Delhi High Court

W.N.Gujral vs Smt. Kavita Chhibber on 13 November, 2014

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) 651/2014
%                                                    13th November , 2014


W.N.GUJRAL                                           ..... Petitioner
                          Through:       Mr.I.D.Tyagi with Mr.Milan Tyagi,
                                         Advocates.

                          versus

SMT. KAVITA CHHIBBER                                 ..... Respondent

                          Through:       Dr.Chaudhary Shamsuddin Khan with
                                         Ms.Pushpa Chibger, Advocates.


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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)


1     The present petition under Article 227 of the Constitution of India

impugns the order of the trial court dated 10.5.2014 by which the trial court

has rejected an application under Order XII Rule 6 of Code of Civil

Procedure, 1908 (CPC) filed by the petitioner/plaintiff in a suit for

possession. The subject suit for possession was filed by the

petitioner/plaintiff stating that there is a relationship of landlord and tenant

between the parties, rate of rent is more than Rs.3,500/- per month that is

Rs.10,000/- per month, and the monthly tenancy was terminated by a legal

notice dated 4.10.2013 sent under Section 106 of the Transfer of Property

Act, 1882 (hereinafter referred to as 'the Act') .

2. At the outset, I may note that both the parties to this case are

advocates. Certain personal relationships are alleged between the parties as

per the written statement, however, I need not dwell on the same except

bringing on record the fact, and which fact has also been noticed by the trial

court, that the written statement runs into about 50 pages and in these 50

pages the respondent/tenant has raised about 115 paragraphs as preliminary

objections and submissions. Of course none of these aspects will be relevant

because all that has to be seen is the existence of relationship between the

parties as a landlord and tenant and the rate of rent being more than 3,500/-

per month to be taken with the fact that there is termination of monthly

tenancy by serving the notice under Section 106 of the Act.

3. Before me the first argument urged by the

respondent/defendant/tenant is that the notices issued for termination of

tenancy were contradictory and therefore tenancy of the

respondent/defendant is not terminated. There is also a second submission

which was raised on behalf of the respondent/defendant/tenant at the stage of

dictation of the judgment that there is a dispute as to what area was occupied

by the respondent/defendant/tenant and this aspect raises a triable issue.

4. In my opinion the suit for possession has to be decreed as there is no

dispute as per the pleadings with regard to the existence of relationship of

landlord and tenant between the parties. This aspect becomes very clear on

account of earlier civil suit proceedings which were filed by the

respondent/defendant in which the respondent alleged existence of tenancy

of however, a larger area being one bed room, drawing room, kitchen,

bathroom and a garage on the ground floor of the property and one room,

one bathroom including some covered and open space in first floor of the

property no. 106, Chander Lok Enclave, Pitam Pura, Delhi, and the

petitioner/plaintiff in his written statement admitted to the existence of the

alleged tenancy though the said tenancy was not for the larger area as

alleged by the respondent/defendant in her earlier suit for injunction but was

for a lesser area being one room with common kitchen of property no.106,

Chander Lok Enclave, Pitampura, Delhi.

5. So far as the aspect of rate of rent is concerned the rate of rent is

stated to be at Rs.10,000 per month in para 3 of the plaint and there is no

denial of the same when we refer to the para 3 of the written statement.

6. So far as the service of notice is concerned, now the law so far as

Delhi is concerned is settled in view of the judgment in the case of M/s.

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

and Anr. (2011) 183 DLT 712 wherein it has been held that service of

summons in a suit can also be taken as service of notice under Section 106

of the Act. 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.

7. Therefore all the three aspects stand duly admitted being the existence

of the landlord and tenant relationship between the parties, rate of rent being

more than 3,500/- per month and the service of notice under Section 106 of

the Act terminating tenancy which is the service of summons in the suit.

8. The arguments urged on the part of respondent/defendant with respect

to the contradictory notices are misconceived because the service of

summons in the suit has to be taken as service of notice under Section 106 of

the Act in view of the M/s. Jeevan Diesels and Electricals Limited

(supra)'s case.

9. So far as the dispute with respect to what is the area of tenancy in