Mr. Om Prakash Arora vs Smt. Archana Lall
2014 Latest Caselaw 3087 Del

$~27
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      RFA 272/2014
                                       Decided on 14th July, 2014
       MR. OM PRAKASH ARORA                               ..... Appellant
                          Through:     Mr. S.K. Puri, Sr. Adv. with Mr.
                                       Gaurav Puri and Mr. Vinay, Advs.
                          versus
       SMT. ARCHANA LALL                                  ..... Respondent

                          Through:     Mr. Ajay Kumar Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

Caveat 576/2014

Since caveator has put in appearance caveat is discharged.

RFA 272/2014

1. Respondent filed the suit through her Attorney-Shri Sunil Kumar

Soni against the appellant, for possession, recovery of rent, mesne profit and

permanent injunction before the trial court. It is alleged in the plaint that

respondent was owner of L-shape shop bearing no. H-16/95, Gali No. 2,

Tank Road, Karol Bagh, New Delhi-110005 (hereinafter referred to as the

„suit premises); more particularly shown in red colour in the site plan

attached with the plaint. Appellant was inducted as tenant in the suit

premises, on a monthly rent of Rs. 25,000/-. Appellant defaulted in making

payment of rent. He did not pay any rent with effect from January, 2010 in

spite of requests of the respondent. Tenancy of suit premises was on month

to month basis commencing from 1st day of each calendar month and ending

on the last day of same month. Respondent terminated the tenancy vide

legal notice served on the appellant; whereby appellant was asked to vacate

the suit premises within 15 days from the date of receipt of said notice.

Despite receipt of legal notice appellant did not deliver possession of the suit

premises, hence the suit.

2. In the written statement appellant took various preliminary objections.

On merits it was stated that respondent had claimed herself to be owner of

entire upper ground floor without roof rights in respect of property bearing

no. H-95/A-1, Gali No. 2 situated at Gobind Garh, Tank Road, Karol Bagh,

New Delhi, whereas, premises in occupation of appellant was one portion of

the ground floor of the shop bearing no. H-16/95, Gali No. 2, Tank Road,

Karol Bagh, New Delhi. Even Power of Attorney executed by the

respondent in favour of Shri Sunil Kumar Soni was in respect of property

bearing no. H-95/A-1, Gali No. 2 situated at Gobind Garh, Tank Road,

Karol Bagh, New Delhi; whereas number of suit premises was H-16/95, Gali

No. 2, Tank Road, Karol Bagh, New Delhi. Appellant had earlier filed a suit

against the respondent for permanent injunction wherein, in para 10 of the

plaint, it was stated that despite having paid the rent regularly respondent did

not issue any rent receipt. Rent upto July, 2010 had already been paid.

Respondent was trying to dispossess the appellant from the suit premises

bearing no. H-16/95, Gali No. 2, Tank Road, Karol Bagh, New Delhi

therefore, appellant filed a suit for injunction against the respondent. In the

said suit, respondent no. 2, namely, Shri S.K. Soni and respondent no. 3,

namely, Rajender Ashija @ Babu Ashija made a joint statement in the court

of Senior Civil Judge, Delhi to the effect that they will not dispossess the

appellant from the property bearing no. H-16/95, Gali No. 2, Tank Road,

Karol Bagh, New Delhi. In view of the said statement suit was withdrawn

by the appellant. Appellant had spent Rs.5-6 lacs on renovation of the suit

premises. No written rent agreement was executed containing the terms of

tenancy between the parties. It was further stated in para 8 of the written

statement that appellant had wrongly terminated the tenancy on the basis of

wrong and concocted facts. It was further alleged that no legal notice was

served on the appellant.

3. On an application filed by the respondent under Order 12 Rule 6 CPC

Trial Court, vide order dated 11th April, 2014, has passed a preliminary

decree of possession in respect of the suit premises and has directed the

appellant to hand over the possession of L-shape shop bearing no. H-16/95,

Gali No. 2, Tank Road, Karol Bagh, New Delhi - 110005, front area from

shutter measuring 9‟x11‟.3" and on the back side measuring

17‟9"+18‟.3"x37‟x3" as shown in red colour in the site plan to the

respondent within 60 days from the date of said order.

4. That is how the appellant is before this Court by way of present

appeal.

5. Learned senior counsel for the appellant has vehemently contended

that respondent was not the owner of suit premises, inasmuch as suit

premises is different than the property in possession of the appellant. In the

General Power of Attorney dated 3rd May, 2010 respondent has given the

address of suit property as H-95/A-1, Gali No. 2 situated at Gobind Garh,

Tank Road, Karol Bagh, New Delhi, however, in the suit respondent was

claiming ownership in respect of premises bearing no. H-16/95, Gali No. 2,

Tank Road, Karol Bagh, New Delhi - 110005. In nutshell it is contended

that identity of the suit property was itself in dispute besides the ownership

which could be resolved only after trial. There was no unequivocal and

clear admission about the tenancy by the appellant thus, no judgment on

admission could have been passed under Order 12 Rule 6 CPC.

6. I do not find any force in the above contentions of learned senior

counsel for the appellant. A perusal of record shows that there is no

controversy with regard to identification of shop under the tenancy of

appellant. Appellant has admitted that prior to filing of the suit by the

respondent he had filed a suit for permanent injunction. Copy of the plaint

has been placed on record and a perusal thereof makes it clear that premises

bearing no. H-16/95, Gali No. 2, Tank Road, Karol Bagh, New Delhi -

110005 is also known as premises bearing no. H-95/A-1, Gali No. 2 situated

at Gobind Garh, Tank Road, Karol Bagh, New Delhi. In para 9 of the plaint

appellant has stated as under :-

"... besides the plaintiff also paid electricity bills as per the electricity meter in the name of the defendant no. 1 installed at premises no. H-16/95, Gali No. 2, Tank Road, New Delhi - 110005 also known as shop in H-95A-1 in Gali No. 2, Tank Road, Karol Bagh, New Delhi - 110005......"

7. In the said suit appellant has categorically admitted that he was

inducted as a tenant on a monthly rent of Rs.25,000/- by the respondent,

who was the owner of the suit premises. This fact has been alleged by him

in para 1 of the plaint in the said suit. Having admitted that he was a tenant of

respondent he cannot be permitted to challenge the ownership of the

respondent. It is trite law that a tenant is estopped from challenging the title of

the landlord, from the date of commencement of tenancy under Section 116 of

the Evidence Act, 1872. Reference in this regard be made to Anar Devi vs.

Nathu Ram (1994) 4 SCC 250.

8. In Payal Vision Limited vs. Radhika Choudhary (2012) 11 SCC 405,

reliance whereupon has been placed, it has been held thus "in a suit for

recovery of possession from a tenant whose tenancy is not protected under the

provisions of the Rent Control Act, all that is required to be established by the

plaintiff landlord is the existence of the jural relationship of landlord and tenant

between the parties and the termination of the tenancy either by lapse of time or

by notice served by the landlord under Section 106 of the Transfer of Property

Act. So long as these two aspects are not in dispute the court can pass a decree

in terms of Order 12 Rule 6 CPC". The relationship of landlord and tenant is

not in dispute for the reasons as aforesaid. Appellant has made an attempt to

confuse the issue by taking a plea that suit property is different than what had

been let out to him. However, this fact is belied from the averments made in

the suit for permanent injunction filed by him.

9. As regards service of notice is concerned, respondent has specifically

averred in the plaint that notice of termination of tenancy was served on the

appellant. Legal notice dated 18th March, 2013 was placed on record of trial

court. Address of the appellant has correctly been mentioned therein and is

not in dispute. Even denial regarding receipt of notice in the written

statement is vague, inasmuch as shifting stand has been taken. On the one

hand it is stated that tenancy was wrongly terminated on the other it was

denied that notice was received. Notice was sent through speed post and

was not received back undelivered, thus, under Section 27 of the General

Clauses Act, it can be presumed that same was received by the addressee,

that is, appellant. Reliance is placed on M/s Medan and Co. versus Jaivir

Chand AIR 1989 SC 630. Even otherwise, filing of suit and service of

summons on the appellant itself amounts to termination of tenancy.

10. In Nopay Investment (P) Ltd. Vs.Santokh Singh (HUF)

MANU/SC/8184/2007 Apex court has held that the tenancy would stand

terminated under general law on filing of a suit for eviction. Accordingly, I

am of the view that even assuming the notice of termination was not served

upon the appellant the tenancy would stand terminated on filing of the suit

and service of summons on the appellant. In Jeevan Diesel and Electricals

Ltd. Vs. Jasbir Singh Chadha (HUF) and Anr. MANU/DE/1277/2011 it has

been held as under:-

"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".

11. For the foregoing reasons, appeal is dismissed. Miscellaneous

application is disposed of as infructuous.

A.K. PATHAK, J.

JULY 14, 2014 ga