Badar Makhmoor(Senior Citizen) vs Hakim Zillur Rehman
2014 Latest Caselaw 5907 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No.1009/2012

%                                                    18th November , 2014

BADAR MAKHMOOR(SENIOR CITIZEN)            ......Petitioner
               Through: Mr. M. Sufian Siddiqui, Mr. Rakesh
                         Bhugra, Mr. M.Tabishzia, Advocates.

                          VERSUS

HAKIM ZILLUR REHMAN                                       ...... Respondent

                 Through:                Mr. R.K.Trakru and Mohd. Sajid,
                                         Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM No. 11465/2014 (for revival of the petition)

The application is allowed and this petition is revived in view of the

order passed by the Supreme Court in the presence of the parties dated

07.5.2014 in Civil Appeal No. 5507/2014.

CM stands disposed of.

CM(M) No. 1009/2012

1. This petition under Article 227 of the Constitution of India has

been filed by the petitioner/plaintiff/landlord impugning the order of the trial

court dated 14.8.2012 by which the trial court has rejected an application

under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC) and

refused to decree the suit for possession.

2. In the city of Delhi three aspects are required to be seen by the

civil courts when a suit for possession is filed against a tenant. First is that

there must be a relationship of landlord and tenant between the parties.

Second aspect is that the rate of rent is above Rs.3,500/- per month so that

the tenant does not have any protection of the Delhi Rent Control Act, 1958.

The third aspect is that the legal notice terminating the contractual tenancy

must be served as required under Section 106 of the Transfer of Property

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

3. In the present case, there is no dispute that there is a

relationship of landlord and tenant and there is also no dispute that the rent is

more than Rs.3,500/- per month because the respondent/defendant as per the

written statement claims that he is paying rent at Rs.7000/- per month since

2005 and not Rs.6000/- as claimed by the petitioner/plaintiff. Therefore, the

first two aspects with respect to existence of relationship of landlord and

tenant between the parties and rate of rent being above Rs.3,500/- per month

are admitted as per the pleadings.

4. So far as the service of notice terminating monthly tenancy under

Section 106 of the Act is concerned, the issue so far as Delhi is concerned is

now settled by the judgment of this Court 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.

5. I may also state that the petitioner/plaintiff in any case has pleaded the

termination of tenancy in terms of a legal notice dated 14.2.2011 as stated in

para 13 of the plaint and this aspect is not disputed in the corresponding para

of the written statement.

6. There were two defences of the respondent/defendant as per the

written statement. One was that there was an oral agreement to sell of the

year 2009 as per which respondent/defendant claims that petitioner/plaintiff

had agreed to sell the suit property to him for a sum of Rs.28 lacs of which

an amount of Rs.72,000/-was paid as an advance and Rs.27,28,000/- was to

be paid later on and therefore respondent/defendant cannot be evicted. The

second defence was that the respondent/defendant has made construction on

the property and therefore rights are created as defendant has spent an

amount of Rs.5 lacs on the same.

7. Both the defences as per the respondent/defendant do not create any

triable issues or take away the admissions for decreeing of the suit for

possession for various reasons. Firstly, the counter-claim of the

respondent/defendant on the aspects argued now stands rejected by the order

dated 29.9.2014 passed by the trial court in the subject suit. Though counsel

for the respondent/defendant states that a review petition has been filed,

however, mere filing of a review petition will not take away the finality of

the order dated 29.9.2014 rejecting the counter-claim filed by the

respondent/defendant on the basis of the alleged agreement to sell. It may

be noted that the trial court in the order dated 29.9.2014 specifically notes

that the agreement to sell which is pleaded is an oral agreement to sell and

no oral agreement to sell can create rights under Section 53-A of the Act

much less after the amendment of Section 53-

A of the Act w.e.f 24.9.2001 and as per which amendment agreement to sell

in the nature of part performance cannot be looked into unless it is stamped

at 90% value of the prices of the property and is also registered and which

admittedly is not the position in the present case. Trial court also considered

the aspect of alleged entitlement of the respondent/defendant allegedly

having constructed first floor to the knowledge of the petitioner/plaintiff in

the order dated 29.9.2014 and has rejected the same. To the conclusion of

the trial court I must add that the claim of ownership of the first floor would

be barred under Section 17(1)(b) of the Registration Act, 1908 as per which

any creation of interest in an immovable property above Rs.100/- can only

be by a registered document and admittedly the respondent does not claim

ownership of the first floor by a registered document. In any case, also in

my opinion, any and every issue does not necessarily create bonafide triable

issue requiring trial in the facts of the present case once three aspects of

relationship of landlord and tenant between the parties, rate of rent is above

Rs. 3500/-, monthly tenancy is terminated through legal notice, are shown to

exist, there is no reason why the suit for possession could not be decreed. If

the defence of the respondent/defendant is taken to deny the decree for

possession, the same will mean that without the respondent/defendant in any

manner showing a legal entitlement to stay in the property, only because of

an ex facie illegal defence he would continue to stay in the suit property.

8. I may also note the malafides of the respondent/defendant are shown

from the order of the trial court dated 13.11.2014, whereby the

respondent/defendant has been directed to pay user charges from 4.5.2011

till 13.11.2014, inasmuch as, the respondent/defendant has not paid any

charges for use and occupation right from 15.2.2011.

9. In view of the above, the petition is allowed. The impugned order of

the trial court dated 14.8.2012 is set aside and the suit of the

plaintiff/petitioner will stand decreed against the respondent/defendant for

possession with respect to the suit property being property no.B-29, Khasra

No. 189, Johri Farm, Noor Nagar Extension, Jamia Nagar, New Delhi-

110025 on a plot of an area of 200 sq. yds and as shown in red colour in the

site plan filed with the plaint. Parties are left to bear their own costs.

NOVEMBER 18, 2014                               VALMIKI J. MEHTA, J.
ib