Om Parkash Deceased Through Lrs. vs Maha Singh Deceased Through Lrs.
2014 Latest Caselaw 2076 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No. 194/2001

%                                                   25th April, 2014

OM PARKASH DECEASED THROUGH LRS.            ..... Appellants
                Through: Mr. P.S. Vats, Mr. Manish Vats,
                         Advocates.

                           Versus

MAHA SINGH DECEASED THROUGH LRS.                          ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM 18106/2012 (for restoration of appeal)

For the reasons stated in the application, the same is allowed and

the appeal is restored to its original number.

CM stands disposed of.

RSA No. 194/2001

1. This first appeal is filed against the concurrent judgments of the

courts below; of the trial court dated 9.2.2001 and the first appellate

court dated 10.8.2001; by which the suit of the

respondent/plaintiff/landlord for possession and mesne profit has been

decreed with respect to shop bearing no. 3, Ground Floor in the property

bearing no. 530/5 Nai Basti, Najafgarh Road, near Punjab National

Bank, Village Nangloi Jat, Delhi shown in red colour in the site plan Ex.

PW-1/1.

2. There were two basic defences urged by the

appellants/defendants/tenant for seeking dismissal of the suit. The first

defence is that the suit for possession was barred in the civil court by

virtue of Section 185 of the Delhi Land Reforms Act, 1954 and since

this Act governed the property in question, therefore, the suit had to be

filed before the Revenue Assistant under the Act. The second defence

was that the lease granted was a lease for manufacturing purposes, and

therefore, the lease could have been terminated only by a six months

notice but lease was terminated by 15 days notice and consequently the

suit for possession is liable to be dismissed.

3. So far as the aspect that the suit for possession had to be filed

before the Revenue Assistant under the Delhi Land Reforms Act and not

in the civil court is concerned, in the trial court this defence was sought

to be argued on the basis of Section 84 of the Delhi Land Reforms Act.

Both the trial court and the first appellate court has held that Section 84

of the Act only applies to a situation where the defendant is in illegal

possession/is a trespasser, but in the present case since the defendants

were tenants, Section 84 of the Delhi Land Reforms Act did not apply. I

completely agree because a reading of the Section 84 shows that it only

applies for a suit against a trespasser. In any case, as has been held by

the first appellate court, the ejectment proceedings for land has to be for

un-constructed land for Section 84 to apply, and since in the present case

there is no un-constructed land but what is let out is a shop, the

provisions of Delhi Land Reforms Act relied upon to contend that the

civil court has no jurisdiction do not apply. The first appellate court

rightly referred to the relevant provisions of the Delhi Land Reforms Act

including Sections 3(11)(a) and Section 3(13) which defined a "holding"

and "land" respectively, and it was therefore held by referring to these

provisions that where the property is a constructed property i.e a shop,

the provisions relied upon for claiming that the suit was barred before

the civil court did not apply inasmuch as the property in dispute was not

land comprised in a holding but was a constructed property/shop.

4. The relevant observations of the first appellate court are contained

in paras 8 to 15 of the judgment and without reproducing the said paras

in this judgment I accept the reasoning contained in the same. These

paras are not reproduced to avoid prolixity.

5. Before this Court, counsel for the appellants/defendants sought to

raise a third argument with respect to bar of the civil court, and which

was sought to be done by placing reliance upon Section 42 of the Delhi

Land Reforms Act. When it was pointed out to the counsel for the

appellants that Section 42 of the Act dealt with violation of Section 33

which talked of sale etc of the land, counsel for the appellants had no

answer as to why Section 42 will apply in the present case. So far as the

aspect that eviction of a tenant who is granted a lease is concerned, will

have to be before the Revenue Assistant this aspect is rightly held

against the appellants in terms of paras 8 to 15 of the judgment of the

first appellate court and reference of which have already been made

hereinabove. I, therefore, reject the argument urged on behalf of the

appellants that the civil court had no jurisdiction to try the suit.

6. The next argument urged on behalf of the appellants was that the

legal notice terminating the tenancy was defective because such a lease

could not only be terminated by a notice under Section 106 of the

Transfer of Property Act, 1882. This aspect has been elaborately dealt

with by the trial court in paras 8(II) of its judgment and whereby it has

been held that manufacturing which was done by the

appellants/defendants was only of a cutting cattle fodder and

consequently this activity would not be such a manufacturing activity to

come within the expression "manufacture" as found in Section 106 of

the Transfer of Property Act. The first appellate court besides accepting

the reasoning of the trial court has held that appellants/defendants in the

written statement did not specify what the manufacturing activities were

which were being carried out. In any case, I may state that this issue that

a suit for possession is or is not maintainable merely because a notice is

defective is no longer res integra and it has been held in the judgment

passed by this Court in the case of M/s. Jeevan Diesels and Electricals

Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183 DLT

712, that service of summons of a suit can also be taken as a notice

terminating tenancy. The relevant para of this judgment is para 7 and

which 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.

7. Admittedly, since six months after service of the summons in the

suit has expired way back in the year 1994, and today in the year 2014, I

therefore refuse to allow appellants/defendants to urge and argue that the

notice terminating tenancy was defective. This argument urged on

behalf of the appellants is also therefore rejected.

8. Finally, I may mention, and though it was not argued before this

Court, the notice terminating tenancy has been proved to be validly

served because legal notice, postal receipts and the AD cards have been

exhibited as Ex. PW-1/2, PW-1/7 to PW-1/11, and PW-1/4 and PW-1/5.

The AD cards bear the signatures of the appellants/defendants. It is also

not disputed by the appellants/defendants that the legal notice was sent

at their addresses and in fact summons in the suit were served upon the

appellants/defendants at the same address. Trial court has also observed

that denial by the appellants/defendants of their signatures on the AD

cards does not help the appellants/defendants not only because the

addresses are of the appellants/defendants, but also the defence is only a

convenient and false defence because the defendants as per the evidence

have found to sign differently at different places.

9. In view of the above, no substantial question of law arises and the

appeal is, therefore, dismissed, leaving the parties to bear their own

costs.

APRIL 25, 2014                                 VALMIKI J. MEHTA, J.
godara