IN THE COURT OF SH. [ENTITY]: SENIOR CIVIL JUDGECUMRC (EAST): KKD COURTS: DELHI SUIT NO 500A/07 Unique Case Identification No: 02402C0627092005 [PRECEDENT] [ENTITY] (Deceased) Through her legal heir [PRECEDENT] Jyotsna Gupta D/o Late Sh. Acharya Chatursen Shastri R/o 308, G.T. Road, Shahdara, Delhi110032 Plaintiff Versus 1. M/s [ENTITY] Having its Registered office at Rathi Market, Nai Sarak, Delhi 2. M/s [ENTITY] Having its Registered office at Rathi Market, Nai Sarak, Delhi Defendants A. Date of Institution of Suit : 16/08/1993 B. Reserved for Order on : 13/12/2010 C. Date of Order : 21/12/2010 D. Final Order : Suit Decreed. SUIT FOR RECOVERY OF POSSESSION AND ARREARS OF RENT [CASE NUMBER] [ENTITY]:East, Delhi Page No. 1/37 J U D G M E N T
1. Plaintiff has filed this suit with a prayer for a decree of possession in her favour and against defendants in respect of a piece of land measuring about 772.556 sq. meters situated at 302, G.T. Road, Shahdara, Delhi bounded on the North by G.T. Road, on the South by the other property of [PRECEDENT] [ENTITY] (deceased plaintiff), on the East by the other property of [PRECEDENT] [ENTITY] (deceased plaintiff) and on the West by the factory of M/s Delhi Retreading Co. as shown in red outline in the site plan Ex.PW1/1 (hereinafter referred to as suit property).
2. In brief the case of the plaintiff is that though the defendants are public limited companies, the same were floated by the members of Joint Hindu Family and members of the said family are majority shareholders and directors of both of the said companies and control the same. As alleged, the members of the said family go on rotating as directors of the said companies. As per plaintiff, in April 1972 the said companies jointly took on rent from the plaintiff an open unbuilt piece of land measuring 772.556 sq. meters (8316 sq. feet) situated at 302, G.T.Road, Shahdara, Delhi at the rate of Rs.1000/ per month, each defendant paying Rs. 500/ per month. The said piece of land is bounded as under: North : G.T. Road [CASE NUMBER] [ENTITY]:East, Delhi South : Other property of [PRECEDENT] [ENTITY] (deceased plaintiff) East : Other property of [PRECEDENT] [ENTITY] (deceased plaintiff) West : Factory of Delhi Retreading Co.
As alleged, from the beginning of tenancy the defendants are using the said piece of land jointly as an open stockyard for storing steel ingots, rods etc. and the said piece of land in the tenancy of the defendants has never been demarcated or earmarked into separate portions. As per plaintiff, the absence of demarcation, payment of Rs.500/ per month as rent by each one of the defendants and the joint and concurrent user by both the defendants was on account of the request of the Joint Hindu Family controlling the said companies so that they could derive benefits in the matters of bank loans, income tax, concurrent user etc. and that the tenancy of the defendants is monthly tenancy. As alleged, the defendants have always been habitual defaulters in the payment of rent and a sum of Rs.14,500/ was due and owing from the defendant no.1 to the plaintiff on account of arrears of rent for the period commencing from 01/02/1991 and ending with 30/06/1993. As alleged, similarly a sum of Rs.16,500/ was due and owing from defendant no. 2 to the plaintiff on account of arrears of rent for the period commencing from 01/10/1991 and ending with 30/06/1993. Thus a total sum of Rs.31,000/ was due from the defendants to [CASE NUMBER] [ENTITY]:East, Delhi the plaintiff. As alleged, in the beginning of August,1993 alongwith their counsel's reply dated 29/07/1993, the defendant no.1 sent to the plaintiff a demand draft for Rs.2500/ on account of arrears of rent upto 30/06/1993 and the defendant no. 2 sent a demand draft for Rs. 4500/ on account of arrears of rent upto 30/09/1993. As per plaintiff, the plaintiff finally terminated the tenancy of the defendants by registeredAD and UPC notice dated 15/06/1993. As alleged, to the earlier notices, the defendants sent false, baseless and contradictory replies. As alleged, inspite of service of the said notice dated 15/06/1993 by registeredAD post and under certificate of posting, the defendants have failed to vacate the said piece of land. As per plaintiff, though the defendants have paid the rent to the plaintiff in response to the notice dated 15/06/1993, nevertheless they are liable to be evicted from the suit land as their monthly tenancy has been duly terminated. Hence this suit.
3. Both the defendants have filed separate Written Statements but in substance defences taken by defendants in their separate written statement of defence is the same.
Defendants have denied the averments of the plaintiff that defendant no.1 and 2 are owned by members of Joint Hindu Family. As alleged, plaintiff has not named in the plaint, the alleged Joint Hindu Family [CASE NUMBER] [ENTITY]:East, Delhi & it is all imaginary and concocted. As per defendants, defendant no.1 & 2 are two separate public limited companies registered under the [ACT] and were incorporated as companies in different years; their registration numbers are different; the two defendants are entirely different legal entities and have separate assets and liabilities.
As per defendants, defendant no.1 and defendant no.2 are individual and separate tenants of their respective tenancy premises which form part of the entire suit premises. As alleged, both the defendants are independent tenants in their individual capacity and their tenancy premises are also different and well demarcated. The left half portion of the entire suit property is the tenancy premises belonging to defendant no.1 which consist of two pucca rooms and three tin shed rooms and rest of the portion is an open courtyard which is being used by defendant no.1 to store his goods. The right half portion of the entire suit property is the tenancy premises of defendant no. 2 which has a pucca room and rest is an open courtyard. As alleged, the defendant no.1 & 2 have their separate and individual offices in their respective tenancy premises and respective open courtyard is being used by them separately for storing goods and the defendants are selling their goods to their customers from this premises. As per defendants, the plaintiff has not intentionally shown any construction in [CASE NUMBER] [ENTITY]:East, Delhi the suit property in the site plan filed by her. As alleged, plaintiff has claimed a decree for possession in respect of only open land whereas the tenancy premises are a constructed building with appurtenant land and the suit of the plaintiff in respect of possession of part of tenancy premises and not the entire tenancy premises and this is not maintainable.
Both the defendants have alleged that they had taken the tenancy premises from the plaintiff for starting of factory in the tenancy premises and tenancy was for manufacturing purposes and it was an yearly tenancy. The yearly rent payable by defendants is Rs.6000/ per year by each of the defendants. As alleged, the plaintiff has been issuing separate rent receipt to the defendants for the yearly rent paid by them.
Defendants have further alleged that the premises as given to the defendants were open land and it was agreed between the parties that the defendants shall raise suitable construction for the factory and the offices at their (separately) own cost and later the expenses shall be adjusted towards the rent payable. As alleged, the defendants raised the suitable construction of factory at the tenancy premises at their (separately) own expenses, but due to various difficulties the manufacturing process could not be carried out for long and now the tenancy premises are being used as Sales office and also as a Godown. Plaintiff, as alleged by defendant no.1, has not given [CASE NUMBER] [ENTITY]:East, Delhi any adjustment of the expenses incurred by defendant no.1 in various construction as per the agreed terms.
As per defendants, the notice dated 15/06/1993 terminating the tenancy is not in accordance with law and separate tenancies of both the defendants still subsist and are continuing. As alleged, as the tenancy/ tenancies of the defendants has/have not been terminated till date in accordance with law, the defendant no.1 and defendant no.2 continues to be tenant (s) and are not liable to hand over the possession to the plaintiff.
Further, as per defendants, tenanted premises are a building with appurtenant land and constitutes premises as defined under [ACT] and therefore premises and the suit of the plaintiff is barred U/[SECTION] of the [ACT]. Also, as per defendants, suit is barred by misjoinder of parties as well as misjoinder of cause of action. Further defendants have not taken a stand that suit is not properly valued for the purpose of court fee and jurisdiction.
4. Vide order dated 14/10/1997, liberty to file replication was declined. On 17/12/97, file was taken up on an application moved U/[SECTION] [ACT]. After disposal of application U/[SECTION] [ACT] vide order dated 27/11/1998, separate replication have been filed 08/03/1999 to the Written Statements of the [CASE NUMBER] [ENTITY]:East, Delhi defendant no.1 & 2. Replications have been filed without permission of Court which was required particularly in view of Order dated 14/10/1997 and hence, to my mind, replications cannot be read.
5. Vide order dated 23/07/2002, ld. predecessor of this Court framed certain preliminary issues. But vide order dated 01/05/2004, an application moved U/[SECTION] [ACT] was dismissed and it was, also, observed that preliminary issues framed on 23/07/2002 cannot be decided without leading evidence. On 27/05/2004, ld. predecessor of this Court framed the following issues:
(i) Whether the suit is maintainable in the present form in which drafted and presented before the Court?OPP
(ii) Whether the suit has been properly valued for the purpose of Court fee and jurisdiction?OPP
(iii) Whether the defendants are tenants in the suit property?OPP
(iv) Whether the tenancy of the defendants is single or Joint?OPP
(v) Whether defendant no. 1 & 2 are the separate legal entities?OPD
(vi) Whether suit property was let out as an open plot?OPP [CASE NUMBER] [ENTITY]:East, Delhi
(vii) Whether the suit property was let out as building with land appurtenant thereto?OPD
(viii) Whether the tenancy of the defendants has been duly terminated?OPP
(ix) Whether suit is barred U/[SECTION] of [ACT]
(x) Whether the suit is bad for misjoinder of parties?OPD
(xi) Whether the plaintiff is entitled for the possession of the suit property as claimed in the suit?OPP
(xii) Whether the plaintiff is entitled for the damages/mesne profits, if so, for what period and for what rate?OPP
(xiii) Relief.
6. To substantiate her case on Judicial file, plaintiff has examined one witness namely PW1 Mr. [ENTITY]. PE was closed by Sh. [ENTITY], Advocate for plaintiff by making a separate statement to that effect. On the other hand, defendant no.1 examined three witnesses namely DW1 Mr. [ENTITY], DW2 Mr. [ENTITY] and DW3 Mr. [ENTITY]. Defendant no. 2 has also examined one witness namely D2W1 [ENTITY].
7. I have heard Ms. [ENTITY] and Sh. [ENTITY], [CASE NUMBER] [ENTITY]:East, Delhi Advocates for plaintiff and Sh. [ENTITY], Advocate for the defendant no. 1 and Sh. [ENTITY], Advocate for defendant no. 2. All the parties have filed written arguments which have been perused by the Court alongwith respective case laws relied upon by ld. counsel for parties in their respective written submissions. Other material available on judicial file also perused carefully. Ld. counsel for the plaintiff has relied upon the following case laws: (a) [PRECEDENT] ;(b) [PRECEDENT]; (c) [PRECEDENT]; (d) [PRECEDENT] (e) [PRECEDENT] ;([PRECEDENT]; (g) [PRECEDENT]; (h) [PRECEDENT] [PRECEDENT]; (i) [PRECEDENT]; (j) [PRECEDENT]; (k) [PRECEDENT]; (l) [PRECEDENT]; (m) [PRECEDENT]; (n) [PRECEDENT] [ENTITY]:East, Delhi Gupta and another 165 (2009) DLT 626; (o) [PRECEDENT]. Defendant no. 1 relied upon the judgment as follows: (a)Janki Vashdeo Bhojwani v. Indusind bank Ltd (2004) 3 SCC
584. Defendant No. 2 also relied upon the following case laws:
(a) [PRECEDENT]; (b) [PRECEDENT]; (c) [PRECEDENT]; (d) [PRECEDENT]; (e) [PRECEDENT].
8. The WS filed by defendant no.1 does not bears the signature of any person. However, the verification clause bears the signature of some person. Of course, WS of defendant no.1 has been signed by Sh. [ENTITY], Advocate for defendant no.1. Defendant no. 1 has failed to prove on record, the authority of the person who has signed the WS of defendant no.1. By what means, the person signing the verification clause of WS of defendant no. 1 was authorised to sign the same has not been brought on record by defendant no.1. Even DW3 [ENTITY] was shown his ignorance about the person signing WS of defendant no.1.
[CASE NUMBER] [ENTITY]:East, Delhi
Also it is not clear as to who and in what capacity the person signing the WS of defendant no.2 has signed/verified the same.
But the fact remains that no specific issue has been framed as regards about aspect and therefore it would not be appropriate to give much importance to above facts. Further by their act and conduct both the defendants have continued with the trial of the case with the stand as taken in their abovesaid respective written statements, the written statements on judicial file stood ratified by the respective witnesses of the defendants. In any case, the ld. counsel for defendant no. 1 & 2 have the authority to represent the version of both the defendants through vakalatnama's signed in their favour and even they have relied upon the abovesaid written statements of defendant no. 1 & 2. Thus, to my mind, WS of defendant no.1 & 2, as they exist on judicial file, can be read for the disposal of the case on merits. Also it is a settled law that at this stage when both the parties have lead their respective evidence, it would not be appropriate to struck off the defence of defendants on mere technicalities. Thus I am proceedings to decide the issues on merits after taking into consideration the Written Statements of both the defendants.
Further it is pertinent to note that in the present case tenancy between the plaintiff and defendants was oral tenancy. Suit was filed in the [CASE NUMBER] [ENTITY]:East, Delhi year 1993. The tenancy came into existence in April 1972. During the pendency of suit, plaintiff [PRECEDENT] [ENTITY] expired before she could appear in the witness box. Evidence has been recorded in this case after the death of [PRECEDENT] [ENTITY], the original plaintiff. After her death Mr. [ENTITY] has appeared in the witness box. Mr. [ENTITY] is son in law of the plaintiff. Mr. [ENTITY] married to [PRECEDENT] [ENTITY] in May 1982 and he started residing at 308, G.T. Road, Shahdara, Delhi since 1984. In these circumstance, after the death of original plaintiff [PRECEDENT] [ENTITY], Mr. [ENTITY] has appeared in the witness box. [PRECEDENT] [ENTITY] has not preferred to appear in the witness box. On the other hand, defendants are public Limited Companies which are bound to maintain record of their activities and particularly various agreements and more so when the agreement is a tenancy agreement concerning the immovable properties. May be that tenancy agreement was oral but in all likelihood its terms might have been reduced/brought on the records of the defendant companies in writing.
Now it is a settled proposition of law that parties to the suit are bound to produce best possible evidence concerning the controversies/issues involved in a suit which is within their reach irrespective of the factum as to on whom the Court had put initial onus to [CASE NUMBER] [ENTITY]:East, Delhi prove a particular issue. When so understood much importance cannot be attached to the factum as to on which of the parties initial onus lies to prove a particular issue. In this case best evidence available for plaintiff was the plaintiff [PRECEDENT] [ENTITY] herself. But she expired before she could appear in witness box. Thereafter more or less [PRECEDENT] [ENTITY] and Mr. [ENTITY] were on the same footing in as much as it has not been pleaded in the plaint that [PRECEDENT] [ENTITY] had witnessed the tenancy agreement between [PRECEDENT] [ENTITY] and the representatives/Directors of the defendant companies. The fact that [PRECEDENT] [ENTITY] used to accompany [PRECEDENT] [ENTITY] to the bank for operation of her account does not necessarily imply that [PRECEDENT] [ENTITY] was knowing about the terms of tenancy etc. in a better way than Mr. [ENTITY]. In the totality of facts and circumstances of this case, it cannot be said that plaintiff has withheld the best available evidence. Thus in the facts and circumstances of this case, it can be said that nonappearance of plaintiff [PRECEDENT] [ENTITY] is not of much importance. The defendants did not suffer from any disability to produce the best available evidence. It is settled law that once parties have lead their respective evidence within their reach the much importance need not be attached to the fact as to on whom the initial onus lied in as much each party is bound to produce best possible [CASE NUMBER] [ENTITY]:East, Delhi evidence within their reach irrespective of as to on whom initial onus has been put with regard to a particular issue. In civil cases, issues are to be decided being guided by the principle of preponderence of possibilities. Keeping in view above factual position broad principles of law, I proceed to decide the issues under:
9. ISSUE NO.(i) and (iii) Issue no. (i) Whether the suit is maintainable in the present form in which drafted and presented before the Court?OPP Issue no. (iii) Whether the defendants are tenants in the suit property?OPP Decision on issue no. 1 deserves to be taken on the basis of averments made in the plaint. It has been specifically pleaded in plaint that both the companies jointly took from plaintiff an open unbuilt piece of land at monthly rent of Rs. 1000/ per month each defendant paying Rs. 500/ per month. [ACT] is not applicable to unbuilt piece of land. One suit on the basis of above averments against both the defendants is quite maintainable. It has been specifically pleaded in the plaint that the tenancy of defendants is monthly tenancy. There is specific mention about service of notice terminating the tenancy of the defendants. In this background no [CASE NUMBER] [ENTITY]:East, Delhi fault can be found in the framing of draft of present suit. Issue no. 1 is accordingly decided in favour of plaintiff.
Issue No. (iii) Obviously the defendants are tenants in the suit property. Thus this issue is decided in favour of plaintiff.
ISSUE NO. (ii)
10. Whether the suit has been properly valued for the purpose of Court fee and jurisdiction?OPP This is a suit for possession against tenants/lessesse. No prayer has been made regarding arrears of rent or damages/mesne profits. The rent of the suit property is Rs. 1000/ per month. The suit has been valued for the purpose of court fee and jurisdiction at Rs. 12,000/ (i.e. the annual rent of the suit property). Court fee on Rs. 12,000/ amounting to Rs. 1272/ has been affixed with plaint. Thus it can be said that suit has been properly valued for the purposes of court fee and Jurisdiction. The issue is accordingly decided in favour of plaintiff.
11. Issue no. (iv), (viii) & (x) Issue no. (iv) Whether the tenancy of the defendants is single or Joint?OPP Issue no. (viii) [CASE NUMBER] [ENTITY]:East, Delhi Whether the tenancy of the defendants has been duly terminated?OPP Issue no. (x) Whether the suit is bad for misjoinder of parties?OPD All these issues are being dealt with under a common discussion in as much as they are inter connected with each other and decision on one issue has effect on the decision on the other issue(s).
The stand of plaintiff is that though the defendants are public limited companies, the same were floated by the members of a Joint Hindu Family. Further, as alleged, members of the said family are majority share holders and directors of both the companies and control the same. Further, it is alleged that members of the said family go on rotating as Directors of said Companies. All these averments made in the plaint have been termed as imaginary and concocted by defendants. Here it is pertinent to note that defendant instead of contradicting the averments made in the plaint by producing relevant documentary proof or by giving specific details of the Directors of the defendant company at the time of letting out the suit property has preferred to deny the averments in the plaint vaguely/generally. This is despite the fact that in all likelihood, defendants must be in possession of all such relevant details. Also the names of the [CASE NUMBER] [ENTITY]:East, Delhi defendant companies do suggest that in all likelihood the defendant companies belong to one business family. Thus it can be said that defendants are not producing the best available evidence/information available with them.
Also as per plaintiff, suit property was let out to the defendant companies jointly at a rent of Rs. 1000/ per month; each defendant paying Rs. 500/ per month. Admittedly each defendant is paying rent @ Rs.6000/ per month. Also in the rent receipt produced by defendants it has also been specifically mentioned that rent is Rs. 500/per month. But the defendants claim that each of the defendants is an independent tenant and their tenancy premises are also different and well demarcated. Contrary to this, stand of the plaintiff is that piece of land in the tenancy of the defendants has never been demarcated or earmarked into separate portions. Whether tenancy is single or joint also depend on another question as to whether tenancy premises are joint and without any demarcation or as to whether tenancy premises are well demarcated. To my mind issuance of separate rent receipts or the factum of plaintiff maintaining a separate account for the rent liability of both the tenants @ Rs. 500/ per month by themselves is not sufficient to conclude that tenancies are single/independent and not joint tenancy. In my considered opinion, if the tenancy premises are joint without [CASE NUMBER] [ENTITY]:East, Delhi any demarcation, the tenancy of the defendants can be said to be joint tenancy irrespective of other facts.
In the notice Ex. PW1/2 it was specifically mentioned that both the defendants jointly took from the plaintiff an open unbuilt piece of land at total rent of Rs. 1000/ each one of the defendants paying Rs. 500/ per month. Further it has been specifically mentioned in the said notice Ex. PW1/2 that said piece of land is not demarcated into separate portions and both the defendants are jointly and concurrently using whole of it. In reply Ex. PW1/3 on behalf of defendants, defendants have avoided to make specific assertions with regard to above allegations made in the notice Ex. PW1/2. This circumstance, to my mind, to certain extent goes against the defendants. The fact that both the defendants, who were served with notice Ex. PW1/2 separately, have given a common reply suggest that in all likelihood both the defendants are under the control of a common management as is alleged by the plaintiff. If the defendants are under the control of a common management, in all possibility there would have been no demarcation of the tenancy premises.
D1W1 Mr. [ENTITY] in his affidavit Ex. DW1/A has deposed as under: "4. The left half portion of the property no.
302, G.T. Road, Shahdara, Delhi is under tenancy and [CASE NUMBER] [ENTITY]:East, Delhi possession of our company M/s [ENTITY] (known as M/s Rathi steel & Power Limited) and the right half portion is under the tenancy and possession of M/s [ENTITY]. The portion of [ENTITY] and [ENTITY] is separated by a small brick wall upto ground level. The main entrance gate is common. The goods are loaded and unloaded inside the premises."
Similar depositions have also been made by D1W2 Mr. [ENTITY]. D1W3 Mr. [ENTITY] in his affidavit Ex. D1W3/A about the separation of the tenancies of the defendants in para. 9 has deposed as under: "9. That the tenancy of the defendant no.1 M/s [ENTITY] as well as defendant no. 2 [ENTITY] are separate and distinct. The two tenancies are separated by a brick wall upto ground level. The full boundary as removed as the defendant no. 1 used to store Torsteel bars measuring upto 4050 feets in length and these steel bars used to be unloaded from the trucks for storage and then after sale the same were reloaded for despatch and delivery to the customers. Similarly the defendant no. 2 also used to store and sell large steel Ingots in their tenancy premises and therefore for free movement of trucks inside the tenancy premises the wall dividing the tenancy premises was removed leaving only a small brick wall upto ground level for demarcation and identification."
[CASE NUMBER] [ENTITY]:East, Delhi
Similar depositions have been made by D2W1 Mr. [ENTITY] in para. 13 of his affidavit Ex. D2W1/A. What is pertinent to note is that all the above depositions are beyond the contents of WS of the defendants. In the Written Statements, there is no reference whatsoever regarding existence of a full boundary wall at any point of time between the two tenancy premises. There is also no reference of existence of any boundary wall upto the ground level. In the WS, defendants are referring to the suit property as left half portion or the right half portion. Had there been any boundary wall between the alleged separate tenancies, this fact must have found mention in the Written statements of defence, in as much as in the facts and circumstances of this case, this is a fact of vital importance. In the report of LC in [CASE NUMBER] there is no reference at all about the boundary wall/brick wall upto ground level. No objections were filed by the defendants to the said report of the Local Commissioner. Further in their separate Written Statements of defence filed in [CASE NUMBER] also defendants have not mentioned about the existence of abovesaid boundary wall/brick wall upto the ground level. Also D1W3 Mr. [ENTITY] in his affidavit has not specifically deposed as to when the said alleged boundary wall was removed. The explanation given by D1W3 Mr. [ENTITY] regarding removal of the boundary wall [CASE NUMBER] [ENTITY]:East, Delhi also does not appeal good to judicial mind in as much as that ground must be existing from the very beginning making it more probable that there was no boundary wall at any point of time. Contrary to above depositions of D1W3 Mr. [ENTITY] it has been suggested to PW1 Mr. [ENTITY] that the alleged brick wall was not raised further as it would have been caused obstruction to the trucks which come there with the goods. Also, it is not at all case of the defendants that any point of time there were two separate entrance gates to the tenanted premises. This circumstance also negates the possibility of existence of a boundary wall in between the tenanted premises.
In civil suits, parties are supposed to prove their stand by prepondrance of probabilities. To my mind, in view of above detailed discussion, it can be said that there was no demarcation of the tenancy premises as alleged by defendants and both the defendants have been jointly using the tenancy premises. Thus the tenancy of the defendants in concluded to be a joint tenancy and not a single individual tenancies. In view of above findings, the suit of the plaintiff cannot be said to be bad for misjoinder of parties. As both the defendants are joint user of the suit property/tenanted premises, joining of both in a civil suit is requirement of law and thus suit is not bad for misjoinder of parties.
[CASE NUMBER] [ENTITY]:East, Delhi
Issue no. (iv) and issue no. (x) stands decided accordingly. Issue no. (viii) The decision of this issue requires determination of one more aspect i.e. whether the tenancy between the plaintiff and defendants was monthly tenancy or it was yearly tenancy. Initial tenancy agreement being oral, in this case, no documentary proof of terms of tenancy is there on Judicial file. Plaintiff has already expired. Even the defendants have not produced any person as their witness who had negotiated the terms of tenancy with the plaintiff. Also it is not the case of the defendants that no such person is alive as on date. Also it is pertinent to note that defendants are companies and they must be maintaining records regarding its transaction with other parties and particularly the records of transaction like the tenancy agreement which is to subsist for years together. The factum of tenancy with the plaintiff must have been reflected somewhere in the statutory records of the defendants company but no such record have been produced by the defendants. In this background this court is left with no option to take its decision on the basis of material brought on record.
It is alright that in the receipts produced by defendants, the amounts received by plaintiff has been mentioned as Rs. 6000/ which is rent of one year @ Rs. 500/. But the said factum by itself is not sufficient [CASE NUMBER] [ENTITY]:East, Delhi to conclude that the tenancy was a year to year tenancy. The mere fact that rent is being paid on annual basis and not on monthly basis is not sufficient to conclude that it is a year to year tenancy. What is equally pertinent to note is that the said rent receipt also mention that monthly rent is Rs. 500/ per month. If the tenancy was a year to year tenancy, there was no necessity of mentioning the monthly rent as Rs. 500/ per month Also year to year tenancy cannot come into existence orally and as per [SECTION] of [ACT] a lease of immovable property from year to year or reserving a yearly rent can be made only by a registered instrument. In this case there is no such instrument and hence the tenancy in the instant case is concluded to be a month to month tenancy.
A month to month tenancy can be terminated by a 15 days notice. In this case there is no dispute as regards service of notice Ex. PW1/2 on the defendants. In fact the said notice was replied by defendants vide reply Ex. PW1/3. The notice is dated 15/06/1993. The defendants were called upon to hand over vacant possession of the suit property on 31/07/1993 or on such date on which according to defendants tenancy month expires in the month of July 1993. The suit has been filed on 16/08/1993. This court find no defect in the notice Ex. PW1/2. It has already been concluded by this court that tenancy of defendants was joint [CASE NUMBER] [ENTITY]:East, Delhi tenancy. This it could have been terminated through common notice. Thus to my mind, tenancy of the defendants has been duly terminated. Issue stands decided accordingly.
12. ISSUE NO. (v) Whether defendant no. 1 & 2 are the separate legal entities?OPD The very title of the suit establishes that both the defendants are companies. As per defendants, defendant no.1 & 2 are two separate public limited companies registered under the [ACT] having different registration numbers. The certificate of incorporation of defendant no. 2 has been proved as Ex. D2W1/2. Fresh certificate of information issued after the change of defendant no.1 company's name has been proved as Ex.DW3/1.
Thus it can be said that both the defendants no. 1 & 2 are separate legal entities. Issue is accordingly decided.
13. ISSUE NO. (vi) (vii) and (ix) Issue no. (vi) Whether suit property was let out as an open plot?OPP Issue no. (vii) Whether the suit property was let out as building with land [CASE NUMBER] [ENTITY]:East, Delhi appurtenant thereto?OPD Issue no. (ix) Whether suit is barred U/[SECTION] of [ACT] These three issues are being dealt with together in as much as they are interconnected. In fact all the three issues are pertaining to one aspect only i.e. whether suit property when it was let out in April 1972 was an open unbuilt piece of land or it was a building with land appurtenant thereto. In the first situation the suit property will not be falling with the definition of "premises" U/[SECTION] and thus in that eventuality civil suit for possession would be maintainable. In the second situation, the suit property will be falling within the definition of "premises" U/[SECTION] and as the rent of the suit premises is below Rs. 3500/ per month, the civil suit for possession of suit property would not be maintainable in view of provisions of [SECTION] of the [ACT].
Plaintiff has alleged in the plaint that in April 1972 both the defendant companies jointly took on rent from the plaintiff an open unbuilt piece of land. In this regard both the defendants in their separate written statements in para. 2 of the reply on merits has alleged/replied as under: Defendant no.1 "2
[CASE NUMBER] [ENTITY]:East, Delhi
The premises as given to the answering defendants were open land and it was agreed between the parties that the answering defendant shall raise suitable construction for the factory and offices at his own cost and later the expenses shall be adjusted towards the rent payable. The defendant raised the suitable construction of factory at the tenancy premises at his own expenses but due to various difficulties the manufacturing process could not be carried out for long and now the tenancy are being used as sales office and also as a Godown. The plaintiff was however, not given adjustment of the expenses incurred by the defendant in raising construction as per agreed terms".
Defendant no.2 "2 The premises as given to the answering defendant were open land and it was agreed between the parties that the answering defendant shall raise suitable construction for the factory and the offices at his own cost and later the expenses shall be adjusted towards the rent payable. The answering defendant raised the suitable construction of factory at the tenanted premises at his own expenses but due to various difficulties the manufacturing process could not be carried out for long and now the tenancy premises are being used as [CASE NUMBER] [ENTITY]:East, Delhi Godown and Sales Office."
In the abovesaid paragraph there is a clear cut admission on the part of defendants that what was let out to the defendant was an "open land". Also as per above reply defendants were supposed to raise suitable construction for the factory as well as the offices. This suggest that there existed no construction at the time of letting out of suit property by plaintiff to defendants. There is no specific averment in the WS of either of the defendants as to what was the nature of construction existing at the suit property at the time when the suit property was let out in the April 1972. In para. 3 of the Preliminary Objections of the WS of defendants , defendants are referring to existence of some construction allegedly existing in the alleged separate portions of the defendants. But it has not been specifically pleaded by defendants in their separate written statements these construction existed even in April 1972 when the suit property was let out to defendants. In this regard reference may also be made to Preliminary Objection No. 2 of the defendants as taken by them in their separate Written Statements. Even in that paragraph reference has been made to the status of the suit property at the time of filing of WS and not as regards status of the suit property at the time when it was let out in the year April 1972. Even Preliminary Objection no. 1 taken by defendants in their WS is of no help to [CASE NUMBER] [ENTITY]:East, Delhi defendants in the facts and circumstances of this case. Merely because suit property is situated within the limits of MCD and otherwise provisions of [ACT] applies to the area in which suit premises are situated does not mean that the provisions of [ACT] will apply to the suit property even if at the time of letting what has been let out is an open unbuilt piece of land. It is a settled proposition of law that provisions of [ACT] will not apply to a particular property unless and until said property falls within the definition of "premises" as defined U/s 2
(i) of the [ACT]. It is also a settled proposition of law that when subject matter of tenancy is an open unbuilt piece of land, such subject matter does not fall within the ambit/definition of "premises" U/S 2
(i) of [ACT] and the provisions of [ACT] does not apply to such tenancy irrespective of the fact that such subject matter falls with the area of MCD and otherwise [ACT] applies to premises situated in such area.
In its Written Submission, defendant no. 2 has tried to explain the content of para. 2 of Reply on Merits in the WS. The relevant portion of the Written Submissions read as under: "2. It is the case of the plaintiff that defendant has admitted the fact that premises is an open land.
The said construction is clearly misconstrued and [CASE NUMBER] [ENTITY]:East, Delhi misplace as no such pleadings to that effect and the pleadings to which plaintiff is trying to misconstrued is only talks about further construction for the factory on rest of the open land (yard) to facilitate the manufacturing process as it was also very much aim, object and purpose of tenancy, however the same cannot be carried out (Para 2 of the reply on merits of the written statement of defendant no. 2)".
The above submissions are apparently without any substance in as much as in para. 2 of Reply on Merits in the WS, defendants are talking about raising of suitable construction for the factory and offices at his own cost and it has not been pleaded in the WS that at the time of letting in the year 1972, the construction in the nature of offices already existed.
Also in case law reported as [PRECEDENT] it has been held that if property let out to a tenant is a plot, then it does not become premises if tenant raises construction even if it is with permission of landlord. For eviction of such a tenant, suit is maintainable in Civil Court and not before the Rent Controller.
As specific and clearcut reply/admission on the part of the defendant has to be given effect to in comparison with the other non specific and vague averments made by defendant in other/remaining body of the Written Statement of defence.
[CASE NUMBER] [ENTITY]:East, Delhi
I find no substance in the submissions of ld. counsel for defendant no.1 to the effect that in any way the land subject matter of this suit was part of another larger property bearing no. 302308, G.T. Road, Shahdara, which definitely falls within the definition of "premises"& thus even the suit property which is appurtenant to said large premises no. 302 308, G.T. Road, Shahdara falls within the definition of "premises" u/[SECTION] of [ACT]. To determine as to whether a particular property which is subject matter of tenancy falls within the definition of "premises" u/[SECTION] of [ACT], one has to refer/keep in mind the status (i.e. as to whether it is open unbuilt land or a constructed property) of the property only which is subject matter of tenancy and not the status of one large property of which property forming subject matter of tenancy is a part. If subject matter of tenancy is an open unbuilt land and nothing more, such a property cannot fall within the definition of "premises" U/[SECTION] of [ACT]. Open unbuilt land will fall within the definition of "premises" U/[SECTION] of [ACT] if such open unbuilt land is part and parcel of subject matter of tenancy alongwith any building or part of a building which is let out separately.
I clarify that an open unbuilt land and nothing more will not come within the definition of "premises" U/[SECTION] of [ACT] [ENTITY]:East, Delhi Act. But when such open unbuilt land is appurtenant to any building or part of a building and both the building and such land are subject matter of tenancy, then such land falls within the definition of "premises" U/[SECTION] of the [ACT]. As the facts suggest in this case no building which is part of larger property no. 302308, G.T. Road, Shahdara, Delhi had been let out with the suit property and thus open unbuilt piece of land which forms subject matter of tenancy of this case does not come within the definition of "premises" U/[SECTION] of the [ACT].
In the facts and circumstances of this case, failure of the part of plaintiff to comply with notice U/[SECTION] ( Ex. PW1/D1A) is not of much importance in as much as none of documents sought to be produced from the plaintiff could have clarified the position/status of the suit property at the time when it was let out to the defendant in the year April 1972. Some of the rent receipts have been produced by defendants themselves. The record relating to the part of suit property acquired by NCT Delhi will not serve any purpose in as much as part of suit property was acquired much after April 1972. There is no dispute as to title of plaintiff over the suit property. Record of [CASE NUMBER] as produced on Judicial file as Ex. PW1/D1B. Further on failure on the part of plaintiff to produce the documents pursuant to notice Ex. PW1/D1A, had entitled the defendants to [CASE NUMBER] [ENTITY]:East, Delhi prove the said documents by means of secondary evidence or otherwise, but in this regard defendants took no step. Thus failure on the part of plaintiff to comply notice Ex. PW1/D1A is inconsequential.
Also D1W1 Mr. [ENTITY] in his cross examination has deposed as under: " It is correct that I do not know about the existence of construction of 1970 when the premises was let out as I joined the service of the company in 1996 "
Further D1W2 Mr. [ENTITY] in his cross examination has deposed as under: "It is correct that premises is open space and used as godown. It is correct that during 1982 to 1984 there were two pucca rooms in the same premises in dispute. I cannot say when these rooms were constructed."
Also D1W3 Mr. [ENTITY] in his cross examination has deposed as under: "It is correct that when the suit property was rented out I was not employed in the company and it is correct to suggest that I have no knowledge as to in what position the premises was let out to defendant no. 1. It is incorrect to suggest that when the premises was let out to defendant no. 1 it was open plot of land. Vol.
Construction existed at the time of letting."
[CASE NUMBER] [ENTITY]:East, Delhi
Obviously D1W3 Mr. [ENTITY] is deposing falsely when he deposes that construction existed at the time of letting in as much as admittedly at the time suit property was rented out he was not employed in the company. It is no the case that D1W3 Mr. [ENTITY] is deposing on the basis of certain record maintained by the defendant no. 1 as to the status/position suit property at the time it was let out to defendants. No such record has been brought on Judicial file. Nothing has been brought on record to suggest that despite being not employed with defendant no.1, D1W3 Mr. [ENTITY] had knowledge about the status/position of suit property at the time of its letting.
Also D2W1 Mr. [ENTITY] in his cross examination has deposed as under: "I cannot say if at the time of letting the premises was an open space. Vol. When I joined the company it was having constructed."
Thus defendants failed to lead any evidence as regards the status/position of suit property at the time of its letting. Thus the stand of the defendant regarding existence of construction at the suit property at the time of its letting to the defendants have gone unsubstantiated.
The case law reported as Bal Kishan Goel v. Delhi Race Club [CASE NUMBER] [ENTITY]:East, Delhi (940) Ltd. (Supra) is of no help to defendants in the facts and circumstances of this case. Present case is neither covered under the condition no. 3 nor under condition no. 6 as detailed in para.4 of the said judgment. The subject matter of land is an unbuilt piece of land and nothing more.
Also entire record of [CASE NUMBER] Ex. PW1/DB also does not lead to conclusion that the construction as reported in the report of LC existed at the time of letting of the suit property in April 1972.
Also merely because in the rent receipts issued in the name of defendant no. 2 premises have been referred to as G.T. Road, House No. 302, does not mean/imply that at the time of letting, suit premises was a built up construction. The rent receipts are printed receipts available in market for general use. The printed material does not necessarily reflect the specific portion/status of a particular case.
Other documentary evidence lead by defendants does not suggest the position/status of the suit property at the time, it was let out by the plaintiff.
In view of above detailed discussion, it can be concluded that what was let out to the defendants was an open unbuilt piece of land and thus suit is not barred under [SECTION] of the [ACT]. All the issues are decided accordingly in favour of plaintiff.
[CASE NUMBER] [ENTITY]:East, Delhi 14. ISSUE NO (xi)
Whether the plaintiff is entitled for the possession of the suit property as claimed in the suit?OPP It has been held by this court that this suit is not barred U/[SECTION] of the [ACT]. As such suit is to be governed by the provisions of [ACT]. It has also been held by this court that tenancy of the defendants was month to month tenancy which has been duly terminated. After the termination of the tenancy, defendants have no right to remain in possession of suit property. Hence plaintiff is entitled to recover possession of suit property from defendant. Issue is decided, accordingly, in favour of plaintiff.
15. ISSUE NO. (xii) Whether the plaintiff is entitled for the damages/mesne profits, if so, for what period and for what rate?OPP The suit filed by plaintiff bears the heading "Suit for recovery of possession and arrears of rent". In paragraph 5 of the plaint there is reference to certain payment paid by defendants towards arrears of rent through demand drafts. In paragraph 6 of plaint, plaintiff has alleged that defendants have paid the rent to the plaintiff in response to notice dated 15/06/1993, nevertheless defendants are liable to be evicted from the suit [CASE NUMBER] [ENTITY]:East, Delhi land as their monthly tenancy has duly terminated. Prayer in the suit has been restricted to a decree of possession of the piece of land measuring about 772.556 sq. meters situated at 302, G.T. Road, Shahdara, Delhi. As there is no prayer for grant of damages/mesne profits to the plaintiff, no question of plaintiff being entitled to damages/mesne profits arises. Hence this issue is decided against the plaintiff.
16. Issue no. (xiii): Relief In view of my findings on the above issues, suit of the plaintiff is decreed in favour of plaintiff and against the defendants and it is held that plaintiff is entitled to recovery of possession of the piece of land measuring 772.556 sq. meters (minus the land acquired by Govt.) situated at 302, G.T. Road, Shahdara, Delhi bounded on the North by G.T. Road, on the South by the other property of [PRECEDENT] [ENTITY], on the East by the other property of [PRECEDENT] [ENTITY] and on the West by the factor of M/s Delhi Retreading Co. as shown in red outline in site plan Ex. PW1/1 from the defendants. Also plaintiff is entitled to costs of the suit. Decree sheet be prepared accordingly. File be consigned to Record Room. Pronounced in the open court.
21/12/2010 [ENTITY] SCJ/East/KKD/Delhi [CASE NUMBER] [ENTITY]:East, Delhi [CASE NUMBER] [ENTITY]:East, Delhi [CASE NUMBER] [ENTITY]:East, Delhi