Delhi High Court
M/S Cottage Industries ... vs Ms Amritpal Kaur & Ors. on 6 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 227/2013
% 6th March, 2014
M/S COTTAGE INDUSTRIES EXPOSITION LTD. ......Appellant
Through: Mr. Debasish Moitra, Mr. Saurabh
Verma and Mr. Sidharth Mohan,
Advs.
VERSUS
MS AMRITPAL KAUR & ORS. ...... Respondents
Through: Mr. Ajay Kapur, Sr. Adv. with Mr.
Harshbir Singh Kohli, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal is filed under Section 100 CPC impugning
the concurrent judgments of the courts below; of the trial court dated
21.4.2012 and the first appellate court dated 7.6.2013; by which the
application of respondents/plaintiffs/landlords under Order 12(6) CPC has
been allowed and suit for possession and mesne profits have been decreed
against the appellant/defendant/tenant.
2. In the city of Delhi civil courts can entertain suits for possession when
three factors exist: (i) there was a relationship of landlord and tenant
between the parties; (ii) rate of rent is more than Rs.3,500/-per month; and
(iii) the monthly tenancy is terminated by means of a notice under Section
106 of the Transfer of Property Act, 1882.
3. There is no dispute that there is a relationship of landlord and tenant
between the parties. There is also no dispute that the rate of rent is more
than Rs.3500/- per month and which becomes clear from a reading of para-2
of reply on merits of the written statement and which reads as under:-
"2. The averments made is not factually correct and hence denied.
Clause 4 of the Lease Deed provides for an automatic
renewable of the Lease after a period of 5 years with an
increase in rent @10%. The Defendant in terms of the Clause 4
of the said Lease Deed dated 13/8/1983, had duly honoured the
same as under:
PERIOD Rent (In Rs.) REMARKS
(From -To)
13/8/83-12/8/88 3,200 --
13/8/88-12/8/93 3,520 10% increase in
terms of Clause 4
of the said Lease
Deed.
13/8/93-12/8/98 3,872 10% increase in
terms of Clause 4
of the said Lease
Deed.
13/8/98-12/8/2003 4,259 10% increase in
terms of Clause 4
of the said Lease
Deed.
4. So far as the issue as regards notice terminating tenancy is concerned,
the same is also an admitted fact because the appellant admits having
received the notice dated 7.9.1996 although, the legality thereof is disputed
on the ground that the said notice cannot terminate the tenancy allegedly
because as per the appellant the notice was for terminating of tenancy only
on the grounds of non-payment of rent and subletting, and which grounds do
not exist. In order to understand the meaning of this notice dated 7.9.1996,
the same is reproduced below:-
"1. That the entire second floor of the Premises bearing No.E-15,
NDSE Part-II, New Delhi comprising of a big hall and attached bath
etc. with lift alongwith entrance from the from as well as rear side of
the building, has been 1st out to you by my clients at a monthly rental
of Rs.3200/- exclusive of all other charges.
2. That the premises were left out to you on 13.8.1983 with a
conditions that the lease shall be renewed after a period of 5 years on
15% increase of the last paid rent. Consequently you are liable to
pay the rent @ Rs.3200/- per month w.e.f 13.8.1983 to 12.8.88 and
Rs.3520 w.e.f 13.8.1993 onwards.
3. That you have defaulted in making payment of the rent and
you have neither paid nor tendered the arrears of rent my clients for
a period of more than 3 years and that you had illegally paid the
arrears of rent to the Municipal Corporation of Delhi. Without the
written consent of my clients making yourselves liable for making
the payment.
4. That you have also sub-let, assigned or otherwise parted with
the possession of the premises in question to some unauthorized
person for which you have made yourselves liable for eviction not
only on the ground of non-payment of rent and that my clients I
hereby do and your tenancy stands terminated by 13th of October,
1996 being the last date of the tenancy month as your tenancy starts
from the 13th of each English calendar month and ends on the 12 of
the succeeding month.
5. That you are liable to pay damages for use and occupation @
Rs.125/- per sq. ft. per month after 13th of October, 1996 as your
occupation of the premises shall be unauthorized, illegal and as that
of a trespasser after 13th day of October, 1996.
I, thereby called upon you to please vacate the premises and
hand over its vacant and peaceful possession to my client on or
before 13th of October, 1996 and pay the arrears of rent within that
period, failing which I have definite instructions to take the law into
motion for your eviction as well as for the recovery of the arrears of
rent, and in that eventuality you shall be held responsible for the
costs and consequences of my clients.
Please take notice accordingly.
Copy Kept. Yours faithfully,
Sd/-
Mohinder Pal Suri
Advocate
5. No doubt, the appellant may want to create some confusion in view of
the language of the notice, however, para-4 of the notice is clear in that it
specifically states that the tenancy is terminated. Since the tenancy was a
monthly tenancy, the tenancy could have been terminated by a notice. There
is also hence no disputed question of fact with respect to termination of
tenancy inasmuch as the notice dated 7.9.1996 is accepted to have been
received by the appellant.
6. In any case, so far as the issue of service of notice is concerned, the
law so far as courts in Delhi are concerned is well settled by the judgment in
the case of Jeevan Diesels and Electricals Limited Vs. Jasbir Singh
Chadha (HUF) and Anr. 2011 (183) DLT 712, wherein by reference to the
amended provision of Section 106 of Transfer of Property Act; and which
provision was amended to take away technical defences with respect to
termination of tenancy; it has been held that service of summons in the suit
can also be treated as a notice under Section 106 of the Transfer of Property
Act. Para 7 of the judgment in the case of Jeevan Diesels (supra) 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. In view of the above, it is clear that there was a relationship of
landlord and tenant between the parties, rate of rent is more than Rs.3500/-
p.m, and the tenancy of the appellant was terminated and in any case would
stand terminated on service of summons in the suit as per the ratio in the
case of Jeevan Diesels (supra)
8. I would like at this stage to note that courts in Delhi are unnecessarily
burdened with frivolous litigations by tenants who refuse to vacate the
tenanted premises although there is no registered lease deed for a fixed
period and the monthly tenancy is terminated. May be so far as people who
are not financially well-off there can be contended that there is a right, to
'litigate', however that should not be so for the super rich companies who
obdurately refuse to vacate the premises long after their stay becomes
unauthorized. The present litigation is one such litigation by a recalcitrant
tenant. Supreme Court in the case of Ramrameshwari Devi & Ors. Vs
Nirmala Devi & Ors. (2011) 8 SCC 249 has held that it is high time that in
frivolous litigation actual costs must be imposed. I am empowered to
impose costs in terms of Volume V of the Punjab High Court Rules and
Orders (as applicable to Delhi) Chapter VI Part I Rule 15. Accordingly,
while dismissing the appeal, I direct that respondents will file an affidavit in
this Court within a period of two weeks of the total expenses incurred by
them towards the lawyers' fee in this appeal, and which affidavit will be
supported by the certificates of the Advocates that they have received the
fees from the respondents towards this appeal. The costs which are
mentioned in the affidavit being the lawyers' fee paid by the respondents to
their lawyers will be the costs of the appeal to be paid to the respondents by
the appellant within a period of six weeks from today.
MARCH 06, 2014 VALMIKI J. MEHTA, J.
ib
