants in common) and served on one of them, it is
sufficient compliance of requirement of law and there is no necessity to
send separate notice to quit to the tenants.
35. In the present case the notice to quit was addressed to all the
three companies and sent separately at their respective addresses.
Acknowledgment receipts of two of the companies are on record. As
such the notice is valid and has been served on all the three companies.
36. The other objection relating to this issue raised by the
defendants is that the tenancy commenced from 1.2.1982 when the rent
was paid for the first time and not on 14.12.1981, the date of lease deed,
the contention of the defendant is that as per the lease the rent was to be
paid when the electricity is duly sanctioned. Since the electricity is
sanctioned subsequently therefore, the date of commencement of
tenancy is from 1.2.1982 and not from 14.12.1981. Therefore, even
issuance of notice to quit on the basis of commencement of tenancy from
the month of December 1981 is invalid under the provision of Section
106 of Transfer of Property Act, 1882 because of the reasons that it does
not comply with the requirement of Section 106 whereby 15 days notice
is required to expire with the end of the tenancy month.
37. I am of the view that the said objection raised by the
defendant No.1 is not tenable and the contention itself is against the
defence set up by the defendant No.1 in the written statement. In case
the tenancy commenced from 1.2.1982 and not from the date of lease
deed i.e. 14.12.1981 then it means that the tenancy was not created on
that date and as a result of that the defendant No.1 is barred from setting
up case for perpetual tenancy.
38. Regarding second limb of the argument of the defendants that
there is no compliance of Section 106 of the Transfer of Property Act,
1882 about 15 days notice required to expire before the tenancy month,
the said objection of the defendant is also not sustainable as Section 106
of the Transfer of Property Act was amended by virtue of Transfer of
Property (Amendment) Act, 2002 with effect from 31.12.2002. The
requirement of expiry of notice with the end of tenancy month was
deleted from the said amended section. The suit was filed after the said
amendment which was made retrospective in operation by virtue of
Section 3 of the Amendment Act. Therefore, the submission made by
the defendant in relation to issues No.5 and 6 is without any substance
and the said issues are accordingly decided in favour of the plaintiffs.
Issue No.3:
―3. Whether the plaint does not disclose any cause of action
as alleged in the preliminary objections of the written
statement?"
39. The defendant No. 1 has not been able to prove this issue
which was framed on the basis of preliminary objection in any manner
whatsoever in the evidence. Therefore, as per the pleading and
documents produced by the plaintiff, it appears that the plaint discloses
cause of action. Hence issue is decided against the defendant.
40. Let me now deal with the most crucial issues involved in the
matter which would determine the main controversy in the three suits.
The same are:-
Issues No. 1 and 2:
1) Whether the plaintiff is entitled for recovery of possession
of property bearing no. 18, Community Centre, New
Friends Colony, New Delhi? OPP
2) Whether the tenancy in favour of the defendants was
perpetual and could not be terminated by the plaintiff as
stated in the preliminary objection of the written statement,
if so to what effect? OPD
41. Learned counsel for both the parties have relied upon certain
clauses from the lease deed itself to prove their case. The plaintiffs have
submitted that the intention of the parties must be the most important
consideration for deciding whether the tenancy was meant to be in
perpetuity or not. Further, Learned counsel for the plaintiffs has stated
that the plea of perpetual lease deed was not taken up at all by the
defendants in the original written statement filed on 16 April, 1999. The
said plea was taken up only in the amended written statement. It is the
plaintiffs' contention that if the defendants considered the lease deed to
be in perpetuity, the said defence should have been taken in the first
written statement itself.
42. The lease deed in question is absolutely silent as to the
duration of the tenancy, the onus of proving that the same is perpetual
lies upon the defendants and in their failure to do so, the rule of
construction in Section 106 of Transfer of Property Act, 1882
(hereinafter referred to as ‗the Act') would apply as per the arguments of
the counsel for the plaintiffs.
43. It is settled law in India a lease may be in perpetuity. Neither
the Transfer of Property Act nor the general law abhors a lease in
perpetuity. As regards the lease in perpetuity the following proposition
of law has been correctly laid down by the A.P. High Court:
(i) In India, the law does not prohibit a perpetual lease;
clear and unambiguous language would be required
to infer such a lease. If the language is ambiguous
the court would opt for an interpretation negating the
plea of the perpetual lease;
(ii) To find an answer to the question whether a covenant
for renewal contained in the lease deed construed
properly and in its real context, entitles the tenant to
continue as long as he chooses by exercising the
option of renewal at the end of each successive
period of 5 years subject to the same terms and
conditions depends on the deed of lease being read as
a whole and an effect made to ascertain the intention
of the parties while entering into the contract. No
single clause or term should be read in isolation so as
to defeat other clauses. The interpretation must be
reasonable, harmonious and be deduced from the
language of the document;
(iii) The court always leans against a perpetual renewal
and hence where there is a clause for renewal subject
to the same terms and conditions, it would be
construed as giving a right to renewal for the same
period as the period of the original lease, but not a
right to second or third renewal and so on unless, of
course, the language is clear and unambiguous.
44. Mr. Arun K. Verma, learned counsel for the plaintiffs has
referred the certain decisions on the aspect of the interpretation of lease.
In Anwarali Bepari and others Vs. Jamini Lal Roy Choudhury and
others, AIR 1940 Cal. 89 at page 90 it has been held that a lease is the
outcome of the rightful separation of the ownership and possession. The
essential characteristic of a lease is that a subject is occupied and
enjoyed, but the corpus of the subject does not disappear by the user.
Before the lease the owner had the right to enjoy possession of the land
but by the lease he excludes himself during its currency from the right.
45. In Debendra Nath Dhang and others Vs. Pashupati Nath
Deb, AIR 1932 Cal. Page 198 wherein it has been held that even
although there be a considerable number of facts which point to the
tenancy having a permanent structure the effect of these facts as
evidence may be entirely destroyed by a single piece to negative
evidence.
46. In the case of Atyam Veerraju And others Vs. Pechetti
Venkanna and others, AIR 1966 SC 629 in para 9 while referring to an
earlier judgment the Supreme Court held that the Court made refuse to
draw the inference of a permanent tenancy at a fixed rent where the
demised land belonged to a Hindu Religious Endowment for a manager
of the endowment had no power to grant such a lease in the absence of
legal necessity and the courts were not to presume a breach of duty on
his part.
47. In Hamidullah (dead) by his legal representatives and
others Vs. Abdullah and others, AIR 1972 SC 410 at para 17 it has been
held that the onus of proving a permanent tenancy is on a tenant and
mere fact that the tenant occupied the tenancy for long at a fixed rent
does not raise the presumption of permanent tenancy. The cumulative
effect of the various circumstances coupled with several other facts has
to be taken into account to infer permanent tenancy.
48. The submission of the defendant No.1 is that under clause 3
of the lease deed and clause 5 of the lease deed the tenancy in question is
only at the will of the defendants and only they have right to terminate it
any point of time, as there is no clause in the lease deed reserving a
similar right in favour of the plaintiffs it shows that the intention of the
parties was to create a perpetual lease.
49. Mr. Rahul Gupta, learned counsel for the defendant No.1 has
referred various decisions passed by the Courts in support of
submissions. The first decision referred by him is Bejoy Gopal
Mukherji Vs. Praful Chandra Ghose, AIR 1953 SC 153, wherein the
Supreme Court observed that in spite of the increase in land value and
letting value the landlords through whom the plaintiff derives his title
did not at any time make any attempt to eject the tenant. Thus it was
held to be a case of perpetual tenancy.
The said decision does not help the case of the defendant as
while holding the tenancy in that case to be permanent the reasons taken
into account by the Supreme Court were the passage of tenancy from
one person to other by inheritance, by will or by transfer, the deeds of
transfer gave the right to enjoy the property from generation to
generation for ever, permanent structures were permitted to be built by
the Lessee and mortgages were created by the Lessee for substantial
amounts. These factors do not exist in the present case.
50. The second decision referred by the defendants is Bavasaheb
Walad Mansursaheb Kotri & Anr. Vs. West Patent Press Co. ltd. &
Ors., AIR 1954 Bom. 257, wherein it has been held that the nature of the
tenancy created must be determined by construing the document as a
whole.
The facts of the said case are that the plot was let out to the
tenant for building purposes, the period stipulated under the lease
was 30 years and even at the expiration of this period of 30 years
the lessee was allowed to remain in possession of the property so
long as he paid Rs.40 as rent every year to the landlord. The
document added that in case the lessee wanted to quit and leave
the premises he should remove the wood work and machinery and
leave the walls on the land for the benefit of the lessor. It is
perfectly true that there is a clause which seems to give the option
to the lessee to vacate the premises when he likes. But reading the
lease as a whole we think that the lessee is given the right to
continue on the plot so long as he pays the rent.
In other words, we take the view that the words ―so long as
you choose or desire‖ must be read along with the proviso which
gives the lessee the right to remain in possession of the land as
long as he pays the rent and the effect of reading the two clauses
together is to emphasise the lessee's right to remain in possession
for an indefinite period subject only to the condition that he pays
the agreed rent every year. The dominant intention of this
document appears to be to allow the tenant to remain in
possession so long as he pays rent. It is of course true that under
this clause itself the tenant may refuse to pay rent and make
himself liable to be evicted.
The subsequent clause which gives him the option to
determine the lease must be read in the light of the principal
clause which permits him to remain in possession so long as he
pays the rent. The emphasis is on the right of the tenant to remain
in possession subject to payment of rent and the subsequent clause
giving him the option to terminate the lease is merely incidental
and subsidiary. In our opinion, therefore, on a fair and reasonable
construction of this document, it must be held that the lessee was
entitled to remain in possession of the property as lessee for his
life.
The Bombay High Court has also discussed the clauses of the
lease deed and one of the clauses in which the option was given the
lessee to determine the lease at his pleasure. The observation made by
the High Court in this regard is referred in para 6 of the judgment
relevant portion of which reads as under:
―(6) ................
(A) ....At the end of the remaining years out of the agreed
period of 30 years, you may continue on the premises,
so long as you choose or desire, provided you go on
paying me Rs.40 as rent every year. You may erect
buildings or lay out lanes on the premises and I have no
objection for the same, if you do so, with the permission
of the Government. In case you want to quit and go,
you should remove your wood-work and machinery and
leave the walls on the land for us.....‖
........
In view of the facts referred, the decision referred is not
applicable to the facts and circumstances of the present case as there is
no clause of this nature available in the lease deed involved in the
present matter.
51. The third decision referred by the defendants is
Sivayogeswara Cotton Press, Devangere & Ors. Vs. M.
Panchaksharappa & Anr., AIR 1962 SC 413, wherein on a construction
of the terms of the lease deed the tenancy was held to be perpetual.
In the said case at para 3, 15, 16 and 17 after reproducing the
clauses of the lease in that case, the Supreme Court laid down the criteria
which is required to be followed to conclude about the intention of the
parties in relation to the tenure of the lease deed. The Supreme Court
took into account various clauses of the lease deed which expressly
provided that the lease was for carrying out building activities, was
heritable and assignable and had expressly taken away the right of the
lessor to terminate the tenancy etc. before coming to the conclusion that
it was perpetual lease. The clause 2 of the lease deed dated 26.10.1914
reads as under:
―2. After the expiration of the said period of 20 (twenty)
years mentioned in the 1st clause hereby you shall be at
liberty to continue the lease of the said land and the said
road and keep the said land and the said road in your
possession as long as you may desire to do. In case of your
thus continuing the lease of the said land and the said road
you shall pay to me annually the sum of Rs.400 (four
hundred rupees) as rent of the said land the said road for 1 st
ten years beginning from the 1st October, 1934, and ending
on the 30th September, 1944, and after the expiration of the
period of ten years the annual rent payable by you for the
said land and the said road will be Rs.500 (five hundred
rupees) per annum but you shall always be at full liberty to
give up the said land the said road and terminate this lease
at any time you may desire so to do after the 1 st October,
1934 and the rent payable in respect of the said land the said
road shall cease to be paid by you from the time you may
give up the said land and the said road after the 1st October,
1934. But I agree and bind myself not to call upon you at
any time to give up the possession of the said land and the
said road as long as you may desire to keep the same for
your purposes observing the terms of this agreement.‖
In view of the said clause it appears that the law laid down by
the Supreme Court is correct. However, the said term of the clause does
not exist in the lease deed.
52. The next judgment referred by the defendant is B.P. Sinha
Vs. Som Nath, AIR 1971 All. 297, wherein it was observed that in case
the option to determine the lease is only with the lessee and he can
remain in possession as long as he wants then the document cannot be
construed as a tenancy at will.
The said judgment is also not applicable to the facts of this
case as in one of the clauses, the lessor permitted the lessee to remain in
possession as long as he paid rent. There was a letter issued by the
lessor in this case which reads as under:
―I want to let out my entire bunglow in the western corner
of which you live to the A.G.'s Office. I hope you will
vacate this. In place of this you will please go to the house
behind this Kothi. You will pay Rs.40/- per month as rent
of that and in that you can live as long as you desire and
you will receive the same facility which you had in the old
house.‖
53. The fourth decision referred by the defendants is MCD &
Ors. Vs. Shashank Steel Industries (P) Ltd. & Anr., (2003) 66 DRJ 1
(FB), wherein the Full Bench of this court held that even a lease without
a term may be a permanent lease. It was further held that even in
relation to a perpetual lease, rent can be enhanced.
The facts of the said case are entirely different from the facts
of the present case. As a matter of fact, the Full Bench of the High
Court has observed that even a lease deed without a term may be
permanent lease deed which has no bearing in the facts and
circumstances of the present case as none of the parties has disputed the
concept of permanent lease deed.
54. The next decision referred by the defendants is State of UP &
Ors. Vs. Lalji Tandon (dead) through LRs, (2004) 1 SCC 1, wherein
the Apex court held that the concept of perpetual lease is possible and
there is no prohibition to the same.
Learned counsel for the plaintiff has not disputed the finding
arrived at by the Apex court in this matter. I agree with the learned
counsel for the plaintiff that the facts in the present case are totally
different as far as the law of perpetual lease deed in India is concerned,
there is no dispute that a lease may be in perpetuity however, if the
language is ambiguous, the Court would opt for an interpretation
negating the plea of perpetual lease. Therefore, the said judgment does
not help the case of the defendants.
55. The next judgment referred by the defendants is Janaki Nath
Roy and others Vs. Dina Nath Kundu and others, AIR 1931 PC 207,
wherein privy council took into consideration the facts that the parties
expressly agreed to a ―Bemeyadi Settlement‖ and in 1901 a Sum of
Rs.350/- was paid as a premium along with an annual rent of Rs.800/-.
In these facts the privy counsel held that one of the important test of
permanent tenancy was payment of the premium and therefore the
tenancy in that case was held to be permanent.
In the present case no such conditions exist. Therefore, facts
are different in the case referred.
56. The reference is made to Syed Jaleel Zane Vs. P. Venkata
Murlidhr and others, AIR 1981 Andhra Pradesh 328 by the defendant.
The Head Note B and paras 14 and 19 of the judgment while holding
that the document of lease has to be read as whole and no single clause
or term should be read in isolation so as to defeat the other clauses. The
said proposition of law is not denied by the plaintiff.
57. From the case law referred both by the plaintiffs and the
defendants, it is clear that the law requires reading of the entire
document as a whole for arriving at a conclusion about the intention of
the parties for the term/period of the lease deed.
58. The submission of the defendant No.1 is that clause 6(iii)
permits the defendants to use the whole or any part of the premises for
companies, firms, trusts, associations of the defendants. Thus, the said
clause indicates the intention of the parties to create a permanent lease.
This Court is of the view that this clause does not prove any
intention to create a perpetual lease as similar clause exists in the other
lease deeds also where a period is expressly mentioned. In another
clause, no right to sublet or re-let the whole or any part of the premises
has been given to he defendants and further clause provided that
irrespective of who is allowed to use the premises, the liability to pay
rent to the plaintiffs would always be that of the defendants. Thus, the
submission of the defendant on the aspect is without any substance.
59. The defendant No.1 has given another example by referring
clause 3 of the lease deed which permits the defendants to make
alterations in the tenanted premises which shows the intention of the
parties to create a perpetual lease.
The clause like this is a normal clause which could be found
in any sort of lease even if it is for a fixed period of time. It is a matter
of fact that the entire building was let out to the defendants which was to
be used as their offices, it is obvious that certain alternations suiting the
proposed user by Lessee would be necessary for best utilization of the
premises. Thus, it is difficult to come to conclusion in favour of the
defendants about the intention of the parties to create a permanent lease.
60. Similarly the defendant No.1 has referred clause 7(a) wherein
it is mentioned that the plaintiff would not disturb tenants from peaceful
occupation and enjoyment of the premises.
A bare reading of clause 7(a) shows that the said clause was
incorporated in for physical enjoyment of the property by the defendants
without any disturbance by the plaintiffs. Such like clauses are found in
all kinds of leases and are provided for peaceful occupation and
enjoyment of the tenanted premises by the Lessee. Therefore, I am of
the view that the defendant no.1 cannot derive any benefit out of it.
61. Further submissions of the defendant No.1 is that clause 8 of
the lease deed binds the plaintiff to give any additional construction
made by them in future to the defendants on rent. This shows the
intention to create a perpetual lease.
The said contention of the defendants is unsustainable and in
fact this clause only gives the first right of refusal to the defendants in
case any additional construction is made by the plaintiffs and is proposed
to be rented out to any third party, meaning thereby that plaintiffs are not
debarred from carrying out any additional construction and using the
same for their own benefit without renting out to anybody. In case the
submission of the defendant No.1 is accepted, it means no right of
additional construction could have been retained by the plaintiffs. As
the entire building was rented out to the defendants, probably that is the
reason a first right of refusal before any third party was inducted as a
tenant in the suit property.
62. It is also alleged by the defendants is that since the lease,
from the date of its execution, has continued for a period of 16 years i.e.
till 1998, it shows the plaintiffs intention of creating a perpetual tenancy.
The said contention of the defendants is also without any
substance. No period of time is specified in law whereby the Lessor has
to take action against the Lessee for recovery of possession of tenanted
premises. There is a force in the submission of learned counsel for the
plaintiffs that at the time of execution of lease deed the relationship of
the plaintiffs and defendants in the suit property was covered by the
Delhi Rent Control Act and it could only be got vacated on any of the
grounds under Section 14 of the Delhi Rent Control Act, 1958 an by no
other means. In 1988, when the Delhi Rent Control Act was amended
and it might be that the property in question came out of the scope of the
Delhi Rent Control Act, 1958 thereby enabling the plaintiffs to recover
back the possession of the property under the provisions of the general
law.
63. Learned counsel for the plaintiffs referred some clauses of the
lease in order to impress the Court that the said clause shows intention of
the parties to create a non-perpetual lease and this Court can draw the
inference from the same, are as follows:
a) As per clause 3 if the intention was to create a perpetual
lease, there was no need for putting a condition on the
defendants to restore the tenanted premises to its original
condition upon vacation by them.
b) In clause 7(b) the mentioning of the phrase ―said term of
tenancy‖ shows that some term of tenancy was to be
mentioned in the earlier parts of the lease, which is not
there. In case it was the intention to create a perpetual lease
there was no question of mentioning any term of tenancy.
c) In clause 7(c) the word ‗term' has been mentioned in this
clause. It shows on the intention of the parties to create a
non perpetual tenancy.
d) As per clause 8, the right to construct additional floor/floors
is retained by the plaintiffs.
e) In clause 2 (supplementary agreement of tenancy), it has
been mentioned ―for such period as mentioned in the
original agreement of tenancy.
64. Learned counsel for the plaintiffs has relied upon the
following tests for determining the intention of the parties in relation to
the lease deed in question:
i) An extract from the textbook ―The Interpretation of
Contracts‖ by Kim Lewison. In para 5.08 the author lays
down the following test:
―The term will not be implied if it is inconsistent with
the express terms of the contract or its general tenor‖.
ii) A quotation from Tamplin (F.A.) Steamship Co. Ltd. V.
Anglo Mexican Petroleum Products Col Ltd. (1916) 2
A.C. 397 has been reproduced. The positive test for
determining the intention of the parties has been mentioned
as:
―It is, of course, impossible to imply in a contract any
term or condition inconsistent with its express
provisions, or with the intention of the parties as
gathered from those provisions. The first thing,
therefore, in every case is to compare the term or
condition which it is sought to imply with the express
provisions of the contract, and with the intention of
the parties as gathered from those provisions, and
ascertain whether there is any inconsistency.‖
65. To my mind if the intention of the parties was to create a
perpetual / permanent tenancy in favour of the defendants, the plaintiffs
would be perpetually / permanently divested of any right to enjoy the
possession or use of the subject matter of the lease i.e. the entire building
leased out to the defendants. This exclusion would come into effect
from the date of the lease deed which is 14.12.1981. However, this
intention could not have existed in view of clause 8 of the lease deed
whereby even after creation of the lease on 14.12.1981 the plaintiffs had
the right to carry out additional construction without any objection by
the defendants. This express clause of the lease deed is completely
inconsistent with the so called intention of the parties to create a
perpetual lease in favour of the defendants and therefore no such clause
of perpetuity/permanency can be implied in the said lease deed.
66. Admittedly, Ex.PW-1/1 is the perpetual lease granted by
DDA in favour of the plaintiffs in respect of the land on which the
demised premises was constructed by them. Clause 6 appearing on page
3 of this perpetual lease dated 7.4.1980 clearly prohibits the plaintiffs
from creating any tenancy in respect of the building erected upon the
plot in question other than from month to month or for a term not
exceeding 5 years. There is a force in the submission of the learned
counsel for the plaintiffs that it is highly improbable that after spending a
huge amount of money in purchasing the plot from DDA in 1980 and
constructing a building thereupon, the plaintiffs would have intended to
divest themselves of the building in question for all times to come and
that too by running the major risk of losing the building at the hands of
DDA by virtue of the above clause in the perpetual lease. According to
him, it might be possible that at the time of execution not lease deed the
plaintiff was not intending to create the perpetual lease in favour of the
defendants because firstly the perpetual lease from DDA prohibited this
and secondly clause 8 of the lease deed dated 14.12.1981 would not have
been incorporated in the lease deed in case the intention was to create the
perpetual lease.
67. Learned counsel for the defendants on the other hand has
argued that since the lease deed is silent about the term of tenancy, it is a
perpetual lease deed and has also contended that since the lease deed is a
registered document, and lease deeds from year to year or exceeding a
year are registered, the tenancy in this case could not have been month to
month, therefore Section 106 of the Act cannot be involved by the
plaintiff under any circumstances and they are not entitled to take any
relief under this provision.
68. In support of his submission, the learned counsel for the
defendant No.1 has referred the judgments of Adit Prasad Vs.
Chhaganlal & Anr., AIR 1968 Patna 26, wherein it was held that in the
absence of valid lease, the duration of the tenancy must be determined
by Section 106 of the Transfer of Property Act; Jagat Taran Berry Vs.
Sardar Sant Singh, AIR 1980 Delhi 7, wherein it was held that it could
not be said that as the lease was for the purpose specified in Section 106
of the Transfer of Property Act, it should be deemed to be a yearly lease.
The parties have an option under Section 107; and Samir Mukherjee Vs.
Davinder K. Bajaj & Ors, 2001 (5) SCC 259, wherein the Apex Court
held that Section 106 of the Transfer of Property Act lays down a rule of
construction which is to apply when the parties have not agreed as to
whether the lease is yearly or monthly. Under Section 107 the parties
have an option to enter into a lease either for a term less than a year or
from year to year or for any term exceeding one year. There can be no
valid lease from year to year or for any term exceeding one year without
a registered instrument.
69. The said decisions referred by the defendants are not
applicable in the facts and circumstances of the present case as it is
settled law by the Apex Court that Section 106 of the Transfer of
Property Act lays down a rule of construction which is to be applied
when there is no period agreed upon between the parties. In those cases,
the duration of lease has to be determined by reference to the object or
purpose for which the tenancy is created. (See Ram Kumar Das v.
Jagdish Chandra Deb Dhabal Deb and Anr., AIR 1952 SC 23).
Similar is the finding given by the Supreme Court in the case of Samir
Mukherjee v. Davinder K. Bajaj & Ors. (supra).
70. His further submission is that the duration of tenancy would
be determined under Section 106 of the Transfer of Property Act, 1882
only if there is no valid lease between the parties. The said section
comes into play only if there is no arrangement of lease or there is no
valid lease as provided in the Transfer of Property Act. In the facts of
the present case, the instant case does not come under the purview of
Section 106 of Transfer of Property Act as the lease itself is for more
than one year and therefore the tenancy was not a month to month
tenancy as alleged by the plaintiffs.
71. The other contention of the defendants is that since the lease
deed dated 14.12.1981 is a registered document, the intention of the
parties could not be to have a month to month tenancy. The first para of
Section 107 of the Transfer of Property Act, 1882 mandates that
wherever a lease for a period of more than one year or year to year or
where an yearly rent has been fixed that is compulsorily registered.
Section 107 of Transfer of Property Act in its second para provides for
any type of a lease to be created by a registered document. It means that
other kinds of leases can either be by registered document or by
unregistered document depending on the circumstances and mutually
agreed by the parties.
72. Countering this contention, the plaintiffs' counsel has
submitted that while the first para of Section 107 of the Act mandates
compulsory registration of a lease from year to year or exceeding a year,
second para provides that any type of lease deed can be registered by
mutual decision of parties.
73. Chapter V of the Transfer of Property Act, 1882 deals with
leases of immovable property. Section 105 of the Act defines lease.
Section 107 describes as to how leases are made. It provides that in case
the lease of immovable property is from year to year or for a term
exceeding one year it can only be made by registered document.
74. Section 111 deals with the manner in which a lease can be
determined. Sub-clause (a) provides determination of a lease by efflux
of time in case the time is limited by the lease. Sub-clause (g) provides
for determination by forfeiture where a condition of the lease is
breached, the lease can be determined as a result of this forfeiture. Sub-
clause (h) provides when a notice to determine a lease is given by one
party to the other, a lease stands determined on the expiration of the
period mentioned in the notice.
75. Section 108 - Part (B) - Sub-clause (q) provides that once a
lease is determined the lessee is bound to put the lessor into the
possession of the property.
76. Section 106 has a dual purpose. The first being a role of
providing a rule of construction of a lease deed. The second provides
the manner in which a notice terminating a lease has to be served. This
section provides that a lease for an immovable property for agricultural
or manufacturing purpose shall be deemed to be a lease from year to
year terminable by giving a 6 months notice by either of the parties and
in case of lease of immovable property for any other purpose it shall be
deemed to be a lease from month to month terminable by either of the
parties by giving a 15 days notice to the other.
77. From the above, it is clear that the lease for an immovable
property can be for a specified period or can be perpetual. Irrespective
of the nature of the lease, it can be determined by giving a notice to quit.
On determination of the lease, the lessee is bound to put the lessor back
in possession of the property. In a situation where a lease deed does not
provide a period of the lease, Section 106 comes into play as a rule of
construction to find out the nature of the lease i.e. either year to year or
month to month. Action can be taken for getting back of the possession
of the leased property only after serving a notice to quit in the prescribed
manner.
78. In the present case since the tenancy was created for purposes
other than agricultural and manufacturing, by applying the legal fiction
contained in Section 106 of the Transfer of Property Act, 1882 the
tenancy is to be treated as month to month tenancy. Therefore, I am of
the considered view that even if no right to determine the tenancy by the
landlord is mentioned in the lease deed, such a right exists.
79. The contention of the plaintiffs is that parties had decided to
get the document registered in 1981 so as to authenticate the said
document without any intention to create any lease that may be covered
by para 2 of Section 107 of Transfer of Property Act.
80. The said contention of the defendant has no force because the
right to terminate would have to be read into in lease deed by virtue of
Section 108 (B) (q) of Transfer of Property Act, 1882 wherein it is the
liability of the Lessee to put the Lessor in possession of the property
upon determination of the lease by the Lessor. The above provision read
with Section 111(h) of Transfer of Property Act, which provides that a
lease of an immovable property is determined on the expiration of a
notice to determine the lease given by one party to the other.
81. Thus, unless there is a contract to the contrary/specifically
saying that the Lessor has no right to terminate tenancy, the Lessor has a
right to terminate any tenancy and such a right is a statutory right
provided by the Transfer of Property Act itself.
82. In the case of Padam Singh Jain v. M/s Chandra Brothers
and Ors., 1990 (2) RCR 121 at para 33 and 34 it has been said that even
if a lease does not contain any covenant of termination of any tenancy
the right of landlord to determine the tenancy would still arise under the
Transfer of Property Act.
83. In Babu Lall Seth and Ors. v. Gopi Lal Sethi & Ors., AIR
1957 Patna 490, in paras 2 and 3 the references have been made to some
earlier decided cases. It has been said that if a tenancy is determinable at
the will of either landlord or tenant and although upon its creation it is
expressed to be at the will of the landlord only or at the will of the tenant
only, yet the law implies that it shall be at the will of other party also.
84. So, there are clauses in the lease deed dated 14.12.1981
which had been expressly agreed between the parties and in the presence
of such clauses, implying the intention of creating a perpetual lease
would be wholly inconsistent. The document does not convey any such
intention, therefore, it is not possible to infer that the parties intended to
create a perpetual lease.
85. From the foregoing paras, the only conclusion that can be
drawn is that the lease deed dated 14.12.1981 is not clear about the
period for which the tenancy was created between the parties. In view of
this lacuna left in the document, the defendants have attempted to take
advantage by asking this Court to read the lease deed in a manner
construing it to be a perpetual lease deed. However, the defendants are
not able to discharge the onus cast upon them to make good the aforesaid
attempt of proving it as a perpetual lease. Thus, issue no.2 is decided
against the defendants. Upon this failure, the rule of construction as
embodied under Section 106 of Transfer of Property Act comes into play
and the purpose of lease being commercial (other than agricultural and
manufacturing). Issue no.1 is accordingly decided in favour of the
plaintiffs and against the defendants.
86. Thus the present suit filed by the plaintiffs seeking possession
from the defendants of the suit premises and restoration thereof to the
plaintiffs deserves to be decreed with costs in favour of the plaintiffs and
against the defendants or anyone else found in the possession including
defendant No.4 in suit No.206/2002.
87. The defendants are granted six months time to restore the
peaceful possession of the suit property i.e. Commercial Building 18
Community Centre, New Friends Colony, New Delhi, consisting of
basement, ground floor, mezzanine floor and first floor totaling 9492.10
sq. ft. to the plaintiffs which is subject matter of lease deeds dated 14 th
December, 1981 and 19th September, 1985.
88. The suit of the plaintiff is accordingly decreed. Decree sheet
be drawn accordingly.
89. Now I shall take up Suit No. 594/1998 which is for recovery
of Rs. 25,44,000/- towards mesne profits for unauthorized construction
and its use by the defendants and for mandatory injunction against the
defendants seeking removal of a large hoarding put up by them on the
suit premises.
90. The above said suit, as already mentioned, is consolidated
with the main CS(OS) No. 131/2005. The suit has been contested by the
defendant no.1 who has taken the defence of the written statement that
the defendant no.1 never made any unauthorized construction in the suit
property at any point of time. There was temporary construction of
asbestos sheets already existing at terrace floor when the premises was
let out in the year 1981. The defendant no.1 has specifically challenged
the statement of the plaintiff that the plaintiffs did not give any
particulars about the time, i.e. month and year when the alleged
construction had taken place.
91. As regards the putting up of hoarding by the defendant no.1 is
concerned, it is alleged by the defendant no.1 that the tenanted premises
was commercial in nature and was let out for commercial and business
purposes and, therefore, it is a common practice in the trade that the
premises which are let out for commercial purposes, hoardings are
normally fixed in those properties. Even otherwise, there was no clause
in the lease deed for permission of the same.
92. The following issues were framed vide order dated
04.02.2000:
"1) Whether the notice of termination of tenancy is illegal,
if so, its effect? OPP
2) Whether the plaintiffs are entitled to claim mesne profits,
if so, at what rate and for which period? OPP
3) Whether the defendants have trespassed into and raised
construction of two rooms and a toilet over and above the
first floor roof after creation of tenancy? OPP
4) Whether the two rooms and toilet over and above the first
floor existed at the time of letting and formed part of
tenancy? OPP
5) Whether the defendants are entitled to raise a hoarding
without the consent of the plaintiffs? OPD
6) Whether the plaintiffs are entitled to injunction for
demolition and removal of unauthorized structures as
alleged and prayed for? OPP
7) Whether the defendants are liable to pay compensation,
damages or mesne profits for the unauthorized
constructions and affixing of hoarding, if so, at what rate
and for which period? OPP
8) Whether plaintiffs are entitled to interest, if so, at what
rate? OPP
9) To what amount plaintiffs entitled? OPP
10) Relief"
93. Common evidence has been filed by the plaintiffs in Suit No.
131/2005 by way of affidavit of Sh. Mohinder Pal Singh Khurana, PW-
1, relevant paragraphs of which reads as under:
―17. The defendants have raised the said
illegal constructions much earlier but plaintiffs
have claimed compensation for a period of 3
years prior to the date of the suit i.e. from
24.3.1995 to 23.3.1998. The defendants are
also liable to pay the compensation for said
illegal use during the pendency of the suit and
till they vacate the suit property. The plaintiffs
have thus claimed as sum of Rs. 14,40,000/-
for the area of 1200 sq. ft. illegally occupied by
them for office and toilet for the said period,
Rs. 10,80,000/- towards the illegal hoarding of
1000 sq. ft. and Rs. 24,000/- towards illegal
removal of water tanks. The 3 sums thus
claimed total to Rs. 25,44,000/-. Hence
defendants are not only liable to vacate the suit
premises but are also liable to pay Rs.
25,44,000/- to the plaintiffs towards use of
illegal and unauthorized construction of 1200
sq. ft. for the illegal and unauthorized
hoarding, and for illegal removal of the water
tanks.
19. The defendants have done unauthorised
construction, and have made illegal
modifications and alterations in the suit
property, without the knowledge or consent of
the plaintiffs, and the defendants are liable to
restore the suit property to its original state as
let out to them.
21. I learnt about the illegal construction and
contravention of the rules and regulations only
on 15th January 2002 when I visited the suit
premises. When I tried to enter the suit
premises for verifying the violations, the
Guards appointed by the defendants prevented
me from entering the suit premises.
24. That on 15th March 2002 a Local
Commissioner, Mr. Pawan Gulati, was
appointed by this Hon'ble Court to determine
the status of unauthorized construction
pursuant to which the Local Commissioner
executed the commission and filed his report
dated 24th July 2003.‖
94. Issues No.3 and 4 relate to the factum of unauthorised
construction made by the defendants as alleged by the plaintiffs. The
onus of these issues is on the plaintiff. In the written-statement, it is
alleged by the defendants that there is temporary structure of the rooms
and bathrooms. No doubt, a report of the Local Commissioner
appointed in suit No.206/2002 indicates that on first floor two toilets
have been constructed which were not shown in the original sanctioned
building plans and on the terrace floor a temporary masonry structure
had been constructed with GI sheet roofing system.
95. No doubt, DW-2 Sh. M.P. Singh, Asstt. (commercial lease)
DDA in his examination-in-chief stated that DDA has never received
any notice or complaint of any nature from the plaintiff but in his cross-
examination, the details of unauthorized construction has come out and
he admitted that his statement in examination-in-chief was correct. The
plaintiffs had produced the original sanctioned building plans which are
Ex. PW1/18 and PW1/19 and some photographs of the suit property.
Learned counsel for the plaintiffs has argued that the property was let
out in the year 1981 and additional construction was made by the
plaintiff in 1985, therefore, the plaintiff had no access to the property
thus the presumption can be drawn that unauthorized construction must
be carried out after 1985. The present suit was filed in 1998. The
plaintiff, in fact, during the course of the hearing was mostly relying
upon the cross-examination of DW-2 M.P. Singh wherein some details
of the unauthorised construction have come out.
96. Nobody can forget that it is the plaintiffs' suit, the burden of
proof heavily lies upon the plaintiffs to prove the issues. From the
testimony of the PW-1 and his cross examination, it is clear that he had
made various contradictory statements which are contrary to the facts
pleaded in relation to the unauthorised construction carried out if any
by the defendants in the property.
97. PW-1 was not able to prove the statement made in the Plaint
as well as in his affidavit. In most of the answers to the question raised
by the defendant in the cross examination, the answer of the PW-1 was
totally vague. The detail of part of the cross-examination conducted
before the Joint Registrar is reproduced hereunder:
"Ques: Can you tell and show from the entire
records of your case before the court which
period the defendant had made construction on
the first floor?
Ans: I do not know if I had mentioned in my
plaint any date when the defendant had started
and completed the unauthorized construction
on the first floor.
Ques: I put it to you that in the entire records
of your case you have not mentioned anywhere
the time when the alleged construction is
stated to have been made on the roof of the
first floor.
Ans: I do not know if it is mentioned in the
plaint or not. Volunteered: Since my partners
were handling the entire matters.
Ques: You do not have any knowledge as to
when the defendant company had made
construction on the first floor?
Ans: I have the knowledge since I have seen
the construction going on from the ground
floor though the defendant No.1 did not permit
to enter the premises.
Ques: On which date you visited and seen the
construction from the ground floor?
Ans: I cannot say the date.
Ques: When you were restrained from
entering the premises by the guard of the
premises had you sent any written notice to
defendant No.1?
Ans: I had not given any notice. My partner
might have given. I do not know.
Ques: Can you show from the records if any
notice given by your partner is placed on
record?
Ans: I cannot show from the records.
Volunteered: Since I have a poor eye sight due
to glucomana.
I cannot tell the month, year or date when I
had visited the suit property.
Ques: I put it to you that since 1981 onwards
when the suit premises were taken on lease the
construction on the first floor has continued to
remain on the same and no further
construction was carried out by the defendant
at any point of time.
Ans: Around 1981 there was already existing
construction on the first floor and neon side.
The area which was existing in 1981
on the first floor was about 1200 sq. ft. and
400 sq. ft. It may be that the construction on
the first floor which existed in 1981 was made
up of asbestos sheets. I do not know if between
1981 till 1997 any notice or complaint to the
defendant and to MCD and to DDA was ever
given by the plaintiffs in regard to the
construction on the first floor. Volunteered: I
do not remember all these details since my
partner used to look after all these matters and
he has expired two years back. I do not
remember and cannot tell when the defendant
company had put up the hoarding on the suit
property since my memory is weak and I do
not remember. I had personally gone and
visited the suit property and found the
hoarding fixed there. I do not remember the
date, month or year of my visit when I saw
hoarding. It is wrong to suggest that the
defendant company had a right to put
hoarding on the suit property or that they had
put up the same since 1981 when the suit
premises were taken on rent. I do not know if
from 1981 onwards till 1997 there had been
given any notice by the plaintiffs to the
defendant company regarding the fixing of
hoarding in the suit premises. Same is my
reply regarding any complaint to DDA, MCD
and any other concerned authority. I cannot
say and explain the basis of the calculation of
the damages claimed against the defendant
company since I had no knowledge and
information about the same and it was my
partner who used to look after the affairs in
respect of the premises."
98. From the above, it is clear that the plaintiffs have failed to
prove the time, date, month and year by producing consent specific and
cogent evidence as to when the alleged unauthorized construction was
made by the defendants. The plaintiffs have also failed to prove notice,
if any, issued by him to the DDA or to the defendants in this regard.
Therefore, the present suit has no force and the same is dismissed. The
plaintiffs have failed to discharge this burden on issue No.3 and which
are the main issues. Hence, the suit is liable to be dismissed. No costs.
CS(OS) 206/2002
99. The above mentioned suit has been filed by the plaintiff for
mandatory and other injunctions to stop the defendants from carrying out
alterations, demolitions and for stopping the use of part of the suit
premises for a coffee shop by the name of Barista Espresso Bar by the
defendant no.4.
100. The suit was contested by the defendant no.1 who has
admitted the opening of Barista Coffee Shop on the ground floor of the
premises as permitted under Clause 4 of the lease deed dated
14.12.1981. The defendant has submitted that by virtue of agreement
dated 02.07.2001 between the defendant no.1 and Barista Coffee
Company Ltd., defendant no.4 has been allowed to conduct the said
business.
101. By order dated 8.8.2005, the following issues were framed:
"1) Whether the defendants have raised unauthorized
construction and carried out alterations in the suit property
contrary to and in violation of the Municipal Bye Laws and
the approved plans? OPP
2) Whether the suit is not maintainable against defendants
no. 1 to 3, they being separate companies as alleged in the
written statement? OPD
3) Whether the suit of the plaintiff is bad for non-joinder of
Municipal Corporation of Delhi, if so to what effect? OPD
4) Whether the lease in favour of defendant no. 1 is a
perpetual and could not be determined by the plaintiff, if so
to what effect? OPD
5) Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for? OPD
6) Whether the plaintiff is entitled for perpetual injunction as
prayed for? OPP
7) Whether the suit of the plaintiff is liable to be stayed in
view of pendency of other suits as detailed in written
statement? OPD
8) Whether the defendant no. 1 is liable to pay penalty only
on account of any illegal construction or alteration made in
violation of the bye-laws of MCD/DDA and the lease could
not be determined on this ground? OPD
9) Relief"
102. In view of the order passed by this court in CS(OS) 131/2005,
the present suit has become infructuous and the same is accordingly
disposed of.
103. No cost.
MANMOHAN SINGH, J.
JULY 30, 2010
dp/jk
