Cement Corporation Of India Ltd vs Bharat Bhushan Sehgal
2012 Latest Caselaw 3704 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+       RSA 46/2012

%                                Date of Decision: June 1st , 2012


CEMENT CORPORATION OF INDIA LTD              ..... Appellant
               Through : Mr. Rakesh Tiku, Sr. Adv. with
                         Mr. Amit Panigrahi and
                         Ms. Tanupriya, Advs.

                   versus

BHARAT BHUSHAN SEHGAL                                      ..... Respondent
                Through :              Mr. G.D. Goel, Sr. Adv., Mr. Chetan
                                       Sharma, Sr. Adv. with Mr. Vikas
                                       Chopra, Adv.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL


VEENA BIRBAL, J.

* RSA No. 46/2012

1. By way of this second appeal under Section 100 and Order XLII Rule 1 read with Section 151 of the Civil Procedure Code, 1908, the appellant has challenged two concurrent judgments i.e. one dated 01.03.2012 passed by the learned Addl. District Judge in RCA No. 16/2011 and the other dated 15.11.2011 passed by the learned Civil Judge, Delhi in C.S. No. 185/2010.

2. The facts leading to the filing of present appeal are as under:-

The respondent herein i.e. plaintiff before the learned Civil Judge, Delhi had filed a suit for possession and mesne profits/damages stating therein that he was the landlord/owner of flat No. G-1 on the ground floor of

multi storey building known as CCI House, 87, Nehru Place, Delhi wherein the appellant i.e. defendant before the learned trial court was inducted as a tenant w.e.f. 15.10.1979 by Ms.Janamjeet Kaur. The total monthly rent was Rs. 3,575/-. The period of lease was limited to three years. The terms of lease were reduced into writing on 1.2.1980. On the expiry of the period of lease, the appellant continued to occupy the premises. The suit property was purchased by the appellant from the previous owner i.e. Smt. Janamjeet Kaur, late Sardar Amarjeet Singh and Smt. Depender Kaur. The appellant had attorned respondent/plaintiffs as its landlord. The appellant/defendant continued to occupy the premises even after the expiry of lease. The rate of rent in December, 2009 was Rs. 8,429.63. Respondent had alleged that the tenancy was terminated in December, 2009 vide notice dated 23.12.2009 effective from the midnight of 31.01.2010. As the possession was not delivered, the respondent/plaintiff had filed the aforesaid suit.

3. The appellant/defendant contested the suit by filing written statement wherein the appellant did not dispute the rent agreement dated 1.2.1980. It also did not deny that the respondent had stepped into the shoes of erstwhile owners upon purchase of the suit property by the respondent/plaintiff and that the appellant had been paying rent to the respondent/plaintiff w.e.f. August, 2009 and the rent was increased to Rs. 8,429.63 w.e.f. 16.10.2006. Appellant/defendant in the written statement had denied the receipt of notice of termination of tenancy dated 23.12.2009.

4. Thereupon, the respondent/plaintiff had moved an application under Order 12 Rule 6 read with Section 151 CPC stating therein that the appellant/defendant had admitted the relationship as lessor and lessee between the parties and had also admitted that last paid rent was Rs. 8,429.63 per month. It was further stated in the application that the legal

notice dated 23.12.2009 sent by registered A.D. post and under certificate of posting was duly served upon appellant and the appellant had deliberately denied the receipt of same in the written statement. It was alleged that the legal notice was served upon appellant/defendant on 26.12.2009 and on 29.12.2009 respectively and the same had been confirmed by the postal authorities as having delivered vide their respective certificates dated 03.03.2007 and 04.03.2007. The copies of certificates issued by the postal department had been annexed with the application. It was further alleged that the appellant was month to month tenant and the relationship between the parties came to an end by virtue of notice dated 23.12.2009 as well as by afflux of time as such the decree of possession be passed.

5. The reply to said application was filed by appellant/defendant stating therein that it continued to be a contractual tenant and there is no admission on their part as such the suit could not be disposed of under Order 12 Rule 6 of CPC. Appellant/defendant had denied having received any notice. However, the rate of rent was admitted. The receipt of notice was denied. At the same time, it had taken a stand that the notice was not valid and the same was without any basis and had no meaning in the eyes of law.

6. The suit of the respondent/plaintiff was decreed by Ld. Civil Judge vide judgment/decree dated 15.11.2011 as regards possession of the suit property on the basis of admission by the appellant/defendant under Order 12 Rule 6 of CPC on the ground that existence of relationship of landlord and tenant is admitted and the rent was more than Rs. 3,500/- per month and the tenancy has been duly terminated.

7. The aforesaid judgment/decree of possession was challenged by the appellant/defendant before the learned Addl. District Judge, Delhi by filing an appeal. The appeal was also dismissed vide impugned judgment/decree

dated 01.03.2012 which is challenged by filing the second appeal.

8. It is contended by learned senior counsel appearing for the appellant/defendant that there is no admission on the part of appellant/defendant of having received the notice of termination of tenancy dated 23.12.2009, as such there is no clear admission on the part of the respondent/plaintiff as regards termination of tenancy and as such decree of possession could not have been passed in respect of the suit property in favour of respondent/plaintiff. It is contended that even site plan of suit property is not correct and the impugned decree is liable to be set aside.

9. The learned senior counsel for the respondent/plaintiff has contended that relationship between the parties as lessor and lessee came to an end vide notice dated 23.12.2009 which was sent by registered A.D. post/UPC and the same was duly served upon appellant/defendant and same had been confirmed by Postal Department as such mere denial by appellant/defendant has no meaning. It is further contended that the lease agreement dated 01.02.1980 was an unregistered document and the same was never renewed in writing after 1982. It is contended that both the courts below have rightly passed the decree of possession in favour of respondent/plaintiff. It is contended that no substantial question of law arises in the present appeal.

10. In the present case, the appellant/defendant has admitted the relationship of lessor and lessee between respondent/plaintiff and itself and has also admitted the last paid rent as Rs.8429.63. It is also admitted position that lease agreement dated 01.02.1980 was never renewed in writing after 1982. It is also admitted position that the lease deed was unregistered and the tenancy was month to month basis. It has come on record that notice under Section 106 of Transfer of Property Act, 1882 was sent by the respondent/plaintiff by UPC as well as by regd. A.D post. The finding of

both the courts below show that respondent/plaintiff had placed on record original UPC and registered A.D. receipt and also the original returned A.D. card showing the receipt of notice by the appellant/defendant. It has also been noted that the UPC receipt and A.D. card bear the addresses of the appellant/defendant. It is not the stand of appellant/defendant that the addresses mentioned therein are incorrect addresses. Under these circumstances, it has been rightly held that the notice is presumed to have been duly served upon appellant/defendant. The A.D. card bears a stamp in acknowledgment of receipt of notice. Further, there is letter on record showing that Department of Posts has certified the delivery of notice sent through registered A.D. at the address of the appellant/defendant. It may also be noticed that in reply to application under Order 12 Rule 6, on the one hand, the appellant/defendant is denying having received the notice of termination dated 23.12.2009 and on the other hand, it is disputing the validity of notice of termination of the lease. However, during arguments learned counsel for appellant/defendant failed to substantiate in what manner the notice was invalid.

11. In Nopany Investments (P) Ltd. v. Santokh Singh (HUF); 2008 (II) SCC 728, the Supreme Court has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Even assuming the notice terminating tenancy was not served upon the appellant, as is contended, though it has been served as is noted above, the learned ADJ has rightly held that filing of eviction suit under general law itself is notice to quit on the tenant. The learned ADJ has also placed reliance on M/s Jeevan Diesels & Electricals Ltd. v. M/s Jasbir Singh Chaddha (HUF) & Anr.; 2011 (182) DLT 402 in coming to aforesaid conclusion. The relevant finding of Ld.ADJ is as under:-

"Ld. Trial Court has relied upon a case decided by Hon'ble Supreme Court titled as Nopany Investment (P) Ltd. vs. Santokh Singh (HUF), 2008 (II) SCC 728, wherein Hon'ble Supreme Court has held that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Respondent is also relying upon the said case. On behalf of the respondent, reliance has also been placed on a case decided by the Hon'ble Delhi High Court in M/s Jeevan Diesels & Electricals Ltd. vs. M/s Jasbir Singh Chadha (HUF) & Anr. dated 25.03.2011 in RFA 179/2011, wherein it was held by the Hon'ble Delhi High Court that service of the summons in a suit, with a copy of the notice terminating the tenancy itself is a notice under Section 106 of the Transfer of Property Act. The suit was filed by the plaintiff on 04.02.2010, and summons were served alongwith a copy of the notice dated 23.12.2009 terminating the lease, and that in itself is a sufficient notice terminating the lease, as required under Section 106 of the Transfer of the Property Act. Relationship of landlord and tenant between the parties was admitted and rent payable was admitted to be more than Rs. 3,500/- per month. Notice as required under Section 106 of the Transfer of the Property Act for terminating the service has been given, be it the notice dated 23.12.2009 was received by the appellant or same was to be treated as a notice, when copy of the same was sent alongwith the summons of the suit. There was no error in decreeing the suit of the respondent against the appellant as regards the possession of the suit property under order XII rule 6 CPC."

12. The learned counsel for appellant/defendant has relied upon M/s Jeevan Diesels & Electricals Ltd. v. M/s Jasbir Singh Chaddha (HUF) &

Anr. : 2010(6) SCC 601 to contend that the court can act under Order 12 Rule 6 of CPC only when admission is clear and unambiguous. It is contended that there was no clear admission of termination of tenancy, as such, impugned judgment cannot be upheld. However, the facts of the said case are different and the same has no applicability to the facts and circumstances of the present case. As is noted above, there is clear admission on the part of appellant/defendant as is discussed in preceding paras, the contention raised has no force and is rejected.

13. The other contention raised is that the site plan is not correct and the tenanted premises have been wrongly described. No such objection is taken in the written statement. The possession is sought by the respondent/plaintiff in respect of flat No. G-1, CCI, House No. 87 and the property has been correctly described in the plaint.

In view of the above discussion, no substantial question of law arises which requires consideration of this court.

The appeal stands dismissed. The appellant is given six weeks time to vacate the premises.

CM No. 4879/2012 (stay)

In view of the order on the main appeal, no further orders are required on this application.

The same stands disposed of.

VEENA BIRBAL, J June 1, 2012 ssb/kks