Harvinder Singh vs M/S Paradise Towers Pvt. Ltd. & Anr
2013 Latest Caselaw 336 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 23rd January, 2013

+                      CS(OS) No.3260/2011
                                   &
IA Nos.20819/2011 (of the plaintiff u/O 39 R-1&2 CPC), 8736/2012 (of
the defendant No.2 u/O 39 R-4 CPC), 8739/2012 (of the defendant No.2
u/O 7 R-11 CPC) and 13245/2012 (of the plaintiff u/O 8 R-10 CPC)

       HARVINDER SINGH                                      ..... Plaintiff
                    Through:              Mr. Sudhir Nandrajog, Sr. Adv. with
                                          Mr. H.S. Kohli, Adv.

                                       Versus

    M/S PARADISE TOWERS PVT. LTD. & ANR. ..... Respondents

Through: Mr. Kuljeet Rawal, Adv. for D-2.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The plaintiff has filed this suit, pleading (insofar as relevant for the

present purpose):

(i) that he purchased the First Floor together with constructed

portion above the First Floor of property No.8, Shaheed Bhagat

Singh Marg, Gole Market, New Delhi from the defendant No.2

M/s AJS Builders Pvt. Ltd. for a consideration of

Rs.2,25,00,000/- vide registered Sale Deed dated 15.12.2009;

(ii) that at the time of the said sale, the constructed portion above

the First Floor (i.e. on the Second Floor) of the property was in

the possession of the defendant No.1, as a tenant on a monthly

rent of Rs.1,10,000/-, and the plaintiff was accordingly handed

over constructive / symbolic possession thereafter;

(iii) that though the defendant No.1 paid rent to the plaintiff for a

period of two months but stopped paying rent thereafter;

(iv) that shortly after the sale, the staff of the defendant No.2 started

operating from the said tenanted portion;

(v) that the plaintiff vide notice dated 14.05.2011 terminated the

tenancy of the defendant No.1 with effect from 15.07.2011 and

also demanded arrears of rent etc.

The plaintiff has thus sued for:

(I) recovery of arrears of rent of Rs.17,60,000/-;

(II) recovery of possession of the tenanted premises:

(III) recovery of pendente lite and future mesne profits with

interest;

(IV) injunction restraining the defendants from parting with

possession of the tenanted portion;

2. Summons of the suit and notice of the application for interim relief

were issued and vide ex parte ad-interim order dated 22.12.2011 the parties

were directed to maintain status quo with respect to title and possession of

the tenanted portion. A Local Commissioner was also appointed to, after

giving notice to the defendants, visit the property and to report as to who is

in possession of the First and Second Floors of the aforesaid property.

3. Report dated 02.01.2012 has been filed by the Local Commissioner to

the effect that the First Floor is in possession of the plaintiff and one hall on

the Second Floor is in possession of the defendants and the two small rooms

and the open terrace are in possession of the plaintiff.

4. Though IA No.3241/2012 (under Order 39 Rule 4 of the CPC) was

filed by the defendants and notice whereof was issued on 21.02.2012 but no

written statement was filed inspite of repeated opportunities. Another

application being IA No.8736/2012 (also under Order 39 Rule 4 of the CPC)

was filed by the defendant No.2 and vide order dated 08.05.2012 thereon,

the IA No.3241/2012 was dismissed as withdrawn and the plaintiff was

restrained from creating any hindrance in the enjoyment by the defendant

No.2 of the Second Floor of the property.

5. The appearance thereafter of the advocate on behalf of defendants is

on behalf of defendant No.2 only. The advocate for the defendant No.2 on

24.07.2012 accepted notice of IA No.13245/2012 of the plaintiff under

Order 8 Rule 10 of the CPC. No reply however was filed to the said

application also and last opportunity for the said purpose was granted on

31.10.2012.

6. Till date no written statement has been filed. In fact, the right of both

the defendants to file the written submissions was also closed vide order

dated 21.08.2012 of the Joint Registrar and the application of the plaintiff

under Order 8 Rule 10 placed before the Bench for appropriate orders.

7. A new counsel Mr. Kuljeet Rawal Advocate, today appears for the

defendant No.2 and seeks adjournment to move appropriate applications

along with written statement.

8. The senior counsel for the plaintiff opposes and seeks consideration of

his application under Order 8 Rule 10 of the CPC.

9. The defendants, first appeared before this Court on 25.01.2012. One

year has passed since then. The written statements have not been filed since

then inspite of repeated opportunities. It is as such not deemed expedient to

adjourn the matter today and the senior counsel for the plaintiff and the

counsel appearing for the defendant No.2, to the extent permissible, have

been heard on the application under Order 8 Rule 10 of the CPC.

10. It has at the outset been enquired from the senior counsel for the

plaintiff as to whether the application under Order 8 Rule 10 of the CPC can

be considered vis-à-vis the relief claimed of possession only inasmuch as it

is felt that as far as the reliefs of recovery of arrears of rent and mesne profits

/ damages for use and occupation are concerned, evidence would be

required.

11. The senior counsel for the plaintiff states that considering the financial

health of the defendants, the possibility of execution of any money decree

against the defendants even if obtained by the plaintiff is remote and the

plaintiff as such gives up the other reliefs and seeks a decree under Order 8

Rule 10 of the CPC for recovery of possession only.

12. As far as the claim of the plaintiff for possession is concerned, the

same is as a landlord. This Court is of the considered opinion that there is

sufficient material before this Court for passing a decree for possession in

favour of the plaintiff as a landlord, without requiring the plaintiff to lead

any evidence. Though the counsel for the defendant No.2 has referred to

Balraj Taneja Vs. Sunil Madan AIR 1999 SC 3381 (para 29) to contend

that the Court should be a little cautious in proceeding under Order 8 Rule

10 CPC and must see that even if the facts set out in the plaint are treated to

have been admitted, whether a judgment could possibly be passed without

requiring the plaintiff to prove any fact mentioned in the plaint and has

argued that there is nothing to show that the defendant No.1 had attorned the

plaintiff as landlord or had paid rent for two months to the plaintiff as

pleaded by the plaintiff but I am of the view that the facts which the

defendants in their application under Order 39 Rule 4 have not controverted

and which the counsel for the defendant No.2 even now is not controverting,

are borne out from the documents on record and on the basis whereof a

decree for ejectment under Order 8 Rule 10 can be passed. Rather, I have

asked the counsel for the defendant No.2 that if in these facts also, Order 8

Rule 10 cannot be invoked, in which facts it possibly can. The counsel has

been unable to answer.

13. The claim of the plaintiff as landlord is on the basis of a registered

Sale Deed executed by the defendant No.2 in favour of the plaintiff and the

execution whereof is not denied by the defendant No.2 also. The said Sale

Deed is also with respect to the tenanted portion and describes the defendant

No.1 as a tenant therein. Though it is the plea of the defendant No.2 in the

application under Order 39 Rule 4 CPC and as argued today also by the

defendant No.2 that the said Sale Deed was in lieu of other transactions

between the parties and that no sale consideration as mentioned therein was

paid but the said averments are directly in contravention of the contents of

the registered document and inadmissible in evidence under Sections 91 and

92 of the Evidence Act, 1872.

14. As far as the argument of the counsel for the defendant No.2 of the

plaintiff being required to prove attornment by the defendant No.1 in favour

of the plaintiff and payment of rent by the defendant No.1 to the plaintiff are

concerned, once a title in the property (in occupation of tenant) is conveyed

and which as aforesaid has been conveyed vide the registered Sale Deed, the

coming into existence of relationship of landlord and tenant between the

purchaser and the tenant in occupation of the property sold / conveyed is not

dependent upon attornment by the tenant of such purchaser as landlord.

Reliance in this regard, if any required, can be placed on Nalakath

Sainuddin Vs. Koorikadan Sulaiman (2002) 6 SCC 1, Mahendra

Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogul (1997) 5 SCC 329

and Mohar Singh Vs. Devi Charan (1988) 3 SCC 63 laying down that on

such transfer of the tenanted premises by the landlord, the transferee

automatically becomes the landlord of the tenant by operation of law and the

coming into being of the relationship of landlord and tenant between the

transferee and the tenant is not dependent upon any overt act on the part of

the tenant. In this light of the matter, the question, whether the defendant

No.1 paid any rent for two months or not as pleaded by the plaintiff, also

becomes irrelevant.

15. The counsel for the defendant No.2 has also pleaded that there is

nothing to show that the rate of rent was Rs.1,10,000/- as pleaded by the

plaintiff. However in view of the plaintiff having given up the claim for

recovery of arrears of rent and mesne profits, the same is irrelevant. The

counsel for the defendant No.2 states that if the rent is less than Rs.3,500/-,

this Court would not have jurisdiction. In this regard, it is significant to note

that the application being IA No.3241/2012 under order 39 Rule 4 CPC is

filed on behalf of both the defendants by the same Advocate and in which

the plea is that it is in fact the defendant No.2 who has been and is in

possession of the tenanted premises and the tenancy of the defendant No.1 is

denied. However, the said plea is diametrically opposite to the version of

the defendant No.2 in the registered Sale Deed where tenanted premises is

described as in the tenancy and possession of the defendant No.1 and the

defendant No.2 has delivered constructive possession thereof to the plaintiff.

There is also no denial in the said application under Order 39 Rule 4 of the

rate of rent being Rs.1,10,000/- per month. Moreover, I am of the opinion

that no useful purpose will be served even if the plaintiff is to be directed to

lead ex parte evidence. The same will only bring forth another affidavit by

way of examination-in-chief, of the rate of rent being Rs.1,10,000/-. The

plaintiff has already affirmed the said fact in the affidavit accompanying the

plaint. It is thus not as if there is no affidavit of the plaintiff to the effect that

the rent is Rs.1,10,000/-.

16. There is another aspect of the matter; the purchase of the property by

the plaintiff vide registered Sale Deed is of the year 2009 and for a sale

consideration of Rs.2,25,00,000/-. It is against the grain of logic that such

sale consideration would be paid for a property, part whereof is let out at less

than Rs.3,500/- per month. It is also admitted in the application under

Order 39 Rule 4 CPC that the control of the defendant No.1 Company is

with the same persons / family members who control the defendant No.2

Company. In fact, in the application it is also pleaded that the defendant

No.2 itself had no title to the Second Floor, which could be conveyed vide

Sale Deed aforesaid to the plaintiff. Once it is the stand of the defendant

No.2 that the defendant No.2 had no right also to the

Second Floor which had vide registered Sale Deed been conveyed to the

plaintiff, it does not lie in the mouth of the defendant No.2 to contend that

the plaintiff while asserting rights as landlord under the said Sale Deed

should lead evidence to prove the rent being as pleaded by the plaintiff.

17. The only other question to be considered is as to whether any

evidence is required to be led on the aspect of determination of tenancy. The

plaintiff, along with the plaint has filed office copy of the legal notice dated

14.05.2011 of determination of tenancy bearing the signatures of the counsel

for the plaintiff as well as the original postal receipts under which the same

was sent by registered post AD to the defendants and the AD Cards bearing

signatures and acknowledgment returned to the Advocate for the plaintiff.

Moreover, Division Benches of this Court in Shri Ram Pistons and Rings

Ltd. Vs. C.B. Agarwal HuF MANU/DE/2381/2008 and International

Building & Furnishing Co. Pvt. Ltd. Vs. Life Insurance Corporation of

India MANU/DE/3398/2012 have held that the institution of a suit for

ejectment itself amounts to determination of tenancy. The present suit has

remained pending for consideration for the last over one year and the

question of the date of determination of tenancy is not relevant as the

plaintiff has already given up the claim for mesne profits. Thus it can safely

be concluded that the tenancy stands determined.

18. The plaintiff is thus found entitled to a decree for ejectment of the

defendant No.1 tenant and anyone else in possession of the portion shown as

'A-2' in the site plan accompanying the Sale Deed executed by the

defendant No.2 in favour of the plaintiff and filed along with the plaint and a

decree for possession is accordingly passed in favour of plaintiff.

Decree sheet be drawn up.

In the circumstances, no costs.

RAJIV SAHAI ENDLAW, J JANUARY 23, 2012/'gsr'