Delhi High Court

Madhu Sehgal vs Rajesh Sharma on 24 October, 2011

Author: Manmohan Singh

*               HIGH COURT OF DELHI: NEW DELHI

                                         Judgment reserved on: 13.10.2011
%                                        Judgment pronounced on: 24.10.2011

+                          I.A. Nos.6403/2011 & 16440/2011
                                         in
                                CS(OS) No.86/2010


MADHU SEHGAL                                                   ..... Plaintiff
                           Through       Mr. Kirti Uppal, Sr. Adv. with
                                         Mr. Pradeep Chandel, Adv.

                           Versus


RAJESH SHARMA                                                 ..... Defendant
                           Through       Mr. Sudhir Nandrajog, Sr. Adv. with
                                         Mr. Nitin Sangra, Adv.

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 two applications filed by the

plaintiff, bearing I.A. No.6403/2011 (under Order XII, Rule 6 read with

Section 151 CPC) and I.A. No.16440/2011 (under Order XVA read with

Section 151 CPC).

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.1 of 8

2. The brief facts are that the plaintiff has filed the present suit for

possession in respect of the premises bearing No.119-C, Lane No.3,

Anupam Garden, Sainik Farm, New Delhi-110068, recovery of arrears of

rent and for grant of permanent injunction restraining the defendant from

alienating, disposing, parting with possession or creating any third party

rights in respect of the suit property till the final disposal of the suit.

3. It is stated by the plaintiff that in the month of February 2009,

the plaintiff had let out the suit property to the defendant for residential

purposes for eleven months with effect from 07.02.2009 for a monthly rent

of ` 1,75,000/- . The defendant deposited a security of ` 3,50,000/- and

paid the rent for the month of February and March and requested the

plaintiff to adjust the security deposit of ` 3,50,000/- towards the rent for

the month of April and May. Thereafter, he issued two cheques towards the

rent for the month of June and July, but both these cheques were

dishonored due to insufficiency of funds. Thereafter, the defendant not only

promised to pay the monthly rent but also offered to vacate the suit

property. But the defendant has consistently failed to honour his promises

and undertakings. A sum of ` 12,25,000/- is due from the defendant as rent

for the period from June 2009 to December 2009 as mentioned in the

application which was filed along with plaint.

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.2 of 8

4. It is pertinent to mention here that prior to passing of the present

order, the plaintiff's application under Order XXXIX, Rule 10 read with

Section 151 CPC seeking directions for the defendant to pay the admitted

amount of arrears of rent of ` 12,25,000/- to the plaintiff for the period,

from June, 2009 to December, 2009, was disposed of with the following

directions:

"(a) The defendant is directed to pay to the plaintiff the admitted arrears of rent of ` 12,25,000/- for the period from June, 2009 to December, 2009 within the period of four weeks from today.

(b) He shall also pay the rent for the subsequent period to the plaintiff within twelve weeks from the date of passing the order.

(c) He is also directed to continue to pay the admitted rent to the plaintiff for every month till the time he is occupying the premises in question."

5. It appears from the record that the defendant thereafter filed an

appeal against the said order, bearing FAO(OS) No.441/2011 before the

Division Bench of this Court. The said appeal was dismissed by the

Hon'ble Division Bench with cost of ` 50,000/- on 13.09.2011. The

operative part of the order passed by the Division Bench, which is

necessary to decided the present applications, reads as under:-

"The stand of the appellant before the court when he filed the suit for injunction is that he is the tenant. The respondent in the plaint filed before us, has also taken a stand that the appellant is the tenant. Learned senior counsel for the appellant seeks to derive strength from the written statement filed by the

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.3 of 8 respondent in the proceedings before the learned Senior Civil Judge. We find no substance in the same. If the written statement is read as a whole it is quite obvious that it is the say of the respondent that the premises in issue were rented out to the appellant. This is stated so in paragraph (A) of the preliminary objection. In the parawise reply on merits to the plaint, it has been stated as under:

"The averment that the suit premises was let out to the company of the plaintiff vide any valid lease agreement is incorrect and is vehemently denied."

We fail to read the aforesaid sentence as a denial of lease arrangement but what is denied is that the lease was with the company. In fact the respondent goes on to state in the subsequent paragraphs that though the lease agreement was for 11 months it became a month to month tenancy on account of the lease terms not being drawn up on proper stamp paper, which is stated to be one of the reasons that the document was not executed by the respondent. Be that as it may, even the eleven (11) months period expired long time back, as noted above.

The facts obtaining in the present case show that possibly even a decree for possession could be passed, it being an undisputed fact that the lease was for only for a period of 11 months and that the lease had in fact expired by afflux of time apart from the issue of breach of terms and conditions of the lease agreement/ understanding arrived at between the parties as the rent was not paid."

6. When these applications were taken up by the Court, the

admitted position was that despite of order passed by this Court as well as

the Division Bench, the defendant did not pay the arrears of rent of

` 12,25,000/- for the period, from June, 2009 to December, 2009, nor the

defendant paid the cost of ` 50,000/- as imposed by the Division Bench.

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.4 of 8

7. Mr. Kirti Uppal, learned Senior counsel appearing on behalf of

the plaintiff submits that as of today, more than ` 60 lac as rent is due and

despite of various requests, the same was not paid by the defendant. In

view of the same, the plaintiff's application bearing I.A. No.16440/2011 is

allowed. The defence of the defendant is accordingly struck off.

8. Now, I shall take up another application bearing I.A.

No.6403/2011 under Order XII, Rule 6 read with Section 151 CPC filed by

the plaintiff. It is the admitted position that earlier the cheques issued by

the defendant towards the rent were dishonoured. The defendant did not

pay the rent despite of the order passed by this Court in the application

under Order XXXIX, Rule 10 CPC. The defendant has also not deposited

the cost imposed by the Division Bench. The plaintiff has also filed the

original undertaking given by the defendant to vacate the premises. Despite

of promises, the defendant has not vacated the premises.

9. The learned Senior counsel appearing on behalf of the plaintiff

has also referred the copy of the lease agreement/rent note containing the

terms and conditions in respect of leasing out of the suit premises by the

plaintiff to the defendant which is admitted by the learned Senior counsel

appearing on behalf of the defendant during the hearing of this application.

From the perusal of the said lease agreement, it appears that the premises

was let out to Mr. Ramesh Sharma son of Late Sh. Ramji Dass Sharma,

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.5 of 8 Director of Ramji Dass Motors Pvt. Ltd. According to the plaintiff, the

premises was not let out to the company, but to Mr. Ramesh Sharma who

was the Director in the company. Admittedly, the said lease executed

between the parties was for 11 months. The tenancy was terminated by

notice dated 17.07.2009. Mr. Uppal further relied upon the averments

made by the defendant in his suit which was filed against the plaintiff as an

individual capacity.

10. During the hearing, this Court asked the learned Senior counsel

for the defendant to inform the Court as to whether any business even

otherwise is carried out by Ramji Dass Motors Pvt. Ltd., but the learned

counsel was unable to answer the said question, nor any evidence has been

produced on record to show the same.

11. Under these circumstances, I am of the view that the trial in the

present case is not necessary, and the application filed by the plaintiff under

Order XII, Rule 6 CPC is liable to be allowed and this Court is empowered

to pronounce the judgment even in view of the provision of Order XV of

CPC. In this context, the following decisions are referred as under:

(i) G.M. Enterprises Pvt. Ltd. Vs. Sem Tian Exports & Hotels Pvt. Ltd., 118 (2005) DLT 500 (paragraph 14) which reads as under:

"14. In the absence of a contractual period of tenancy, the defendant could continue in possession of the premises but only as a month to month tenant which tenancy was terminable by the Lesser on service of a notice. That such a notice was sent to and

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.6 of 8 received by the lessee is not disputed. Even the validity of the said notice is not in dispute before me. If that be so, there is nothing left to be tried, examined or determined in the suit in so far as the same prays for a decree for possession against the defendant. The provisions of Order XII Rule 6 of the CPC are, therefore, squarely applicable, entitling the plaintiff to a judgment in its favor to the extent the said judgment can be sustained on admissions made by the defendant."

(ii) 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 issues were framed, the plaintiff in that case 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 and was terminated in accordance with law under Section 106 of the same Act.

12. I, therefore, allow this application and I pass a decree for

possession in respect of the premises in question, i.e. bearing No.119-C,

Lane No.3, Anupam Garden, Sainik Farm, New Delhi-110068, in favour of

the plaintiff and against the defendant. I also pass the decree for recovery

of arrears of rent for the period, from June, 2009 up to 30.09.2011 in favour

of the plaintiff and against the defendant. The defendant shall vacate the

premises and deliver its possession as well as pay the arrears of rent to the

plaintiff within a period of four weeks from today, failing which the

plaintiff would be entitled to take the necessary steps in accordance with

law.

I.A. Nos.6403/2011 & 16440/2011 in CS(OS) No.86/2010 Page No.7 of 8

13. As far as the relief of mesne profits is concerned, the