M/S. Jeevan Diesels & Electricals ... vs M/S. Jasbir Singh Chadha (Huf) & ...
2011 Latest Caselaw 1702 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.179/2011
%                                                 25th March, 2011

M/S. JEEVAN DIESELS & ELECTRICALS LTD.             ...... Appellant
                      Through:  Mr. Shiv K. Suri, Advocate with Mr.
                                Danish Hasanian, Advocate.

                          VERSUS

M/S. JASBIR SINGH CHADHA (HUF) & ANR.            ...... Respondents

Through: Mr. Deo Prakash Sharma, Advocate with Mr. Umesh Gupta, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

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

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

VALMIKI J. MEHTA, J (ORAL)

Caveat No.259/2011 in RFA No.179/2011 Counsel for the caveator appears and thus the caveat

stands discharged.

C.M. Nos.6161/2011 and 6162/2011(Exemption) in RFA No.179/2011 Exemption allowed subject to just exceptions.

Application stands disposed of.

RFA No.179/2011

1. The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment and decree dated 14.12.2010 which has decreed

the suit of the respondents/plaintiffs for possession of the suit premises

against the appellant who was a tenant. The facts of the case are that

the premises being flat No.205 (2nd floor), Arunachal Building, 19,

Barakambha Road, New Delhi, was let out to the appellant/defendant

vide an unregistered lease deed dated 7.7.2003 at a monthly rent of

Rs.23,200/- for a period of three years from 7.7.2003. The tenancy of

the appellant/defendant was terminated vide notice dated 15.7.2006

and whereafter the suit was filed on 24.7.2007 for possession of the

suit premises and for mesne profits.

2. This case has a slightly chequered history inasmuch as

earlier the suit for possession was decreed under Order 12 Rule 6 CPC,

however, the Hon'ble Supreme Court vide its judgment dated 7.5.2010

remanded the case back to the trial Court on the ground that there

were no admissions and therefore the suit required trial.

3. The case was thereafter fixed in the trial Court after the

judgment of the Supreme Court dated 7.5.2010 and though the

respondents/plaintiffs led evidence, the appellant/defendant did not

lead evidence in spite of opportunities given and consequently its right

to lead evidence was closed. The impugned has judgment thereafter

been passed by the trial Court.

4. A reading of the facts of the present case shows that there

is no dispute as regards there having existed a relationship of landlord

and tenant between the parties and that the rent was more than

Rs.3,500/- per month, taking the premises outside the protection of

Delhi Rent Control Act, 1958. Before the trial Court basically two main

arguments were raised on behalf of the appellant/defendant/tenant.

The first argument was based upon Clause 6 of the unregistered lease

deed dated 7.7.2003 on a stamp paper of Rs.100/- which reads as

under:-

"Clause 6 That although the Lease has been created for a period of 3 years yet the monthly rent payable by the Lessees to the Lessors shall stand increased by 20% (Twenty percent only) of the original rent with intervals of each period of three years after the expiry of the initial period of three years."

On the basis of the aforesaid clause, it was contended that

the appellant had a continued right as a perpetual tenant in the

premises once rent was increased by 20% every three years. The

second argument before the trial Court was that the notice of

termination of tenancy dated 15.7.2006 was not validly served and

therefore the tenancy was not validly terminated.

5. Learned counsel for the appellant has raised not only the

same two arguments which were raised before the trial Court but has

also argued a third point that the tenancy was renewed because

enhanced rent was received by the respondents after the termination

of the tenancy.

6. So far as the argument based upon Clause 6 of the lease

deed is concerned, in my opinion, the argument is without substance

as the lease document relied upon is an unregistered lease deed and

which cannot create a lease for a fixed period unless the lease deed

was duly registered. Unless and until a lease for fresh periods is in fact

duly entered into in terms of Clause 6 of the lease deed dated

7.7.2003, the appellant would remain a tenant only from month to

month. In law, either there is a tenancy for a specific period in terms

of a duly registered lease deed, and in which case the tenant would

have protection for the period of lease or if there is no registered lease

deed for the leased premises then the tenancy will be on a month to

month basis. In the present case, there being no registered lease

deed, even originally, or for further periods, the tenancy had always

been a month to month tenancy which could be terminated by a notice

under Section 106 of the Transfer of Property Act, 1882. Mere

existence of Clause 6 would not automatically mean that there is an

automatic creation of a registered lease deed for regular fresh periods

of three years. This argument of the appellant is therefore rejected.

7. The second argument that the legal notice dated

15.7.2006 was not received by the appellant, and consequently the

tenancy cannot be said to have been validly terminated, is also an

argument without substance and there are many reasons for rejecting

this argument. These reasons are as follows:-

(i) The respondents/plaintiffs appeared in the trial Court and

exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3

and with respect to which the registered receipt, UPC and AD card

were exhibited as Ex.PW1/4 to Ex.PW1/6. The notice admittedly was

sent to the correct address and which aspect was not disputed before

the trial Court. Once the respondents/plaintiffs led evidence and duly

proved the service of legal notice, the appellant/defendant was bound

to lead rebuttal evidence to show that the notice was not served

although the same was posted to the correct address. Admittedly, the

appellant/defendant led no evidence in the trial Court. In fact, even

leading of evidence in rebuttal by the appellant would not have

ordinarily helped the appellant as the notice was sent to the correct

address. In my opinion, therefore, the trial Court was justified in

arriving at a finding that the legal notice dated 15.7.2006 was duly

served upon the appellant resulting in termination of the tenancy.

(ii) The Supreme Court in the case of Nopany Investments

(P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that

the tenancy would stand terminated under general law on filing of a

suit for eviction. Accordingly, in view of the decision in the case of

Nopany (supra) I hold that even assuming the notice terminating

tenancy was not served upon the appellant (though it has been served

and as held by me above) the tenancy would stand terminated on filing

of the subject suit against the appellant/defendant.

(iii) In the suits for rendition of accounts of a dissolved

partnership at will and partition of HUF property, ordinarily it is

required that a notice be given of dissolving the partnership at will or

for severing the joint status before the filing of such suits because such

suits proceed on the basis that the partnership is already dissolved or

the joint status of an HUF stands severed by service of notices prior to

the filing of such suits. However, it has been held in various judicial

pronouncements that the service of summons in the suit will be taken

as the receipt of notice of the dissolution of the partnership or severing

of the joint status in case of non service of appropriate notices and

therefore the suits for dissolution of partnership and partition of HUF

property cannot be dismissed on the technical ground that the

partnership was not dissolved before filing of the suit or the joint status

was not severed before filing a suit for partition of the HUF property by

serving of appropriate notices. In my opinion, similar logic can be

applied in suits for possession filed by landlords against the tenants

where the tenancy is a monthly tenancy and which tenancy can be

terminated by means of a notice under Section 106 of the Transfer of

Property Act. Once we take the service of plaint in the suit to the

appellant/defendant as a notice terminating tenancy, the provision of

Order 7 Rule 7 CPC can then be applied to take notice of subsequent

facts and hold that the tenancy will stand terminated after 15 days of

receipt of service of summons and the suit plaint. This rationale ought

to apply because after all the only object of giving a notice under

Section 106 is to give 15 days to the tenant to make alternative

arrangements. In my opinion, therefore, the argument that the tenancy

has not been validly terminated, and the suit could not have been filed,

fails for this reason also. In this regard, I am keeping in view the

amendment brought about to Section 106 of the Transfer of Property

Act by Act 3 of 2003 and as per which Amendment no objection with

regard to termination of tenancy is permitted on the ground that the

legal notice did not validly terminate the tenancy by a notice ending

with the expiry of the tenancy month, as long as a period of 15 days

was otherwise given to the tenant to vacate the property. The

intention of Legislature is therefore clear that technical objections

should not be permitted to defeat substantial justice and the suit for

possession of tenanted premises once the tenant has a period of 15

days for vacating the tenanted premises.

(iv) Another reason for rejecting the argument that the tenancy

would not be terminated by the legal notice Ex.PW1/3 is that the

respondents/plaintiffs admittedly filed a copy of this notice alongwith

the suit way back in the year 2007. Once the summons in the suit

alongwith documents were served upon the appellant/tenant, the

appellant/tenant would obviously have received such notice. Even if

we take this date when the appellant/tenant received a copy of the

notice when served with the documents in the suit, once again, the

period of 15 days has expired thereafter and keeping the legislative

intendment of amended Section 106 in view, the appellant therefore

cannot argue that the tenancy is not terminated and he did not get a

period of 15 days to vacate the premises. I am in view of this position

consequently entitled to take notice of subsequent events under Order

7 Rule 7 CPC, and taking notice of the subsequent events of the expiry

of 15 days after receipt of a copy of the notice alongwith documents in

the suit, I hold that the tenancy has been validly terminated, and as on

date, the appellant/tenant has no right to stay in the premises and

consequently the decree for possession was rightly passed by the trial

Court.

8. Therefore, looking at it from any point i.e. the fact that

legal notice terminating tenancy was in fact served, the suit plaint

itself can be taken as a notice terminating tenancy or that the copy of

the notice alongwith documents was duly served to the

appellant/tenant way back in the year 2007, I hold that the tenancy of

the appellant/tenant stands terminated and the appellant/tenant is

liable to hand over possession of the tenanted premises.

9. Learned counsel for the appellant in desperation sought to

argue that the respondents accepted rent after termination of tenancy

and therefore a fresh tenancy came into existence. It is alleged that in

fact enhanced rent was paid to the respondents/plaintiffs. This aspect

is very strenuously denied by the learned counsel for the

respondents/plaintiffs who states that his client never accepted the

enhanced rent and in fact the alleged enhanced rent was not even

tendered to the respondents/plaintiffs. In my opinion, I need not at all

go into this aspect because the parties are confined in an appeal to the

record of the Court below. In the impugned judgment, I do not find

that any such argument was raised by the appellant that a fresh

tenancy came into being after termination of the tenancy inasmuch as

the appellant had paid enhanced rent to the respondents. If in the

opinion of the appellant although this point was taken up in the pleadings

and was so argued before the trial Court, and the trial Court did not

deal with the same, then, the only way in which the matter could have

been approached was to move the trial Court immediately once the

impugned judgment was pronounced and when the matter was fresh in

the mind of the Judge praying that this point of creation of fresh

tenancy was argued before the Court but not adjudicated upon. This

was incumbent upon the appellant/defendant in view of the decision of

the Supreme Court in the case of State of Maharashtra Vs. Ramdas

Srinivas Naik AIR (1982) 2 SCC 463 in which it has been held that a

party cannot be allowed to file an affidavit to challenge the factual

contents of a Court record and the only way in which the factual aspect

wrongly recorded can be corrected is by moving the same Court which

has recorded wrong facts at the earliest possible and if it is not so done

then the record of the trial Court becomes final. In the present case,

therefore in accordance with the decision of the Supreme Court in the

case of Ramdas Srinivas Naik (supra) if the appellant had argued

this point and the trial Court had not dealt with the same, the appellant

ought to have filed immediately an application either for review or any

other application to bring this on record before the trial Court. The

appellant not having done so, the matter cannot be allowed to be

raised before this Court. I may note that the Supreme Court has

reiterated the ratio of the decision in the case of Ramdas Srinivas

Naik (supra) in at least 10 to 12 reported judgments thereafter. The

argument of the appellant now raised in this Court is also further liable

to be not considered because a reading of the grounds of the appeal

also shows that no ground at all to this effect has been raised that a

fresh tenancy came into existence on payment of enhanced rent.

Learned counsel for the respondents/plaintiffs also states that the list

of dates filed by the appellant, in this Court also does not mention this

aspect. Quite clearly therefore this third argument raised by the

appellant is mala fide, mischievous and an abuse of the process of law.

I must also note that the Supreme Court in the case of Sarup Singh

Vs. S. Jagdish, 2006 (4) SCC 205 has held that receipt of rent after

termination of tenancy can be taken as charges towards use and

occupation because after all a tenant is bound to pay charges till he

vacates the tenanted premises. Finally, I must add that after all the

appellant has not led any evidence in the trial Court and assuming the

case was pleaded of creation of a fresh tenancy by acceptance of

higher rent, the appellant had necessarily to lead evidence to prove

this aspect and which it did not. I thus fail to understand as to how this

argument can at all be raised.

10. In view of the above, I find the appeal to be wholly without

merit and an abuse of the process of law. In fact, the appeal is nothing

but a link in the chain of actions for continued illegal possession of the

suit premises on the part of the appellant. Being a commercial

litigation, in accordance with para 37 of the decision of the Division

Bench judgment of three Judges of the Supreme Court in the case of

Salem Advocate Bar Association Vs. Union of India (2005) 6

SCC 344 I find that the present is a fit case where actual costs must

be imposed upon the appellant and in favour of the respondents. I

quantify the costs in this case at Rs.25,000/- in favour of the

respondents and against the appellant, which shall be paid in two

weeks. Appeal is therefore dismissed accordingly.

March 25, 2011                                VALMIKI J. MEHTA, J.
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