Sardar Pal Singh vs Kalu Ram Sisodia & Anr
2012 Latest Caselaw 2635 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 183/2012

%                                                             23rd April, 2012

SARDAR PAL SINGH                                               ..... Appellant
                            Through :    Mr. Kaushal Yadav, Advocate.

                   versus

KALU RAM SISODIA & ANR                                        ..... Respondents

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J. (ORAL)

C.M. No. 6959/2012 (Exemption)

Application allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 183/2012 and C.M. No. 6960/2012 (Stay)

1. The challenge by means of this Regular First Appeal (RFA) filed under

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

judgment of the trial Court dated 6.3.2012 decreeing the suit for possession

and mesne profits filed by the respondents/plaintiffs/landlords.

2. The facts of the case are that the appellant/defendant/tenant was given

on rent a premises consisting of three shops situated at Khasra No. 701,

Revenue Estate, Burari, Delhi. Though, there is no date of commencement of

tenancy, which is mentioned in the impugned judgment or in the plaint,

learned counsel for the appellant/defendant/tenant says that the tenancy

commenced in the year 1993. The respondents/plaintiffs/landlords alleging

non-payment of rent terminated the tenancy by means of a legal notice dated

29.6.2011, and which was replied to by the appellant/defendant/tenant vide

reply dated 18.7.2011. As the appellant/defendant/tenant failed to vacate the

suit property, the subject suit for possession and mesne profits came to be

filed.

3. Learned counsel for the appellant does not dispute that there is a

relationship of landlord and tenant between the parties and Delhi Rent Control

Act, 1958 has not been extended by any notification under Section 1 of the

Delhi Rent Control Act, 1958 to the area in question. Therefore, the monthly

tenancies, such as those of the appellant, can always be terminated by means

of a legal notice issued under Section 106 of Transfer of Property Act, 1882.

Though there may be two views with respect to the language contained in the

notice dated 29.6.2011 qua termination under Section 106 of the Transfer of

Property Act, 1882, however, it is clear that the tenancy was sought to be

terminated by means of the legal notice dated 29.6.2011, and the relevant

portion of which reads as under:-

"3. That my client vide the present legal notice due to facts stated above terminate and determine your tenancy from the date of receipt of the present notice and ask you to vacate the tenanted premises and hand over the vacant and peaceful possession of the tenanted premises on or before the date and month of receipt of the present notice.

In the facts and circumstances stated above, you hereby are directed to pay the arrears of rent i.e. Rs.5,500/- per month of each shop above mentioned from 01.06.2008 to 30.06.2011 that is 36 months total interest @ 24% P.A. and handover the vacant and peaceful possession of the tenanted premises under your tenancy within 15 days from the date of receipt of present legal notice and Rs.5,500/- for the cost of the instant legal notice, failing which you shall be liable to all the costs and consequences which please note.

Copy kept in my office for further action."

4. Even assuming that the notice as per the case of the

appellant/defendant/tenant is not a notice under Section 106 of the Transfer of

Property Act, 1882, the service of summons in the suit can always be treated

as a notice under Section 106 of the Transfer of Property Act, 1882. I have

held in the judgment reported as M/s. Jeevan Diesels & Electricals Ltd. v.

M/s. Jasbir Singh Chadha (HUF) & Anr. 2011 (183) DLT 712, that service

of summons of the suit for possession can be treated as a notice under Section

106 of the Transfer of Property Act, 1882 and which aspect can be read

alongwith Order 7 Rule 7 CPC. I have held that Court should take a

pragmatic view once the tenant has a notice of 15 days to vacate in view of

the legislative intendment as demonstrated by Act 3 of 2003, amending

Section 106 of the Act. An SLP against the said judgment being SLP

No.15740/2011 has been dismissed by the Supreme Court on 7.7.2011.

5. This is a case which has been decreed after trial. In view of the fact

that there is no dispute about the relationship of landlord and tenant as also

the fact that the premises are outside the operation of Delhi Rent Control Act,

1958, the trial Court has rightly decreed the suit for possession.

6. So far as the issue of mesne profits is concerned, the trial Court has

decreed the same @ ` 5,000/- per month with effect from July, 2011,

inasmuch as, the appellant/tenant in his cross-examination admitted that with

respect to two shops constructed recently, the rent would be `6,000/- per

month. Therefore, if in December, 2011, rent can be `6,000/- per month,

surely, the trial Court has not erred in granting mesne profits @ `5,000/- per

month with effect from July, 2011. While calculating/deciding mesne profits,

some amount of honest guesswork is always called for, and once there is a

clear cut admission of the appellant/defendant/tenant, I do not think that the

trial Court has faulted in directing the payment of mesne profits @ `5,000/-

per month. I have, in the judgment reported as M.C. Agrawal HUF vs. M/s.

Sahara India & Ors., 183 (2011) DLT 105, had an occasion to consider the

aspect as to the fact that even if the landlord leads no evidence, this Court can

take judicial notice of increases in the rent in urban areas like Delhi for

commercial properties and grant ordinarily, subject to other factors, an

increase @15% per annum. In this case if we take the tenancy as having

commenced from 1993, the rent as per this increase of 15% per annum would

be around `7,000/- per month in the year 2011, and therefore, even looking at

it from this manner, it can be said that the trial Court has not erred in granting

mesne profits @5,000/- per month. In my opinion, the trial Court has in fact

been liberal to the appellant/defendant, inasmuch as, the trial Court could

have granted interest on mesne profits in terms of the judgment of the

Supreme Court in the case of Indian Oil Corporation Vs. Saroj Baweja 2005

(12) SCC 298, however, only mesne profits have been granted and no interest

on mesne profits have been granted.

7. This case was argued on 20.4.2012, when learned counsel for the

appellant sought an adjournment to take instructions if the appellant is

interested in taking time to vacate the suit premises, however, learned counsel

for the appellant says that he has instructions to argue the appeal on merits.

8. In view of the above, there is no merit in the appeal, which is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J.

APRIL 23, 2012 AK