In the Court of Dr. [ENTITY]: Additional District Judge South District, Saket Courts Complex, New Delhi. [CASE NUMBER] CNR No.: DLST01- 005631-2016 In the matter of :- [ENTITY] S/o Om Prakash R/o 127, Block 1- 2nd Madangir, Dr. Ambedkar Nagar New Delhi-110062 Appellant Versus [ENTITY] S/o Late Jeet Singh R/o House no. 37-B, Chirag Delhi New Delhi-110017 Respondent Date of institution : 17.10.2016 Reserved for Judgment : 30.01.2017 Date of decision : 30.01.2017 Appeal against order dated 22.09.16 and Order and Decree dated 16.05.2016 passed by Sh. [ENTITY], Civil Judge-02, South District, New Delhi JUDGMENT
1. This appeal under [SECTION] of the [ACT] (in short [ACT]) read with [SECTION] [ACT] is directed against the order and Decree dated 16.05.2016 and order dated 22.09.2016 passed by the Court of Sh. [ENTITY], Civil Judge-02, South District, New Delhi in [CASE NUMBER] entitled [ENTITY] v. [ENTITY] whereby the learned Civil Judge on its own passed a Decree under [SECTION] [ACT] and decreed the suit qua the relief of possession in favour of the plaintiff and [CASE NUMBER] Page no. 1 / 12 against the defendant in respect of the premises i.e. Shop No. 6, CSC DDA Market, Madangir, New Delhi shown "red" in the site plan (hereinafter referred to as 'the premises'). The costs of the suit was also awarded in favour of the plaintiff.
2. Brief facts for the decision in the appeal are that the respondent [ENTITY] (hereinafter referred to as 'the plaintiff') has instituted a suit against appellant [ENTITY] (hereinafter referred to as 'the defendant') for passing a decree of possession with regard to the premises and for recovery of mesne profits/ damages and other charges. It is averred in the plaint that the plaintiff is co- owner of the premises and is capable of letting out the premises legally. The defendant has taken on rent the premises for a period of 11 months from 22.12.2013 to 21.11.2014 at rent of Rs.14,000/- per month excluding other charges such as electricity etc. A lease deed dated 21.12.2013 was executed. The defendant has not paid rent from May 2014 onwards. The plaintiff has terminated the tenancy vide legal notice dated 01.04.2014 to vacate the premises by 30.04.2014 but the defendant has not vacated the premises.
3. In the written statement filed on behalf of the defendant, it is contended that it was orally agreed that defendant would spend for repair and renovation of shop which would be refundable and accordingly the defendant spent a sum of Rs.3,00,000/-. It is further contended that [CASE NUMBER] Page no. 2 / 12 the defendant has paid rent till May 2014. It is denied that the defendant had received any notice for termination of tenancy.
4. To the written statement of the defendant, the plaintiff filed replication wherein the contentions raised in the written statement are traversed and the allegations made in the plaint are reaffirmed.
5. On 21.09.2015, the defendant informed the learned Trial Court that he had vacated the suit premises. The plaintiff was directed to take over the possession and apprise the court. The defendant also paid Rs.1,00,000/- in cash to the plaintiff and submitted that he shall be making the remaining payment in compliance to previous order within two months.
6. On 05.07.2016, it has been observed by the learned Trail Court that the defendant has not paid the arrears of rent and hence in view of the Order XV-A, the defence of the defendant was struck off.
7. Vide order dated 16.05.2016, the learned Trial Court had partly decreed the suit whereby a decree of possession under [SECTION] of the [ACT] was passed in favour of the plaintiff and against the defendant in respect of the premises and the defendant was directed to handover the physical, vacant possession of the premises immediately.
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8. Thereafter, the learned Trial Court, vide order dated 22.09.2016 dismissed an application under [SECTION] [ACT] made on behalf of the defendant for rejection of plaint.
9. Against, these two orders the appellant has preferred this appeal. It is noteworthy here that in the present appeal, the appellant has also challenged other orders but the appellant sought amendment in appeal to drop order dated 03.09.15, 05.0716 and 03.08.16 from the ambit of this appeal.
10. I have heard Mr. [ENTITY], Advocate for the appellant and Mr. [ENTITY], Advocate for the respondent and have gone through the trial court record carefully.
11. Having drawn my attention on the impugned order and decree dated 16.05.2016 passed by the learned Trial Court, it is submitted by the appellant that the impugned order and decree are not sustainable and liable to be set aside. It is further argued that the plaintiff had not filed any application under [SECTION] [ACT] but the court on its own passed an order and decree under [SECTION] [ACT] which cannot be done. It is further submitted that the defendant did not receive any notice for termination of tenancy. It is further submitted that valuation of the suit should have been made on the basis of market value of suit premises and not on the basis of annual rent as done by the plaintiff in this suit. It is further [CASE NUMBER] Page no. 4 / 12 submitted that on this very ground the plaint was liable to be rejected but the learned Trial Court dismissed the application under [SECTION] [ACT].
12. Per contra, it is submitted by the learned counsel for the respondent that the defendant has admitted lessor- lessee relationship and the rate of rent being Rs.14,000/- per month. The learned counsel for the respondent argues that the institution of suit is itself a notice to the defendant for termination of lease. It is further submitted that appeal against order of dismissal of application under [SECTION] [ACT] is not maintainable as per law.
13. I have given my thoughtful consideration to the submissions made on behalf of the parties.
14. Relevant portion of the impugned judgment whereby the learned Trial Court allowed application under [SECTION] [ACT] and decreed the suit qua the relief of possession reads as follows:-
"The defendant in his WS has categorically admitted that the relationship between plaintiff and the defendant as that of landlord and tenant in para no. 3 & 4 of the WS. It is further admitted that the rate of rent was fixed @Rs.14000/- per month. The defendant has denied the service of legal notice terminating the tenancy. It is a settled proposition of law that even the filing of eviction suit itself is a notice to quit on the tenant even if the statutory legal notice has not been served upon the defendant. The judgment passed by Hon'ble Supreme Court of India in case titled as [PRECEDENT] where this lase has been established. The address of the defendant on which legal notice have been sent is admitted to be correct. Hence, service of legal notice also stands proved.
The law is well settled in regard passing of decree of possession in favour of the plaintiff. The plaintiff has to prove three ingredients for indictment namely clause (A) relationship of landlord and tenant, clause (B) rate of rent is above Rs.3500/- and clause (C) service of notice of termination of tenancy. Law is also very clear [CASE NUMBER] Page no. 5 / 12 pertaining to the judgment on admission and it may not be categorical rather there can be constructive admission which can be inferred from the facts and circumstances of the case which warrants passing of the decree. All the three essential ingredients as mentioned above have been duly complied with in the present case.
I can safely rely upon judgment passed by Hon'ble Supreme Court of India in case titled as [PRECEDENT] and judgment passed by Hon'ble Delhi High Court in case titled as [PRECEDENT] dated 13.07.2011 and [PRECEDENT] dated 17.01.2014 whereby it has been held that [SECTION] [ACT] is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from facts and circumstances of the case then in such case in order to expedite and dispose of the matter such admission can be acted upon. In view of the admission made by the defendant in his WS, I am of the opinion that the present suit can be partly decreed under the provisions of [SECTION] [ACT]. Hence, suit of the plaintiff is hereby partly decreed pertaining to relief of possession.
The defendant is hereby directed to hand over the physical, vacant possession of the suit property i.e. Shop No. 6, CSC Market, Madangir, Opposite Khanpur Deport, BRT Point, New Delhi as shown in red color in the site plan immediately. Costs of suits pertaining to relief of possession is also awarded to the plaintiff."
15. In the light of the contentions raised by the parties before this Court the only point for determination is, namely:-
Whether the impugned order and decree passed by the learned Trial Court are liable to be reversed?
16. For determination of these points, some admitted facts are required to be noticed. From the pleadings of the parties, it has been established that there exists a lessor- lessee relationship between the parties qua the premises. Description of the premises is also not disputed by the defendant. Admittedly, rate of rent of the premises is Rs.14,000/- and the suit is beyond the purview of [ACT] referred to as "the [ACT]").
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17. The question for consideration in this appeal is that the plaintiff has alleged service of notice of termination of lease and the defendant has denied such service. Admittedly, if notice under [SECTION] of the [ACT] is not issued/served the filing of suit itself can be taken as notice under [SECTION] of the [ACT].
18. Regarding termination of tenancy, it is alleged by the plaintiff in the plaint that a legal notice dated 01.04.2014 of termination of tenancy was served upon the defendant. The defendant has denied the fact of receiving any legal notice dated 01.04.2014.
19. The plaintiff has produced on record copy of legal notice dated 01.04.2014 addressed to the defendant and postal receipts. It is not the stand of the defendant that the addresses given in the legal notice or on the postal receipts were not his correct addresses. In these circumstances, a presumption is raised that legal notice dated 01.04.2014 was served on the defendant.
20. Even otherwise, the plaintiff had filed a copy of legal notice in Court with the plaint when the plaint was presented. A copy of legal notice was sent to the defendant along with summons of the suit. It is not the stand of the defendant that he has not received the copy of legal notice when he was served with the summons of the suit along with plaint and other documents.
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21. The Hon'ble Delhi High Court has, in [PRECEDENT], held as follows :-
Therefore, looking at it from any point i.e. the fact that legal notice terminating tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice alongwith documents was duly served to the appellant/tenant way back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over possession of the tenanted premises.
22. It has been held by Hon'ble High Court of Delhi in [PRECEDENT] as follows:-
In the present case, relationship of landlord and tenant is admitted and the rate of rent is also admitted to be more than 3500/- i.e. 14,200/- per month. Dehors the issue of termination of tenancy, the period of lease has also expired on 5.7.2011. I have in the recent judgment reported as [PRECEDENT] held that even if it is not proved that a legal notice was served prior to filing of the suit, service of summons of the suit can be taken as a notice under [SECTION] of the Act. I have held that Court should take a pragmatic view in view of the legislative intendment as demonstrated by [ACT], amending [SECTION] of the Act. An SLP against the said judgment being [CASE NUMBER] has been dismissed by the Supreme Court on 7.7.2011.
23. In the light of law laid down in M/s [PRECEDENT]'s case (supra), even assuming the notice terminating tenancy was not served upon the defendant, as it is contended, though it has been served as is noted above, filing of eviction suit under general law itself is notice to quit on the tenant. The contents of the legal notice sent by the plaintiff to the defendant reads as follows:
"That you have taken on rent a Shop No. 06, CSC DDA Market, Madangir, Opp. Khanpur Depot, (BRT Point), New Delhi-110062 admeasuring around 70 Sq. Feets on 22.12.2013 to 21.11.2014 for the period of 11 months vide Rent Deed dated 21.12.2013 at the rate of rent at Rs.14,000/- per month excluding other charges such as electricity etc. and you have executed the Rent [CASE NUMBER] Page no. 8 / 12 Agreement in favour of my clients in this regard. It is also agreed that after lapse of 11 months, the rent will be paid after increase if agreed by mutual consent for extension of the Rent Agreement and the rent will be further increased till its determination. The rent was payable in advance on or before 21st day of each English Calender month.
4. That my client is no more interested to let out the above mentioned premises to you and require the vacant possession of the premises within a month as per the Rent Agreement. If you do not go through the terms of Rent Agreement then the tenancy became month-by-month and even otherwise you are required to vacate the premises within a month or upto 30.04.2014."
24. A bare reading of the contents of the notice dated 01.04.2014 sent by the plaintiff through his counsel to the defendant reveals that the plaintiff has terminated the tenancy of the defendant.
25. The tenancy of the defendant in the suit premises is neither for agricultural purpose nor for manufacturing purpose and is terminable by giving 15 days notice.
26. In the light of discussion above-stated, the position that emerges is that (i) the relationship of lessor and lessee is admitted; (ii) the tenancy has been validly terminated;
(iii) the rent is Rs.3850/- per month, i.e., more than Rs.3,500/-. The suit is beyond the purview of [ACT]. On these facts, the plaintiff is entitled to judgment under [SECTION] [ACT].
27. Another contention raised on behalf of the appellant that the plaintiff had not filed any application under [SECTION] [ACT] but the court on its own passed an order and decree under [SECTION] [ACT] which cannot be done is not sustainable. The reason is obvious. The [CASE NUMBER] Page no. 9 / 12 requirement prior to [ACT] for filing an application under [SECTION] [ACT] stands waived and under the amended [SECTION] [ACT], the court on its own motion and without an application made by a party can proceed to pass a decree on an admission.
28. In view of my above discussion, I am of the considered view that the impugned judgment and decree suffers from no infirmity and hence is not liable to be interfered with.
29. Even otherwise, during the course of final arguments on the appeal, it is argued by counsel for the appellant that the appellant has already vacated and handover possession of Shop No. 6, CSC Market, Madangir, Opposite Khanpur Depot, BRT point, New Delhi to the decree holder [ENTITY]. Statement on oath of the appellant to this effect was also recorded.
30. In these circumstances, when the appellant has already vacated the premises, therefore, appeal against order and decree of possession becomes infructuous.
31. Now, I take up the appeal against order dated 22.09.2016 of dismissal of application under [SECTION] [ACT].
32. The relevant portion of order dated 22.09.2016 reads thus:-
"Ld. Counsel for the defendant raised only one contention in his application that is with respect to the valuation of the suit for the purpose of court fee as well as jurisdiction. It is submitted by Ld. [CASE NUMBER] Page no. 10 / 12 Counsel for the defendant that plaintiff has not valued the relief of possession on the basis of market value of the suit property therefore the suit has not been properly valued. Hence, rejection of the plaint is prayed for. On the other hand, Ld. Counsel for the plaintiff opposed the application submitted that the suit has been properly valued in accordance with the law. It is further submitted that as per [SECTION] of The [ACT], the rent amount of immovable property payable for the year has to be taken for the purposes of valuation so it is not required to value the suit on the basis of market value of the suit property. Hence, the application moved by the defendant is devoid of any merits.
I have gone through the submissions and the record carefully. It is a settled principle of law that for the purposes of deciding an application under [SECTION] [ACT], only the plaint and accompanying documents have to be looked into and averments made by the defendant either in WS or in application under [SECTION] [ACT] cannot be considered.
I completely agree with the argument put forth by Ld. Counsel for the plaintiff that the present suit has been filed seeking relief of possession of the suit property after terminating the tenancy with the defendant. As per [SECTION] of the [ACT], the suit has been valued on the basis of 12 months rent amount. Accordingly, the suit has been properly valued for the purpose of court fee as well as jurisdiction. The contention of the defendant that the suit has to be valued on the market value of the suit property is without any substance. Hence, the application moved by defendant stands dismissed."
33. [SECTION] [ACT] deals with rejection of plaint. Any order under [SECTION] [ACT] is clearly non- appeallable in view of [SECTION] [ACT]. But, once the plaint is rejected, then obviously nothing is pending before the Court. The order rejecting plaint being the decree by the trail court, the only remedy, if plaintiff is aggrieved, is by way of filing an appeal and not by filing revision petition. So, in view of the provisions of [SECTION] [ACT], against an order of dismissal of an application under [SECTION] [ACT] an appeal is not maintainable.
34. Even otherwise, the contention raised on behalf of the appellant that the suit for possession on the basis of lessor- lessee relationship is to be valued on the basis of market [CASE NUMBER] Page no. 11 / 12 value of the suit property is not sustainable in law. It is well settled that a suit of possession of a leased premises is to be valued on the basis of annual rent and not on the basis of market value.
35. For the discussion above-stated, the appeal is dismissed with costs. The appeal file be consigned to the Record Room. Trial Court Record be sent back along with copy of the judgment.
Pronounced in the Open Court on 30.01.2017 (jl) (Dr. [ENTITY]) Additional District Judge South District, Saket Courts, New Delhi [CASE NUMBER] Page no. 12 / 12