Shri [ENTITY] vs. Shri [ENTITY] IN THE COURT OF SHRI [ENTITY], ADDL. DISTRICT JUDGE03, SOUTH DISTRICT, SAKET COURTS, NEW DELHI In the matter of Suit No. 142/2010 Shri [ENTITY], S/o Late Shri C.B. Mathur, R/o Om Sari Sai Kripa Building, House No. 106, Gautam Nagar, New Delhi - 110049. Plaintiff Versus Shri [ENTITY], S/o Late Shri K.P. Srivasatav, R/o m Sari Sai Kripa Building, House No. 106, 3rd Floor, Gautam Nagar, New Delhi - 110049. Also at : Sd17, Apurva Enclave, Ara Garden, (near Jagdev Path), Patna14 (Bihar). Defendant 03.10.2011 ORDER
(on Suit for Possession under [SECTION] [ACT]) 1.1 Plaintiff Shri [ENTITY] and defendant Shri [ENTITY] entered into a lease agreement dated 19.06.2008 on a monthly rent @ Rs. 13,200/ w.e.f 01.05.2008 for a period of 11 months i.e upto 31.03.2009 in respect of premises comprising three bed rooms, three Shri [ENTITY] vs. Shri [ENTITY] attached bathrooms, three balconies, one kitchen, drawing and dining room (more particularly described in the site plan) on the top / third floor of building No. 106, Gautam Nagar, New Delhi110049 (in brief the premises). There was total rent amount of Rs. 1,45,200/ from 01.05.2008 to 31.03.2009 but the defendant paid a sum of Rs. 1 lac in four payments, as the rent was not tendered regularly. The defendant is in arrears of such rent amount visavis the tenancy expired on 01.04.2009 by efflux of time but the defendant failed to vacate the premises. The defendant was served with notice dated 17.04.2010 as a precautionary measure to vacate the premises on 31.05.2010, which was replied by the defendant on 29.04.2010, taking flimsy ground.
1.2 The plaintiff in his application under [SECTION] [ACT] reiterates the contents of paragraph 1.1, above, by referring the paragraphs of written statement that the relationship of the landlord and the tenant is not disputed, the rate of rent was Rs. 13,200/, it has also not been disputed. Since the rate of rent is above Rs. 3,500/, therefore, provisions of [ACT] are not applicable. The notice dated 17.04.2010 has also been received and acknowledged by the defendant, in terms of [SECTION] Shri [ENTITY] vs. Shri [ENTITY] of [ACT], the tenancy stands determined, which was in fact, stand determined on the eve of efflux of time. There are admissions by the defendant and in terms of provisions of [SECTION] [ACT], the plaintiff deserves judgment in respect of possession of the premises. 1.3 Similar contentions have been advanced orally, the averment of plaint and oral submissions have also been incorporated in the written arguments. There are three elements existence of relationship of the landlord and the tenant, the provisions of [ACT] are not applicable to the premises and the tenancy was terminated, these facts are admitted facts and it makes the plaintiff entitle for judgment for possession. To substantiate these three aspects, the plaintiff / applicant refers and relies upon
1. [PRECEDENT];
2. [PRECEDENT];
3. [PRECEDENT];
4. [PRECEDENT];
5. [PRECEDENT];
6. Smt. [PRECEDENT];
7. [ENTITY] (HUF) through its [PRECEDENT]; and
8. [PRECEDENT] Shri [ENTITY] vs. Shri [ENTITY] 1.4 The defendant / nonapplicant alleges that there was oral agreement or the notice was not valid or the plaintiff was accepting rent subsequent to 31.03.2009 or the defendant is not in arrears of rent. Whereas this plea does not sustain in the eyes of law, as the tenancy was determined on expiry of 11 months period, despite that notice was given. Mere acceptance of rent neither amount to creation of new tenancy nor the defendant can be treated as a tenant. The tenancy has been determined, as per law and the plaintiff derives and borrows similar reasons, while relying upon
1. [PRECEDENT];
2. [PRECEDENT];
3. [PRECEDENT];
4. [PRECEDENT]
5. [PRECEDENT];
6. [PRECEDENT]; and
7. [PRECEDENT] The defendant / nonapplicant filed detailed reply, followed by oral submissions, supplemented with written arguments but all based on the written statement that mere admission of relationship of the landlord and the tenant, or the monthly rent is Rs. 13,200/ or the lease deed was of Shri [ENTITY] vs. Shri [ENTITY] 19.06.2008 effective from 01.05.2008, would not tantamount to determination of tenancy nor it would construe that the defendant has admitted the relation of tenancy by efflux of time on 31.03.2009. The defendant is also not in arrears of rent. The plaintiff's notice was replied in detail. After expiry of initial period, the plaintiff was let out to continue as a tenant in the premises on the same monthly rent, since the plaintiff was not intending to disturb the defendant till his son passed out class 10 from St. th Paul School at Safdarjung Development Area, Hauz Khas, New Delhi, which is near to defendant's son from the suit premises and vice versa. The session is upto 201112. The defendant and his family always remained not only decent and gentleman persons but also they are very peaceful persons, that is why, the tenancy was extended orally. 2.2 Similar contentions have been advanced orally that in order to invoke provisions of [SECTION] [ACT], which are discretionary in nature, has to be on the basis of clear and unambiguous admissions, not otherwise. The defendant relies upon [PRECEDENT]; and [PRECEDENT]. Lastly, reliance has also been placed on Express Towers Shri [ENTITY] vs. Shri [ENTITY] vs. Mohan Singh 133 (2006) DLT 260 that when the admissions are not clear, the Court in its discretion can refuse to pass a decree and can ask the party for independent corroboration. The application is liable to be dismissed.
3.1 (Findings) - The rival contentions are assessed. By reading the pleadings and documents of the parties together, also in the light of statutory provisions of law, the extend of premises, the monthly rent was Rs. 13,200/, based on renewed lease agreement dated 19.06.2008, for a period of 11 months w.e.f 01.05.2008 to 31.03.2009 is admitted case of the parties. Thus, the provisions of [ACT] are not applicable. The arrears of rent is not subject matter of present application under [SECTION] [ACT]. The relationship of the landlord and the tenant between the parties is not disputed.
3.2 The remaining point for determination is whether there are admissions in respect of determination of tenancy. As per lease agreement dated, the tenancy period was upto 31.03.2009, however, the suit has been filed on 30.07.2010 and in between, the defendant has been continuing in Shri [ENTITY] vs. Shri [ENTITY] the suit premises. To say, the plaintiff had filed Suit for Possession and for other relief, after about 16 months from 31.03.2009. In [PRECEDENT], it was held when the suit was not filed immediately on the determination of relationship by efflux of time, issuance of notice become necessary.
3.3 Further, once a tenancy is determined by efflux of time and it is not further extended in writing, it becomes tenancy month by month. Therefore, for want of filing of suit immediately after 31.03.2009 for possession of the premises and also for want of further tenancy in writing, there was existing month by month tenancy between the plaintiff and the defendant after 31.03.2009. The notice dated 17.04.2010 reflects that even the plaintiff was not interested in continuing the defendant as a tenant in the premises. Therefore, notice under [SECTION] of [ACT] was a necessary requirement and the plaintiff has sent the same on 17.04.2010.
3.4 By notice dated 17.04.2010, the defendant was given time to 31.05.2010 to vacate the premises. The defendant has given an impression, during the oral arguments, that the notice dated 17.04.2010 is not strictly in Shri [ENTITY] vs. Shri [ENTITY] terms of [SECTION] of [ACT], however, [SECTION] of the [ACT] was amended in the year 2003, whereby the notice period has been made effective after service of notice on the defendant; the plaintiff had given time around 1 months to vacate the premises and [SECTION] of [ACT] provides notice of 15 days but it would not give any benefit to the defendant because the purpose of notice is to give time to the defendant, being an advance information that the landlord does not want to keep the defendant as a tenant and tenancy has been determined. The defendant was given time more than period provided under [SECTION] of [ACT]. Thus, receipt of notice is not disputed and defendant has replied the notice, but the stand taken in the reply as well as in the written statement does not establish that there was further tenancy agreed between the parties. The tenancy was determined on 31.05.2010 by notice dated 17.04.2010. On such admissions, the plaintiff is entitled for judgment and possession. Application is allowed.
4. Accordingly, the plaintiff's suit is decreed in respect of premises comprising three bed rooms, three attached bathrooms, three balconies, one kitchen, drawing and dining room (more particularly described in the Shri [ENTITY] vs. Shri [ENTITY] site plan, now P1) on the top / third floor of building No. 106, Gautam Nagar, New Delhi110049, in favour of plaintiff and against the defendant, by allowing the plaintiff's application under [SECTION] [ACT]. The defendant is given two months time to vacate the premises, keeping in view the forthcoming festive season. No order as to cost, since Suit for Mesne Profits / Damages is pending.
Decree sheet be drawn accordingly.
Announced in the open Court ([ENTITY]) on 03 rd October, 2011 Additional District Judge -03, South District, Saket Courts, New Delhi N