REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF RESERVE: March 10, 2010 DATE OF DECISION: April 06, 2010 + RFA 455/2009 and CM Nos.17330/2009 and 2624/2010 MRS. ANITA MEHRA ..... Appellant Through: Ms. Gita Luthra, Sr. Advocate with Mr.Shekhar G. Dewasa, Advocate. versus SH. D.K CHABLANI & ANR ..... Respondents Through: Mr. Jos Chiramel and Mr. Ramesh Kumar, Advocates for the respondent No.1. Mr. Vikas Kakkar, Advocate with Mr. Ranjeet Kumar, authorized representative of the respondent No.2. CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. 1. This appeal arises out of the impugned judgment and decree dated 04.11.2009 passed by the learned trial court in Suit No.641/2009, wherein the learned trial court has allowed the application of the respondent No.1–landlord, filed under Order XII Rule 6 of CPC and passed a decree of eviction against the appellant, while keeping the RFA 455/2009 Page No. 1 of 26 issue in respect of damages and mesne profits pending for further adjudication. 2. The facts of the case relevant for the disposal of the present appeal are as follows. 3. The respondent No.1 is the landlord owning the suit premises which are occupied by the appellant. The respondent No.1 filed a suit for possession, damages and permanent injunction in respect of its premises being a flat on the second floor of house No.3/9, Sarvpriya Vihar, New Delhi, comprising of two bedrooms with attached bathrooms, a drawing-cum-dining room, kitchen, balconies and a servant quarter on the third floor. 4. The respondent No.2, which is a private limited company, had taken on lease the aforesaid premises for the specific residential use of one of its employees, viz., the appellant Mrs. Anita Mehra, arrayed as defendant No.2 in the suit vide lease agreement dated 24.08.2006, for three years, at the rate of Rs.17,500/- p.m. The said lease agreement was admittedly an unregistered document. The rental of Rs.17,500/- p.m. was deducted by the respondent No.2 from the appellant's salary every month, and a cheque was then issued to the respondent No.1 by the respondent No.2, after deduction of TDS by the respondent No.2. RFA 455/2009 Page No. 2 of 26 As per the terms agreed upon between the respondents No.1 and 2, the lease would automatically be terminated in the event of the appellant leaving the employment of the respondent No.2. 5. In December, 2008, the respondent No.1 was duly informed by the respondent No.2 that the appellant was no longer in their employment and that the lease was being terminated with effect from 16.01.2009. At the request of the respondent No.2, however, the respondent No.1 conceded to the prayer for further time till 31.03.2009 without prejudice to his rights. The appellant having failed to handover vacant possession of the suit premises to the respondent No.1, the respondent No.1 is saddled with a situation where neither the premises have been vacated nor any rent is being paid by the appellant. Hence the suit for possession and damages, etc. filed by the respondent No.1 against the respondent No.2, to which the appellant was later on added as a party defendant. 6. It is a matter of record that the defence of the appellant was struck off for want of payment of arrears of rent by an order dated 15.10.2009 passed by the learned trial court. By the same order, the learned trial court passed a decree for eviction against the respondent No.2, as the respondent No.2 had no objection to the same. An RFA 455/2009 Page No. 3 of 26 application was thereupon filed by the appellant for recall of the order dated 15.10.2009, which was considered by the learned trial court along with the application under Order XII Rule 6 CPC filed by the respondent No.1 praying for a decree of eviction against the appellant. A composite order was passed in both the applications viz., the impugned order. 7. The admitted case of the parties is that at no point of time rent was ever accepted by the respondent No.1 from the appellant and the appellant was put in possession of the suit premises by the respondent No.2. It is also the admitted case of the parties that the appellant was employed with the respondent No.2 since October, 2001 and due to her inability to find any accommodation, she sought the assistance of the respondent No.2 with respect to a company lease. The respondent No.2 agreed to the same by providing her a company lease in the premises chosen by her vide lease agreement dated 24 th August, 2006. Admittedly also, the respondent No.2 terminated the appellant's services with effect from 10 th December, 2008 and settled her account on 27 th February, 2009. In December, 2008, as stated above, the respondent No.1 was duly informed by the respondent No.2 that the appellant was no longer in their employment and the lease was being terminated with RFA 455/2009 Page No. 4 of 26 effect from 16.01.2009. 8. The appellant in the written statement filed by her also did not dispute the fact (as indeed she could not have), that the lessor-lessee relationship existed only between the respondent No.1 and the respondent No.2, and being the employee of the respondent No.2 she was granted the right to stay in the demised premises. In her written statement, the appellant also did not deny that she is currently not in the employment of the respondent No.2 and that the respondent No.2 had terminated her services and settled her account on 27 th February, 2009. It is further admitted by her that the said termination was to be with effect from 10 th December, 2008. 9. It is, however, submitted by the appellant that at the time of settling the account she had requested the respondent No.2 to deduct the rental moneys till end August, 2009 from the full and final settlement of her dues and to issue a cheque to the respondent No.1, so that she could continue to stay at the demised premises. However, the respondent No.2 did not agree to this request, as they said that the respondent No.1–plaintiff had refused to receive a cheque from the appellant and, the respondent No.2 is not willing to issue a cheque to the respondent No.1 after the full and final settlement of the appellant's RFA 455/2009 Page No. 5 of 26 account. In fact, it has been stated by her in the written statement that the respondent No.2 asked her to deal with the respondent No.1/plaintiff/landlord directly, which she did. It is further the case of the appellant that the respondent No.1 even stated to her that since the appellant was moving to USA, the respondent No.1 had no objection to her staying in the suit premises till the end of August, 2009, provided his rental cheque was given to him through the respondent No.2. The appellant thereby admits that rent was never accepted from her by the respondent No.1. 10. By the impugned order, the learned trial court held that the plaintiff/respondent No.1 was entitled to a decree under Order XII Rule 6 CPC against the appellant also and, the only other contentious issue was with regard to the damages/mesne profits and arrears of rent. The learned trial court, therefore, proceeded to frame the following issues:- “(i) Whether the plaintiff is entitled to any arrears of rent/damages? If so, from which defendant and how much and for what period? (ii) Relief.” 11. In the course of hearing of the appeal before this Court, a number of submissions were made by Ms. Gita Luthra, the learned senior counsel for the appellant, which are as follows:- (i) The lease deed executed between the respondents is not in RFA 455/2009 Page No. 6 of 26 accordance with law as is evident from a bare reading of Section 107 of the Transfer of Property Act, 1882. A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. The lease dated 24 th August, 2006 for three years commencing from the first day of September, 2006 and expiring on 31 st August, 2009, is not a registered document as is clear from the order of the learned trial court. The Supreme Court in the case of Anthony vs. K.C. Ittoop & Sons & Ors. reported in 2000 (6) SCC 394 relying upon its earlier decision in AIR 1958 SC 532 has held that an unregistered instrument required to be compulsorily registered by virtue of Section 107 of the Transfer of Property Act read with Section 17(1)(d) and Section 49 of the Indian Registration Act, 1908 cannot crease a lease. In the decisions rendered in Chemical Sales Agencies vs. Smt. Naraini Newar, AIR 2005 Delhi 76 also, the law has been stated to be that an unregistered lease agreement for a term exceeding one year is inadmissible in evidence to prove the transaction of RFA 455/2009 Page No. 7 of 26 lease by virtue of the provisions of Section 17(1)(d) read with Section 49 of the Registration Act. (ii) The appellant is the actual tenant of the suit premises on account of her salary being deducted by the respondent No.2 towards rental charges for the demised premises, and only thereafter was there a cheque issued by the respondent No.2 to the respondent No.1. Even otherwise, the electricity and water charges are paid by the appellant directly to the electricity provider and the respondent No.1 respectively. (iii) There was no verbal/written notice issued to the appellant prior to the filing of the suit by either the respondent No.1 or the respondent No.2 terminating the lease as required by Section 106 of the Transfer of Property Act, though it is the appellant who is residing at the suit property. Reliance in this regard was placed by Ms. Luthra, the learned senior counsel for the appellant on the decision rendered in Smt. Kanta Manocha vs. M/s. Hindustan Paper Corpn., 74 (1998) DLT 493, wherein it is laid down that if after the termination of lease, the lessee continues in RFA 455/2009 Page No. 8 of 26 possession and the landlord accepts rent from such person or otherwise expresses assent to the continuation of his possession, a new tenancy comes into existence as contemplated by Section 116 of the Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the Act. (iv) There are monetary dues that need to be settled by the respondent No.2 towards the appellant regarding her employment and the termination thereof and the respondent No.2 owes a huge sum of money to the appellant, including the security charges of Rs.35,000/- which are to be refunded by the respondent No.1 upon possession of the property from the appellant and proof of payment of the electricity and water bills in full. (v) It is the respondent No.1's own admission in the trial court that subsequent to the respondent No.2's letter dated 23 rd February, 2009, the respondent No.1 allowed possession of the premises for a further period of two months, i.e., till RFA 455/2009 Page No. 9 of 26 the end of April, 2009, “without further renewing the lease and the money for the extended period was accepted as use and occupation charges”, thereby admitting to a verbal agreement with regard to the lease of the rented premises. Resultantly, there was a novation of the lease agreement dated 24 th August, 2006 and an oral tenancy from month to month came into existence, thereby creating a jural relationship between the appellant and the respondent No.1. The respondent No.1 acknowledged the appellant as a tenant under Proviso 4 to Section 92 of the Indian Evidence Act. Reliance in this regard was placed by Ms. Luthra, the learned senior counsel for the appellant on the decisions rendered in Niranjan Kumar and Ors. vs. Dhyan Singh and Anr., (1976) 4 SCC 89 and B.R. Mulani vs. Dr. A.B. Aswathanarayana and Ors., AIR 1993 Kant 257. (vi) There is no categorical admission made by the appellant in the written statement filed by her, which could justify the passing of a decree under Order XII Rule 6 CPC by the learned trial court. The Hon'ble Supreme Court in the case RFA 455/2009 Page No. 10 of 26 of Dudh Nath Pandey (dead) by LRs vs. Suresh Chandra Bhattasali (dead) by LRs reported in 1986 (3) SCC 360 has held that “The admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other”. 12. The learned counsel for the respondent No.1, Mr. Jos Chiramel in rebuttal contended that the appeal was liable to be dismissed in view of the fact that the appellant had nowhere disputed the findings recorded by the learned trial court in paragraph 7 of the judgment, which read as follows:- “7. The plaintiff vide his application under order 12 R 6 CPC has prayed for a decree against defendant no.2 as her written statement does not dispute the facts that the lessor lessee relationship existed only between the plaintiff and defendant no.1, and being the employee of defendant no.1, she was granted the right to stay therein. She does not deny currently not being in the employment of defendant no.1. She further admits that rent was never accepted from her. As there was no lessor-lessee relationship between the plaintiff and defendant no.2, the plaintiff was not bound to address any notice or correspondence to her. 13. Mr. Jos Chiramel next drew the attention of this Court to the lease deed dated 24 th August, 2006, which inter alia provides:- “This Lease made on the 24th day of August, RFA 455/2009 Page No. 11 of 26 2006 between Mr. D.K. Chablani, resident of A-1/136, Inderuri, New Delhi, 110012, hereinafter called the “Lessor” (which expression shall unless repugnant of the context or meaning thereof be deemed to mean and include his heirs, successors, legal representatives and assignees or the like) of the one part and Connaught Plaza Restaurants Pvt. Limited, a JV Company with McDonalds India Pvt. Limited, and having its registered office at 15th Floor Mohandev, 13 Tolstoy Marg, New Delhi-110001 (hereinafter called the “Lessee”, which expression shall unless repugnant to the context or meaning thereof be deemed to mean and include his heirs, successors, legal representatives and assignees or the like) of the other part. WHEREAS THE LESSOR is the owner of the premises known as 3/9, Sarvpriya Vihar, New Dehi-110017, having full and unfettered rights to lease out the same or any portion thereof at such terms and conditions as they may think fit. AND WHEREAS THE LESSOR has agreed to give on lease and Lessee has agreed to take on lease for the sole use and occupation of Mrs. Anita Mehra of the same company, the entire said 2nd floor of the premises 3/9, Sarvpriya Vihar, consisting of 2 bedrooms, with attached bathrooms, drawing cum dining room, kitchen & balconies and a Servant Quarter on the 3rd floor, New Delhi-110017 and hereinafter referred to as “The Demised Premises”.” 14. Mr. Chiramel also referred to Clause No.2 and Clause No.13 of the lease deed, which, being apposite, are reproduced hereunder:- Clause No.2 “2. That the Lessor has let out and the Lessee has taken on lease the demised premises RFA 455/2009 Page No. 12 of 26 for a period of 3 years commencing from 1st day of September, 2006, and expiring on 31st August, 2009. In case Mrs. Anita Mehra leaves the service of Connaught Plaza Restaurants Pvt. Limited this lease will automatically stand terminated.” Clause No.13 “That the premises shall be used exclusively for the purpose of residence of Mrs. Anita Mehra of Connaught Plaza Restaurants Pvt. Limited and her family members and in the event of her transfer or vacating the premises during the currency of this lease deed, the lessee shall be at the liberty to terminate this lease upon giving one month prior written notice or rent amount in lieu thereof to the lessor and shall not be required to pay the rent for the unexpired period of the lease. However, the amount of security deposit shall be refunded by the lessor to the lessee, on the vacation of the premises by the lessee subject to the clearing of last electricity and water bill. The lessor shall be at the liberty to terminate this lease if there is any breach of the lease deed agreement by giving the lessee an 3 month notice period after the expiry of the lock-in period of 1 year.” 15. The contention of Mr. Chiramel is that, the provisions of the lease deed coupled with the fact that it is the admitted case of the parties that the rent was being received by the respondent No.1 from the respondent No.2, make it abundantly clear that the jural relationship of landlord and tenant existed only inter se the respondent No.1 and the respondent No.2. The appellant was only an “interested party”, as is RFA 455/2009 Page No. 13 of 26 borne out from her repeated use of the expression in the appeal filed by her before this Court. Admittedly also, the appellant was impleaded as a party to the suit by the respondent No.1 by amending the suit by way of abundant caution and thereupon summons directed to be issued to her by the learned trial court. The said summons were refused by the appellant and the appellant was accordingly proceeded ex parte on 14.07.2009. On 19.09.2009, however, the appellant filed an application for setting aside the ex parte order, which was allowed subject to payment of Rs.500/- as costs. The appellant though filed a written statement did not tender the costs. On 15.10.2009, the learned trial court decreed the suit against the respondent No.2 so far as possession is concerned on the admission of the respondent No.2 that the lease had been terminated by it. On the same day, i.e., on 15.10.2009, the appellant was directed to deposit the entire rent upto 1 st April, 2009. The appellant refused to deposit the same and instead on 29.10.2009 filed an application for recall of the order dated 15.10.2009. 16. Mr. Jos Chiramel next pointed out that on the very next day, i.e., on 30.10.2009, the appellant as a counter-blast filed a suit bearing Suit No.1436/2009 before the Senior Civil Judge seeking permanent injunction from her dispossession. The learned counsel contended that RFA 455/2009 Page No. 14 of 26 the order of the Senior Civil Judge dated 18.12.2009 makes it abundantly clear that the appellant had embarked upon a course of hoodwinking the Courts. The relevant portion of the said order of the Senior Civil Judge was referred to by the learned counsel, which reads as under:- “The question which arises is whether the plaintiff is entitled for grant of discretionary relief of injunction in view of the present factual matrix. This court is quite disturbed by the attitude/the manner in which plaintiff has proceeded the case. Perusal of proceeding sheets show the matter was listed for 1/12/09 for service upon defendants. In between i.e. before next date of hearing, an application was filed for grant of stay order and the file was taken up on 5/11/09 at 2 PM. Advocate Mr. Devender Chaudhary on an affidavit submitted that the order of interim relief though passed by this Court but was not reflecting in order dated 3.11.2009. He further insisted upon disposal of his application for interim relief, stating the apprehension of dispossession of Plaintiff, without disclosing the judgment passed on 4.11.2009 by Ld. ADJ against Plaintiff. In view of such situation, it has to be seen whether the plaintiff, who has indulged in so abusing the process of the courts, entitled to discretionary relief of injunction. It is settled position of law that a party which approaches the court, especially for ex-parte ad-interim relief is bound by duty to carefully place before the court all the facts, which may enable the court to consider the feasibility of grant of such relief. The conduct of plaintiff is found wanting RFA 455/2009 Page No. 15 of 26 in this regard. The pleadings before the appellate court as well as the order Ld. A.D.J. filed by defendants clearly show the plaintiff, impleaded as defendant No.2 therein, whose defence was struck off for non payment of arrears of rent and her application for recalling of that order was found untenable. Strangely enough, plaintiff has not uttered even a word in her application before Ld. A.D.J. as to the alleged overtures, pornographic material allegedly displayed on M.D. of defendant No.2's laptop or about SMSs, physical displays or intimacy though the present plaint is replete with such averments, which was filed subsequently on 31.10.2009 before this court. I also find the conduct of plaintiff, pressing upon ex-parte ad-interim status quo vide application on 05.11.2009, without disclosing the factum of judgment against her, entitling her for grant of any interim injunction. It also shows that it did not occur even to the advocate for plaintiff who has filed a false affidavit, stating thereunder the interim relief having passed on 03.11.2009 but not reflecting in the order sheet. No explanation has come for this. From the overall surrounded (sic.) circumstances, it is clear that plaintiff is guilty of suppression of material facts and the application seeking interim relief is liable to be dismissed on the ground of concealment of facts alone. In reply to the application of defendants, it is apparent that nowhere plaintiff states that she was not aware of the order/decree passed on 04.11.2009 by Ld. A.D.J. It only mentions the said order having reserved as was not dictated on 04.11.2009 and became available on 12.11.2009. This itself clearly is an overt RFA 455/2009 Page No. 16 of 26 act of “fraud” attempted to be played with court, which vitiates all the actions and the plaintiff conducting the same is not worthy of any benevolence or discretionary relief from the court. I am placing reliance upon the judgment in the case of S.P. Chengalvaraya Naidu Vs. Jagannath and Ors., AIR 1994 SC 853 wherein it was held that the Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands and provide entire information relevant to the litigation. In case Satish Khosla Vs. M/s. Eli Lilly Ranbaxy Ltd. and Anr. 1998 (1) AD (Delhi) 927, it has been held that a party that does not come to the Court with clean hands and suppresses material facts is not entitled to interim relief. Having observed so, I feel the conduct of the Plaintiff is not above the board (sic.). The exparte status quo order dated 5.11.2009 stands vacated. The applications are allowed. Pursuant to the observations passed by this Court as above, let a preliminary issue be framed for arguments: 1. Whether the plaintiff is entitled to any arrears of rent/damages? If so, from which defendant and how much and for what period? 2. Relief. Put up for arguments on 23.4.2010. The earlier date 18.2.2010 is hereby cancelled.” 17. Mr. Jos Chiramel, the learned counsel for the respondent No.1 further submitted that the order dated 15.10.2009 passed by the learned trial court was not challenged by the appellant by filing of an appeal nor the appellant ever offered to pay rent. Reference was made by him in RFA 455/2009 Page No. 17 of 26 this regard to the judgments rendered by this Court in Surjit Singh vs. H.N. Pahiley, 65 (1997) DLT 22 and Erum Travels vs. Kanwar Rani, 69 (1997) DLT 567.