RFA No.384/2010 Page 1 of 29 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment dated 28th September, 2010 + RFA 384/2010 RAM MOHAN MAHESHWARI ..... Appellant Through : Mr. A.K. Vashishta, Adv. versus PREM INDERJIT KHURANA & ORS. ..... Respondents Through : Mr. S. Goel, Adv. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to Reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES G.S.SISTANI, J. (ORAL) 1. Learned counsel for the parties submit that it would not be necessary to call for the trial court record and the present appeal may be heard and disposed of on the basis of the record, which has been filed along with the appeal. 2. Brief facts, which have led to the filing of the present appeal, are that the respondents had filed a suit for ejectment of the appellant from the premises bearing No.F-32, Kamla Nagar, New Delhi, and for recovery of rent, possession and damages for use and occupation of the said premises after the termination of the tenancy. The respondents are stated to be the joint owners of the aforesaid property, which was rented out to the appellant in terms of a lease agreement dated 2.3.2005 duly registered for a period of three years w.e.f. RFA No.384/2010 Page 2 of 29 1.5.2005 to 31.3.2008. In terms of Clause 4 of the lease agreement, parties agreed that the tenancy would be initially for a fixed term of three years. As per Clause 15, parties agreed that unless the period of lease is extended at the sole discretion of the lessor with agreed enhancement in rent in writing, the lease would be for a fixed period of three years and would terminate on 31.3.2008. Parties further agreed that in case the lease is not extended and the tenant continued to occupy the premises the premises would attract penal rent @ Rs.2000/-, per day. 3. On 8.1.2008, the respondents issued a legal notice to the appellant and informed him that they did not intend to continue with the tenancy after the expiry of the lease agreement on 31.3.2008. The appellant was further asked to hand over the vacant peaceful possession of the premises after the expiry of the lease period. According to the respondents, the appellant did not hand over possession of the suit property nor any rent was paid for the period from January to March, 2008. 4. The respondent instituted the suit on 30.4.2008. The appellant filed his written statement and counter claim. In the written statement a preliminary objection was raised that the lease stood extended for another period of three years w.e.f. 1.4.2008 and further the respondents had accepted the enhanced rent of Rs.33000/-, per month, besides the RFA No.384/2010 Page 3 of 29 respondents assured the appellant that a written document would be executed. Since the respondents failed to execute the written document the appellant issued a legal notice on 9.5.2008 to the respondents calling upon the respondents to execute a fresh lease deed. 5. In the written statement neither the ownership of the respondents was disputed nor the execution of lease agreement dated 2.3.2005 was disputed nor receipt of the legal notice was disputed. 6. The respondents have denied that at any point of time they had agreed for the extension of the lease nor enhanced rent was accepted by them. As per the respondents, the appellants deposited the amount of rent in the bank accounts of the respondents without their consent. 7. On an application filed by the respondents under Order XII Rule 6 CPC and on hearing counsel for the parties, learned trial court has passed a decree of possession of the suit property, which has led to the filing of the present appeal. 8. It is submitted by counsel for the appellant that (i) the impugned judgment and decree has error apparent on the face of record and, therefore, the same is liable to be set aside; (ii) the learned trial court has failed to appreciate the facts and defence taken by the appellant in his written statement and totally ignored the facts and circumstances set out in the written statement and counter claim duly filed by RFA No.384/2010 Page 4 of 29 the appellant for defending his case; (iii) the learned trial court has exceeded its jurisdiction by passing the impugned judgment as there is no admission at all has been made by the appellant in his written statement; (iv) the learned trial court has failed to consider that respondent no.1 approached the appellant and after due negotiations and discussions agreed to enhance the rent and thereafter duly accepted the enhanced rent in the sum of ` 33000/- and also consented to extend the lease for another period of three years; and (v) the respondents had also agreed to reduce the fresh terms into writing. Counsel for the appellant next contends that when the respondents failed to sign the fresh lease the appellant by a legal notice dated 9.5.2008 called upon the appellant to sign the fresh lease failing which the appellant would institute a suit for specific performance, which was filed as a counter claim. 9. In support of his plea that the lease stood extended, counsel for the appellant submits that by acceptance of the enhanced rent, the intension of the respondents would become clear which fact has been completely ignored by the learned trial court. 10. Mr. A.K. Vashishta, learned counsel for the appellant, submits that learned trial court has failed to appreciate that to pass a judgment on admission, the admission should be clear, unequivocal, unambiguous and explicit, but appellant has not RFA No.384/2010 Page 5 of 29 made any admission on the basis of which the learned trial court has passed the impugned judgment. It is also submitted that in view of Section 116 of the Transfer of Properties Act the lease would stand extended and the notice to quit would stand waived as per Section 113 of Transfer of Prosperities Act. 11. In support of his submission counsel for the appellant relies upon Bhuneshwar Prasad and another vs. United Commercial Bank and others, reported at AIR 2000 Supreme Court 2796; K. Anjanakumari v. Bhavani, reported at AIR 2007 (DOC) 138 (MAD.); Jacob Philip vs. State Bank of Travancore and others, reported at AIR 1973 Kerala 51 (V 60 C 18); and The Municipal Committee vs. Pyare Lal Rikhi Ram and others, reported at AIR 1974 Punjab & Haryana 239 (V 61 C 81). In support of his contention that the admission shall be clear and unambiguous counsel for the appellant has relied upon State Bank of India vs. M/s Midland Industries and others, reported at AIR 1988 Delhi 153; and Raj Kumar Chawla vs. M/s Lucas Indian Services, reported at AIR 2006 Delhi 266. 12. Counsel for the appellant submits that the judgment sought to be relied upon by the trial court in the case of Robin Sahwney vs. R.B. Singh, reported at 2008 DLT 440 (DB) wherein it has been held that while dealing with an application under Order XII Rule 6 CPC the Court is to consider only three aspects is not applicable to the facts of this case. RFA No.384/2010 Page 6 of 29 13. Learned counsel for the respondents submits that the present appeal is a gross abuse of the process of the Court. It is contended by Mr. Goel, counsel for the respondents, that appellant has not denied the execution of a registered lease deed dated 2.3.2005. As per the lease deed, the premises, in question, were let out to the appellant for a period of three years at the rent of `30,000/-, per month. As per Clause 3 of this lease deed, the appellant was to deposit a sum of `90,000/-, equivalent to three months’ rent, as an interest free security deposit, to be refundable to the lessee at the time of vacation of the premises, subject to the deduction for any damages/breakages to the premises or adjustment relating to the unpaid rent or electricity and water charges, if any. Counsel for the respondent further submits that one year lock- in period was fixed as per Clause 5 and further as per Clause 15 of the lease deed, the lease could have only been renewed at the option of lessor i.e. the respondents herein with agreed enhancement in rent in writing and in case the lease was not extended any further the appellant was to hand over vacant peaceful possession of the premises to the lessor. 14. It is next submitted by counsel for the respondents that since the period of lease was coming to an end, the landlord (respondent herein) well before the period of the lease expired, issued a legal notice dated 8.1.2008 to the tenant (appellant herein), wherein the appellant requested the tenant RFA No.384/2010 Page 7 of 29 to vacate the premises failing which he would be entitled to recover damages @ `2000/-, per day, for the illegal use and occupation of the premises. Further the appellant was called upon to hand over vacant peaceful possession by 31.3.2008. The respondents replied to the legal notice by a communication dated 14.2.2008 wherein it was stated that parties had in fact agreed that the tenancy would automatically be extended for a further period of three years with an increase of 10% in rent till the time the appellant was in a position to purchase his own premises and to continue his business. The respondents were asked to withdraw the notice under reply and it was pointed out that they would pay rent @ `33,000/-, per month from 1.4.2008 onwards. The tenant appellant thereafter issued another communication to the landlord respondent on 9.5.2008 wherein it was stated that the appellant had approached the landlord and requested him to extend the lease for a further period of three years at an enhanced rent of 10%. It was also stated in the said communication that the appellant had tendered three cheques in the total sum of `33,000/- and the respondents were called upon to execute a lease deed for another period of three years. The respondents by a legal notice dated 14.5.2008 pointed out that after the expiry of the lease of 31.3.2008, respondents had become an unauthorized occupant and further that respondents had noticed through their passbooks RFA No.384/2010 Page 8 of 29 that the tenant had deposited `8,250/- in the account of Ms. Neelam Khurana and Mr. Sameer Khurana and ` 16500/- in the account of Mr. Prem Inderjit Khurana without their knowledge and consent. It was also pointed out that these amounts have been adjusted towards damages and without prejudice to their rights and pending cases. It was also made clear that since the amounts were deposited without their knowledge it cannot be construed that the tenancy stood extended, which has been terminated by them and for which a suit for possession has also been filed. 15. Learned counsel for the respondents submits that by issuing the notice to quit in the month of January, 2008 would itself show the intention of the respondents was not to extend the lease. Counsel further submits that mala fide intention of the appellant is writ large on the face of the record. After receipt of notice to quit, the appellant did not pay rent for the months of January to March, 2008, with a view to exhaust the security deposit which was paid equivalent to three months’ rent. As per the terms of the lease the security deposit was to be refunded only at the time of vacation of the premises. The appellant did not pay rent for the months of January to March, 2008, knowing fully well that the period of lease had come to an end and with a view to make an adjustment of the security deposit, which was lying with the respondents. Counsel also submits that the submissions made by counsel for the RFA No.384/2010 Page 9 of 29 appellant that appellant had extended the lease are belied from the mere fact that in case there was any intention to extend the tenancy, firstly, the appellant would have continued to pay rent for the months of January, February and March, 2008, and would not have exhausted the security deposit and, secondly, if at all, the tenancy was to be extended, the parties would have entered into a fresh written lease agreement as contained in Clause 15 of the lease deed, thus the submission that lease was extended is baseless. 16. It is further submitted by Mr.Goel, counsel for the respondents that there was no occasion for the respondents to have accepted the rent at an enhanced rate after 31.3.2008 for the months of April and May, 2008, after issuance of the legal notice. It is further submitted that the appellant in a clandestine manner, without the consent, knowledge and concurrence of the respondents have deposited the cheques in their Bank accounts. It is also submitted that the arguments, sought to be raised by counsel for the appellant, that the respondents had accepted the rent is further belied from the fact that the respondents have purchased the Court fee for filing of the suit in the month of April, 2008, itself, and in fact the suit was filed on 30.4.2008 and the suit came up for hearing on 1.5.2008. It is submitted that the defence, sought to be raised by the appellant, is dishonest and only with a view to delay the adjudication of the matter and further with the RFA No.384/2010 Page 10 of 29 illegal object and design to stay in the premises after the expiry of the lease. It is stated that the law on this subject is well settled that if four basic conditions are satisfied the Court would be well within its right to pass a decree under Order XII Rule 6 CPC, which are (i) tenant-landlord relationship, which stand established by the execution of a registered lease deed, which has not been denied on payment of rent by the appellant to the respondent; (ii) rent of over ` 3500/-, this stand established by the fact that the agreed rate of rent of suit premises was `30,000/- and, thus, the case would not fall within the purview of Delhi Rent Control Act; (iii) notice to quit (this stands established in view of the fact that not only a notice was issued, it was received by the respondents and duly replied to); (iv) period of tenancy, which was 3 years as per the lease. 17. Learned counsel for the respondents submits that in this case the parties had entered into a registered lease and thus all the factors stand satisfied and thus the Court was well within its right to pass a decree under Order XII Rule 6 CPC. In support of his submission, counsel for the respondents has relied upon Charanjit Lal Mehra and Ors. v. Smt. Kamal Saroj Mahaja & Anr., reported at JT 2005 (3) SC 213, and more particularly paras 5 and 8, which are reproduced below: 5. From the pleadings of the parties the trial court framed certain issues and when the case was at the stage of evidence an application under Order XII Rule 6 was filed RFA No.384/2010 Page 11 of 29 by the plaintiff on April 26, 2002 for passing a judgment on the admission made in the pleadings. This application was opposed by the defendants by filing a detailed reply and a plea taken was that it was not a joint tenancy and it was individual tenancy and each one of the tenants has to pay rent at the rate of Rs. 625/-. However, learned trial court did not decide this issue and felt that the same be decided after evidence was adduced and therefore, dismissed the said application. Aggrieved against the said order, a revision application was filed before the High Court and the learned Single Judge of the High Court after hearing the parties and examining the matter in detail came to the conclusion that the admitted facts are that (i) there existed the relationship of landlord and tenants between the parties which is created by the lease deed executed on 4th September 1997; (ii) notice of termination under Section 106 of the Transfer of Property Act has been duly served and notice for enhancement of rent from time to time under Section 6A of the Act had also been served; (iii) the rate of rent exceeded Rs. 3500/- per month when the notice under Section 106 of the Transfer of Property Act was served; (iv) the rent was always tendered on behalf of all four brothers and not individually on behalf of any of them. Learned Single Judge of the High Court examined the matter in detail and found that in fact there was a common/composite tenancy and not individual tenancy created in favour of tour defendants each. Learned Single Judge also referred to certain communications referred to by appellants. One of the communications was of the date August 19, 1992 when a cheque for 3 sum of ` 42,500/- as arrears of rent was tendered to the respondent No. 1 plaintiff for the period from April 1, 1991 to August 31, 1992 and the cheque was signed by only one person i.e. Yashpal Mehra. in this connection, the plaintiff wrote a letter on September 17,1992 that Yashpal Mehra is one of the tenants and he is not the only tenant. From this letter an argument was sought to be raised that this was not a composite tenancy but it was an individual tenancy. The learned Judge rightly commented that the letter did not indicate that there were separate tenancies. In fact, in the said letter. Yashpal Mehra was described as a co-tenant. Subsequently when a cheque for a sum of Rs. 60,000/- was sent as rent for the period from April 1, 1991 to May 31, 1993 the same was accepted by the landlady vide receipt dated May 24,1993. This cheque was tendered on behalf of the four brothers. Therefore the argument is advanced on the basis of the letter dated September 17,1992 that it is not a case of admission as the plaintiff RFA No.384/2010 Page 12 of 29 herself treated it as a separate tenancy. The learned Single Judge examined the matter and found that this subsequent cheque of Rs. 60,000/- was sent on behalf of four brothers. Therefore, one isolated letter does not change the character of the tenancy and accordingly, learned Single Judge found that there is admission on the part of the defendants that there is a joint tenancy and the rent exceeded more than Rs. 3500/-. Therefore, on the admission of the defendants, learned Single Judge accepted the application under Order XII Rule 6 C.P.C. and passed a decree for eviction. Aggrieved against the said order, the present Special Leave Petition has been tiled. 8. Learned counsel made an alternative submission that the revision petition was not maintainable and the lease deed is not registered one and therefore, it is not maintainable. None of these objections were raised by the defendants before the learned Single Judge. Even before the trial court, the non-registration of lease deed ( which did not prescribe any term) was not put in issue, it is only devised now to some how defeat and delay the eviction and possession of the premises to the landlady. In fact, Order XII Rule 6, C.P.C. is enacted for the purpose of and in order to expedite the trials it there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon, in the present case, looking at the terms of lease deed, there can be no two opinions that the tenancy was joint/composite and not individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India and Ors., reported at JT 2000 (9) SC 78. Their Lordships have held as follows: "in the Objects and Reasons set out while amending Rule 6 of Order 12 CPC it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on Admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the" relief to which according to the admission of the defendant, the plaintiff is entitled." RFA No.384/2010 Page 13 of 29 The Supreme Court should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment" Therefore, in the present case, as appearing to us, there is a clear admission on behalf of the defendants that there existed a relationship of landlord and tenants, the rent is more than Rs. 3500/-and the tenancy is joint and composite one. As such on these admitted facts, there is no two opinion in the matter and the view taken by the learned Single Judge of the High Court appears to be correct and there is no ground to interfere in this Special Leave Petition and the same is dismissed. 18. Counsel for the respondents has further relied upon in the case of Rohini Varshnei v. R.B. Singh, reported at 155 (2008) DLT 440 (DB) and more particularly para 10, which is reproduced below: 10. It is trite to say that in order to obtain a judgment on admissions, the admissions must be clear and unequivocal. In the matter of landlord and tenant, there are only three aspects which are required to be examined: i) A relationship of landlord and tenant; ii) Expiry of the tenancy by afflux of time or determination by valid notice to quit; and iii) The rent of the premises being more than Rs. 3,500/- per month in view of the provisions of the said Act. 19. Counsel for the respondents has also relied upon Sharex Acting through Vinod Kumar Chadha v. Sudershan Suri, reported at 170 (2010) DLT 600; Sarup Singh Gupta v. S. Jagdish Singh & Ors., reported at 128 (2006) DLT 534 (SC); Shanti Prasad Devi and Another v. Shankar Mahto and Others, reported at (2005) 5 RFA No.384/2010 Page 14 of 29 SCC 543; and H.G. Gupta & Sons v. Silvertone Motors Pvt. Ltd. & Ors., reported at 148 (2008) DLT 441. 20. Counsel for the respondents has relied upon the case of Sharex Acting Through Vinod Kumar Chadha v. Sudershan Suri, reported at 170 (2010) DLT 600, more particularly para 20, which reads as under: “20. To conclude, in the instant case the execution of the lease deed has been unequivocally admitted by the appellant. Once the execution of the document has been admitted, Sections 91 and 92 of the Evidence Act, come into play. Section 91 lays down that when the terms of a contract or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract or other disposition of property, except the document itself. Section 92 further lays down that when the terms of any such contract or other disposition of property have been proved according to the last Section, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting therefrom. Thus, quite obviously, the pleas