Rajesh Jain & Anr vs Virender Kumar Bagla
2012 Latest Caselaw 1794 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.71/2012

%                                                    15th March, 2012

         RAJESH JAIN & ANR                               ..... Appellants
                       Through:          Ms. Kumkum Jain, Adv.


                      versus


         VIRENDER KUMAR BAGLA                          ..... 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 of the Trial Court dated 31.10.2011 decreeing the suit

of the appellants/plaintiffs/landlords towards arrears of rent and future rent

at the admitted rate, however, the suit was dismissed so far as the relief of

possession is concerned.

2. The facts of the case are that the suit premises consisting of

the mezzanine floor having an area of approximately 40 sq. yds. in the built

up property bearing Municipal No. 88, Ward No. IV, Corner Dariba Kalan,

Chandni Chowk, Delhi-110006 was let out to the respondent/defendant on

a monthly rental of Rs.28,000/- under a lease deed dated 31.12.2008 for a

period of two years. The lease was an unregistered lease. As per para 11

of the lease deed, the premises could be vacated on the

appellants/plaintiffs/landlords serving the respondent/defendant/tenant with

a two months' notice. The appellants/plaintiffs/landlords alleged that the

respondent/defendant/tenant was a chronic defaulter in payment of rent and

an amount of Rs.42,000/- was due being the rent from March, 2010. The

lease was terminated by means of two legal notices dated 12.2.2010 and

3.3.2010, whereafter, the subject suit for possession, recovery of arrears of

rent and mesne profits was filed.

3. The defendant/respondent appeared and filed his written

statement. The relationship of landlord and tenant was not disputed and

nor the monthly rent was disputed. It was pleaded that lease had not come

to an end, as the same was expiring only on 31.12.2010, and therefore, the

suit, filed on 14.5.2010 was said to be not maintainable.

4. After completion of pleadings, the Trial Court framed the

following issues:

"Issues

1. Whether the plaintiff is entitled for possession of the suit property against the defendant in terms of prayer (i) of the plaint? OPP.

2. Whether the plaintiff is entitled for the recovery of arrears of rent, water charges and mesne profits in terms of prayer (ii), (iii) and (iv) of the plaint? OPP.

3. Whether there is no cause of action in the suit? OPD.

4. Relief, if any."

5. During the course of trial, the respondent/defendant stopped

appearing in Court and was proceeded ex parte on 10.12.2010 by the Trial

Court. There is therefore no evidence on behalf of the

respondent/defendant.

6. The appellants/plaintiffs filed their evidence by way of

affidavit and which was exhibited as Ex.PW1/A. The witness exhibited the

following documents:-

"1. Ex.PW-1/1 is the site plan.

2. Ex.PW-1/2 is the lease deed.

3. Ex.PW-1/3 to 14 are the photocopies of cheques and police complaints.

4. Ex.PW-1/15 is the legal notice dated 12.02.2010 and its UPC and registered slip are Ex.PW-1/15 A and 15B.

5. Ex.PW-1/6 is the legal notice dated 03.03.2010 and its UPC and registered Slip are Ex.PW-1/16 A and 16B.

6. Ex.PW-1/17 is the reply dated 17.02.2010."

7. The documents of title of the property in favour of the

appellants/plaintiffs being the gift deed and sale deeds were exhibited as

Ex.PWA1/A (Colly.).

8. The Trial Court has dismissed the suit for possession on the

ground that there could not be established by the

appellants/plaintiffs/landlords any default in payment of rent. The

judgment of the Trial Court is dated 31.10.2011, and admittedly, the

admitted lease term of two years came to an end earlier on 31.12.2010, i.e.

the judgment has been passed after the expiry of the lease period of two

years.

9. In my opinion, the Trial Court has gravely erred in dismissing

the suit for possession, inasmuch as the Trial Court ought to have taken

note of Order 7 Rule 7 CPC, and as per which, Courts are entitled to take

notice of subsequent events. As already stated, the lease period expired on

31.12.2010, and therefore, with effect from 1.1.2011, the

respondent/defendant had no entitlement to continue in the suit premises.

As already stated, the respondent/defendant was ex parte and had led no

evidence. I may finally add that the lease deed was in fact an unregistered

lease deed and therefore since the tenancy was a month-to-month tenancy,

it could be terminated by a legal notice under Section 106 of the Transfer

of Property Act, 1882. Notices for termination of tenancy were served

upon the respondent/defendant and which have been exhibited as

Ex.PW1/15 and Ex.PW1/16 along with the registered postal slips which are

exhibited as Ex.PW1/15A & 15B, and Ex.PW1/16A & 16B.

10. In view of the above, the appeal is accepted. The

appellants/plaintiffs/landlords are granted a decree for possession of the

suit premises which is shown as red in the site plan, Ex.PW1/1 and which

premises are mezzanine floor having an area of approximately 40 sq. yds.

in the built up property bearing Municipal No. 88, Ward No. IV, Corner

Dariba Kalan, Chandni Chowk, Delhi-110006. The appellants/plaintiffs

will also be entitled to costs of this appeal. Appeal is allowed and disposed

of accordingly. Trial Court record be sent back.

                                             VALMIKI J. MEHTA, J
MARCH        15, 2012
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