IN THE COURT OF ANURAG SAIN, ADJ03 (EAST), KARKARDOOMA COURTS, DELHI [CASE NUMBER] Unique Case ID No. 02402C0122112013 Sh. [ENTITY], S/o Late Sh. [ENTITY], R/o 126B, PocketC, Mayur Vihar PhaseII, Delhi110091. Plaintiff Versus 1. Sh. [ENTITY], S/o Sh. [ENTITY], Shop bearing no. G6, (Ground Floor), Manish Chambers, PocketB LSC, Mayur Vihar PhaseII, Delhi110091 Also at: Sh. [ENTITY], S/o Sh. [ENTITY], R/o 1527, [ENTITY], Suiwalan, [ENTITY], Delhi110002. 2. Sh. [ENTITY], [CASE NUMBER] Page 1 of 33 S/o Late Sh[ENTITY], Shop bearing no. G6, (Ground Floor), Manish Chambers, PocketB LSC, Mayur Vihar PhaseII, Delhi110091. Also at: Sh. [ENTITY], R/o 1527, [ENTITY], Suiwalan, [ENTITY], Delhi110002. Defendants Date of institution of the suit : 22.04.2013 Date of filing of app. U/[SECTION] [ACT] : 15.03.2014 Date of disposal of app. U/[SECTION] [ACT] : 06.08.2014 ORDER
1. Vide this order, I shall dispose off the application Under [SECTION] [ACT] filed by the plaintiff.
2. The present suit has been filed by the plaintiff for possession, recovery of arrears of license fee, mesne profits and for permanent injunction in respect of property bearing no.G6 (Ground Floor), Manish Chambers, PocketB Local Shopping Centre, Mayur Vihar PhaseII, Delhi110091 (hereinafter referred to as 'the suit property').
3. Briefly stated the facts of the matter are that plaintiff is the absolute owner of the property bearing no. G6 (Ground Floor), Manish Chambers, PocketB Local Shopping Centre, Mayur Vihar PhaseII, Delhi110091 having a super area of 196 sq. ft. (carpet area approx. 100 sq. ft.) (hereinafter referred to as suit property) by way of irrevocable registered Power of Attorney executed in his favour on 31.10.2001. Defendant no.1 is the licensee in the suit property and defendant no.2 who is father of defendant no.1, who has been put into illegal possession by defendant no.1. It is further stated by the plaintiff that vide letter dt. 03.10.2012, defendant no.1 approached the plaintiff for giving the suit property on leave & license for a period of six months to which the plaintiff agreed and a Leave & License Agreement was executed between plaintiff and defendant no.1 on 15.10.2012. The premises were given on license to defendant no.1 from 15.10.2012 to 14.04.2013 for a sum of Rs.16,500/ p.m. which was payable on on before 15th day of every month. The defendant no.1 paid the licence fee from October, 2012 to December, 2012 (up 14.01.2013) but thereafter no licence fee has been paid by defendant no.1 from 15.01.2013 onwards. It is further stated by the plaintiff that defendant no.1 has illegally transferred the possession of the suit property to def. no.2 i.e. his father. The plaintiff further averred that the occupation of defendant no.2 is totally unauthorized and defendant no.2 has no right to continue to be in possession of the suit property. Plaintiff has also stated that he had issued a legal notice to defendant no. 1 on 21.3.2013 requiring the defendant no.1 to pay the arrears of license fee and also the damages for the use and occupation of the suit property and also to have over vacant peaceful possession of the suit property. It was recorded in the Leave and License Agreement that in case of any default in the payment of license fee, the security amount will be forfeited. The said legal notice was duly served upon defendant no.1 but the defendant no.1 and neglected to clear the arrears of license fee or handover the possession of the suit property to the plaintiff. The defendant no.1 or 2 after the expiry of license and termination of the license agreement has no locus to continue in occupation of the suit property. The plaintiff has prayed for a decree of possession in favour his favour in respect of suit property, arrears of license fee alongwith interest @ 18%, a decree of damages/mesne profits @ 18% and permanent injunction restraining the defendants from creating any third party interest.
4. The defendants filed written statement and taken various objections viz. plaintiff has concealed the material facts from the court and has not approached the court with clean hands. The defendants have averred that prior to the expiry of leave and licence agreement dt. 11.10.10, executed between the plaintiff and the defendant no.2, as the relations between def. no.1 and def. no.2 became strained and therefore, def. no.1 decided to take over the possession of the suit property and contacted the plaintiff in this regard to which the plaintiff agreed and defendant no.1 asked the plaintiff to execute a new leave and licence agreement in favour of defendant no.1 for a period of two years. On 15.10.2012 the plaintiff brought the leave and licence agreement to be executed between plaintiff and defendant no.1 and the said agreement was signed by defendant no.2 as witness at the instance of the plaintiff and the defendant no.1. The same got notarized on 16.10.2012 but the possession of the suit property was remained with defendant no. 2 till that time. It has been submitted that there is no relationship of landlord and tenant between the plaintiff and defendant no.1. It has been further stated that there is no Leave and Licence Agreement dated 15.10.2012 executed between the plaintiff and defendant no.1. It is further alleged that in fact the suit property was given by the plaintiff to defendant no.2, who is father of defendant no.1, in the month of October 2010 on the basis of Leave and Licence Agreement dated 11.10.2010 for a period of two years which was to be extended further in terms of the oral agreement if defendant no.2 wants to remain as licencee after 14.10.2012. It has been further stated that after the expiry of the period of Leave and Licence Agreement dated 11.10.2010, there was some family dispute between defendant no.1 and defendant no.2 and defendant no.1 decided to take over the possession of the suit property and accordingly made contact with the plaintiff and told about the same in this regard. The plaintiff joined his hands with defendant no.1. Defendant no.1 asked the plaintiff to execute a new Leave and Licence Agreement for a further period of two years and since the plaintiff also wanted, so, he became agree for the same. On 15.10.2012, the plaintiff brought a document written in English language stated to be Leave and Licence Agreement for a further period of two years. The plaintiff asked defendant no.2 to put his signatures on the same which defendant no.2 did. It has been further stated that defendant no.1 also signed the same as licencee and the plaintiff also got the same notarized on 16.10.2012 but the possession of the suit property was remained with the defendant no.2 till that time.
5. It has been further stated that defendant no.2 is an illiterate person and cannot read and write English language but can only sign in Urdu language. It has been further stated that on 16.10.2012, defendant no.2 came to know from the copy provided to him by the plaintiff and shocked to know that instead of executing a further Leave and Licence Agreement in favour of defendant no.2, the plaintiff dishonestly and fraudulently executed a Leave and Licence Agreement with defendant no.1 by dishonestly taking the signature of defendant no.2 as only a witness of the said Agreement dated 15.10.2012. It has been further stated that the plaintiff told the defendant no. 2 that since defendant no.2 did not show his willingness in executing a further Leave and Licence Agreement in his favour, hence the plaintiff executed Leave and Licence Agreement in favour of defendant no.1 and the plaintiff further told to defendant no.2 to handover the peaceful vacant possession of the suit property to the plaintiff within a week. It has been further stated that defendant no.2 kept the matter before his other family members, friends and relatives and a meeting was held at the house of defendant no.2 on 17.10.2012 where the dispute between defendant no.1 and defendant no.2 was resolved and it was decided that defendant no.1 will not interfere into the matter of suit property in any manner and he will get the Leave and Licence Agreement dated 15.10.2012 cancelled. Accordingly, on 18.10.2012, the defendants made a contact with the plaintiff and informed him about the compromise and asked the plaintiff for the cancellation of the Leave and Licence Agreement dated 15.10.2012.
6. It has been further averred by defendant no.1 that the plaintiff is an organizer of the Chit Fund Schemes generally known as "Committee" amongst the people of the locality and defendant no.1 is also a member of one of the said Committee to the tune of Rs.Five Lac. It has been further stated that on the asking of the plaintiff, defendant no.1 started to look after the said business of the plaintiff in collecting the monthly installments of the Committee from the members as well as to maintain the accounts of the said business of the plaintiff on commission basis at the rate of 1% per committee. It has been further stated that the cheque of Rs.16,500/ issued by defendant no.1 in favour of the plaintiff was towards a monthly installment of the said Chit Fund Committee being the Member of the said Committee. It has been further stated that the draw of a Chit Fund Committe in which defendant no.1 is also a member, was held on 10.10.2012 and the plaintiff has to make the payment of Rs.Four Lac to one Sh. [ENTITY] S/o Late Sh. [ENTITY] R/o 20, J & K Block, Laxmi Nagar, Delhi[SECTION] in whose favour the Committee was declared open on or before 15.10.2012 but the other members of the committee did not make the payment of committee on 10.10.2012 and therefore the plaintiff requested defendant no.1 to arrange a sum of Rs.Four Lac from his sources to give the same to Sh. [ENTITY] in whose favour the committee was declared open and requested to defendant no.1 that he may collect the said amount of Rs. Four Lac from the collection to be received from the installments of the other members of the Committee and as per the request of the plaintiff and keeping in view his relations with the plaintiff, defendant no.1 somehow arranged a sum of Rs.Four Lac from his sources and paid the same to Sh. [ENTITY]. It has been further stated that since the members of the Committee did not make the payment of their respective installments till 20.10.2012 and avoided the payment on one pretext of the other, hence defendant no.1 demanded back his aforesaid amount of Rs.Four Lac from the plaintiff on 21.10.2012 but the plaintiff showed his inability and kept a proposal before the defendants on 22.10.2012 that defendant no.2 will keep in his possession the suit property on security basis until and unless the plaintiff does not make the payment of Rs.Four Lac given by defendant no.1 to him which was accepted by defendant no.1. It has been further averred that that the plaintiff was asked to execute a fresh Agreement in favour of defendant no.2 on 23.10.2012 but the plaintiff dishonestly, deliberately and intentionally avoided the execution of the said proposed agreement on one pretext or the other.
7. On the admissions of the defendants, the application under [SECTION] [ACT] has been filed by the plaintiff for passing of decree of possession against the defendants.
8. It has been stated in the application that the defendants in the written statement have admitted the relationship of landlord and tenants; admitted the execution of Leave and Licence Agreement dated 15.10.2012 and the issuance of notice under [SECTION] of [ACT]. It has been further stated that in order to wriggle out of the admissions of the defendant, the defendants have cooked up a story that an amount of Rs.Four Lac was advanced by defendant no.1 to the plaintiff and as a security for the repayment of the he aforesaid loan, defendant is occupying the suit property. In the application, the ld. counsel for the plaintiff has relied upon certain judgments and in these premise prayed for passing of decree of possession in respect of the suit property bearing shop no.G6 (Ground Floor), Mansih Chambers, PocketB, Local Shopping Centre, Mayur Vihar PhaseII, Delhi91 on the ground of unambiguous and unequivocal admissions on the part of the defendant and also on the pronouncement and certain preposition of law.
9. Reply the application filed by the defendants. In the reply, the defendant has taken various preliminary objections and replied the same on merits. The averments so made by the defendants in the reply to the application under [SECTION] [ACT] are similar to that of the averments made by the defendants in their written statement filed before this court and on such averments it has been stated by the counsel for the defendants that there is no unambiguous and unequivocal admissions on the part of the defendants and thus the application under [SECTION] [ACT] is not maintainable. On these premise, the defendants have prayed for the dismissal of the application under [SECTION] [ACT].
10.I have heard ld. counsels for the parties and carefully perused the record.
11. Before adverting any opinion in this regard, let us examine the scope of [SECTION] [ACT]. [SECTION] lays provision for judgment on admission.
'6. Judgment on admissions.(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under subrule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.'
12.In a judgment 155 [PRECEDENT] titled as [PRECEDENT]., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including [SECTION] to the provision of [SECTION] in the [ACT], by way of an amendment. The said provision is reproduced below for ready reference :
[SECTION] Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whether a judgment is pronounced under [SECTION], a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment was pronounced."
13.The scope and ambit of [SECTION], [ACT] was discussed by the Supreme Court in the case of [ENTITY] & Co. Ltd. v. United Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the supreme Court observed as under :
"Para 12. As to the object of the [SECTION], we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'. We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the fact of which, it is impossible for the party making such admission to succeed."
14. In the case of [PRECEDENT], a Division Bench of this Court interpreted the provisions of [SECTION], [ACT] by holding :
"Para 17 [SECTION] of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing "
15.The Hon'ble Supreme Court of India in a case titled as [ENTITY] and Others Vs. Lal Chand Public Charitable Trust and Another (2010) 4 Supreme Court Cases 753 has held in para 38 that: "38. In this connection, it may be noted that [SECTION] was amended by the [ACT]. Prior to amendment the Rule read thus:
"6. Judgment on admissions.Any party may at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties' and the court may upon such application make such order, or give such judgment, as the court may think just".
In para 43, it has been held that : "43. [ENTITY] case, it was contended on behalf of the appellant , [ENTITY], that:
(a)Admissions under [SECTION] should only be those which are made in the pleadings.
(b)The admissions would in any case have to be read along with the first proviso to [SECTION] of the Code and the court may call upon the party relying on such admission to prove its case independently.
(c) The expression "either in pleadings or otherwise" should be interpreted ejusdem generis.
(See para 11, p. 126127 of the Report.) Almost similar contentions have been raised on behalf of the Club. In [ENTITY] those contentions were rejected and this Court opined no effort should be made to narrow down the ambit of [SECTION]".
In para 45, it has been held that : "[SECTION] of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of the Madhya Pradesh High Court in [PRECEDENT], [ENTITY], J. (as His Lordship then was) in a concurring judgment explained the aforesaid Rule, if we may say so, very authoritatively at p. 79 of the Report. His Lordship held: (AIR para 19) " I will only add a few words of my own. [SECTION] of the [ACT] corresponds to [SECTION] of the Supreme Court Rules (English), now [SECTION], and is almost identically worded (see Annual Practice, 1965 Edn., Part I, p. 569). The Supreme Court Rule came up for consideration in [PRECEDENT]. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against subletting. Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under [SECTION] and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that Rule. [ENTITY], J. rejected the argument that the Rule is confined to admissions made in pleadings or under [SECTION] in the same order (same as ours) and said:
'The Rule applies wherever there is a clear admission of facts in the fact of which it is impossible for the party making it to succeed.' [SECTION], in my opinion, must bear the same construction as was put upon the corresponding English rule by [ENTITY], J. The words 'either on the pleadings or otherwise' in [SECTION] enable us not only to see the admissions made in the pleadings or under [SECTION] of the same order but also admissions made elsewhere during the trial'."
16.The Hon'ble Supreme Court of India in a case titled as [PRECEDENT] has held in para 7 that: "7. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the [ACT], all that is required to be established by the plaintiff landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under [SECTION] of the [ACT]. So long as these two aspects are not in dispute the court can pass a decree in terms of [SECTION] [ACT], which reads as under: '6.Judgment on admissions.(1)Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2)Whenever a judgment is pronounced under [SECTION] a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
In para 8, it has been held that : "8.The above sufficiently empowers the court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case where the plaintiff seeks to invoke the powers of the court under [SECTION] [ACT] and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. relied upon by the High Court where this Court has observed: (SCC p. 604, para 10) '10. Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in [ENTITY] may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation."
17. The Hon'ble High Court of Delhi in a case titled as [PRECEDENT] has held in para 12 that: "12.It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like [SECTION], [ACT] is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. There can be oral or in writing. The admission can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to be conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."
18.In view of the object of [SECTION] [ACT] and the law laid down as above, let us examine the averments of the defendants to ascertain whether the averments so made by the defendants calls for trial or there are admission unequivocal and unambiguous.
19.Admittedly there is no dispute that leave and licence agreement dated 15.10.2012 at a monthly licence fee of Rs.16,500/, was executed between the plaintiff and defendant no.1 to which defendant no.2 is a witness.
20.The first contention of the counsel for the defendants is that leave and licence agreement dated 15.10.2012 was written in English language and defendant no.2 is an illiterate person who cannot read and write English Language and can sign in Urdu Language and thus he was not aware of the fact that the leave and licence agreement dated 15.10.2012 was executed between the plaintiff and defendant no.1.
21. This contention of the defendants fails on the ground that defendant no.2 has earlier entered into leave and licence agreement dated 11.10.2010 for the same property with the plaintiff. The said agreement was also in English language which was duly signed by defendant no.2. Now the defendant no.2 is estopped from raising the plea of being illiterate person here.
22.The fact also further fortifies from the written statement of the defendants where defendant no.2 has stated in para3 of the reply on merit of the written statement that the relations between the defendant no.1 and defendant no.2 became strained i.e. between the son and the father and therefore defendant no.1 decided to take over the possession of the suit property and contacted the plaintiff in this regard and fresh leave and licence agreement dated 15.10.2012 was executed wherein defendant no.2 was asked to put his signature under the garb of renewal of leave and licence agreement.
23.The aforesaid averment does not hold good from the facts of the matter as on the one hand defendant no.2 is stated to have a strained relation with defendant no.1 and on the other hand they admitted that both defendants were present at the time of signing of the leave and licence agreement dated 15.10.2012. This fact is further clarified by the averment of the defendants that a family meeting was held between the family members of the defendants and the matter was resolved amicably between defendant no.1 and defendant no. 2. Be that it may be, it is the alleged interse dispute between defendant no.1 and defendant no.2 and the plaintiff has no concern about the same.
24.The defendants have further stated in para7 of the reply to the application under [SECTION] [ACT] and the additional plea in the written statement that the plaintiff told defendant no.2 that since defendant no.2 is not interest in executing the further leave and licence agreement in his favour hence the plaintiff executed a leave and liccence agreement in favour of defendant no.1.
25.This shows that defendant no.2 was well aware of the fact that fresh Leave and Licence Agreement is to be executed between the plaintiff and defendant no.1 and from the facts it is also clear that defendant no.2 was also agreed for the same. Therefore, the defence so taken is a sham defence.
26.There is another factor in the facts of the case which nullifies the averments of the defendants that the defendants on 18.10.2012 made contact with the plaintiff and informed him about the compromise made between the defendants and further that it was decided between the defendants that leave and licence agreement dated 15.10.2012 executed between the plaintiff and defendant no.1 be declared null and void. Admittedly, since then, till date no action has been taken by the defendants in this regard and in particular when as per the case of the defendants, the plaintiff has refused to consider the request of the defendants.
27. Thus, from the above, it is clear that a valid Leave and Licence Agreement dated 15.10.2012 at a monthly licence fee of Rs. 16,500/, was executed between the plaintiff and defendant no.1.
28.The settled preposition of law is that once a document is admitted to be executed between the parties, [SECTION] and [SECTION] of the [ACT] comes into play and no oral evidence to prove the contrary is to be allowed. Here in the present case, the defendants have admitted that the execution of the document i.e. Leave and Licence Agreement dated 15.10.2012. The licence fee is Rs.16,500/ per month. Perusal of the terms of Leave and Licence Agreement shows that by no stretch of imagination any ambiguity, any fraud or intimidation could be raised.
29.The next contention raised by the counsel for the defendants that no legal notice was served upon the defendants. Perusal of the record shows that legal notice dated 21.03.2013 sent by the plaintiff was duly replied by the advocate of defendant no.1 dated 22.04.2013.
30.Perusal of the reply dated 22.04.2013 of defendant no.1 shows that defendant no.1 has made glaring admissions through his counsel. In the entire reply, defendant no.1 did not dispute the execution of the Leave and Licence Agreement dated 15.10.2012. The rate of rent was admitted at Rs.16,500/ per month excluding electricity charges. Thus, from the above, it is clear that the objection raised by the defendants that they have not received the legal notice, is without merit.
31. Even otherwise as has been held by our own Hon'ble High Court in a case titled as [PRECEDENT] has held in para 6 that: "6.So far as the argument based upon Clause 6 of the lease deed is concerned, in my opinion, the argument is without substance as the lease document relied upon is an unregistered lease deed and which cannot create a lease for a fixed period unless the lease deed was duly registered. Unless and until a lease for fresh periods is in fact duly entered into in terms of Clause 6 of the lease deed dated 7.7.2003, the appellant would remain a tenant only from month to month. In law, either there is a tenancy for a specific period in terms of a duly registered lease deed, and in which case the tenant would have protection for the period of lease or if there is no registered lease deed for the leased premises then the tenancy will be on a month to month basis. In the present case, there being no registered lease deed, even originally, or for further periods, the tenancy had always been a month to month tenancy which could be terminated by a notice under [SECTION] of the [ACT]. Mere existence of a Clause 6 would not automatically mean that there is an automatic creation of a registered lease deed for regular fresh periods of three years. This argument of the appellant is therefore rejected."
32.The Hon'ble High Court of Delhi in a case titled as [PRECEDENT] has held in para 6 that: "6.In any case, so far as the issue of service of notice is concerned, the law so far as Courts of Delhi are concerned is well settled by the judgment in the case of [PRECEDENT], wherein by reference to the amended provision of [SECTION] of [ACT]; and which provision was amended to take away technical defences with respect to termination of tenancy; it has been held that service of summons in the suit can also be treated as a notice under [SECTION] of the [ACT]. Para 7 of the judgment in the case of Jeevan Diesel (Supra) 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 15.07.2006 as Ex. PW1/3 and with respect to which the registered received, 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 [ENTITY] Investments (P) Ltd. v. Santokh Singh (HUF), I (2008) SLT 195=146 (2008) DLT 217 (SC)=2008 (20 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 [ENTITY] (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.
33.Thus, the contention of the defendants on this count also fails.
34.The third contention raised by the counsel for the defendants that the plaintiff is doing the business of 'committees' of which defendant no.1 is also a member. During one the terms of the 'committee' the plaintiff has to pay a sum of Rs.Four Lac to Sh. [ENTITY]. However the plaintiff could not arrange the same and requested defendant no.1 to arrange for the same which defendant no.1, keeping in view of the good relations between him and the plaintiff, got the same arranged and paid a sum of Rs. Four Lac to said Sh. [ENTITY]. It is further argued by the counsel for the defendants and as per the record, the defendants have stated in their written statement that they are ready to handover the possession of the suit property provided that the plaintiff shall handover a sum of Rs.Four Lac to the defendants.
35.Now the question is, whether this averment of the defendants is sustainable in the eyes of law. Can the court look into any such averment which is not enforceable by law? Only averments of legal nature can be considered. In the opinion of the court, only those averments having legal base and enforceable under the law are to be considered. A party cannot approach the court for the enforcement of the contract the object of which is illegal or unlawful. The money transactions in the shape of committees, as stated by the defendants, are patently illegal and has no force of law.
36.The alleged 'committee' transactions set up by the defendants is an illegal transaction as the said transaction is allegedly towards the 'committee' payment which are absolutely without any receipt of payment, in cash and that is without any accounting. The alleged 'committee' transaction entails the generation of unaccounted income or unaccounted generation of money which is a direct loss to the government exchequer and giving unlawful enrichment to some. The same should be deprecated. Moreover, it is an unilateral case of the defendants and not an accepted position by the plaintiff.
37. Interestingly, when the defendants, at least, have come to know about the fact that the plaintiff has refused to pay the amount of Rs.Four Lac of the alleged transactions of the 'committee' but for the reasons best known to them, they have not filed any suit for the recovery of such amount against the plaintiff, knowing fully well that such type of transactions are not legally enforceable.
38.In my view, from the above facts and circumstances, clear admissions are there about execution of Leave and Licence Agreement dated 15.10.2012, agreed rate of rent and termination of the Leave and Licence Agreement vide legal notice dated 21.03.2013 duly replied by defendant no.1 dated 22.04.2013. The defences raised by the defendants pertaining to the decree of possession are moonshine and absolutely devoid of merits.
39.In view of the discussion and observations made herein above, the application under [SECTION] [ACT] moved by the plaintiff is allowed and the plaintiff is entitled for judgment regarding the relief of possession of the suit property on admission made by the defendants. Thus, the plaintiff is entitled for possession of the suit property from the defendants and the defendants are directed to handover and deliver the actual, physical, vacant and peaceful possession of the suit property bearing no.G6 (Ground Floor), Manish Chambers, PocketB Local Shopping Centre, Mayur Vihar PhaseII, Delhi110091 to the plaintiff immediately after the expiry of statutory period of appeal. Decree sheet shall be drawn in accordance with this order passed today.
40.For the remaining reliefs as prayed in the suit, the plaintiff has to prove the case in accordance with the law during the trial. Announced in the open court On 06.08.2014 ([ENTITY]) Addl. District Judge03 (East) Karkardooma Courts, Delhi [CASE NUMBER] 06.08.2014 Present None.
Vide separate judgment pronounced in the open court, application under [SECTION] [ACT] moved by the plaintiff is allowed and the defendants are directed to handover and deliver the actual, physical, vacant and peaceful possession of the suit property bearing no.G6 (Ground Floor), Manish Chambers, PocketB Local Shopping Centre, Mayur Vihar PhaseII, Delhi110091 to the plaintiff immediately after the expiry of statutory period of appeal. Decree sheet shall be drawn in accordance with this order passed today.
Now to come up for admission/denial of documents and framing of issues on 19.11.2014. Parties are directed to appear in person.
([ENTITY]) Addl. District Judge03 (East) Karkardooma Courts, Delhi