Ms. Minakshi Arora vs Sh. Umesh Kumar Batra
2014 Latest Caselaw 1786 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No. 114/2013

%                                                     2nd April, 2014

MS. MINAKSHI ARORA                                          ..... Appellant
                 Through:                Appellant in person.

                           Versus


SH. UMESH KUMAR BATRA                                      ..... Respondent

                 Through:                Mr. J.K. Chawla, Advocate with Ms.
                                         Shisba Chawla, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Second Appeal under Section 100 of Code of Civil

Procedure, 1908 (CPC) is filed against the concurrent judgments of the

courts below; of the trial court dated 23.5.2012 and the first appellate court

dated 1.3.2013; by which the suit of the respondent/plaintiff /landlord has

been decreed with respect to entire third floor of the property being House

no.147, Partap Nagar, Mayur Vihar-I, Dehi-91.

2. The facts of the case are that the appellant/defendant/tenant

took a portion on rent of third floor comprising of two bed rooms, one

drawing-cum-dining room, one kitchen, one toilet-cum-bathroom at a rent of

Rs.9,000/- per month for a period of 11 months w.e.f 20.2.2009 to 19.1.2010

in terms of the rent agreement dated 20.2.2009. Subsequently in the month

of November, 2009, one room with attached toilet-cum-bathroom was taken

in substitution of the first tenancy portion, however, the

appellant/defendant/tenant continued in possession of the old area as also the

new area of one room on the third floor of the same property. Effectively

the appellant/defendant/tenant was in possession thereof of the entire third

floor of the property bearing house no.147, Pratap Nagar, Mayur Vihar,

Phase I, Delhi. The subject suit came to be filed after legal notice dated

1.6.2010, Ex.PW1/J (postal receipts are Ex.PW1/K to Ex.PW1/L) was

served upon the appellant terminating the monthly tenancy.

3. In the city of Delhi, premises whose rents are more than

Rs.3,500/- per month, the tenancy can be terminated by serving a notice

under Section 106 of the Transfer of Property Act, 1882 and thereafter the

suit for possession can be filed in the civil court inasmuch as where premises

whose rent is more than Rs.3,500/- per month do not have protection of the

Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'). In the

present case, under the first rent agreement dated 20.2.2009, Ex.PW1/H ,

was Rs.9,000/- per month. For the second tenanted portion of one room, the

rent was Rs.3,850/- per month in terms of the second rent agreement dated

1.12.2009, Ex.PW1/I. Therefore the premises are outside the protection of

the Act and whose tenancy had been duly terminated by a legal notice dated

1.6.2010, Ex.PW1/J.

4. In the written statement filed by the appellant there is no

dispute that there exist a relationship of landlord and tenant. Also, there is

no dispute with respect to the rate of rent, and which in any case is proved in

terms of two rent agreements Ex.PW1/H and Ex.PW1/I. Notice terminating

tenancy is also duly proved as Ex.PW1/J with postal receipts Ex.PW1/K to

Ex.PW1/L. So far as service of notice terminating tenancy, the law in Delhi

is now well settled in terms of the judgment of this Court in the case of M/s.

Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF)

and Anr. (2011) 183 DLT 712 which holds that in view of amended Section

106 of the Transfer of Property Act, 1882; object of which is to do away

technical defences of illegal termination of tenancy; service of summons of

the suit can also be treated as a notice terminating tenancy under Section 106

of the Transfer of Property Act, 1882. Para 7 of the judgment in the case of

M/s. Jeevan Diesels and Electricals Limited (supra) is relevant and the

same reads as under:-

"7. The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:-

(i) The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4 to Ex.PW1/6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.7.2006 was duly served upon the appellant resulting in termination of the tenancy.

(ii) The Supreme Court in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.

(iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and

partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 CPC can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises.

(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex.PW1/3 is that the respondents/plaintiffs admittedly filed a copy of this notice alongwith the suit way back in the year 2007. Once the summons in the suit alongwith documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial

Court."

An SLP against the said judgment being SLP No.15740/2011 has been

dismissed by the Supreme Court on 7.7.2011.

5. In view of the above, no question of law, much less a substantial

question of law arises, and therefore the appeal is dismissed, leaving the

parties to bear their own costs.

APRIL 02, 2014                                  VALMIKI J. MEHTA, J.
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