Sharvan Aggarwal vs Kailash Rani
2012 Latest Caselaw 145 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.19/2012

%                                                            9th January, 2012

SHARVAN AGGARWAL                                            ...... Appellant
               Through:                  Mr.J.P.Sengh, Sr. Adv. with
                                         Mr. K.L.Nandwani &
                                         Ms. Ankita Gupta, Advs.


                            VERSUS


KAILASH RANI                                                 ...... Respondent

                            Through:         None.


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

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

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

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

impugned judgment dated 14.11.2011 of the Trial Court decreeing the suit of

the respondent/landlord under Order 12 Rule 6 CPC, limited to the relief of

possession. The suit on the aspect of payments of mesne profits is pending

trial and disposal before the Trial Court.

2. The plaintiff/respondent in the plaint pleaded that the suit

premises being A-103/7, Wazirpur Industrial Area, Delhi were let out to the

appellant/defendant at `51,000/- per month vide rent agreement dated

1.10.2006 for a period of three years. It was pleaded that in spite of the

tenancy having expired by efflux of time, the premises were not vacated and

therefore the respondent/plaintiff by a notice dated 31.3.2010 terminated the

tenancy with effect from 30.4.2010. The subject suit for possession and

mesne profits thereafter came to be filed.

3. In a suit for possession of a premises which is outside the

protection of Delhi Rent Control Act, 1958, the following three requirements

have to be established:-

i) There is a relationship of landlord and tenant between the parties;

ii) The rate of rent is more than `3,500/- per month; and

iii) The monthly tenancy is terminated by means of a legal notice

under Section 106 of the Transfer of Property Act, 1882 (hereinafter

referred to as „the Act‟).

4. In the present case, the premises were originally let out to the

appellant/defendant by Sh. K.L.Chawla, who is the late husband of the

respondent. It is not disputed that the respondent/plaintiff is one of the legal

heirs of late Sh.K.L.Chawla and therefore will succeed as a co-owner to the

suit property. The deceased Sh.K.L. Chawla was also survived by his son-Sh.

Desh Raj Chawla. It is now settled law, as per the ratio of catena of

judgments of the Supreme Court, that a co-owner is entitled to file a suit for

possession, unless, it is shown that the other co-owner is objecting to such a

suit. It is not an issue in the present case that there is any objection by

Sh.Desh Raj Chawla to the subject suit for possession filed by the

respondent/plaintiff. An owner of a property is always a landlord and the

owner of a property is entitled to receive possession from an unauthorized

occupant. Since the respondent/plaintiff is the widow of late Sh. K.L.Chawla,

I am of the opinion that the Trial Court has rightly held that there is a

relationship of landlord and tenant between the parties.

5. So far as the rate of rent is concerned, though the

respondent/plaintiff claimed the rent to be `51,000/- per month, the

appellant/defendant claimed that original rent was `11,000/- per month and

which was subsequently enhanced to `13,500/- per month. Therefore, even if

we accept the stand of the appellant/defendant, the rate of rent is more than

`3,500/- per month, and thus the premises are outside the protection of the

Delhi Rent Control Act, 1958 and consequently the suit for possession could

have been filed terminating the monthly tenancy.

6. So far as the aspect of service of notice terminating tenancy under

Section 106 of the Act is concerned, counsel for the appellant/defendant has

very strongly argued that the premises in question were let out vide rent

agreement dated 17.12.2003 for manufacturing purposes, i.e. for "Steel Hot

Rolling etc" and therefore in terms of Section 106 of the Act, such a tenancy

can only be terminated by a six months notice, and, since the notice which has

been issued in the present case terminating the tenancy was for a notice period

of only one month, the same was defective and therefore the suit was pre-

mature.

7. I have in the recent judgment reported as M/s.Jeevan Diesels &

Electricals Ltd. vs. M/s. Jasbir Singh Chadha (HUF) & Anr. 2011 (182)

DLT 402 held that even if it is not proved that a legal notice was served prior

to filing of the suit, service of summons of the suit can be taken as a notice

under Section 106 of the Act. I have also held in the judgment of M/s.Jeevan

Diesels (Supra) that if along with the plaint, copy of the notice is served on

the tenant and once again, this can be taken as service of notice. The aforesaid

aspects can be taken note of under Order 7 Rule 7 CPC. I have held that Court

should take a pragmatic view 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.

8. The argument as raised on behalf of the appellant/defendant that

the lease in this case should be held to be for a manufacturing purpose because

it is so provided in para 3 of the lease deed dated 17.12.2003, is an argument

which I reject inasmuch as the lease deed dated 17.12.2003 is not a registered

document, and therefore, the terms of the lease deed cannot be looked into in

view of the Section 49 of the Registration Act, 1908. I also do not agree with

the argument of the learned senior counsel for the appellant that a letting

purpose is a collateral purpose within the expression under Section 49 of the

Registration Act, 1908. Surely, the purpose of letting out is very much a main

term of a lease deed, and by no stretch of imagination the same can be said to

a collateral purpose. I therefore hold that the lease deed dated 17.12.2003

cannot be looked into and once the same cannot be looked into, there is no

basis to hold that the lease was created for a manufacturing purpose.

9. Even for the sake of argument if I accept that the lease was

created for manufacturing purpose, then applying the ratio of M/s.Jeevan

Diesels (Supra), a period of six months has definitely expired since the filing

of the subject suit. The subject suit was filed on 1.5.2010, and the

appellant/defendant was served in September, 2010, therefore, the

appellant/defendant in any case had a six months notice to vacate the

premises. Ultimately, which would be the date from which mesne profits

would be payable, is an issue which will be gone into by the Trial Court while

deciding the issue of mense profits, however for the present, it cannot be said

that the suit cannot be decreed so far as the limited relief of possession is

concerned.

10. In view of the above, I do not find any merit in the appeal, which

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

VALMIKI J. MEHTA, J JANUARY 09, 2012 ak