Sunila Wadhawan & Ors. vs Silver Smith India Ltd.
2010 Latest Caselaw 1700 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                        Date of Reserve: February 23, 2010
                                                             Date of Order: March 26,2010
+ CM(M) 1042/2008
%                                                                    26.03.2010
     Sunila Wadhawan & Ors.                                   ...Petitioners
     Through: Mr. Anil K. Kher, Sr. Advocate with Mr. Rishi Manchanda, Advocates

         Versus

         Silver Smith India Ltd.                               ...Respondent
         Through: Mr. Girdhar Govind with Ms. Noorun Nahar Firdausi, Advocates


         JUSTICE SHIV NARAYAN DHINGRA

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

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

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


         JUDGMENT

1. By way of present petition under Article 227 of the Constitution of India, the

petitioners have assailed an order dated 26th March, 2008 passed by learned ADJ

dismissing an application filed by the petitioners under Order 12 Rule 6 CPC for

passing a decree of possession of the premises in question in favour of the petitioner.

2. Brief facts relevant for the purpose of deciding this petition are that the

petitioner had let out a premises bearing number M-15, Green Park, New Delhi to the

respondent by way of a lease deed dated 25th January, 1999 for a period of two years

with effect from 1st February 1999. The monthly rent reserved was Rs.30,000/-.

3. The petitioner filed a suit for recovery of possession of the premises,

permanent injunction and recovery of mesne profits alleging therein, apart from other

things, that the lease expired on 31st January, 2001 by efflux of time but the premises

in question was not vacated. The defendant (respondent herein) was also served a

legal notice dated 8th December 2003 terminating the month to month tenancy, if the

defendant (respondent) considered himself to be a tenant in the premises on month

CM(M) 1042/2008 Sunila Wadhawan & Ors v. Silver Smith India Ltd. Page 1 Of 5 to month basis. The tenancy was thus terminated by the said notice giving clear 15

days time and the premises was to be vacated and peaceful possession to be handed

over by expiry of 31st December 2003. The plaintiff, in the notice, also made other

averments regarding damages and rent which are not relevant for the purpose of

deciding the present petition. In application under Order 12 Rule 6 CPC, the plaintiff

made prayer for passing of a decree of possession only on the basis of admission of

relationship of landlord-tenant, valid termination of tenancy and admission that rent

of premises was above Rs.3500/- per month. The defendant (respondent) in the

written statement did not deny factum of it being a tenant, however, denied

ownership of the plaintiffs. The other stand taken by defendant was that plaintiffs had

deliberately not disclosed that the notice sent by plaintiffs dated 8 th December 2003

was duly replied by the defendant vide its reply dated 28th December 2003 and it was

stated by the defendant that lease of the suit premises was extended by the landlady

for a further period of five years on expiry of the earlier period of lease. Since the suit

was filed by all co-owners, it was stated that there was no privity of contract between

plaintiffs no.2 to 4 and the defendant. The other averments made by the defendant

were regarding the rate of rent as well as change of rent. In any case, it was not

disputed that the rent was above Rs.3500/-. In view of this written statement where

the relationship of landlord and tenant in respect of the premises was not denied, the

receipt of notice terminating the tenancy was not denied and the fact that the rent

was above Rs.3500/- and the premises was not covered under Delhi Rent Control Act

was clear, the plaintiffs (petitioners herein) prayed to the Court of learned ADJ that a

decree of possession of the premises be passed on the basis of admissions.

4. The application under Order 12 Rule 6 CPC was resisted by the respondent

herein on the ground that there was no clear admission made by defendant of the

averments of the plaintiff and, therefore, no order under Order 12 Rule 6 CPC could

be passed. The learned trial court observed that from the pleadings of the parties, it

was apparent that a plea was taken by defendant of renewal of lease deed for a

further period of five years and this plea was denied by plaintiffs. It was also stated

CM(M) 1042/2008 Sunila Wadhawan & Ors v. Silver Smith India Ltd. Page 2 Of 5 that plaintiff no.1 was the sole Lessor and plaintiffs no.2 to 4 were not proper parties.

The Court also observed that plaintiff had not mentioned about the reply of notice he

received in the plaint. She observed that the suit was filed on 5th March, 2004 and

according to plaintiffs lease deed was executed on 31 st January 2001 but as per

defendant, the lease stood extended up to 31 st March, 2006. Thus, there was no clear

admission and she dismissed the application.

5. While deciding an application under Order 12 Rule 6 CPC seeking passing a

judgment on admissions for possession of premises on termination of lease, the Court

must not ignore and forget the mandatory statutory provisions regarding termination

of tenancy and creation of lease for a specific period and entertain such defence

which law does not permit. Nor the Court should forget the statutory provisions of

Registration Act and Stamps Act and it should consider, if the defence taken by

defendant was tenable in law. A frivolous defence taken by a party, not tenable under

law, cannot be a basis for denying relief to the plaintiff.

6. Section 17(1)(d) of the Registration Act makes it mandatory that where a lease

is for more than 11 months, it is required to be compulsorily registered under

Registration Act and Section 49 of the Registration Act makes it clear that a

document compulsorily required to be registered if not registered, cannot be read in

evidence. The defendant had not taken the stand that there was a registered lease

deed in respect of the property in question for a period of five years. The documents

relied upon by the defendant was a lease agreement on a Rs.10 stamp paper signed

by the parties. This document could not have been looked into by the learned trial

court under any circumstances, except for collateral purpose and the document

should not have been relied upon by the trial court to deny the relief. The

submissions made in the written statement about creation of a tenancy for a period

of five years without a supporting registered deed could not have been looked into by

the trial court to infer that lease stood renewed for five years.

CM(M) 1042/2008 Sunila Wadhawan & Ors v. Silver Smith India Ltd. Page 3 Of 5

7. Even if the trial court had given credence to the fact that the lease had been

renewed for a further period of five years in view of the averments made in the

written statement, this period of five years had also expired long back, before passing

of the impugned order by the trial court and the trial court comfortably closed its

eyes to this fact. Thus, the lease deed, even as per the defendant's version had come

to an end by efflux of time. There is no denial of the fact that the rent was above

Rs.3500/- and the tenancy can be terminated by giving 15 days notice in terms of

Section 111 of the Transfer of Properties Act, in case the lease was month to month

lease. It is settled law that where a lease is created for a fixed period between the

parties by unregistered document, the Court cannot look into the document as a

document of creation of lease for a fixed period of more than one year but will have

to consider the lease as month to month lease. In view of this legal position, there

was no option available with the trial court but to consider that the lease in question

was a month to month lease determinable by 15 days' clear notice. Since the receipt

of notice was not denied by defendant, terminating the tenancy became obvious. The

defence taken by defendant of creation of a fresh lease for a fixed period of five years

could not have been looked into in view of the provisions of Registration Act. The trial

court ought to have come to conclusion that the contractual tenancy created by the

petitioners came to an end and the petitioners were entitled for a decree of

possession. The plea taken by respondent that plaintiffs no.2 to 4 were not privity of

contract could not be a ground for the trial court to refrain itself from passing a

decree of possession in favour of plaintiff no.1 alone in view of the admission made

by defendant that he had privity of contract with plaintiff no.1 alone.

8. This Court and the Supreme Court have time and again emphasized that the

Courts must do meaningful reading of the pleadings and the grain has to be sifted

from chaff. Today in pleadings many irrelevant and unnecessary things are stated

which have no legal basis. The Courts must be able to sift the material part of the

pleadings necessary for disposal of an application. It is not the duty of the Courts to

simply reproduce the pleadings of the two parties in its order, and without analyzing

CM(M) 1042/2008 Sunila Wadhawan & Ors v. Silver Smith India Ltd. Page 4 Of 5 the facts, in last paragraph write that in his/her opinion, no ground in the application

was not made. The trial court in this case had done the same thing. She did give a list

of judgments referred but unfortunately she had not bothered to refer to the relevant

judgments and see their applicability. In such an application, the Court has to look

into only three facts; (i) whether the relationship of landlord and tenant is

admitted; (ii) whether the lease has been terminated by serving a notice or not; and

(iii) and whether the rent was above Rs.3500/- or not. The Court must keep in mind

that Section 116 of Evidence Act creates an estoppel against the tenant from

challenging the ownership of the landlord/landlady. Where the relationship of landlord

and tenant is admitted, the averments challenging ownership of the landlord are not

to be looked into.

9. Keeping in view the above facts and settled legal position, I allow this petition.

The application for the petitioners under Order 12 Rule 6 CPC is hereby allowed and a

decree of possession of premises bearing number M-15, Green Park, New Delhi shall

be passed by the trial court. The trial court shall proceed with the rest of the issues

raised which are pending before it.

March 26, 2010                                              SHIV NARAYAN DHINGRA J.
rd




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