1 IN THE COURT OF SH. HASAN ANZAR, ADJ-06 WEST DISTRICT, TIS HAZARI COURTS, DELHI [CASE NUMBER] Smt [ENTITY] W/o Late Sh. Darshan Lal Gulati R/o F-1[SECTION][SECTION], Ground Floor, Karampura, New Delhi-11001[SECTION] Appellant Versus Smt. [ENTITY] D/o Late Sh. Amarjeet Singh R/o B-1[SECTION]7, Mansarover Garden, New Delhi-11001[SECTION] Respondent Date of Institution: 09.08.[SECTION]016 Date reserved for Order: 0[SECTION].11.[SECTION]018 Date of Order: 10.1[SECTION].[SECTION]018 [CASE NUMBER] [ENTITY] Vs. [ENTITY] Page1/18 [SECTION] JUDGMENT
1. Appellant has filed the present appeal against the judgment and decree dated 16.07.[SECTION]016 passed by Ld. Civil Judge, Tis Hazari Court, Delhi (hereinafter referred as impugned judgment) in the case titled Smt [ENTITY] Vs. Smt [ENTITY], the decree of possession was passed against appellant under [SECTION] [ACT] by the Ld. Civil Judge, Civil Tis Hazari Courts, Delhi.
[SECTION]. The parties shall be referred by their status as appearing before Ld. Trial Court as plaintiff and defendant.
3. It is the case of plaintiff that she is the owner/landlord of property of built up premises bearing No. F-1[SECTION][SECTION], Karampura, New Delhi marked in red Colour mark in site plan (hereinafter referred as suit property) and inducted defendant as tenant in the suit property. It is relevant to mention that in the first paragraph of plaint, premises is described as F-1[SECTION]7,which was a typographical error. Suit property has been let out at a monthly rent of Rs. [SECTION]000/- per month excluding electricity charges with an annual enhancement at the rate of 10 percent per annum in the event of extension of lease. The tenancy is to commenced from 1.11.[SECTION]011. It is further averred that current rate of rate is [SECTION][SECTION]00/- per month.
[SECTION]. It is further case of the plaintiff that defendant last paid the rent of Rs. [SECTION][SECTION]00 per month in the month of April, [SECTION]01[SECTION] and repeated requests were made to defendant to pay the rent but same remained unpaid. It is further averred that defendant even failed to pay the electricity bill due to which Electricity meter was removed by BSES. It is also pleaded that plaintiff served a notice under [SECTION] of [ACT] on [SECTION]6.10.[SECTION]01[SECTION] and despite service of the notice, defendant did not hand over the possession of the suit property and defendant is in arrears of rent.
Written Statement
[SECTION]. Defendant filed the written statement and took the plea that there is no privity of contract as the plaintiff has sold the suit property bearing no. F-1[SECTION][SECTION], Karampura, New Delhi to [ENTITY].
6. It is also pleaded that tenancy of defendant had come to end by way of efflux of time on 30.9.[SECTION]01[SECTION] and plaintiff took a lumpsum amount of Rs. 70,000 and reduced the amount of rent to Rs. 3000/-. It was further pleaded that on [SECTION].11.[SECTION]013, another amount of Rs 1,30,000 was given and the defendant (Paragraph [SECTION] of preliminary objection of written statement) is exempted from paying the rent except water and electricity charges. (It was further pleaded that relationship of landlord and tenant has come to an end, when the plaintiff and defendant has come to mutual understanding that premises shall be handed over back to plaintiff upon payment of Rs [SECTION]00,000/- It is further pleaded since the property has been sold to [ENTITY], so there is no landlord tenant relationship. The title of the plaintiff being the landlord of the premises was challenged and it was averred that plaintiff is not in possession of title deed. Defendant denied the receipt of legal notice and termed it as sham document.
7. In paragraph wise reply in written statement, the defendant submitted that she reserves her right to comment about the site plan of the suit property as same was not provided, defendant prayed for the dismissal of suit filed by plaintiff.
8. On the basis of aforesaid pleadings, The Ld Civil Judge exercised his discretion under [SECTION] [ACT] by holding that plaintiff is entitled for the decree of possession on the basis of admissions on the basis of the following reasons ;
I. The Ld. Trial Court held that defendant had denied the factum of receipt of legal notice and the filing of the suit for eviction and service of summons in suit would be sufficient to presume that the notice of termination has been duly served on the defendant.
II. The ld. Trial Court was pleased to hold that there exist landlord and tenant relation in between the parties and it rejected the contention of defendant that plaintiff had taken an amount of Rs. [SECTION] Lakhs so the defendant is exempted to pay the rent. The Ld. Trial Court also noted that although defendant did not categorically admit the relationship of landlord and tenant but there is no denial that rent agreement was executed in between the parties and thus same is an indirect admission. The trial court applied [SECTION] [ACT] to treat the same as an admission to reach to a conclusion that there exist a landlord-tenant relationship in this regard it elaborately discussed provisions of [SECTION], [SECTION] and [SECTION] [ACT].
III. Ld. Trial Court also referred to [SECTION] and [SECTION] of [ACT], 187[SECTION] by rejecting the plea of defendant holding that there is landlord and tenant relationship.
IV. The Ld. Trial Court dealt the assertion of change of ownership as raised by defendant by holding that defendant is barred from raising the contention of ownership in view of provision of [SECTION] of [ACT].
9. I have heard Learned Counsel for Appellant and Ld. Counsel for Respondent and perused the record of trial Court. I have also considered the written arguments filed by appellant/defendant.
10. Ld. Counsel for respondent has cited the following judgments passed by Hon'ble High Court of Delhi in support of his case.
a) [PRECEDENT] in RFA No.[SECTION]0[SECTION]/[SECTION]017 dated 19.0[SECTION].[SECTION]017
b) [PRECEDENT] in RFA No.638/[SECTION]01 dated 10.0[SECTION].[SECTION]01[SECTION]
c) [PRECEDENT] in IA No. 1[SECTION]809/[SECTION]01[SECTION] dated [SECTION][SECTION].08.[SECTION]013
d) [PRECEDENT] in RFA No.697/[SECTION]010 dated [SECTION][SECTION].0[SECTION].[SECTION]01[SECTION]
e) Mr [ENTITY] and ors. Vs [ENTITY] , AIR [SECTION]00[SECTION] Delhi [SECTION][SECTION][SECTION] Ld counsel for respondent also relied upon the judgment passed by Hon'ble Supreme Court of India in [PRECEDENT] in Civil appeal no. 673[SECTION]/[SECTION]01[SECTION] dated [SECTION]0.09.[SECTION]01[SECTION].
11. In the appeal, the appellant raised number of grounds ;
i. Issues have not been dealt by Ld. Trial Court in proper manner.
ii. Suit property was sold to [ENTITY] and [ENTITY] is the owner/Land lord of the premises. Since replication has not been filed by the respondent so the matter requires trial.
iii. Denied the receipt of legal notice iv. After expiration of terms of lease, the terms of lease would not be binding on the parties.
v. Appellant took a plea that it has paid an amount of Rs 70,000 and the rent is Rs 3000/- and the respondent should have filed a petition under provisions of [ACT].
vi. Ambiguities were pointed out by submitting that while disposing of an application under [SECTION] and [SECTION] [ACT] when Ld. Trial Court noted that issue of ownership and as to who is in the present landlord are to be looked into later stages.
vii. The plaintiff has sought the relief of possession and if the plaintiff is seeking relief of the possession, then he should have filed the documents of ownership.
viii. The impugned was passed in hurried merely on the basis of the mentioning of defendant.
ix. The defendant raised a plea when decree of possession has been sought in respect of F-1[SECTION]7, Karampura, New Delhi then decree cannot be passed in respect of F-1[SECTION][SECTION], Karampura, New Delhi.
x. [ENTITY] was not impleaded as party in the case.
xi. The defendant has raised an objection that defendant seeks possession in respect of the F-1[SECTION][SECTION], Karampura, New Delhi where as he seeks the relief of possession in respect of the part of F-1[SECTION][SECTION], Karampura, New Delhi and Defendant contends that site plan as filed was defective.
xii. In ground Q, the defendant/appellant contends that there are different parts in property bearing No. F-1[SECTION][SECTION], Karampura, New Delhi and as per the record of MCD, only one [ENTITY] is residing.
1[SECTION]. Respondent/Plaintiff filed his detailed reply to the appeal filed by defendant/appellant. The respondent plaintiff apart from filing his reply has also additionally filed registered agreement to sell in respect of the part of plot no. 1[SECTION][SECTION], Ground Floor, Karampura sold to [ENTITY] and also an affidavit of [ENTITY] that he did not induct any person as the tenant. I am just mentioning it for the purposes of reference.
13. Impugned Judgment is on the basis of admission is passed by Ld. Trial Court by exercising its discretion under [SECTION] [ACT]. Before dwelling further into discussion, it would be apposite to refer [SECTION] [ACT] which reads as hereunder:-
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 making 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. ([SECTION]) Whenever a judgment is pronounced under [SECTION], a decree shall be drawn up in accordance with the judgment and decree shall bear the date on which the judgment was pronounced.
1[SECTION]. Hence, [SECTION] [ACT] provides for the speedy delivery of judgment or judgment at any stage when admission of facts have been made either in pleading or otherwise as the court deems fit. Thus, discretion vest with the court to pass a judgment in light of the admission made by the parties. Discretion, as often said is not to be exercised in capricious manner but in judicious manner.
1[SECTION]. In a suit seeking eviction of tenant, plaintiff has to make out a case of existence of landlord and tenant relationship. It is consequent upon existence of such a relationship and whether in a given case notice of termination was served or not and whether terms of lease has expired and the nature and period of tenancy are required to be considered.
16. Perusal of written statement as filed by defendant would reveal that defendant indulged in trickery while responding to the averments as made in the plaint by clubbing the response with regard to averments made in the plaint by conveniently not choosing to answer the relevant point. The plaintiff has pleaded in paragraph 1 of plaint that suit property was given on rent for a period of eleven months 11 monthsand in reference to the same in paragraph in the written statement it same was answered in a very general manner by commenting that "it is wrong and denied". It is pertinent to mention that paragraph 1 of the plaint has made complete reference of the period of agreement but same was merely denied by defendant by writing in loosely worded manner that plaintiff is not the owner/landlord of the premises.
17. In paragraph "[SECTION]" preliminary objection of the written statement, it is averred that after termination of tenancy by way of efflux of time 30.9.[SECTION]01[SECTION] and the rent of the premises was reduced to Rs 3000/- per month and plaintiff took a sum of Rs 70,000 and tenancy would be governed under [ACT] pertinently while denying the title of the plaintiff in respect of the suit property it was pleaded tenancy would be governed in accordance with [ACT].
18. The aforesaid stand of defendant in written statement would make it clear that defendant was inducted in the suit premises as tenant. On [SECTION].11.[SECTION]01[SECTION], the said tenancy has come to an end. Another stand taken by defendant was that she was allowed to retain the premises till plaintiff pays an amount of Rs 130,000/- Hence, this stand of defendant would show that there is a clear admission of landlord and tenant relationship in between the parties. It is pertinent to mention that defendant never denied the existence of the rent agreement as apparent from the very reading of paragraph 6 of preliminary objection wherein objection pertaining to the impounding of the document of rent agreement in between the parties was taken by the plaintiff. It is not the case of defendant that rent agreement was not executed or the signature of defendant was not appended. Hence, stand of defendant that since the tenancy has come to an end by efflux of time due to which the relation of landlord and tenant has come to an end. In order to meet out the said contention, it would be apposite to rely upon it would be apt to refer and rely [PRECEDENT]
"[SECTION]7. A suit for ejectment is different from a Title Suit for Possession against a trespasser. The former postulates no dispute about the Lessor - lessee relationship. The dispute here is generally only on two counts. One, about assent to continuation in the case of lease for a fixed term which had expired by efflux of time, or in the case of a tenancy from month-to-month, about the valid termination thereof. In case the lessee claims a right of renewal under a clause therefore, he must bring a separate suit for specific performance of the renewal clause within the limitation prescribed for such a suit. "
"[SECTION]8. The cause of action in the two is different. In a suit for possession it is the factum of ownership and the cause of action is a trespass on a particular day by dispossession of the owner. In a suit for ejectment, ordinarily there is no question of title. The tenant is estopped from denying the landlord's title and the cause of action is basically the termination on a particular day of the tenancy and the question is only about the form of the tenancy beyond that date
one at sufferance or one from month-to-month.
[SECTION]9. To put it differently, in the former case there is no dispute either about title or about the permissive nature of occupation whereas in the latter case the dispute is about title and there is no question of the possession being permissive. Here it is hostile. Even otherwise, a plea or a defense as a tenant is a pleading of a permissive title. It carries with it an admission that someone else, be it the plaintiff or be it another, is the one carrying a superior title and in whom vests the reversionary rights known in common parlance as ownership "
"[SECTION]0. In a suit for ejectment, all that the Court is required to examine is whether on a calendar date representing the expiration of a particular tenancy month, the defendant-tenant's status became one of a 'tenant at sufferance' or it continued as one 'from month-to month.' There is really nothing else to be tried in such a suit. A suit of this variety could in most cases be decided at the first hearing itself either on the pleadings and documents as was done by a Division Bench of this Court in Surjit Sachdeva v. Kazakhstan Investment Services Pvt. Ltd., 66 (1997) DLT [SECTION][SECTION] (DB), or, if need be, by examining the parties under [SECTION] of the Code "
19. In view of the ratio of [ENTITY]) and other of judgements of Hon'ble Delhi High Court, the expiration of lease by way of efflux of time would not would not change the nature of relationship in between landlord and tenant. It is a well known concept that once a tenant always a tenant. Therefore, there exist a jural relationship of landlord and tenant notwithstanding the termination of tenancy due to efflux of time. Hence, contrarian plea of defendant merits rejection. Hence, the conclusion of Ld. Trial Court that there exists a landlord- tenant relationship does not call for interference.
[SECTION]0. The terms of lease has been discussed in paragraph [SECTION] to 7 of plaint against which defendant attempted to create his own story that an amount of [SECTION] Lakhs has been taken by the plaintiff and which shall be payable to her at the time of vacation of the premises. The principal stand of defendant is that tenancy has come to an end by way of efflux of time due to which the relationship of landlord and tenant has come to an end. It is relevant to mention that defendant in response to the last paid rent has not commented anything except the bare denial by clubbing various paragraphs. The facts as pleaded in the written statement from paragraph [SECTION] to 7 are contrary to the rent agreement in between the parties and such a plea of defendant is not permissible under [SECTION] and [SECTION] of [ACT].
[SECTION]1. The defendant has merely denied the prayer as made in the plaint that relief of possession in respect of red colour portion of site plan of suit property. It is pertinent to note that defendant in order to wriggle out from the admitted facts raised objection pertaining to description of suit property and failed to disclose as to what is the suit property, if not furnished by the plaintiff , and also defendant never come with his own site plan, if at all defendant intends to contradict the site plan as filed by plaintiff then he could have filed the site plan and in the absence of specific denial before Ld. Trial Court, it is not open to defendant/appellant to challenge the same by arguing otherwise.
[SECTION][SECTION]. Innocuous mistake in the plaint while describing the suit property as F-1[SECTION]7 instead of F-1[SECTION][SECTION] was presented as a ground for challenge, although in the written statement, defendant himself provided the description of suit property/tenanted property. The description of suit property in red colour in site plan was not at all challenged by defendant but was replied that copy of the same has not been provided and in the absence of any specific denial, the defendant is precluded from denying the correctness of site plan as filed by the plaintiff. The description of suit property matches with description given in rent agreement. This objection of defendant was dealt by Ld. Trial Court in paragraph 17 of the impugned order.
[SECTION]3. In the written statement and in the memo of appeal, defendant took a stand that suit property was sold to [ENTITY] and raised a plea that separate house tax is paid by her. The said plea of defendant is made without any substantial basis or justification and rather said [ENTITY] was one of the witness to the sale deed in respect of other part of suit property which was sold by plaintiff to [ENTITY]. This plea was made without any document and has made with a specific view to call for the trial in the present suit and to escape from admitted portion.
[SECTION][SECTION]. Although Defendant denied the receipt of legal notice but that does not in any manner would be ground of the challenge in the appeal as it has been long settled through series of judgment that once a legal notice has been sent on the correct address, it would tantamount to service on the person to whom it was sent (vide in Jindal Dyechem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd., ([SECTION]010) ILR 1 Delhi [SECTION][SECTION][SECTION], Nopany Investment vs Santokh Singh [SECTION]008([SECTION])SCC 7[SECTION]8 & Jeevan Diesel And Diesel Electricals vs Jasbir Chadha (HUF) & Ors RFA No. 179/[SECTION]011dated [SECTION][SECTION].3.[SECTION]011).
[SECTION][SECTION]. Entire written statement does not make out a case and it has not answered the specific case put up by the plaintiff and is an attempt on the part of defendant to wriggle out from the admitted position. The defendant attempted to raise a false defence in order to stonewalled the lease agreement dated 1.11.[SECTION]01. Reading of the written statement and grounds urged in the pleadings would make it clear defendant did not take a single defence but multiple defence without any basis or justification.
[SECTION]6. Other ground urged by the appellant that while disposing of the application under [SECTION] and [SECTION] [ACT], Ld. Trial Court has noted that issue of ownership would be considered at later stages, although said order was not challenged and upon peruing the same, no ambiguity was found and since there is no issue with regard to the ownership involved in the present case which has been considered by Ld. Trial Court in its impugned judgment and half baked statement that ownership of plaintiff has come to an end would not make difference.
[SECTION]7. In so far as the challenge of the defendant that plaintiff should file the documents as plaintiff has sought the relief of possession the said plea of defendant is liable to rejected as in the cases where landlord and tenant relationship exist it is not the requirement of law that landlord should place on record the documents pertaining to the ownership.
[SECTION]8. Therefore, the plaintiff would be entitled for the decree in respect of property built up premises bearing No. F-1[SECTION][SECTION], Karampura, New Delhi marked in red Colour mark in site plan.
[SECTION]9. In view of the above discussion, I do not find merit in the appeal and same is accordingly dismissed. The impugned judgment does not call for any interference. Decree sheet of dismissal be prepared.
Appeal file be consigned to record room as per rules. Copy of the judgment alongwith trial court record be sent to the Ld Trial Court.
Announced in the Open Court on 10.1[SECTION].[SECTION]018 ([ENTITY]) Additional District Judge-06 West District, THC