Nirmal vs Ramesh Kumar & Anr.
2014 Latest Caselaw 1514 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No. 108/2013 & CM No. 8732/2013 (Stay)

%                                                   21st March, 2014
NIRMAL                                              ......Appellant
                           Through:      Mr. Y.S.Chauhan, Adv.


                           VERSUS

RAMESH KUMAR & ANR.                                    ...... Respondents.

                Through:                     Mr. Ashim Sridhar, Adv. for R-1.

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 is filed by the appellant/tenant/defendant no.2

against the concurrent judgments of the courts below; of the trial court dated

19.2.2013 and the first appellate court dated 27.4.2013, by which the suit of

the respondent no.1/landlord/plaintiff has been decreed under Order 12 Rule

6 CPC with respect to the possession and arrears of rent at the admitted rate

of rent of Rs.5,500/- and future mesne profits.

2. In the city of Delhi suit for possession can be filed in civil court,

instead of approaching the Rent Controller under the Delhi Rent Control

Act, 1958, if three conditions exist:- (i) there was a relationship of

landlord and tenant between the parties; (ii) the rate of rent is more than

Rs.3500/- per month and (iii) the tenancy has been terminated by means of a

legal notice under Section 106 of the Transfer of Property Act, 1882.

3. Respondent no.1/plaintiff/landlord filed the suit for possession against

the respondent no.2 herein as the original sole defendant. Respondent no.2

is the husband of the present appellant, and the present appellant was added

to the suit as defendant no.2, because, the defendant no.1/respondent no.2

raised an objection that he was not the tenant but his wife the appellant-

defendant no.2 was the tenant. In the suit, after appellant was added as a

defendant no.2, she filed her written statement. Thereafter, the suit has been

decreed under Order 12 Rule 6 CPC.

4. Before me, counsel for the appellant does not dispute that there

existed a relationship of landlord and tenant between the appellant and

respondent no.1/plaintiff. It is also not disputed that the rate of rent was

Rs.5,500/- p.m i.e more than Rs.3500/-. So far as the service of notice is

concerned, it is seen that when the aspect that tenancy was terminated by

notice has been stated in paras 13 to 15 of the plaint in response there is only

a general denial in the written statement and such general denial in the eyes

of law amounts to an admission as per Order 8 Rule 5 CPC. In any case, it

is now well settled law that service of summons of the suit can be treated as

a notice terminating tenancy under Section 106 of the Transfer of Property

Act. This has been held 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. Para 7 of this judgment is relevant 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.

5. In view of the above, there is no error in the judgments of the courts

below inasmuch as the suit for possession has been rightly decreed. Arrears

of rent have also been granted for five months prior to the suit at the

admitted rate of rent because as per the existing pleadings it is not found that

any rent was paid by the appellant from October 2012 till February 2013

when the suit was filed. Even the future mesne profits till handing over of

possession have also been granted only at an admitted rate of rent of

Rs.5500/- per month.

6. No substantial question of law arises for this appeal to be entertained

under Section 100 CPC, and the same is therefore dismissed with costs of

Rs. 25,000/- inasmuch as in commercial litigations where tenants

wrongly/illegally continue to hold on possession of the tenanted premises,

and litigation has to be initiated in courts, the landlords must be

appropriately compensated by costs. Costs be paid within a period of four

weeks from today.

MARCH 21, 2014                            VALMIKI J. MEHTA, J.
ib