IN THE COURT OF SH. SUNIL RANA ADDL. DISTRICT JUDGE : 02 (NORTH WEST) ROHINI COURTS: DELHI RCA NO. 104/13. Unique ID No.02404C0264692013. [ENTITY] S/o Sh. Devi Dayal Dhawan, R/o. A56/5 (Back Portion), Kewal Park Extn., Near Ram Lila Ground, Delhi33. Appellant VERSUS [ENTITY] W/o Sh. Dhiraj Abichandani, R/o. 56/4, Kewal Park Extn., Near Ram Lila Ground, Delhi33. Respondent Date of Filing : 17.09.2013. Date of Reserving order : 26.02.2014. Date of Judgment : 26.02.2014. ORDER :
By this order, I shall decide an appeal filed by the appellant along with an application u/[SECTION] [ACT] for stay against the order dt. 19.08.2013 passed by the court of Sh. [ENTITY], Ld. ACJcumARC, Rohini Courts, Delhi, in [CASE NUMBER], titled as Shuveta Abichandani Vs. [ENTITY] & Anr. Application for stay was not pressed during the course of arguments on appeal. Moreover, I am going to decide this appeal by this order, which shall cover the entire grounds of the appeal as well as stay application.
1. Briefly stated facts in the appeal are that plaintiff/respondent(herein) has filed a civil suit for recovery of possession, for use & occupation charges and damages with consequential relief of permanent injunction against the appellant(herein), wherein written statement/reply to the interim application was filed and after the completion of pleading, issues were framed by the Ld. Trial court.
2. It has been contended that appellant/defendant has categorically pleaded in the WS that there was no relationship of landlord & tenant between the parties and the only relationship was in between the defendant and husband of the plaintiff, who was stated to be her SPA and during the course of proceedings, an application u/[SECTION] [ACT] for the payment of arrears of rent was moved and the amount was paid through a/c payees cheque issued in favour of husband of the plaintiff.
3. It has been further contended that ld. Trial court, without there being any written application had fixed the case for argument on [SECTION] [ACT] of its own and which was objected on behalf of the appellant/defendant as there is no required admission in the pleading for passing an order u/[SECTION] [ACT]. It has been further contended that the trial court has not even considered the authorities filed on behalf of the defendant, which says that there must be clear admission on the part of the defendant and the impugned order/judgment dt. 19.08.2013 was passed and the suit for possession was decreed in favour of the plaintiff with respect to the suit property bearing no. A. 56/5, Back portion, Kewal Park Ext. near Ram lila Ground, Delhi granting three months to vacate the suit premises and the said impugned order/judgment dt.19.08.2013 is challenged on the following grounds :
a) That the impugned order/judgment of the trial court is erroneous and not sustainable in the eyes of law and liable to be set aside with cost.
b) That ld. trial court has taken extra interest in the suit, when there was no written mandatory application in this regard and particularly when the case was fixed for PE and the circumstances did not necessitate for passing any such order u/[SECTION] of [ACT].
c) That the impugned order/judgment of ld. trial court is based on conjecture & surmises and is against the spirit and law of the land.
d) That the impugned order of the ld. trial court is bad in law as there was absolutely no admission on the part of the appellant/defendant and none of the pleading directly or indirectly admitted by the appellant/defendant and was specifically denied in toto and matter was needed to be decided on merits after leading evidence and is liable to be setaside.
e) That there had been no such admission and ld. trial court would have passed such order, if there is any admission on the part of the defendant/appellant herein.
f) That the impugned judgment/decree is totally against the cannons of justice and against the spirit of law. Counsel for the appellant has relied upon judgment titled as Himani Alloys Ltd.vs.TataSteelsLtd2011(7)SCALE566=2011(3)RCR(CIVIL)729.
4. It has been prayed that in view of the submission, the impugned order/judgment dt. 19.08.13 passed by the Ld. Trial Court in [CASE NUMBER] titled as [PRECEDENT] may kindly be set aside.
5. Notice of the appeal as well as application was issued to the respondent. Counsel for the respondent has filed the written submissions along with judgments. Arguments were heard on behalf of the parties.
6. It has been submitted on behalf of the respondent that the Ld. Trial Court has passed the order in view of the averments made in the WS, wherein para 1 of reply on merits, it has been admitted by the defendant " it is the husband of the plaintiff who let out the suit premises to the defendant" and in para 3 of the WS, defendant has also stated that he is in exclusive use and occupation of the suit premises @ Rs. 4,000/ p.m. being a tenant.
7. It has been further urged on behalf of the respondent that ld. Trial court has passed the order after considering the facts & documents filed on record and hearing the parties at length and as such, the decree of possession was rightly passed by the court. It has been urged that present appeal lacks merits as no sufficient ground has been shown in the appeal to set aside the order passed by the trial court and appeal is liable to be dismissed with cost.
8. Having heard the arguments on behalf of the parties and going through the impugned order/judgment dt. 19.08.2013, wherein it has been observed that the defendant has taken a stand that plaintiff has no locus standi to file the suit as she has no right, title or interest in the suit property and claims himself to be a tenant but it was stated that the suit property was let out by husband of the plaintiff. Ld. trial court has further observed that it is stated that defendant is in exclusive use & occupation of the property being a tenant under the husband of the plaintiff @ Rs. 4,000/ p.m. and rent was paid till February, 2011.
9. Ld. trial court after the completion of pleadings of the parties has framed the issues and matter was fixed for PE. However, in terms of the order dt. 15.05.13, parties were put to notice as to why a decree u/[SECTION] [ACT] should not be passed in regard to the relief of possession and subsequently on 19.7.13, defendant has raised certain points which are as under: (1) There is no admission in the pleadings and the written statement should be read in whole.
(2) Issues have already been framed in the matter and the application u/[SECTION] [ACT] should have been moved before trial and trial has already commenced.
(3) There is no application by the plaintiff u/[SECTION] [ACT] and the court on its own cannot point/frame such issue between the pendency of the case.
10. Ld. trial court after hearing the arguments at length was of the view that the word, "at any stage" gives a wide discretion to the court and is of a widest amplitude and does not restrict the jurisdiction of the court to pass such orders once issues have been framed and does not fetters the discretion of the court in any manner to pass such a decree on admissions.
11. Ld. trial court was also of the view that there is no need for an application to exercise the power u/[SECTION] [ACT] and is not a mandatory requirement in as much as the section itself clearly mention that court can pass the judgment of its own motion.
12. Ld. trial court after relying upon the settled law and various judgments was of the view that the defendant has considered and described himself to be the tenant in the premises which he had taken on rent @ 4000/ p.m and is in the exclusive use of the same but his only grievance is that the plaintiff had not let out the property to him but it was the husband of plaintiff, who had let out the property to him and thus there is no relationship of landlord & tenant exists between the plaintiff and the defendant no.1.
13. Ld. trial court was also of the view that in order to pass a decree u/[SECTION] [ACT] in a suit for possession/ejectment following point should be existing/ admitted either from pleadings or from the record:
1.The relationship of landlord and tenant;
2.The rate of rent of premises is more than Rs.3500/ p.m that is outside the purview of the [ACT].
3.The tenancy should have expired by efflux of time or a legal notice u/[SECTION] of [ACT] should have been served.
14. Ld. trial court has observed that rate of rent was Rs.4,000/ p.m. as stated by the defendant himself, which means that the tenancy was outside the purview of the [ACT] and the suit has been filed by the plaintiff through her attorney/husband Sh. [ENTITY] and there is no dispute interse between the plaintiff and her husband and both plaintiff and attorney have acted in together and came to the conclusion that the objection raised by the defendant is merit less.
15. Ld. trial court coming to the third aspect of the service of legal notice to quit has observed that same has been received by the defendant and in fact reply thereto was also received by the plaintiff, which contains an admission that the status of the defendant in the suit property was that of a tenant and legal notice dt. 29.11.2011 specifies and satisfies the mandate of a notice u/[SECTION] of [ACT] and 15 days time was granted to the defendant to handover the possession of the suit premises and even otherwise service of the summons of a suit for possession by itself is a sufficient notice in this regard.
16. Ld. trial court after considering the facts & circumstances of the case and relying upon the various judgment on this aspect has concluded that it is clear that status of the defendant in the suit property is of a tenant, the rate of rent being more than Rs. 3,500/ p.m. i.e tenancy is outside the purview of [ACT] and the legal notice to quit having been served/replied too and which also conforms the mandate of [SECTION] of [ACT]. Hence, Ld trial court was of the view that there is no impediment in granting a decree of possession and accordingly u/[SECTION] [ACT], a decree of possession of the suit premises i.e. shop bearing no. A56/5 (backside), Kewal Park Extension, Near Ram Lila ground as shown in red color in the site plan was passed in favour of the plaintiff with a direction that decree shall not be executable for a period of 3 months from the date of decree i.e till 19.11.2013
17. The [SECTION] of [ACT] has been enacted for the purpose of and in order to expedite the trials, in case there is any admission on behalf of the defendant or an admission can be inferred from the facts & circumstances of the case. In [PRECEDENT], Hon'ble Supreme Court has held that "In the objects and reasons set out while amending [SECTION] [ACT], 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. 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.
18. In another case titled as [PRECEDENT], the Division Bench of the Hon'ble High Court has held as under : "Judgment on admissions (1) Where admissions of fact have been made either in the pleadings or otherwise, where 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. The provision confers almost sweeping powers on the Court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. The only pre requisite for this is that there must be an admissions of fact arising in the suit, be that in the pleadings or otherwise or orally or in writing. These need not be made specifically or expressly and could be a constructive admissions also. Whether or not such admission arose in the suit would depend on the facts & circumstances of the case. A duty was, therefore, cast on the Court to ascertain the admission of facts and to render judgment on these either in respect of the whole claim or a part of it. The court could do so on its own or on the application of a party and without waiting for the determination of any other question between the parties as held in [PRECEDENT]"
19. In the instant case, the legal notice dt. 29.11.2011 to terminate the tenancy was served upon the defendant and the tenancy of the defendant was terminated and in fact reply thereto was also received by the plaintiff. [SECTION] of [ACT], to the extent, it is relevant, provides that in the absence of a contract or a local law or usage to the contrary, a lease of immovable property for any purpose other than agriculture or manufacturing purpose can be terminated by giving 15 days notice expiring with a month of tenancy. Since, the notice of termination has been admitted to be received and 15 days clear time to vacate the tenanted premises was given, the termination of the tenancy was absolutely legal. It is well settled principle of law that the tenancy can be terminated by notice providing reasonable period to the tenant to deliver the possession to the landlord and the period mentioned in the notice relates to the surrendering of the possession. Thus the language of the notice dt. 29.11.2011 is clearly suggestive of the fact that tenancy was terminated and plaintiff was called upon to surrender the possession after statutory period from the date of receipt of the notice. In these circumstances, It can be said that the notice dt. 29.11.2011 was fully complied with the requirement laid down in [SECTION] of the [ACT].
20. Reference can be made to the judgment titled as [PRECEDENT], wherein Hon'ble Supreme Court has held that a notice to quit must be construed not with a desire to find faults in it, which would render it defective and the notice should not be read in a hypertechnical manner but must be construed in a common sense way." Therefore, the observation of the learned trial court with regard to the service as well as validity of notice of termination is unimpeachable. It is also well settled law that filing of suit, amounts to service of notice to the defendant as held in [PRECEDENT].
21. In the instant case, the notice meet all the necessary requirement of a notice of termination of tenancy and by above referred notice, the respondent/plaintiff had expressed an intention not to keep the applicant/defendant in occupation of the tenanted premises after the notice to quit. Considering the constructive approach to the interpretation of such notice, this court is also of the view that the legal notice dated 29.11.2011 amount to valid notice of termination on the part of the plaintiff.
22. Even in the facts of the present case, undisputedly, there is no written Rent Agreement and the tenancy remained oral. Accordingly, the argument on behalf of the defendant in the absence of any document to substantiate his defence that there was no relationship of landlord & tenant between the parties as premises was let out by the husband of the plaintiff and is entitled to continue in the tenanted premises without there existing a registered rent agreement is clearly misconceived and cannot be accepted. The incidental argument on behalf of appellant/defendant will not take him any further, because even in such circumstances, that in the absence of any registered rent agreement with regard to the tenancy, the tenancy continues as a month to month tenancy and such monthly tenancy can always be terminated by giving a notice u/[SECTION] of The [ACT].
23. In view of the facts & circumstance of the case, discussion made above and precedent on this subject. It is an undisputed fact that appellant/defendant is a tenant in the suit premises at a monthly rent of Rs. 4,000/ which is more than Rs. 3,500/ p.m. and the notice dt. 29.11.2011 for termination of tenancy was served upon the appellant/defendant. Hence, this court is of the considered opinion that the plaintiff had made out a case within the four corners of the provision of [SECTION] [ACT] and was entitled for a judgment/decree of possession.
24. Counsel for the appellant has relied upon the judgment and the ratio of that case do not support the plea of the appellant as the case of appellant is distinguishable. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of the decision must be understood in the background of the facts of that case. It is a well settled that a case is only an authority for what it actually decides and not what logically follows from it. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In [PRECEDENT] has held as under:
"There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterance are made in setting of the facts of a particular case. In circumstantial flexibility and additional or different facts make a world of difference between conclusion in two cases."
In another case [PRECEDENT], it was observed as under:
" The ratio of one case can not be mechanically apply to another case without having regard to the facts, situation and circumstances in two cases."
The judgment relied upon by the appellant is not applicable in the facts and circumstances of the present matter.
25. Relying upon the judgment titled as [PRECEDENT], this court is of the opinion that ld. trial court has considered each and every aspect of the case and has rightly come to the conclusion and the decree u/[SECTION] [ACT] for possession of the suit premises i.e. shop bearing no. A56/5 (backside), Kewal Park Extension, Near Ram Lila ground was passed in favour of the plaintiff with a direction that decree shall not be executable for a period of 3 months from the date of decree i.e till 19.11.2013.
26. Therefore, in these circumstances, the impugned order dt. 19.08.2013, so passed by the ld. trial court can not be said to be suffering from any illegality and does not call for interference. The present appeal lacks merits and is hereby dismissed and stands disposed of. Trial court record be sent back along with the copy of this order. Parties are directed to appear before the ld. trial court on the date already fixed. Decree sheet be prepared accordingly. After compliance, appeal file be consigned to record room.
Announced in the open court ( [ENTITY] ) today i.e.26.02.2014. ADJ02(N/W)Rohini:Delhi