M/S. Precision Steels vs Reeta Salwan
2013 Latest Caselaw 5482 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 27th November, 2013.

+                                RFA 554/2013

       M/S. PRECISION STEELS                       ..... Appellant
                     Through: Mr. Chetan Sharma, Sr. Adv. with
                              Ms. Sangmitra Sawant, Advocate.

                                 Versus

       REETA SALWAN                                       ..... Respondent
                  Through:             Mr. Sanjiv Sindhwani, Sr. Adv. with
                                       Mrs. Renuka Arora and Mr. Kunal
                                       Kohli, Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree (dated 8th November,

2013 of the Court of Additional District Judge (ADJ)-06, West District, Tis

Hazari Courts, Delhi in CS No.139/2012 filed by the respondent/plaintiff)

on admissions, of ejectment of the appellant from property No.104, Rewari

Line Industrial Area, Phase I, also known as Mayapuri Industrial Area,

Phase-I, New Delhi, earlier in the tenancy of the appellant under the

respondent/plaintiff.

2. Though this is a first appeal and comes up for the first time today but

since the counsel for the respondent/plaintiff has appeared on caveat and

this being a dispute between the landlord and tenant regarding vacation of

the premises, the law whereon, owing to long history and plethora of such

litigations, stands crystallized and since copies of the entire trial court

record have been filed along with the memorandum of appeal, with consent,

the counsels have been finally heard on the appeal.

3. The respondent/plaintiff instituted the suit from which this appeal

arises, pleading:

(i) that the respondent/plaintiff is the lessor/owner of the property

to the extent of 1/3rd share therein;

(ii) that the appellant/defendant no.1 M/s. Precision Steels, a

partnership firm of the defendants No.2 to 5 Sh. Deepak Bhasin, Smt.

Sarita Bhasin, Sh. Anshuman Bhasin and Sh. Gagan Bhasin (against

whom also decree for possession has been passed but who have not

joined in filing of the appeal and who are also not impleaded as

respondents) had approached the respondent/plaintiff to lease/let out

2700 sq. ft. of covered area and open space measuring 864 sq. ft. as

well as a garage room measuring 20‟ X 16‟ and the

respondent/plaintiff agreed to let out the said 1/3rd portion of the said

industrial property to the defendants;

(iii) that the respondent/plaintiff through her attorney Ms. Anusuya

Salwan inducted the defendants as the tenant in respect of the said

portion of the property on the monthly rent of Rs.30,000/- vide

registered Lease Deed dated 15th February, 2007 for a period of six

years expiring with the expiry of 14th February, 2013;

(iv) that the period of lease/tenancy expired by the efflux of time on

14th February, 2013 but the defendants did not hand over possession

of the property;

(v) that the possession of the defendants of the property with effect

from 15th February, 2013 was thus illegal and unauthorized;

(vi) that the respondent/plaintiff vide notice dated 14 th January,

2013 had asked the defendants to hand over possession of the

property on the expiry of lease on 14th February, 2013, failing which

the defendants were informed that they shall be liable to pay mesne

profits/damages for use and occupation;

(vii) that the defendants had been irregular in the payment of rent

and rent for the period from 15th November, 2012 to 14th February,

2013 of Rs.90,000/-, was in arrears.

Accordingly, the suit for the relief of recovery of possession of the

tenanted premises, recovery of Rs.90,000/- on account of arrears of

rent and for direction to issue certificates of deduction of tax and for

mesne profits/damages, was filed.

4. The appellant, along with its partners aforesaid, contested the suit by

filing a written statement, on the grounds:

(a) that the suit was not maintainable as it was pleaded, that the

power of attorney in favour of Ms. Anusuya Salwan who had let out

the property as the attorney of the respondent/plaintiff and who had

also instituted the suit and signed and verified the plaint, had been

revoked by the respondent/plaintiff;

(b) that the property aforesaid was an ancestral property and the

respondent/plaintiff was a joint owner of 1/3rd portion of the same,

with her son, who was the owner of remaining 2/3rd portion of the

entire property; however pursuant to the death of the son of the

respondent/plaintiff, no details had been provided with respect to the

person in ownership and possession of the said 2/3 rd portion of the

property;

(c) that no particulars as to how the respondent/plaintiff was the

owner of 1/3rd portion of the property had been pleaded and no

document of ownership had been filed;

(d) that since 1/3rd share of the respondent/plaintiff was undivided,

a proceeding for recovery of possession required the consent of the

other co-owners who were necessary parties to the suit;

(e) that the appellant had initially entered into a Lease Deed dated

24th January, 1992 with the respondent/plaintiff for the portion of the

property in its occupation; the said Lease Deed was renewed several

times and last on 15th February, 2007;

(f) that in terms of the Lease Deed dated 15th February, 2007, the

period of the lease could be extended by mutual consent for another

three years through a separate lease deed;

(g) that even after the expiry of the Lease Deed dated 15th

February, 2007, there had been an understanding between the

respondent/plaintiff and the appellant that the appellant shall continue

in possession of the demised premises as tenant till the time the

appellant wants to and the tenancy was at will;

(h) that the respondent/plaintiff acting with mala fide intention had

got the suit filed for the purpose of harassing the appellant and for

making wrongful gains for herself;

(i) that the Court should examine the respondent/plaintiff under

Order 10 of the Civil Procedure Code (CPC), 1908 in order to

examine as to whether the special power of attorney dated 12 th

November, 2003 had been revoked and whether the

respondent/plaintiff had authorized her attorney to file the present

suit; the said examination of the respondent/plaintiff was necessary in

view of the law laid down by the Supreme Court in Janki Vashdeo

Bhojwani Vs. Indusind Bank Ltd. (2005) 2 SCC 217 to the effect

that attorney cannot depose or give evidence on the basis of facts

within the personal knowledge of the principal;

(j) denying that the respondent/plaintiff was the lessor/owner of

the property;

(k) that on the request of the respondent/plaintiff, the rent was

being paid to her attorney due to internal arrangement between the

respondent/plaintiff and her attorney and the appellant had so paid the

rent to the attorney;

(l) that since the power of attorney in favour of the attorney Ms.

Anusuya Salwan had been cancelled and the respondent/plaintiff had

not herself demanded possession, the appellant was not liable to

deliver possession;

(m) denying that the appellant was liable to pay mesne

profits/damages.

5. The respondent/plaintiff filed an application under Order 12 Rule 6 of

the CPC for a decree for ejectment/possession on admissions. Reply thereto

was filed on behalf of the appellant.

6. The appellant filed an application under Order 11 Rules 1 & 2 of the

CPC for a direction to the respondent/plaintiff to reply to the interrogatory

annexed to the said application.

7. The learned ADJ has by the impugned judgment and decree, allowed

the application of the respondent/plaintiff under Order 12 Rule 6 of the

CPC, finding/observing/holding:

(I) that the appellant had not disputed the execution of the

registered Lease Deed dated 15th February, 2007;

(II) that a bare perusal of the said Lease Deed showed that the said

Lease Deed was executed by the respondent/plaintiff through

the same attorney who had filed the suit and signed and

verified the plaint;

(III) that the said Lease was for a period of six years which was

extendable by mutual consent for another three years through

separate lease deed;

(IV) that Clauses 20 & 21 of the Lease Deed made it clear that the

expression „lessor‟ used in the Lease Deed, would mean the

attorney of the respondent/plaintiff and all the correspondence

pertaining to the lease shall be made by the attorney only;

(V) that the appellant had not challenged any clause of the Lease

Deed either during the subsistence of the Lease Deed or even

thereafter;

(VI) that thus the relationship of landlord and tenant was established

between the parties;

(VII) that though the appellant had pleaded that the power of attorney

in favour of the attorney had been revoked but neither in the

written statement nor in the reply to the Order 12 Rule 6

application, the appellant had stated that as to when it came to

know about this fact and when the power of attorney was

revoked as per its knowledge;

(VIII) that the respondent/plaintiff had filed on record number of

cheques issued by the appellant in the name of the attorney of

the respondent/plaintiff towards payment of rent with the last

of the said cheques being dated 15th August, 2012 and which

showed that the appellant never disputed the status of the

attorney of the respondent/plaintiff;

(IX) that merely by raising a vague plea, the appellant cannot

dispute the jural relationship of landlord and tenant which

stood established from the registered Lease Deed admitted by

the appellant also;

(X) that it was also not in dispute that the rent was more than

Rs.3,500/- per month and that the tenanted premises was

outside the Delhi Rent Control Act, 1958;

(XI) that the respondent/plaintiff had along with the suit filed copy

of the legal notice dated 14th January, 2013 along with original

postal receipts and courier receipts;

(XII) that though the appellant had taken a plea of an understanding

between the parties, after the expiry of the Lease Deed, that the

tenancy shall be in the form of „tenancy at will‟ but in view of

written and registered Lease Deed, the said defence was not

admissible in evidence; Clause 2 of the Lease Deed expressly

stated that the lease was for a period of six years and the period

may be extended by mutual consent for another three years

through a separate lease deed; admittedly, no fresh lease deed

had been executed;

(XIII) that the lease stood determined with efflux of time on 14th

February, 2013 and no notice of termination of tenancy was

required under law;

(XIV) that even if it were to be held that service of a notice on

termination of tenancy was essential, the Supreme Court in

Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF)

(2008) 2 SCC 728 had held that filing of the suit is itself a

notice to quit on the tenant and therefore, no notice to quit,

under Section 106 of the Transfer of Property Act, 1882 is

necessary to enable the landlord to get the decree for

possession. Reliance in this regard was also placed on the

judgment of this Court in Jeevan Diesels & Electricals Ltd. Vs.

M/s. Jasbir Singh Chadha (HUF) 182 (2011) DLT 402;

(XV) that the plea of the appellant of the property being a joint

property and the respondent/plaintiff having only 1/3 rd share

therein, was also without any merit as even a single co-owner

could file and maintain a suit for ejectment against the tenant.

8. Before noticing the contentions of the appellant in this appeal, I may

state that as aforesaid, the partners of the appellant were impleaded as

defendants No.2 to 5 to the suit but they have neither joined in this appeal as

appellant nor have been impleaded as respondents. All the parties to the suit

are required to be parties to the appeal and the appeal is defective for this

reason alone.

9. I may further record that though the appellant who was the defendant

No.1 in the suit was in the plaint described as a partnership firm of the

defendants No.2 to 5 and this fact was not disputed in the written statement

but in the memorandum of parties of this appeal, the appellant is described

as having its registered office and represented by its Managing Director, Sh.

Deepak Bhasin who was defendant No.2 in the suit. The expressions

„registered office‟ and „managing director‟ are used in the context of an

incorporated company under the Companies Act, 1956 and not in the

context of a partnership firm. The name of the appellant is described as

M/s. Precision Steels only without the suffix of „limited‟ or „private limited‟

and there is thus an anomaly in the memorandum of parties to this appeal.

10. The senior counsel for the appellant has started his argument by

contending that the learned ADJ has erred in relying upon the judgment of

this Court in Jeevan Diesels & Electricals Ltd. Supra, which has been

overruled by the Supreme Court in the judgment by the same name reported

as (2010) 6 SCC 601.

11. There is however no merit in the said argument.

12. The learned ADJ has relied upon the judgment of this Court in

Jeevan Diesels & Electricals Ltd. supra to hold that even if a notice of

termination of tenancy was required to be issued and had not been issued,

the same would be irrelevant since the tenancy even if not terminated by a

notice of termination, stands terminated on the filing of the suit. However,

this was only an alternative reasoning given by the learned ADJ. The first

reasoning was that the lease in the present case being for a definite period

under a registered lease deed, which had expired by efflux of time, no

termination by a notice was needed.

13. It is not in dispute that the registered Lease Deed dated 15 th February,

2007 was, as per Clause 2 thereof, "for a period of six years (the period)

w.e.f. 15th February, 2007 and expiring on 14th February, 2013 (both days

inclusive)". Section 111 of the Transfer of Property Act lists several modes

of determination of lease, one of which is by efflux of time limited thereby

and another is on the expiration of a notice to determine the lease given by

one party to the other. The suit was filed on the plea of the determination of

the lease by efflux of time and which plea was not disputed. The notice

dated 14th January, 2013 pleaded was only by way of reminder to the

appellant tenant of its obligation to so vacate the premises. Thus, the

overruling by the Supreme Court of the judgment of this Court in Jeevan

Diesels & Electricals Ltd. supra is of no avail.

14. Moreover, the judgment of this Court in Jeevan Diesels & Electricals

Ltd. supra was relied upon by the learned ADJ to observe that the tenancy

stands terminated on the filing of the suit. It was not as if, this Court in

Jeevan Diesels & Electricals Ltd. supra had laid down the said principle for

the first time. In fact, the said principle was laid down by the Supreme

Court in Nopany Investments (P) Ltd. supra. The senior counsel for the

appellant agrees that the Supreme Court while overruling the judgment of

this Court in Jeevan Diesels & Electricals Ltd. supra has not held the said

proposition by law to be bad and has not even adverted to the earlier

judgment in Nopany Investments (P) Ltd. supra. A judgment is a

precedent, not on its facts but on the ratio laid down therein.

15. The senior counsel for the appellant faced with the aforesaid has not

pressed this argument further and has moved on to his next contention.

16. The second and only other contention of the senior counsel for the

appellant is that the learned ADJ has shown undue haste in passing a decree

for ejectment on admissions without trial. It is contended that a reading of

the written statement of the appellant does not show any admission having

been made; on the contrary, the appellant has taken the plea of, (A) tenancy

being at will; (B) power of attorney of the attorney of the

respondent/plaintiff having been cancelled; (C) oral understanding between

the parties; (D) the respondent/plaintiff being not the owner of the property.

Reliance in this regard is placed on Smt. Radha Lal Vs. M/s. Jessop &

Company AIR 1992 Delhi 331, Muthukaruppan @ Velayutham Vs.

Deivathediya Pillai MANU/TN/1247/1999 and Himani Alloys Ltd. Vs.

Tata Steel Ltd. (2011) 7 SCALE 566. It is argued that the appellant ought

not to be so summarily ejected from the premises in its tenancy since the

year 1992, without trial.

17. Such arguments are usually made by counsels for tenant, to

delay/defer the evil day of leaving the premises in their occupation,

knowing fully well that once a matter is put to trial, the Courts being

burdened with matters several times more than their capacity, trial takes

long.

18. It is not as if the CPC requires all matters to be decided only after

trial, unless admissions are made. Order XIV of the CPC requires the Civil

Court, after the pleadings have been completed, to frame issues. Such

issues are to be framed on material propositions of law or fact which a

plaintiff must allege in order to show a right to sue or a defendant must

allege in order to constitute his defence. Order XV of the CPC prescribes

the course of action to be followed where the parties are found not at issue

on any question of law or of fact and requires the Court to at once

pronounce judgment.

19. I have thus put to the senior counsel for the appellant/defendant,

whether not, irrespective of whether admissions had been made by the

appellant/defendant or not, the Court is entitled to see whether the pleas

aforesaid of the appellant raised any material proposition of law or fact in

order to constitute a defence and if not, whether the Court is not entitled to

pass a decree even under Order XV of the CPC.

20. Attention of the senior counsel for the appellant is also invited to

Abdul Gafur Vs. State of Uttarakhand (2008) 10 SCC 97, T.

Arivandandam Vs. T.V. Satyapal (1977) 4 SCC 467 and the Division

Bench judgment of this Court in P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain

Mittal 166(2010) DLT 84 laying down that if on a meaningful, not formal

reading, the pleading is found to be manifestly vexatious and meritless, not

disclosing a right to sue or defend and implausible, the court should exercise

its powers and should not allow it to create an illusion and such defences

should not be needlessly permitted to go to trial. It was enquired, whether

mere clever drafting by Advocates can compel the Courts to put the suit to

trial and whether not the court is entitled to not see through and clear the

maze sought to be raised and see what the real defence is.

21. No answer has been forthcoming from the senior counsel for the

appellant/defendant who merely keeps repeating that the suit should be put

to trial.

22. I will in the aforesaid light, proceed to consider whether the pleas

aforesaid of the appellant/defendant raise any issue of law or fact.

23. As would be apparent from the narrative of the written statement of

the appellant/defendant, the appellant/defendant has not denied the

registered Lease Deed dated 15th February, 2007. The same has been

executed by the respondent/plaintiff through the same attorney who has

instituted the suit and signed and verified the plaint on behalf of the

respondent/plaintiff. The senior counsel for the appellant/defendant also

admits that the rent till the end was paid to be respondent/plaintiff through

the same attorney.

24. It has as such been enquired as to on what basis/fact/development the

plea, of Ms. Anusuya Salwan being no longer the attorney of the

respondent/plaintiff, has been taken. No particulars have been given in the

written statement. The senior counsel for the appellant is unable to even

today inform the basis on which the plea, of the power of attorney having

been cancelled, has been taken.

25. It is thus clear that the plea of cancellation by respondent/plaintiff of

power of attorney is a vague plea, merely to put the respondent/plaintiff to

proof. A pleading is to contain material particulars and denial has to be

specific (Order VI and Order VIII Rules 2 to 5) and not evasive. When the

appellant/defendant entered into lease deed with respondent/plaintiff

through same attorney and dealt in relation to tenancy premises till

institution of the suit with the respondent/plaintiff through the same

attorney, for the appellant/defendant to plead cancellation of power of

attorney, the appellant/defendant was required to plead knowledge of such

cancellation, else the said plea would not be considered material, so as to

invite an issue. I have recently in Kawal Sachdeva Vs. Madhu Bala Rana

MANU/DE/1050/2013 dealt in detail on the said subject and thus do not

feel the need to elaborate further.

26. I may notice that the appellant/defendant in its written statement, in

para 9, has in fact by pleading as under:

"9. That acting with malafide intention, the Plaintiff through its alleged Power of Attorney Holder has got the present suit filed against the Defendants for the purpose of harassing the Defendants and for making wrongful gains for herself."

admitted that the power of attorney was valid till the institution of the

suit.

27. As far as the plea, challenging the ownership of the

respondent/plaintiff is concerned, it is the settled position in law that in a

suit between a landlord and tenant, it is only title as landlord which is

relevant and not the title as owner. As far back as in Shri Ram Pasricha

Vs. Jagannath (1976) 4 SCC 184, it was held that under the general law, in

a suit between landlord and tenant, the question of title to the lease property

is irrelevant. Recently also in State of Andhra Pradesh Vs. D. Raghukul

Prasad (2012) 8 SCC 584, it was held that relief of eviction of a tenant is

not based on the title of the landlord to the leased premises and even if an

averment to the said effect, of landlord being owner, is made in the plaint, as

long as no relief of declaration of title is claimed and only the relief of

eviction of tenant on the ground that lease has come to an end is claimed,

the Court is not called upon to decide the question of title.

28. I have enquired from the senior counsel for the appellant/defendant as

to how, the plea of the tenancy being at will, arises when the admitted

registered lease deed is for a definite term expiring on 14 th February, 2013.

Section 92 of the Indian Evidence Act, 1872 bars admission into evidence of

any plea contradicting or varying the terms of any contract required by law

to be reduced in the form of a document and which document has been

proved in accordance with law. The registered lease deed by admission

stands proved, the appellant cannot seek to go to trial to contradict the terms

thereof.

29. Yet again, no answer is forthcoming.

30. The same is the position with respect to the plea of lease having been

extended by mutual consent after the expiry of term thereof on 14.02.2013.

It is worth mentioning that the suit from which this appeal arises was

instituted on 05.03.2013. No particulars have been given as to when the

extension was agreed and between whom and why no lease deed was

executed as was agreed to be executed in the event of parties mutually

agreeing.

31. As far as the judgments relied upon by the appellant/defendant are

concerned, they are of a bygone era and the appellant/defendant

intentionally chooses to ignore the recent trend of judgments, and which

practise is not expected from the senior counsels of this Court.

32. The senior counsel for the appellant/defendant, after having failed to

convince this Court, stated that time of two years be granted to the appellant

to vacate the premises. It is stated that the appellant is willing to give an

undertaking to this Court to the said effect.

33. The senior counsel for the respondent/plaintiff at the outset stated that

the appellant being in arrears of rent of even the admitted amount, is not

entitled to any discretion. He also contended that the respondent/plaintiff

has let out the adjoining portion of the property of nearly the same size at a

rent of Rs.1,50,000/- per month and would consider the request for grant of

time only if the appellant is willing to pay mesne profits/damages for use

and occupation for such time on the prevalent market rate.

34. The matter was thus passed over to enable the counsel for the

appellant to take instructions.

35. The counsel for the appellant has however informed that the appellant

is not willing to the aforesaid.

36. Resultantly, the appeal is dismissed on merits, leaving the parties to

bear their own costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 27, 2013 bs..