* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 136/2008 SHAKTI VATS ..... Appellant Through: Mr.R.N.Vats, Advocate versus DR.FATIMA RAJA ..... Respondent Through: Nemo CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG CORAM: Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J.(Oral) Cav. No.129/2008 The caveat is taken on record and discharged. CM No.8362/2008 Allowed subject to just exceptions. RSA No.136/2008 1. The appellant has lost 2 concurrent battles. The first before the learned Trial Judge. The second before the First Appellate Judge. 2. Jural relationship between the appellant and the respondent came into existence when a written lease deed was executed between the parties under which respondent let out Flat No.GH-13/724, Paschim Vihar to the appellant with effect from 1.7.2001 till 31.5.2002. The written lease agreement recorded that monthly rent payable was Rs.4400/- per month. 3. Relevant would it be to note that the rent being above Rs.3500/- per month, the tenancy was not governed by the provisions of the Delhi Rent Control Act, 1958. 4. After the expiry of the lease period, appellant did not vacate the tenanted premises. The landlord accepted rent. The landlord claimed that rent @ Rs.4400/- per month was received till the month of October, 2003 and that effective from the month of November, 2003 appellant did not even pay the agreed rent. On 4.9.2004 a notice determining the tenancy was claimed to have been served upon the appellant. A suit for ejectment and mesne profits was filed. 5. At the trial, the landlady proved the original rent note, Ex. PW1/2. She proved the determination of the tenancy vide notice dated 4.9.2004, Ex. PW1/3. The original rent receipts, registered AD cover, receipt of speed post, receipt of courier and UPC receipts evidencing service of notice Ex. PW1/2 by 3 different modes were proved as Ex. PW1/4 to Ex. PW1/9. 6. The case projected by the appellant before the learned Trial Judge was that after tenancy was over on 31.5.2002, an oral agreement was arrived at between the parties under which appellant became a tenant under the respondent at the monthly rent of Rs.4400/-. He claimed to have paid the rent till May, 2005. 7. Learned Trial Judge held that after the period of tenancy under the original lease expired on 31.5.2002 at best appellant's status was that of a tenant holding over. Thus, tenancy got determined when Ex. PW-1/3 dated 4.9.2004 was served. In view of the evidence it was held that the appellant failed to establish payment of any rent beyond the month of November, 2003. I may clarify that this finding means that after the land lady determined the tenancy vide Ex. PW1/3 she did not receive any rent from the appellant. 8. The learned Trial Judge accordingly held that the suit for ejectment had to be decreed. A decree to that effect was passed. On mesne profits, damages for unauthorised use and occupation were awarded in favour of the land lady from the date of the suit @ Rs.6000/- per month and future damages were awarded from the date of the decree @ Rs.8000/- per month. 9. The first Appellate Court concurred with the findings returned by the learned Trial Judge. 10. In the second appeal it is sought to be urged that the findings returned are contrary to law for the reason admittedly after 31.5.2002 i.e. the agreed lease period, respondent received rent from the appellant and that this establishes an oral agreement between the parties to continue the lease. Second contention urged is that there is no evidence to sustain the mesne profits which have been awarded. It is urged that till an inquiry was held, the learned Trial Judge could not have awarded mesne profits. 11. Both contentions urged at the hearing today have to fail for the simple reason a lease of immovable property requires the lessee to vacate the tenanted premises on expiry of the lease period unless by consent the tenancy is extended. 12. The concept of a tenant holding over has to be understood with reference to tender of rent by the tenant to the landlord, tender of the amount being as rent and its acceptance by the landlord as rent. The reason is obvious. A tenancy is a result of a bilateral agreement between the parties and its extension also has to be as a consequence of a bilateral agreement between the parties. Merely because the agreed rent is tendered beyond the period of the lease and is accepted by the landlord would not ipso facto result in the conclusion that the tenancy has been extended. 13. I need not bother myself on this aspect of the law for the reason assuming a new agreement was entered into between the parties to extend lease, in the absence of a written lease at best, the oral agreement would result in the creation of a tenancy of 11 months and no more, for the reason a tenancy beyond that period has to be by and under a written lease, duly registered. Thus, the status of the appellant would be that of a tenant from month to month. This tenancy was capable of being determined by serving a notice as required by Section 106 of the Transfer of Property Act, 1882. Ex. PW1/3 is the notice dated 4.9.2004 determining the lease. Service of the said notice has been duly proved by the medium of Ex. PW/4 to Ex. PW1/9. Thus, the decree of ejectment passed by the learned Trial Judge and affirmed by the learned Appellate Judge is in harmony with law and calls for no interference. 14. On the issue of mesne profits I note that there is no direct evidence to prove the market rate of rent in the year 2005 and beyond. But this Court takes judicial notice of increase of rent by 10% to 15% each year. 15. As noted hereinabove, the tenancy between the parties came into existence on 1.7.2001. The agreed monthly rent was Rs.4400/- per month. The learned Trial Judge has awarded mesne profits with effect from the date the suit was filed @ Rs.6000/- per month. The suit was filed in the year 2005. Over a period of 4 years rents have certainly increased, by if not more, at least 40%. Thus, the determination of the market rate of rent for the flat in question in the year 2005 @ Rs.6000/- per month is fair and reasonable. The decree for ejectment has been passed on 22.12.2007. Over the net 3 years rents would certainly stand enhanced. Future damages awarded @ Rs.8000/- per month is also fair and reasonable. 16. Before concluding, I may note that the instant case is a case of an obstinate tenant who not only over-stayed but refused to pay even the agreed monthly rent to the land lady after the month of November, 2003. 17. The appeal is dismissed in limine. MAY 30, 2008 PRADEEP NANDRAJOG, J. vg