Delhi High Court
Chanda vs Rajesh Saxena on 13 October, 2015
Author: Vipin Sanghi
$~42.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 13.10.2015
% RSA 364/2015
CHANDA ..... Appellant
Through: Mr. Abhay Pandey, Advocate.
versus
RAJESH SAXENA ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
C.M. No. 23263/2015
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
RSA 364/2015 and C.M. No. 23264/2015
3. The present second appeal is directed against the judgment/ order and
decree dated 08.09.2015 passed by the First Appellate Court, namely the
ADJ-04 (North-West), Rohini Courts, Delhi in RCA No.83/2014 preferred
by the appellant/ defendant, whereby the said first appeal had been
dismissed by the First Appellate Court. The said appeal had been preferred
by the appellant/ defendant to assail the order/ judgment and decree dated
31.10.2014 passed by the Trial Court, namely JSCC/ASCJ/GJ (North-West),
Rohini Courts, Delhi, whereby the application under Order XII Rule 6 CPC
moved by the respondent/ plaintiff had been allowed, and a partial decree for
possession had been passed in favour of the respondent/ plaintiff and against
the appellant/ defendant.
4. The case of the respondent/ plaintiff was that he is the owner/ landlord
of Shop No.B-780, Sector-I, Rohini, Delhi - 110085, which had been let out
to the appellant/ defendant on 17.08.2009 through a registered agreement on
a monthly rent of Rs.4,500/-. An amount of Rs.10,000/- was given by the
appellant/ defendant as interest free refundable security. The plaintiff stated
that the said rent agreement expired by efflux of time on 19.08.2012. After
the expiry of the tenancy, the defendant sought some time to vacate the
tenanted premises. Accordingly, the tenancy was orally extended for a
further period of four months and the rent was increased to Rs.6,000/- per
month. Subsequently, the defendant again requested that he would vacate
the suit premises on 30.04.2013. He also signed an undertaking to this
effect. The defendant again approached the plaintiff and assured the
plaintiff that he would vacate the tenanted premises on 30.09.2013. He also
gave an undertaking.
5. On 04.09.2013, the plaintiff requested the defendant to vacate the suit
property and pay the outstanding rent for the months of July, August and
September 2013. The plaintiff claimed that the defendant took an
acknowledgement of payment of rent and subsequently added an entry into
the receipt to the effect that Rs.5 Lakhs had been given by the defendant to
the plaintiff as security. The plaintiff stated that he terminated the tenancy
of the defendant vide legal notice dated 26.10.2013. Since the defendant did
not vacate the premises, the plaintiff filed the said suit to seek possession of
the suit property, damages and mesne profits along with pendente lite and
future interest.
6. In his written-statement, the appellant/ defendant pleaded that the
plaintiff demanded Rs.5 Lakhs as security for renewing the lease agreement
after the expiry of the previous agreement. He claimed that the said amount
was paid to the plaintiff on 04.09.2013. He further pleaded that the
agreement between the parties was that the rent shall not be increased in
future, as the defendant had paid a high amount of security to the plaintiff.
He further pleaded that the plaintiff had agreed to allow the defendant to
enjoy the tenanted premises as per his requirement with no period of
limitation fixed for tenancy of the defendant.
7. The Trial Court, while considering the plaintiff's application under
Order XII Rule 6 CPC, observed that the relationship of landlord and tenant
was admitted between the parties. It was also admitted that the rate of rent
was Rs.6,000/- per month. The legal notice dated 26.10.2013, whereby the
tenancy of the appellant/ defendant was terminated, was also admitted.
Consequently, the Trial Court proceeded to pass partial decree for
possession. The Trial Court also considered the defence of the appellant/
defendant that as an amount of Rs.5 Lakhs was paid by the defendant to the
plaintiff, the plaintiff was disentitled from seeking a partial decree without a
trial. The Trial Court, inter alia, observed that as per Section 107 of the
Transfer of Property Act, 1882, lease of immovable property for any term
exceeding one year could be made by a registered instrument. The
defendant has failed to place on record any such registered instrument.
Consequently, the tenancy was on month-to-month basis and could be
terminated by the landlord/ plaintiff.
8. The First Appellate Court has concurred with the said findings of the
Trial Court while passing the impugned judgment and decree. The First
Appellate Court has also taken note of the judgment of the Supreme Court in
Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF), (2008) 2 SCC 728,
followed by this Court in Jeevan Diesel and Electrical Ltd. Vs. Jasbir
Singh Chhadha (HUF) & Another, RFA No.179/2011 decided on
25.03.2011, wherein it has been held that it is not necessary for the plaintiff
to terminate the monthly lease prior to filing of the suit as the filing of the
suit itself is sufficient notice to the defendant for termination of lease.
9. The submission of learned counsel for the appellant/ defendant/ tenant
is that the Courts below have not appreciated the fact that the appellant/
defendant had paid Rs.5 Lakhs to the respondent/ plaintiff as security for
extension of the lease.
10. I do not find any merit in the aforesaid submission of learned counsel
for the appellant. As observed by the Courts below, the only mode and
manner known to law for grant of leasehold rights for a period of more than
eleven months is by a registered instrument. It is not the appellant's case
that a registered lease was executed between the parties when the alleged
amount of Rs.5 Lakhs was paid by the appellant/ defendant to the plaintiff.
As to whether, or not, the said amount was actually paid, would be a matter
of trial and the suit is still pending consideration of such issues. However, it
cannot be said that the defendant/ appellant acquired a right to continue in
occupation as a lessee/ tenant, which could not be terminated by the
respondent/ plaintiff. The tenancy of the appellant/ defendant was on
month-to-month basis, which stood terminated by the legal notice aforesaid
and, in any event, by the filing of the suit.
11. No substantial question of law arises for consideration in the present
appeal and I find no merit in the present appeal.
12. Dismissed.
VIPIN SANGHI, J
OCTOBER 13, 2015
B.S. Rohella
