Smt. Nargis Khanna vs M/S. Win-Medicare Pvt. Ltd. & Anr.
2011 Latest Caselaw 3389 Del

*               HIGH COURT OF DELHI : NEW DELHI

                                   Judgment pronounced on: 18.07.2011

+            IA No. 9097/2009 in CS (OS) No. 2056/2008

SMT. NARGIS KHANNA                          ... Plaintiff
               Through: Mr Bakshi Bikram Singh, Adv. with
                        Mr Harkirat Sawhney, Adv.

                                   Versus

M/S WIN-MEDICARE PVT. LTD. & ANR.               ... Defendants
               Through: Mr Maninder Singh, Sr. Adv. with
                        Mr Vivek Singh and Mr Manish
                        Kaushik, Advs. for D-1.
                        Mr Pankaj Kapur, Adv. for D-3 & 4.

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. By this order, I shall dispose of the application filed by the

plaintiff under Order 12 Rule 6 CPC seeking relief to pass the judgment

and decree on the basis of the admissions made by the defendant No.1 in

the written statement.

2. The brief facts are that the plaintiff, Smt. Nargis Khanna, has

filed the present suit for recovery of possession and for permanent

injunction against the defendants, i.e.,Win-Medicare Pvt. Ltd. and Sh.

Prem Kumar Dewan who is the brother of the plaintiff.

3. The case of the plaintiff is that the plaintiff and defendant

No.2 born out of the wedlock of Smt. Amrit Kala Dewan and Sh. Jagan

Gopal Dewan and are Class-1 legal heirs of late Smt. Amrit Kala Dewan.

4. The property bearing No. N-47, Panchsheel Park, New Delhi

(hereinafter referred to as suit property), was owned by the father of the

plaintiff and defendant No.2. After the death of their father, the suit

property devolved upon Smt. Amrit Kala Dewan, their mother, by virtue

of a Will left behind by their father.

5. Smt. Amrit Kala Dewan died on 12.11.2005 leaving behind

the plaintiff and defendant No.2 her only two Class-I legal heirs and

therefore, after her death, the entire estate of their parents devolved upon

the plaintiff and defendant No.2 in equal proportion. Thus, they became

the owners of property No. N-47, Panchsheel Park, New Delhi.

6. Admittedly, the mother of the plaintiff and defendant No.2

during her life time, vide registered lease deed dated 08.12.2004, had let

out the first floor with fittings and fixtures of suit property to the

defendant No.1, i.e. M/s Win-Medicare Pvt. Ltd. on a monthly rent of

Rs.50,000/- together with right of entrance, passage and other easements

for a specific period of two years with effect from 01.12.2004.

7. As per the plaintiff, the defendant No.1 was to pay the actual

water/electricity consumption charges to the authorities concerned and a

security deposit of Rs.2,00,000/- towards the performance of the

contractual obligation is lying with defendant No.2.

8. On 30.11.2006, the tenancy of defendant No.1 came to end by

efflux of time. It is the admitted case of the parties that after the expiry

of the said period, the plaintiff and defendant No.2 had not executed any

fresh lease deed in favour of defendant No.1 which otherwise could be

executed jointly.

9. The renewal option was not expressed by defendant No.1 and

therefore, the case of the plaintiff is that the defendant No.1 had no right

to remain in the premises after the expiry of the period on 30.11.2006.

10. The plaintiff says that the defendant No.1 did not vacate the

premises by 30.11.2006, though no notice of vacation was otherwise

required to be given to the defendant No.1, yet as an abundant

precaution, the plaintiff, being co-owner of the suit property, gave a

notice dated 29.03.2007 under Section 106 of the Transfer of Property

Act, 1882 through her Advocate thereby calling upon the defendant No.1

to vacate the premises but the defendant No.1 failed to vacate the said

premises and is continuing to remain in unauthorized occupation.

11. As the plaintiff was not on good terms with her brother, the

defendant No.2, who was also not willing to take joint action along with

the plaintiff against the defendant No.1, therefore, the plaintiff, being one

of the co-owners, has filed the present suit and her brother is impleaded

as defendant No.2. The following reliefs have been sought by the

plaintiff in the suit :

"a) pass a decree of possession in favour of the plaintiff and against the defendant no.1 thereby directing defendant no.1 to forthwith deliver the physical vacant possession of the premises i.e. first floor of property bearing no. N-47, Panchsheel Park, New Delhi-17.

b) a decree for Rs. 38 lakhs be also passed in favour of the plaintiff and against defendant No.1 on account of arrears of rent w.e.f. 01.11.05 till 30.11.06 and on account of arrears of damages w.e.f. 01.12.06 till 31.08.08 directing defendant No.1 to make payment of 50% of the amount in favour of the plaintiff and 50% in favour of defendant No.2, subject to defendant No.2 making payment of his share of the court fee to the plaintiff.

c) pass a decree of future damages/mesne profit @ 1,50,000/- per month from 01.09.08 till actual delivery of possession in favour of the plaintiff and against defendant No.1. The plaintiff undertakes to pay the actual court fee on the decretal amount at the time of passing of the final decree.

d) a decree of permanent injunction be also passed in favour of the plaintiff and against the defendants, their employees and representatives from harassing, interfering or obstructing in the peaceful enjoyment of the ground floor portion in occupation of the plaintiff and other portions of the said property by the plaintiff in any manner whatsoever.

e) Cost of the suit be also awarded in favour of the plaintiff and against the defendants."

12. The plaintiff has also claimed that the defendant No.1 is liable

to pay the damages in terms of Clause II (3) of the lease which provides

that in case of overstay beyond two years without the consent of the

lessor, the lessee would be liable to pay a sum of Rs.5000/- per day, i.e.,

Rs.1,50,000/- per month for a period of overstay.

13. The plaintiff has given the detail of the amount recoverable

from the defendant No.1 mentioned in para 9 of the plaint, details of

which are as follows :

Rent from 01.11.2005 to 30.11.2006 Rs.6,50,000/-

Damages from 01.12.2006 till 31.08.2008 @ Rs.1,50,000/- p.m. Rs.31,50,000/-

14. The defendant No.1 has filed the written statement and from

plain reading of the same, it is clear that the defendant No.1 has not

denied that the relationship of landlord and tenant. The defendant No.1

has also admitted that the premises were let out to the defendant No.1 by

the mother of the plaintiff and defendant No.2 vide lease deed dated

08.12.2004 duly registered in the office of Sub-Registrar, Delhi, vide

registration No.15750 in Book No.1, Volume No.4514 on page 183 to

188. It was also admitted that the lease was registered for the period of

two years and was renewable for further period as per Clause II (3),

subject to the enhancement of rent by 10%.

15. It is also submitted by the defendant No.1 that even if it is

assumed that the tenancy was not determinable and was actually

determined, the alleged termination, if any at all, stood waived since the

defendant No.1 complied with the terms of lease making payment of

enhanced rent @ 10%. However, in the written statement, it is also

stated that the plaintiff and defendant No.2 are acting under some game

plan to dispossess the defendant No.1 from the tenanted premises.

16. As far as payment of rent is concerned, it is stated in the

written statement that at the written request of the mother of the plaintiff

vide letter dated 26.11.2004, the defendant No.1 was depositing the rent

of the suit property directly in her saving account no.15288, Central Bank

of India, Panchsheel Branch, Panchshel Club, New Delhi.

17. It is stated by the defendant No.1 that till November, 2006,

the rent was deposited in the account of Smt. Amrit Kala Dewan.

Thereafter, the defendant No.1 till March, 2007 deposited the rent with

10% increase in her account in terms of the lease. Therefore, the same is

being deposited before this Court. Thus, the lease deed is continuing in

view of renewal clause II (3) of the agreement and the plaintiff is entitled

to any relief claimed in the present application.

18. It is also stated that the notice dated 29.03.2007 is defective

on the face of it as the plaintiff in para 3 claims herself as 50% owner of

the suit property and she has demanded the entire rent. She also claimed

herself to be the owner of the property. Even a fresh lease between the

parties, i.e., the plaintiff, defendant No. 2 and defendant No.1 could not

be executed due to the said dispute as after her death, the disputes arose

between the plaintiff and defendant No.2 and they had reciprocal claims

in respect of the suit property. The defendant No.2 in his suit, filed in the

district court, has claimed that it is exclusively entitled to receive the

possession of the suit property and in case the possession is handed over

to the plaintiff, it shall be at the risk and liability of the defendant No.1.

19. The defendant No.2 has issued notice dated 19.7.2007 to the

tenant of the second floor setting up contrary claim. The defendant No.2

has sold his undivided share in the property to one Sunit Seth on

23.06.2003. The said transaction was done in connivance with the

plaintiff by defendant No.2 with ulterior motive. Mr. Sunit Seth has also

filed suit for possession against defendant No.1 in which the plaintiff is

also a party.

20. It is also stated that in the suit filed by the defendant No.1 in

the court of Addl. District Judge, Tis Hazari Court, the parties were

directed to maintain status quo with regard to the possession of the suit

premises.

21. It is argued by the plaintiff that in the present case, the

relationship of the landlord and tenant has been admitted by the

defendant No.1. The lease deed dated 08.12.2004 which is registered

has also been admitted by the defendant No.1. The rate of rent has also

been admitted in the written statement. The receipt of the legal notice

dated 29.03.2007 for termination of the tenancy has also been admitted

by the defendant No.1. Therefore, on the basis of these admissions made

by the defendant No.1 in the written statement, the plaintiff is entitled for

the decree of possession in respect of the suit property.

22. Mr Maninder Singh, the learned senior counsel appearing on

behalf of the defendant No.1, has made his first submission that the

reliefs sought by the plaintiff in the application cannot be granted as the

defendant No.1 has challenged the validity of the notice under Section

106 of the Transfer of Property Act, 1882 which is defective as the same

was issued by the plaintiff as co-owner against the law. The learned

counsel for the defendant No.1 has relied upon the decision passed by

this Court in the case of Smt. Radha Lal v. M/s. Jessop & Company;

AIR 1992 Delhi 331.

23. The next submission is that the tenancy of the defendant No.1

with regard to the suit cannot be determined by notice as the same is

defective, hence tenancy is subsisting even today and is determinable in

nature. The learned counsel has relied upon the decision of the Supreme

Court in the case Jeevan Diesels and Electricals Limited v. Jasbir

Singh Chadha (HUF) and Another; (2010) 6 SCC 601, in support of

his submissions.

24. In the present case, it was not denied by the defendant No.1

that the lease deed executed between Smt. Amrit Kala Dewan and

defendant No.1 was for two years which expired on 30.11.2006. It was a

registered lease deed and it is also a matter of fact that after the expiry of

the lease by efflux of time. The defendant No.1 has not pleaded or

placed any material on record to show that the estate of the deceased

devolved upon someone else other than the plaintiff No.1 and defendant

No.2 or they are not class I legal heirs of Smt. Amrit Kala Dewan. It is

also not disputed by the defendant No.1 that after the expiry of lease

deed by efflux of time, there is no fresh lease deed or renewal thereto by

mutual consent of the parties in writing or otherwise.

Clause II (3) of the lease deed reads as under:

"II (3). The lease is for the period of Two years. It is hereby explicitly agreed between both parties that the rent will be increased by 10% after two years on the last rent paid in case parties decide mutually in writing to renew the Lease for a further period of Two years. In case of overstay beyond 2 years without the consent of the Lessor, Lessee will pay a penalty of Rs.5,000/- per day for the period of such overstay."

25. By reading Clause II(3) of the lease deed, it is clear that it

was agreed by both the parties that the lease deed can be renewed after

two years, subject to 10% increase in the last rent paid in case parties

decide mutually in writing to renew the lease deed for a further period of

two years.

26. In the case of Uptron Powertronics Ltd. Vs. Sh. G.L. Rawal,

1999 IV AD (Del) 861 wherein a suit for possession, mesne profits and

damages was filed, before the framing of issues, the plaintiff moved an

application under Order XII Rule 6 praying that in view of admissions

made by the defendant, no evidence was required to be led and a decree

may be passed for possession. The learned Division Bench observed that

the lease was for a period of three years and renewal of the same was not

registered. Hence, the lease became a lease on month to month basis

under the Transfer of Property Act, 1882 and was terminated in

accordance with law under Section 106 of the same Act.

27. In the case of National Insurance Co. Ltd. & Anr. Vs.

Pahlad Tempo Service & Anr., 158 (2009) DLT 59, it has been held that

"the object of Order XII Rule 6 is to enable the party to obtain a speedy

judgment at least to the extent of the relief to which there are admissions

in the documents or in the pleadings. The court cannot unduly narrow

down the meaning of this Rule merely because the Defendant gives a

different interpretation to the documents than that which the law

permits. The court can hear the arguments on the issue of

interpretation of documents and give its finding on the implications of

such documents in view of the settled law."

28. In the case of R.N. Sachdeva & Ors. Vs. Ram Lal M. Trust;

1997 Rajdhani Law Reporter 357, it is laid down that in the face of a

document in writing, aforesaid pleas cannot be permitted to be taken and

are barred by the provision of Section 92 of the Evidence Act. It has

been held that the pleas of the defendant "are not borne out from the

written agreement executed between the parties, no oral evidence can be

lead in view of this written agreement on record and as such no bona

fide triable issues arises which need investigation so far as the relief of

possession is concerned and the suit to that extent is entitled to be

decreed."

29. In the present case, admittedly neither there is any fresh lease

nor any renewal by mutual consent of the parties. Therefore, on reading

of Clause II(3), it is clear that the lease deed stood terminated by efflux

of time after 30.11.2006.

30. As regards the first decision relied upon by the defendant

No.1, i.e. Smt. Radha Lal (supra) is concerned, it is held that the

notice could not have been issued by the plaintiff, being co-owner of the

suit property being defective notice and the same was not valid under

Section 106 of the Transfer of Property Act, 1882.

31. The said issue raised by the defendant No.1 has been dealt by

the Apex Court and Division Bench of this Court. In the case of Sri Ram

Paricha v. Jagannath and others; AIR 1976 SC 2335, it was held that it

is not right to say that the co-owner of the property cannot issue the

notice. The relevant para 29 of the said judgment reads as under:

"29. Jurisprudentially it is not correct to say that a co- owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

32. Same issue again has been discussed in the case of Smt.

Krishna Prakash and another v. Dilip Harel Mitra Chenoy; AIR 2002

Delhi 81, wherein the Division Bench of this Court referred to the

judgment of the Supreme Court and decided the same point in favour of

the plaintiff. Relevant paras are reproduced as under:

"16. It is not disputed by the defendants/appellants that after the death of late Shanta Simha Chenoy the rent of the premises was being paid or offered to be paid to the plaintiff/respondent and he was, thus, landlord of the premises. Further, the defendants/ appellants themselves admit the plaintiff/respondent as one of the co-owners and, thus, a co-landlord. Under the general law, in a suit between landlord and a tenant, the question of title to the leased property is irrelevant.

18. A Division Bench of this Court in "Mahavir Prasad Vs. Sukhdev Mongia & Another, 1990 (2) RCJ 254 Delhi, relying on the cased "Currimbhoy & Co. Ltd. Vs. L.A.Creet & Others, AIR 1930 Calcutta 133; Ram Niranjan Das Vs. Loknath Mandal, ; Ajmer Singh Vs. Shamsher Singh, ; and Pal Singh (supra), also held that a suit for possession by a co-owner against a

trespasser without impleading the other co-owners is maintainable. There is, thus, no substance in the plea raised against the maintainability of the suit."

33. The decision referred by learned counsel for defendant No.1

was passed by the Single Bench prior to the judgment delivered by the

Division Bench of this Court, hence, it has no binding force. I am totally

in agreement with the decisions referred to by the learned counsel for the

plaintiff. I am of the view that notice of termination issued by the plaintiff

was a valid notice of termination of tenancy.

34. As regards the second decision of Jeevan Diesels and

Electricals Limited (supra), wherein the application of the plaintiff was

dismissed by the Apex Court by setting aside the judgment under appeal

passed by the Division Bench of this Court, it was noticed by the Apex

Court in the judgment that it was specifically averred in the written

statement that the tenancy was neither expired by efflux of time nor has it

been terminated and there has been no determination of tenancy. It was

observed by the Supreme Court that on perusal of the aforesaid

averments in the written statement and in view of admission made by the

plaintiff in the application that only question left for adjudication for the

purpose of possession is whether the termination of the tenancy has been

validly terminated, the application under Order 12 Rule 6 CPC was

dismissed and further, the counsel appearing on behalf of plaintiff did not

invoke the case of the plaintiff for admission, "otherwise than in

pleading". It is also held by the Apex Court that whether or not there is a

clear unambiguous admission by one party and the case of the other party

is essentially a question of fact and the decision on this question depends

on the facts of the case.

In the present case, the defendant No.1 in para 8 of the

preliminary objection has admitted that the suit property was let out vide

registered lease deed dated 08.12.2004 for two years subject to renewal.

The excuse given by the defendant No.1 is that it could not be renewed

or fresh lease deed was executed on account of disputes between the

plaintiff and defendant No.2 and further the tenancy is continuing as the

enhanced rent was/is being deposited by the defendant No.1. And in

view of above, the tenancy of defendant No.1 stood renewed w.e.f.

December, 2006. It is the settled law that in the absence of contractual

period of tenancy, as in the present situation, the defendant No.1

continues in possession of the premises but only as a month to month

tenant. Admittedly, in the present case, the plaintiff had served the

notice to the defendant No.1. The receipt of the notice is not denied by

defendant No.1. The defendant No.1 in the written statement has

admitted that the tenancy of the premises was expired by efflux of time

and fresh lease was not renewed, thus, the decision referred by the

counsel is not applicable to the facts of this case. In the case referred, the

tenant in his case had pleaded in the written statement that the tenancy

was neither expired by efflux of time nor it has been terminated. The

counsel for the plaintiff had also given up his case on admission made by

the defendant. But in the present case, the facts are materially different.

35. There is no force in the submission that the defendant No.1

was depositing the rent with 10% increase in the account of mother and

later on before this Court and it amounts to renewal of tenancy. I am of

the considered view that in the absence of a contractual period of tenancy

and without mutual consent in writing, the said issue raised by the

defendant No.1 is meritless and the defendant No.1 cannot take any

benefit of it.

36. The other issues raised by the defendant No.1 are also without

any substance as whose occupation is unauthorized, cannot take the

advantage of disputes if any pending between the co-owners nor unlawful

occupant is entitled to raise its voice if co-owners are not in good terms

or are making contradictory statements against each other in the

pleadings. This court is of the view that in the absence of a contractual

period of tenancy, the tenant is estopped from raising flimsy issues which

do not go into the root of the case.

37. In the case of M/s. Emirates Vs. DLF Universal Ltd.; 169

(2010) DLT 604, it was held that in the absence of a contractual period of

tenancy, the defendant as per the law is to continue in possession of the

premises but only as month to month tenant. The tenancy is

terminable by the lessor on the service of notice. Admittedly, in the

present case, notice was served upon the defendant by the plaintiff,

the receipt of which is not disputed by the defendant.

38. Thus, I am of the view that the trial in the matter is not

required as the parties are not at issue on any question of law or act to

be determined further. The provisions of Order XII Rule 6 CPC are

therefore applicable. The Court is empowered to pronounce the

judgment under the said provision besides the provision of Order XV

of the CPC.

39. Therefore, I allow the plaintiff's application under Order

12 Rule 6 CPC and a preliminary decree is passed in relation to

vacation of defendant No.1 and delivery of possession of the suit

premises.

40. The defendant No.1 shall vacate the first floor of the

premises within two months and deposit the keys with the Registrar

General of this Court along with an affidavit of compliance, failing

which the plaintiff would be entitled to take the necessary steps in

accordance with law.

41. As far as other relief of recovery of rent and damages

claimed are concerned, the proceedings would continue for the said

purpose and a final decree may be passed after the enquiry.

CS (OS) No. 2056/2008

42. List the matter before Joint Registrar on 20.10.2011.

MANMOHAN SINGH, J.

JULY 18, 2011 jk/dp/sa