Tirath Ram Shah Charitable Trust ... vs Mrs. Sughra Bi @ Sughra Begum ...
2015 Latest Caselaw 8222 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) 814/2007

                                      Reserved on:      06.08.2015
                                      Date of decision: 02.11.2015
IN THE MATTER OF:
TIRATH RAM SHAH CHARITABLE TRUST AND ORS.           ..... Plaintiffs
                   Through: Mr. Ajay Kumar Tandon, Advocate
                   with Ms. Titisha Mukherjee, Advocate

                  versus


MRS. SUGHRA BI @ SUGHRA BEGUM (DECD‟)             ..... Defendant
                   Through: Mr. S.D. Ansari, Advocate for the LRs
                   of the defendant.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

I.A. 12447/2008 (by the plaintiffs u/O XII R 6 CPC)

1. The present application has been filed by the plaintiff under

Order XII, Rule 6 CPC praying inter alia for passing a decree of

possession in respect of the suit premises in its favour, based on the

admissions made by the defendants.

2. A brief glance at the factual matrix of the case is considered

necessary. The plaintiff/Trust has filed the suit for a decree of

possession against Smt. Sughra Begum, the predecessor-in-interest of

the defendants in respect of a shop on the ground floor of the Tirath

Ram Shah Charitable Trust Hospital, being run by it at Rajpur Road,

Delhi, for recovery of a sum of Rs.36 lacs towards the arrears of

rent/donation/contribution, and for pendentelite and future damages

towards the use and occupation of the said shop alongwith interest

etc.

3. As per the averments made in the plaint, the plaintiff/Trust had

let out the subject shop to Mrs. Sughra Begum (since deceased) for

the purpose of supplying drugs, etc., in bulk/retail to the Hospital. An

agreement was executed between the parties on 29.03.1975,

whereunder the deceased defendant had agreed to pay a sum of

`350/- to the plaintiffs in advance in the first week of every month.

This was followed by several other agreements executed between the

parties from time to time, the last one having been executed on

28.03.1995, whereunder the tenure of the agreement was to

commence on 01.06.1993 and end on 31.05.1996.

4. It is the case of the plaintiff/Trust that in the year 2000, the

defendant had filed a suit against the Trust for recovery of money

towards the medicines sold by her, registered as Suit No. 1435/2000.

In paras 2 to 5 of the plaint, the defendant had admitted to the

relationship of landlord and tenant between her and the Trust and she

had also admitted to paying a sum of ` 9,000/- per month to the Trust

as rent of the subject shop. A similar admission was made by her in

the affidavit by way of evidence filed in the captioned suit. It is the

contention of the counsel for the plaintiff that on a collective reading of

the admissions made by the defendant in the captioned suit, it clearly

emerges that she is a tenant under the plaintiff/Trust in respect of the

subject shop on a month to month basis and the monthly

consideration of ` 9,000/- was being paid by her for the said premises.

5. To fortify his argument that plaintiff/Trust is entitled to a decree

of possession under Order XII Rule 6 CPC on the basis of admissions

made by the deceased defendant, learned counsel had also relied on

three sets of orders passed in another litigation between the parties,

starting from the order dated 21.04.2008 passed by the Additional

Rent Controller on an application filed by the deceased defendant

(Petitioner therein) under Section 45 of the Delhi Rent Control Act, for

seeking restoration of electricity supply to the subject shop, followed

by the order dated 02.02.2009 passed in appeal by the Rent Control

Tribunal and culminating in the order dated 21.05.2010, passed by the

High Court in CM(M) No. 387/2009, a petition filed by the defendant

challenging the dismissal order dated 02.02.2009 passed by the Rent

Control Tribunal.

6. A reference was also made by learned counsel for the plaintiff /

Trust to the admissions made by the defendant in the legal notice

dated 02.12.1998, served by her on the Trust wherein she had

admitted to being a tenant under it and to the fact that monthly rent

of `9,000/- is payable by her in respect of the subject shop. Lastly, he

had relied on the legal notice dated 21.12.2006, issued by the

plaintiff/Trust under Section 106 of the Transfer of Property Act, to

state that it was duly served on the defendant through registered

AD/UPC/courier, whereunder, her tenancy was terminated and she was

called upon to hand over the vacant physical possession of the subject

shop. To substantiate his submission that the tenancy of the defendant

had been validly terminated after service of a legal notice on her, in

accordance with law, the attention of the Court was drawn to the

documents on record to evidence dispatch/receipt of the aforesaid

notice to/by the defendant through registered post/courier/UPC.

7. Per contra, Mr. S.D. Ansari, learned counsel for defendant had

strongly refuted the submissions made by the other side and asserted

that the sum of `9,000/- per month that were being tendered by the

deceased defendant, Smt. Sughra Bi to the plaintiff/Trust was towards

donation and not as rent. He contended that assuming without

admitting that any amount was being paid by the deceased defendant

as rent, then the rate of rent is `350/- per month. In support of the

said submission, he had referred to certain clauses contained in the

Agreements executed between the parties, dating from 29.3.1975 till

16.8.1995, particularly clause 6 that refers to payment of a sum of

`9,000/- per month by the defendant as donation. He sought to urge

that any averment made to the contrary in para 5 of the written

statement filed in CS(OS)No.1435/2000, a suit instituted by her

against the Trust and the term "rent" used by the defendant to

describe the sum of `9,000/- being paid by her on a monthly basis to

the plaintiff, was a misconception and ought to be treated as a bona

fide mistake.

8. Learned counsel for the defendant went on to argue that the

provisions of Section 106 of the Transfer of Property Act are not

attracted to this case and the subject shop is governed by the Delhi

Rent Control Act as the rate of rent for the said shop is `350/- per

month and not `9,000/- as alleged by the other side. He asserted that

the sum of `9,000/- that was being paid on a monthly basis by the

defendant to the plaintiff/Trust was towards donation and not as rent

and in the absence of any specific admission to the effect that the rent

of the subject shop was `9,000/- per month, there is no question of

any judgment/decree being passed under Order XII Rule 6 CPC in

favour of the plaintiff for the possession of the subject shop.

9. As for the documents that were referred to by the other side,

learned counsel for the defendant submitted that they cannot be relied

upon and read for purposes of adjudicating the present application

unless and until the same are proved in accordance with law. He

argued that the judicial orders referred to by the counsel for the

plaintiff/Trust to contend that the defendant‟s stand had been tested

by the concerned courts on the basis of the admissions made by her in

the said proceedings, filed under Section 45 of the Delhi Rent Control

Act, 1958 (in short „the Act‟) cannot have any binding effect as the

said case was not one that had been decided after recording the

evidence of the parties.

10. The Court has considered the rival submissions of the parties

and carefully perused the pleadings and the relevant records. It goes

without saying that at the time of deciding an application under Order

XII Rule 6 CPC, the Court is expected to examine the

pleadings/documents referred to by the applicant for seeking

appropriate relief on the basis of the admissions allegedly made by the

other side.

11. The object of Order XII Rule 6 CPC is that once there are

categorical admissions made by a party, then the litigation should not

be permitted to linger on unnecessarily and in appropriate cases, on

an application filed by a party under Order XII Rule 6 CPC, asking for a

decree on the basis of the said admissions, the court ought to exercise

its discretion and bring an end to such litigation by passing appropriate

orders. The other consideration, while passing a decree under Order

XII Rule 6 CPC, is to ensure that the judicial process is not abused and

a person entitled to relief, is granted such relief without delaying the

passing of a decree in his/her favour, or making him/her go through

the rigours of a trial.

12. In the case of Charanjit Lal Mehra vs. Smt. Kamal Saroj

Mahajan, reported as (2005) 11 SCC 279, the Supreme Court has

held that an admission under Order XII Rule 6 CPC can be inferred

from the facts and circumstances of the case and that Order XII Rule 6

CPC has been enacted to expedite trial and where the courts find that

the suit can be disposed of on such admissions, it should not hesitate

from doing so. It is also relevant to refer to the observations of a

Division Bench of this Court in the case of Vijaya Myne vs. Satya

Bhushan Kaura, reported as 142 (2007) DLT 483, where in the light

of the innumerable authorities on Order XII Rule 6 CPC, it was held

that admissions can be constructive admissions and need not be

specific or expressive, which can be inferred from vague and evasive

denial in the written statement while answering specific pleas in the

plaint and further, that admissions can even be inferred from the facts

and circumstances of a case.

13. In the case of Shri Vimal Khanna vs. Shri Kishan Chand Khanna,

reported as DRJ 116 (2010) 251, a Division Bench of this Court had

held that if otherwise found entitled to a decree on admissions, the

plaintiff cannot be deprived thereof by astute drafting of the written

statement or by taking pleas therein which have no legs to stand

upon. Another Division Bench of this Court in the case of P.P.A. Impex

Pvt. Ltd. vs. Mangal Sain Mittal, reported as 166 (2010) DLT 84 had

extended the principle laid down by the Supreme Court in

the case of T. Arivandandam vs. T.V. Satyapal, reported as (1977) 4

SCC 467 in relation to a plaint, to the written statement also and had

held that a defence which is implausible and on a meaningful, but not

formal reading, is manifestly vexatious and meritless, clever drafting

should not be allowed to create an illusion and such defences should

not be needlessly permitted to go to trial.

14. The law on the aspect as to what would constitute "pleadings or

otherwise", the words used under Order XII Rule 6 CPC, for passing a

judgment on admissions is well settled. It has been decided in several

cases by the Supreme Court and the High Courts that at the time of

passing of a decree, if the court has sufficient material before it that

can prima facie satisfy it about the existence of the ground for eviction

which include express/implied admissions, they can validate passing of

a decree under Order XII Rule 6 CPC on the basis of such admissions.

15. In the case of Uttam Singh Dugal & Co. Ltd. vs. Union Bank of

India & Ors., reported as (2000) 7 SCC 120, the Supreme Court had

held that admissions can be those with reference to the pleadings in

an application under Order XII Rule 6 CPC and such pleadings would

also fall within the parameters of the expression "pleadings or

otherwise", used in Order XII Rule 6 CPC.

16. Further, the admissions made in judicial proceedings themselves

can form the basis of granting relief under Order XII Rule 6 CPC for the

reason that a judicial admission is placed on a higher pedestal than

evidentiary admission. In the case of Nagindas Ramdas vs. Dalpatram

@ Brijram & Anr., reported as (1974) 1 SCC 242, the Supreme Court

had highlighted this aspect and observed as below :

"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong." (emphasis added)

17. To test the submissions made by learned counsel for the plaintiff

in the light of the judicial dicta laid down on the subject, it is

considered necessary to reproduce the extracts of the relevant

documents relied upon by him to substantiate his claim that on a

conjoint reading, there emerge several admissions made by the

defendant at different places that would suffice for passing a decree of

possession in respect of the subject shop, in favour of the

plaintiff/Trust under Order XII Rule 6 CPC.

18. Starting chronologically, reproduced first is the notice dated

17.4.1995, addressed by the deceased defendant to the plaintiff :

"

From : Sughra Bi, 953, Lambi Gali, Teliware, Kishanganj, Delhi.

The Medical Superintendent Tirath Ram Shah Hospital 2, Battery Lane, Rajpur Road Delhi-54.

Dear Sir,

This has reference to your letter dated 15/3/1995 addressed to me that arrangement is terminated w.e.f. 15/4/1995. At the first instance, it may be stated that I could not give the reply immediately due to certain holidays and also due to the reason beyond my control. I have not understood the meaning of your saying that arrangement stands terminated. You very well know that I am the tenant in the shop premises forming part of property no.2, Battery lane, Rajpur Road, Delhi for the last about 20 years continuously and has been paying the rent to the Trust regularly.

There was a clear agreement between the parties that I would be a tenant in the shop premises

and just for technical and taxation reasons that some different terminology was being given in the agreement. As and when desired by the Trust I have been increasing the rent and paying the same regularly. So much so the Trust has been purchasing the medicines for the hospital on credit basis and even at present around Rs.5 lacs are due from the hospital to us for the medicines supplied to your different departments.

The letter under reference appears to have been issued under some misconception. You will appreciate that there is no default on my part in performing the terms and conditions of tenancy. Hope you will persuade to withdraw the letter under reference.

      (emphasis added)



               Thanking you                    Yours faithfully,

               Dated :- 17/04/1995.            (Sugra Begum)"

19. Next comes the legal notice dated 2.12.1998, addressed by the

defendant‟s counsel to the plaintiff/Trust, wherein it was stated at one

place that:-

"2. That the rent of the premises is paid to you regularly since 1975 which has been raised now to Rs.9,000/- p.m.. The said rent has been paid to you in full up to date. (emphasis added)"

20. Coming to the averments made by the defendant in the civil suit

instituted by her against the plaintiff/Trust {CS (OS) No.1435/2000},

in paras 2, 3 and 21 of the plaint, she had stated as below:-

"2. That the plaintiff is tenant in the said shop under the defendant No.1. Initially in the year 1975, a piece of land was allotted by the defendant No.1 on rent at Rs.350/- and the plaintiff got constructed the structure thereupon from her own funds, as such the plaintiff is the owner of the superstructure and tenant in respect of the land underneath. That plaintiff is required that the medicine, drug/dressing will be supplied by her exclusively. The said shop was given under tenancy of the plaintiff by the defendant No.1 for running a chemist shop, which is being run by the plaintiff under the name and name and style of M/s. Sughrabi Chemist & General Merchants since then, her sons are helping her.

3. That the rate of rent is being increased by the defendant No.1 from time to time, and at present, the plaintiffs are paying Rs.9,000/- per month as rent for the said shop. The rent is already upto date.

xxx

xxx

21. That the cause of action for the present suit initially arose in favour of the plaintiff and against the defendant No.1 in the year 1975, when he became tenant in the shop under his tenancy and then on each date the tenancy was renewed and extended and the agreements referred to above were entered into................. (emphasis added)"

21. In para 5 of the affidavit by way of evidence filed by the

defendant in the captioned suit, she had stated as below:-

"I state that the rate of rent was being increased by the defendant No.1 from time to time and at the time of filing the present suit, I was paying Rs.9,000/- per month as rent for the said shop."

22. Further, in para 4 of the preliminary objections taken by the

defendant in the written statement filed by her in the present case,

she has stated as below:

"4. That this Hon‟ble Court has got no jurisdiction to entertain and decide the suit for possession, etc., in that the relationship of landlord and tenant exists between the parties. The defendant is tenant at Rs.350/- per month and as such the premises in suit and the parties are governed by the provisions of Delhi Rent Control Act." (emphasis added)

23. As per the plaintiff‟s counsel, the defendant had also admitted to

the relationship of landlord and tenant between the parties in the reply

filed by her to the present application. For the sake of convenience,

the averments made by the plaintiff in para 2 of the application have

been juxtaposed below against the defendant‟s reply to the said para:-

Para 2 of the present application :

"2. That the defendant in para 2 and 3 as also in the prior suit No.1435/2000 filed by the defendant, admits the relationship of landlord and tenant between the parties to this suit"

Defendant‟s reply to para 2 above :

"2. Para 2 of the application is not disputed. There exists relationship of landlord and tenant of the parties. (emphasis added)"

24. It is also considered necessary to refer to the relevant

observations made in the orders passed by the learned Additional Rent

Controller on an application filed by the defendant against the

plaintiff/Trust under Section 45 of the Delhi Rent Control Act, followed

by the orders passed by the appellate court and finally, by the High

Court.

25. Vide order dated 21.4.2008, the Additional Rent Controller, Tis

Hazari Courts had dismissed the application filed by the defendant

(petitioner therein) for restoration of electricity to the subject shop and

had simultaneously allowed the plaintiff‟s application (respondent No.2

therein) under Order VII Rule 11 CPC for rejection of the petition on

the ground that the said Court was not vested with the jurisdiction to

entertain the same under Section 3(c) of the Delhi Rent Control Act.

The observations made by the learned Additional Rent Controller that

are material for deciding the present application are extracted herein

below:-

"8. The respondent has placed on record the copy of the amended petition in that civil suit filed by the petitioner before me seeking a decree against the defendant/respondent for recovery of Rs.46,30,000/- along with a prayer of Mandatory and Permanent Injunction seeking demolition of certain unauthorized construction and an injunction from dispossession. In that amended petition dated 29.06.2000, the plaintiff has reproduced the terms of agreement between the parties wherein it has been stated that the petitioner shall pay a sum of Rs.9,000/- in advance every month as donation to the hospital.

9. Further, in para 16 of the petition, it has been stated that the plaintiff has honoured his part of agreement by paying rent (alleged donation) at Rs.9000/- p.m. regularly. Subsequently, in his evidence filed by way of affidavit on 09.05.2005, the plaintiff (petitioner before me) in para 3 of the affidavit has stated that initially a piece of land was allotted by the defendant on rent at Rs.350/- which was further shows that if a piece of land was given on rent to the petitioner the provision of DRC Act are not applicable for the suit property. Further, in para 7 in the affidavit it has been stated that the rent has been refused from time to time and now the rate of rent is Rs.9000/- as per agreement dated 01.06.1990. Further in para 18 of the same affidavit, the petitioner has deposed that she has been paying rent (alleged donation) at Rs.9000/- p.m. regularly. All this deposition by the petitioner before the Hon‟ble High Court were made on oath which has not been denied by the counsel for the petitioner during the course of arguments.

10. As rightly argued by the counsel for the respondent as per Section 105 of Transfer of

Property Act any consideration paid to the landlord constitute rent. In the case before me, the plaintiff/ petitioner before the Hon‟ble High Court has categorically stated that the rent is Rs.9,000/- which has been alleged to be donation by the respondent only and as per the case the petitioner/plaintiff the rate of rent is Rs.9,000/- which bars the jurisdiction of this Court u/s 3(c) of DRC Act and therefore, attracts the provisions of order 7 Rule 11 (d) of CPC. In facts, I am inclined to dismiss this petition since this court has no jurisdiction and allow the application of the respondent filed u/O 7 Rule 11 CPC." (emphasis added)

26. Aggrieved by the aforesaid order, the defendant had filed an

appeal before the learned Additional Rent Control Tribunal, which was

dismissed vide order dated 2.2.2009, with the following observations:-

"6. There is no dispute that the suit premises was let out to the appellant by way of written agreement and it was extended from time to time. As per agreement dated 12.5.87 whereby tenancy was effective from 1st June, 1987, the rent of the tenanted premises was agreed to be Rs.350/- per month. Admittedly, a sum of Rs.9000/- per month was agreed to be payable by appellant as donation to the Dev. Fund A/C of the respondent Hospital as a Corpus of Trust. Vide subsequent agreements the tenancy commenced from 1st June, 1990 and 1st June, 1993. In both these agreements also there was stipulation of payment of Rs.9000/- p.m. as donation by appellant to the respondent. That being so, it comes out to be the admitted fact that Rs.9000/- per month was payable by the appellant as donation to the respondent hospital.

7. The question for consideration will be as to whether this amount of Rs.9000/- p.m. was agreed to be a part of the rent or it would otherwise constitute to be the rent of the tenanted premises.

8. Admittedly, the appellant herein had filed a civil suit bearing No. C.S. (O.S.) 1435/2000 against the respondent in the Hon‟ble High Court of Delhi for recovery of Rs.46,30,000/- (Rs. Fourty six lac thirty thousand). It is seen that in para 2 (iii) of the plaint appellant/tenant had mentioned payment of Rs.9000/- per month as donation, but in para (3) and (5), the amount of Rs.9000/- per month was mentioned as rent. In para (16) also Rs.9000/- was mentioned as rent (alleged donation). In the said case, an Affidavit of Evidence dated 6.5.05 was also filed by the appellant/ tenant wherein it was stated that "the aforesaid agreement continued since then and the monthly rent was increased from time to time and now the rate of rent is Rs.9000/- per month in terms of agreement dated 1st June, 1990." In para (18) of the said affidavit also it was stated that she had been paying the rent (alleged donation ) of Rs.9000/- per month.

9. Now from the above, it would be seen that the payment of Rs.9000/- per month was being taken by the parties and also specifically by the appellant as constituting rent of the suit premises and was so mentioned by her at various places though at some places it was described as alleged donation. In any case, as per Section 105 of the Transfer of Property Act, the payment of such an amount was to constitute the rent of the tenanted premises. It was rightly recorded by Ld. A.R.C. that as per this provision any consideration paid to the landlord would constitute rent.

10. Now, coming to the appellant/tenant‟s plea that the application under order 7 rule 11 could not be decided by the Ld. A.R.C. in view of the order of Vacation Judge that the same could be disposed of after the evidence. It is noted that it is recorded by the Ld. A.R.C. that the certified copies of entire judicial record of the civil suit bearing No. C.S.(O.S.) 1435/2000 have been filed by the respondent as evidence and so there was no bar to dispose of the application under order 7 Rule 11 CPC of the respondent. Ld. A.R.C. based his findings regarding lack of

jurisdiction on account of rent being Rs.9,000/- per month on the certified copies of the record of the aforesaid civil suit of the appellant filed in the Hon‟ble High Court of Delhi. There does not seem to be any impropriety or illegality in the Ld. ARC proceeding to dispose of the said application when the evidence that was required to be adduced by the respondent, was filed by way of the record of the aforesaid civil suit. As per the record of the aforesaid civil suit as noted above, the rent of the suit premises being Rs.9,000/- p.m. at that time, the Ld. ARC rightly recorded that the jurisdiction of his Court was barred." (emphasis added)

27. The defendant had challenged the Tribunal‟s order before the

High Court by filing a petition under Article 227 of the Constitution of

India, registered as Civil Misc. (Main) No.387/2009 which was also

dismissed vide order dated 21.5.2010, with the following pertinent

observations:-

"6. Having heard learned counsel for the parties and having perused the pleadings in Suit NO. 1435/2000, copies of which have been placed on record, it appears to this Court that the Petitioner has been prevaricating on what the monthly rent for the tenanted premises is. The Petitioner, was also the Defendant in CS(OS) 814/2007 filed by the Respondent against the Petitioner for possession, recovery and mesne profits. In an affidavit filed by her by way of evidence in the said suit, she stated in para 5 as under:-

"I state that the rate of rent was being increased by the Defendant No.1 from time to time and at the time of filing the present

suit, I was paying Rs.9,000/- per month as rent for the said shop".

7. As regards suit No.1435/2000 filed by her along with three others against the Respondent herein, she has set out in para 2 of the plaint terms of the agreement including the clause which mentions that Petitioner will pay Rs.9000/- in advance in the first week of every month. In para 3 of the plaint it was stated that "the rate of the rent is being increased by Defendant No. 1 (i.e. the landlord) from time to time and at present the plaintiff shall pay Rs.9,000/- per month as a rent for the said shop. The rent is already paid up to date".

8. It is plain to this Court that the petitioner herself has on more than one occasion admitted that the rent for the tenanted premises was Rs.9,000/- per month.

9. In that view of the matter, the learned ARC as well as the Tribunal were justified in concluding that the DRC Act had no application qua the premises in question. This Court does not find any legal infirmity in either order that calls for interference.

10. The petition is dismissed. The application also stands dismissed." (emphasis added)

28. It is an admitted position that the aforesaid order dated

21.5.2010 passed by the High Court in CM(M) No.387/2009 was not

assailed by the defendant before the Supreme Court and it had

attained finality. The letter dated 17.4.1995, legal notice dated

2.12.1998, the averments made by the defendant in CS(OS)

No.1435/2000 and the reply filed by her to the present application

clearly demonstrate that the defendant has admitted to being a tenant

under the plaintiff/Trust on several occasions and she has also

admitted to the fact that the rent in respect of the subject shop was

raised to `9,000/- per month, which amount she claims to have paid

upto date to the Trust. The said position also emerges on a reading of

the orders passed in the petition filed by the defendant under Section

45 of the DRC Act and the orders of the Tribunal and the High Court in

appeal.

29. As noted above, the averments made by the deceased defendant

in the petition filed by her under Section 45 of the Delhi Rent Control

Act were examined by three courts, starting from the court of the

Additional Rent Controller, then in appeal by the Rent Controller

Tribunal, and lastly, by the High Court. In all three orders, the stark

admissions made by the deceased defendant to the effect that she

used to pay a sum of `9,000/- per month in advance to the

plaintiff/Trust as rent for the subject shop, find a prominent place. The

order dated 21.5.2010, passed in CM(M) No. 387/2009 had also taken

note of the very same affidavit filed by the deceased defendant in

CS(OS)No.1435/2000 and the unequivocal admissions made by her

therein which is on the very same lines.

30. Given the admissions made by Mrs. Sughra Begum at regular

intervals from the year 1995 onwards, it cannot be urged by learned

counsel for the defendants that the said admissions that form a part of

the civil suit instituted by her against the plaintiff herein and extracted

in the orders passed in the petition filed by her under Section 45 of the

DRC Act, cannot bind her down. Nor can clause 6 contained in all the

Agreements executed between the parties over the years, including

the Agreements dated 29.3.1975, 1.6.1976, 31.5.1980, 12.3.1987,

18.5.1990 and 1.6.1993, which refers to payment of a sum of `9,000/-

per month by the defendant to the plaintiff/Trust as "donation", be

read in isolation. The said clause has to be read in conjunction with the

averments made by the defendant in the legal proceedings initiated by

her and in the context of her own understanding of how she was

treating the said amount tendered by her on a monthly basis to the

plaintiff/Trust. The court is of the opinion that the said clause cannot

dilute or wash away the clear cut admissions made by the deceased

defendant in the legal proceedings between her and the plaintiff/Trust

and nor can the orders passed by the concerned courts under the Delhi

Rent Control Act be simply brushed aside, merely because they were

passed in summary proceedings.

31. Pertinently, the civil suit instituted by the deceased defendant

against the plaintiff/Trust and three others for seeking recovery of

amounts and for permanent and mandatory injunction came to be

ultimately dismissed in default and for non-prosecution on 9.2.2012

and the said suit was not revived thereafter. In fact, the discrepant

submissions made by the defendant in the said suit were highlighted

by the Rent Controller Tribunal in the order dated 2.2.2009, wherein it

was specifically noted that at one place, the defendant had stated that

she was paying a sum of `9,000/- per month, but in paras 3 to 5 of

the plaint, the amount of `9,000/- per month that was being tendered

by her to the plaintiff/Trust was explicitly described "as rent".

32. The affidavit by way of evidence dated 6.5.2005, tendered by

the defendant in the captioned suit also mentioned the fact that the

monthly rent was increased by the plaintiff/Trust from time to time

and the same stood at `9,000/- per month, in terms of the Agreement

dated 1.6.1990. In para 8 of the said affidavit, the deceased defendant

had categorically stated that she has been paying "the rent of `9,000/-

per month". The aforesaid straight forward admissions made by the

defendant in different proceedings shall have to be treated as express

admissions on her part to the effect that there existed a relationship of

landlord-tenant between the plaintiff/Trust and her and she was

paying a sum of `9,000/- per month as rent for the subject shop.

33. In the light of the series of admissions made by the defendant as

noted above and particularly those made in judicial proceedings, the

submission made by learned counsel for the defendant that his client

had never admitted to being a tenant under the plaintiff/Trust in

respect of the subject shop @ `9,000/- per month, is found to be

patently contrary to the records and is rejected. Similarly, the stand

taken by him that till the documents referred to hereinabove are

proven in accordance with law, they cannot be relied upon and read for

deciding the present application, is untenable and turned down.

34. The plea taken by learned counsel for the defendant that the

deceased defendant has not made any admission to the effect that she

has been tendering a sum of `9,000/- per month to the plaintiffs as

rent and in fact, the monthly rent for the subject shop is `350/-, and

further, that in terms of the several Agreements executed between the

parties over the years, the defendant was paying a sum of `9,000/-

per month to the plaintiff/Trust in the first week of each month as

donation towards the development of the hospital, would not be of

much assistance as the defendant cannot be permitted to get technical

with words. As was observed by the Supreme Court in the case of

Vithal Krishnaji Nivendkar vs. Parduman Ram Singh & Anr., reported

as (1963) SCR 63, the mere use of the word „donation‟ does not take

away the effect of the other expressions/usage and it would clearly

support the findings returned by the High Court in the said case that

the payment was made by the tenant for the purpose of getting the

premises tenanted. Same is the position in the instant case. Though

the Agreements executed by the parties from time to time describe the

monthly consideration as "donation", fact of the matter is that it was

an amount being paid by the defendant as rent and she had herself

admitted in the suit instituted by her that she was paying a sum of

Rs.9,000/- per month to the plaintiff/trust as rent for the subject shop.

Nothing more needs to be stated in the face of such a categorical and

unmistakable admission.

35. The next aspect that arises for consideration is as to whether the

termination of the tenancy was validly done by the plaintiff/Trust for

decreeing the suit in their favour, on the basis of the admissions made

by the defendant. For arriving at any conclusion, it is considered

necessary to refer to the averments made by the plaintiff in paras 9 &

11 of the present application, which read as under:

"9. The notice for eviction has been issued and the same has been received as evidenced by the AD card as well as by the proof of affixation of the said notice. The defendant has not be placed any document or proof to the contrary and merely denied the averment of notice baldly.

10. xxx

11. As such upon issuance of a notice of eviction in terms of Section 106 giving the defendant 15 days notice to vacate the premises, the defendant is liable to be evicted. The said notice was issued on 21.12.2006 by the REGD A.D., Courier, UPC, and affixation and has been received by all methods and the proof of receipt has been placed in original before this Hon‟ble Court.

36. As noted above, in para 9 of the present application, it has been

specifically stated by the plaintiffs that the eviction notice was issued

and received by the defendant, which would be evidenced by the AD

card and by the proof of affixation of the said notice. In para 11 of the

application, the plaintiffs have stated that upon issuance of a notice of

eviction in terms of Section 106 of the Transfer of Property Act, by

giving the defendant 15 days‟ notice to vacate the premises, she is

liable to be evicted and that the said notice was dispatched by

registered AD, courier, UPC and served by affixation on 21.1.2006 and

it was received by her through all the modes with the proof of receipt

placed on record.

37. In the corresponding paras 9 & 11 of the reply, the defendant

has made a one line bald denial and simply stated that paras 9 & 11 of

the application are not admitted as correct, without specifically offering

any reason for the same. The said vague and evasive denial cannot be

treated as a denial in the eyes of law particularly when it runs contrary

to the documents filed by the plaintiff, which include a copy of the

legal notice dated 21.12.2006 sent by registered post and the AD card

that was returned by the postal authorities after effecting service on

the addressee. In addition, the Courier agency‟s tracking report dated

1.1.2007 amply establishes receipt of the said legal notice by the

deceased defendant. So there can be no doubt that the termination

notice was received by the defendant.

38. It may be added here that the factum of there being a

presumption of delivery of the notice was a facet that was dealt with

by the Supreme Court in the case of M/s. Madan & Co. vs. Wazir Jaivir

Chand, reported as AIR 1989 SC 630, cited by learned counsel for

the plaintiff. The said case involved the interpretation of Section 11 of

the Jammu & Kashmir Houses & Shops Rent Control Act, 1966 and

the controversy hinged on the question as to whether the notice sent

by the respondent/landlord therein by registered post on 26.11.1976,

could be said to be served and the petitioner/tenant therein could be

said to have received it. The two courts below had concurrently

answered the said question in the affirmative. Turning down the

contention of the appellant/tenant therein that the statute postulates a

factual service of the notice and the actual receipt of it by the tenant

and in the absence thereof, the eviction petition could not have been

decreed, the Supreme Court had opined as below :

"6. Much emphasis has been placed by the courts below and counsel for the landlord on the attempt made by the landlord to serve the notice on the premises in the presence of the witnesses. While the counsel for the landlord would have it that the steps show the landlord's bona fides, counsel for the tenant submits that the haste with which the 'substituted service' was effected and the lack of any real attempt to find out the whereabouts of the tenant (who had, according to him, been compelled to be away at Amritsar for medical treatment) throw consideration doubts on the claim of bona fides. We do not think that any statutory significance can at all be attached to the service by affixture claimed to have been effected by the landlord. The statute prescribes only one method of service for the notice and none other. If, as we have held, the despatch of the notice by registered post was sufficient compliance with this requirement, the landlord has fulfilled it. But, if that is not so, it is no compliance with the statute for the landlord to say that he has served the notice by some other method. To require any such service to be effected over and above the postal service would be to travel outside the statute.

Where the statute does not specify any such additional or alternative mode of service, there can be no warrant for importing into the statute a method of service on the lines of the provisions of the C.P.C. We would therefore not like to hold that a "substituted" service, such as the one effected by the landlord in the present case, is a necessary or permissible requirement of the statute. It may be even an impracticable, if not impossible, requirement to expect some such service to be effected in cases where the landlord lives outside the town, or the State in which the premises are situated. If, in the present case, the landlord attempted such service because he was in the same town, that can only show his bona fides and it is only in this view that we proceed to express our findings in this regard." (emphasis added)

39. Even otherwise, in the case of Nopany Investments (P) Ltd. vs.

Santokh Singh (HUF), reported as (2008) 2 SCC 728, the Supreme

Court had held that a monthly tenancy can be said to be determined

by the landlord on filing a suit for possession. Para 22 of the aforesaid

judgment is apposite and reads as under:

"22. In the present case, after serving a notice under Section 6A read with Section 8 of the Act, the protection of the tenant under the Act automatically ceased to exist as the rent of the tenanted premises exceeded Rs. 3500/- and the bar of Section 3(c) came into play. At the risk of repetition, since, in the present case, the increase of rent by 10% on the rent agreed upon between the appellant and the respondent brought the suit premises out of the purview of the Act in view of Section 3(c) of the Act, it was not necessary to take leave of the rent controller and the suit, as noted herein above, could be filed by the landlord under the general law. The landlord was only required to serve a notice on the tenant expressing his intention to make such increase. When the eviction petition was pending before the

Additional Rent Controller and the order passed by him under Section 15 of the Act directing the appellant to deposit rent at the rate of Rs. 3500/- was also subsisting, the notice dated 9th of January, 1992 was sent by the respondent to the appellant intimating him that he wished to increase the rent by 10 percent. Subsequent to this notice, another notice dated 31st of March, 1992 was sent by the respondent intimating the appellant that by virtue of the notice dated 9th of January, 1992 and in view of Section 6A of the Act, the rent stood enhanced by 10 percent i.e. from Rs. 3500/- to Rs.3850/-. It is an admitted position that the tenancy of the appellant was terminated by a further notice dated 16/17th of July, 1992. Subsequent to this, the eviction petition No. 432 of 1984 was withdrawn by the respondent on 20th of August, 1992 and the suit for eviction, out of which the present appeal has arisen, was filed on 6 th of February, 1993. That being the factual position, it cannot at all be said that the suit could not be filed without the leave of the Additional Rent Controller when, admittedly, at the time of filing of the said suit, the eviction petition before the Additional Rent Controller had already been withdrawn nor can it be said that the notice of increase of rent and termination of tenancy could not be given simultaneously, when, in fact, the notice dated 16/17th of July, 1992 was also a notice to quit and the notice intending increase of rent in terms of Section 6A of the Act was earlier in date than the notice dated 16/17th of July, 1992. In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this court in V. Dhanapal Chettiar vs. Yesodai Ammal." (emphasis added)

40. In the present case, it has to be held that the provision of

serving a statutory notice of termination of tenancy under Section 106

of the Transfer of Property Act had been duly complied with by the

plaintiffs who had sent a notice correctly addressed to the

defendant/tenant by several modes, including registered AD card and

speed post and the same were duly received by her.

41. If it is assumed for a moment that the notice terminating the

tenancy was not served upon the defendant as alleged by the learned

counsel for the defendant, the inference is that on filing of the present

suit by the plaintiff, the said tenancy stood automatically terminated.

Once the service of the plaint in the suit on the defendant is taken as a

notice for terminating the tenancy, then by applying the provision of

Order VII Rule 7 CPC which empowers the court to take notice of

subsequent events for purposes of moulding the relief in a suit, it has

to be held that the defendant‟s tenancy would stand terminated after

the expiry of 15 days from the date of receipt of service of the

summons in the suit. This is for the reason that the sole object of the

amendment made by the legislature to Section 106 of the Transfer of

Property Act by Act 3 of 2003 was to provide at least 15 days‟ clear

notice to the tenant to make alternative arrangements and to obviate

any technical objection that the legal notice did not validly terminate

the tenancy by a notice ending with the expiry of the tenancy month,

so long as the stipulated period of 15 days was otherwise given to the

tenant to vacate the premises. The whole object of the amendment to

Section 106 of the Transfer of Property Act was that substantial justice

is not defeated at the hands of technicality and once the tenant had a

period of 15 days to vacate the tenanted premises, it cannot be argued

that the tenancy has not been validly terminated or a suit can fail on

account of invalid termination.

42. The defendant was admittedly served with the summons in the

suit on 25.9.2007 and appearance was entered by her counsel on

1.10.2007. Upon the summons in the suit along with documents being

served on the defendant/tenant, it has to be assumed that she had

received the eviction notice, which formed a part of the set of

documents filed by the plaintiff/Trust. Even if the date of the service of

the summons on the defendant is taken as the date on which she had

received a copy of the notice that was duly served on her alongwith

the documents filed with the suit, it is axiomatic that the period of 15

days would have expired immediately thereafter and as

a consequence, the tenancy would stand automatically terminated at

that point in time.

43. To conclude, in the given facts and circumstances of the case, it

has to be held that the defendant had admitted to the relationship of

landlord and tenant between her and the plaintiff/Trust, and to the fact

that the rate of rent in respect of the subject shop was `9,000/- per

month. Further, the records reveal that the defendant‟s tenancy had

been validly terminated by the plaintiff/Trust under Section 106 of the

Transfer of Property Act, upon issuance of the legal notice dated

21.1.2006, and if not so, then upon service of the summons in the

present suit on her along with the accompanying documents. Keeping

in mind the unequivocal, unqualified and unambiguous admissions

made by defendant on the vital facts, as have been enumerated above

and on a conspectus of the documents placed on record, the suit for

the relief of possession ought to be decreed in favour of the

plaintiff/Trust, without making it go through the travails of a trial.

44. Accordingly, the application is allowed and suit is decreed in

terms of prayer clause 16(i) of the plaint and the plaintiff/Trust is held

entitled to recover the possession of the subject shop from the

defendant. Decree sheet be drawn accordingly.

45. The application is disposed of.

                                                        (HIMA KOHLI)
NOVEMBER 02, 2015                                          JUDGE
rkb/sk/ap