Full Text
HIGH COURT OF DELHI
RFA NO. 235/2009
JUDGMENT
Through: Mr JP Sengh, Sr. Adv with Mr. PK Dham, Mr. Anil Sharma, Mr. Tarun Arora, Ms. Deepika Madan, Advs.
Through: Mr. Deepak Gupta, Mr. BB Gupta, Mr. Mohit Nagar, Mr. Gaurav Shankar, Advs
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 the Judgment should be reported in the Digest? Yes G.S. SISTANI, J. (ORAL)
1. The present appeal is directed against the judgement and decree dated 17.04.2009 passed by the learned additional district judge decreeing the suit of the respondent under Order XII Rule 6 CPC.
2. The brief facts necessary to be noticed for disposal of the present appeal are that the appellant was inducted as a tenant at the ground floor of the property bearing municipal no. 2537, Ward No. X, now commonly known as 4/11, Asaf Ali Road, Near Delhi Gate, New Delhi (hereinafter referred to as ―suit property‖) by its 2011:DHC:2831 erstwhile owners, Sh. Muni Lal Vohra and Sh. Hira Lal Vohra vide registered lease deed dated 09.10.1964 for a period of five years. The respondent has acquired the suit property from its erstwhile owners, Sh. Muni Lal Vohra and Sh. Hira Lal Vohra, vide registered sale deed dated 15.06.2007 and therefore, by operation of law, the appellant has become a tenant under the respondent. As per the information given by the erstwhile owners to the respondent, the appellant was stated to be in arrears of rent for several years and under the indenture of sale deed dated 15.06.2007, the erstwhile owners of the suit property had assigned their right to recover the arrears of rent in favour of the respondent. It is also not in dispute that the appellant has further sub-let the suit property to M/s Bajaj Auto Ltd. on a monthly rent of Rs. 8000/-. Since despite repeated requests the appellant has failed to pay the arrears of rent, the respondent, vide legal notice dated 08.08.2007, terminated the tenancy of the appellant. Despite the termination of tenancy, the appellants have failed to vacate the suit premises and thus, the respondent was compelled to file a suit for recovery of possession and mesne profits.
3. Summons was served upon the appellant and the written statement was filed on 21.01.2008. Amended written statement was filed on 11.09.2008. Pursuant to an application under Order I, Rule 10 of CPC filed by M/s Bajaj Auto Ltd., Bajaj Auto Ltd was impleaded as defendant no. 2 before the trial court. Defendant NO. 2 filed its written statement alleging that since the suit property is in the possession of the defendant no. 2, the suit of the respondent is not maintainable since admittedly, no notice under section 106 of the Transfer of Property Act has been served upon the subtenant.
4. Subsequent to the filing of the written statement, the respondent filed an application under order XII Rule 6 CPC stating that parties are not in dispute with regard to questions of fact but are at issue only with regard to questions of law which are no longer res integra. The said application has been allowed by the learned trial court decreeing the suit of the respondent which has led to the filing of the present appeal.
5. It is contended by counsel for appellant that the impugned judgment is bad in law and is contrary to the factual position on record. The counsel states that the trial court has failed to appreciate the pleadings of the parties and the documents placed on record.
6. The counsel for appellant submits that the trial court has failed to appreciate the fact that the appellant has denied the title of the respondent over the suit property and there is no admission of the landlord-tenant relationship. The counsel questions the locus standi of the plaintiff/respondent in the absence of his knowledge of the alleged sale of the suit property by the erstwhile owners to the respondent. It is the case of the appellant that the appellant has become a tenant of the suit premises by virtue of its amalgamation with M/s Matchwel Electricals (India) Ltd., the original tenant at the suit premises, and have lawfully sub-let the suit property to M/s Bajaj Auto Ltd. The counsel further submits that the question of lawful sub-letting has already been decided by the Rent Control Tribunal, Delhi and the appeal before the High Court against the order of the Tribunal stands abated.
7. Mr. JP Sengh, learned senior counsel for appellants contends that in order to pass a decree under Order XII Rule 6 CPC, the admissions made must be unequivocal, unqualified and unambiguous. Reliance is placed upon Puran Chand Packaging Industrial (P) Ltd v. Sona Devi & Anthr reported at 154 (2008) DLT 113 and more particularly at paras 8 and 9 which reads as under: ―8. The only short question which arises for consideration in the instant case is as to whether a decree for possession on the basis of the admission purported to have been made by the appellant/defendant could be passed. Before adverting to the same it will be worthwhile to reproduce the language of Order 12 Rule 6: ―Order 12 Rule 6. 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 waiting 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. (2) Whenever a judgment is pronounced under Sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.‖
9. A perusal of the aforesaid provision would show that before a decree on the basis of admission in the pleadings can be passed, the admission must be made by the defendant or a party to the proceedings in an unequivocal, unambiguous manner. In other words the admission should not be vague or equivocal. Converse of it would mean that if there is an admission made by a party which is conditional wherein certain objections which go to the root of the matter have been raised then it could not be treated as an admission. Reliance in this regard can be placed in State Bank of India v. M/s. Midland Industries and Others, AIR 1988 Delhi 153. Though this is a judgment of the learned Single Judge of this Court but as this judgment lays down the correct proposition of law we have no hesitation in approving the same. Another point which has to be borne in mind while passing a judgment on the basis of an admission is that the document is to be read as a whole and the Court is not to take out one or two sentences so as to treat it as an admission. Moreover, passing of a judgment on this basis by the Court is a matter of discretion and not a matter of course. Reliance in this regard is placed on Manisha Commercial Ltd. v. N.R. Dongre and Anthr, 85 (2000) DLT 211=AIR 2000 Del. 176.‖
8. The counsel for appellant next submits that admittedly, the rent of the premises is Rs. 1600 per month and therefore, the appellant is entitled to protection under the Delhi Rent Control Act. The counsel submits that M/s Matchwel Electricals (India) Ltd were inducted as tenants of the entire ground floor of the suit premises for a period of five years from 01.10.1964 with an option of renewal for a further period of five years at a monthly rent of Rs. 1600/- payable to two landlords in equal proportions. As no further lease deed was executed, the said M/s Matchwel Electricals (India) Limited became a statutory tenant under the Delhi Rent Control Act, 1958 paying a monthly rent of Rs. 1600 per month. The counsel further submits that after the amalgamation of the appellant with M/s Matchwel Electricals (India) Ltd., the appellant is a statutory tenant at the suit property and is entitled to protection under the Delhi Rent Control Act.
9. It is further contended by counsel for appellant that the respondent, knowing fully well that the suit premises is in the possession of M/s Bajaj Auto Ltd (defendant no.2 before the trial court) and that they are lawful sub-tenants, has neither alleged any cause of action nor claimed any relief against them. The counsel also contends that the notice of termination of tenancy was admittedly not served upon the sub-tenant M/s Bajaj Auto Ltd and thus, the trial court has erred in decreeing the suit of the respondent.
10. Lastly, the counsel for appellant contends that Sh. OP Gupta is not authorised to sign and verify the plaint on behalf of the respondent and that the trial court has ignored the fact that the respondent has not proved the resolution dated 01.0.2007 passed by its Board of Directors authorising Sh. O.P. Gupta to sign and verify the plaint on its behalf.
11. Per contra, counsel for respondent submits that there is no infirmity in the impugned judgement as the appellant has no defence and has duly admitted the receipt of notice to quit and the rate of rent is also not disputed. Further, in view of the registered sale deed dated 15.06.2007 executed between the erstwhile owners and the respondent, the respondent is the owner of the suit property and appellant was a tenant of the respondent.
12. The counsel for respondent next submits that in view of the registered sale deed dated 15.06.2007 placed on record, it leaves no room for doubt that the respondent is the owner of the suit property and therefore, the appellant is the tenant of the respondent. Refuting the contention of the counsel for appellant that respondent has no cause of action since the appellant has no knowledge of the alleged sale of the suit property; the counsel for respondent contends that a landlord does not require a tenant‘s consent or attornment before the delivery of possession or for assigning the right to recover rent. Substantiating his argument, the counsel for respondent has placed reliance upon a decision of this Court in Mr. JC Mehra v. Smt. Kusum Gupta [CR 470/2008 & CM 1010/2003] wherein a Single Judge of this Court has held as under: ―It is not right to say that it needs a tenant‘s consent to attornment before delivery of possession takes place. Once possession-or right to recover rent- has been handed over, it is sufficient delivery of possession. Delivery of possession does not have to be physical. In these circumstances, that is for power of attorney sales, so long as the right to recover rent has been handed over, it is sufficient. The question is transfer of that right. Whether consequent to such transfer the transferee exercises these rights or not is not germane because it is transfer of that right and not the exercise of it that is relevant or matters. Provisions of Order 21 Rule 35 have been so worded because of court proceedings and third parties; but when two persons enter into an agreement they may decide upon whatever mode of delivery they deem proper. The Law Lexicon by P. Ramanatha Aiyer 2nd edition 1997 (page 1848) defines symbolical delivery as under:- ―Symbolical delivery is a substitute for actual delivery, when the latter is impracticable, and leaves the real delivery to be made afterwards. As between the parties, the whole title passes by such delivery, when that is their intention.‖ If the decision in Sushil Kanta Chakravorty’s case (Supra) is read in its entirety, this was the precise question which was answered by the court. The only attempt to distinguishing it is made by the fact that in that case the property was vacant and in the present case, it was tenanted. If a property is tenanted, the sale thereof by any accepted mode does not have to be dependent or await attornment by the tenant. It depends on the agreement to sell, full payment and transfer of right to recover the rent as distinct from sending a letter of attornment to the tenant. The contention of the petitioner that asking the tenant to attorn is imperative may now be tested. If attornemnt letter is not sent by the purchaser would it mean that only on giving the information the power of attorney sale would be complete, or that the statutory authorities would assess the previous owner and not the purchaser as the owner. The answer to each is in the negative. To my mind omission to ask the tenant to attorn cannot be fatal or postpone the actual sale till that is done. The petitioner in his written submissions filed in this court conceded that in 1993 in the petition no. 9/96 titled JC Mehra v. Pushpawati filed by the petitioner, he was informed that property in question had been bought by the respondent herein. The date of proceedings is more than 5 years prior to filing of the eviction petition. I am fortified in this regard by a judgment of this court in Jagdish Chander Gulati (Supra)2 which has been dealt with above. ―
13. Counsel for respondent next submits that since the premises have been sub-let by the appellant to M/s Bajaj Auto Ltd at a monthly rent of Rs 8000 per month, the provisions of Delhi Rent Control Act have ceased to apply and the tenancy is governed by the provisions of the Transfer of Property Act simpliciter. Reliance is placed on PS Jain Company Ltd. v. Atma Ram Properties (P) Sushil Kanta Chakravorty v. Rajeshwar Kumar; 2000 (85) DLT 187 Jagdish Chander Gulati v. Ram Chand Lakram; 45 (1991) DLT 660 Ltd & others reported at 65 (1997) DLT 308(DB) and more particularly at paras 5,6,7, 12 and 13 which read as under: ―5. The point for consideration in the appeal is: Whether a tenant who is paying a rent of Rs. 900 p.m. (less than Rs. 3,500 as specified in Section 3(c) of the Delhi Rent Control Act, 1958) can be evicted by a simple notice under Section 106 Transfer of Property Act, through the Civil Court if he has lawfully sub-let the premises to two tenants, one for Rs. 40,000 p.m. and another for Rs. 4,500 p.m. (in each case for more than Rs. 3,500 p.m.)
6. Section 3 of the Act deals with ‗premises‘ to which the Delhi Rent Control Act, 1958 is not to apply. One of the clauses is Clause (c) as introduced in 1988. It reads as follows: ―Section[3]. Act not to apply to certain premises:— Nothing in this Act shall apply (a)....... (b).......
(c) to any premises, whether residential or not, whose monthly rent exceeded three thousand and five hundred.‖
7. It will be noticed, that the Sub-clause (c) refers to the ―premises‖ which is fetching a rent in excess of Rs. 3,500 p.m. and not to a tenant who is paying rent in excess of Rs. 3,500. In fact, the emphasis in all the clauses in Section 3 is on the ‗premises‘ which are exempt. Different classes of ‗premises‘ which are exempt are enumerated in Section 3(c).
12. In our view, the intention behind Section 3(c) is that a premises which fetches a rent of Rs. 3,500 p.m. should be exempt and that protection should be restricted to buildings fetching a rent less than Rs. 3,500 p.m. In case a tenant paying less than Rs. 3,500 p.m. to his landlord has sub let the very same premises—may be lawfully–– for a rent above Rs. 3,500 p.m., then the question naturally arises whether such a tenant can be said to belong to weaker sections of society requiring protection. By sub-letting for a rent above Rs. 3,500 p.m., the tenant has parted with his physical possession. He is receiving from his tenant (i.e. the sub-tenant) more than Rs. 3,500 p.m. though he is paying less than Rs. 3,500 p.m. to his landlord. The above contrast is well illustrated by the facts of the case before us. The appellant tenant is paying only Rs. 900 p.m. to the plaintiff, while he has sublet the premises in two units, one for Rs. 40,000 p.m. and another for Rs. 4,500 p.m. In regard to each of these units, the sub-tenants have no protection of the Rent Act. In our view, the purpose of Section 3(c) is not to give any protection to such a tenant.
13. Indeed there will be a serious anomaly if such a tenant is to be allowed the benefit of the rent control legislation. If he should get protection, the strange situation will be that when he cannot be evicted except on limited grounds specified in the Act and that too only before the Rent Controller, he could, in his turn, evict his tenants i.e. the sub-tenants, by giving a simple notice under Section 106 of Transfer of Property Act, and then move the Civil Court. Further, he could after such eviction of his tenants (i.e. sub-tenants) induct fresh subtenants at still higher rents. In our view, an interpretation which places him in such an advantageous position is to be avoided.‖
14. Further reliance is sought on Atma Ram Properties (P) Ltd v. Pal Properties (India) Pvt. Ltd & Others reported at (2002) 62 DRJ 623 at paras 15 and 16 which read as under: ―15. Issue No. 3: The rent of the premises in question is more than Rs. 3,500/- PM and, therefore, there is no protection of the provisions of Delhi Rent Control Act available to the tenants.
16. The last question which calls for determination is as to whether the tenancy of the defendants is protected under the provisions of Delhi Rent Control Act and the suit is not maintainable in view of Section 50 of the said Act. On this aspect facts are not in dispute. Defendants 1 to 3 are paying the rent of Rs. 1,540/-. However, they have sub-let a part of the tenanted premises to defendant No. 4 and defendant No. 4 is paying the rent of Rs. 24,701.25 paise to defendants 1 to 3. Therefore, no evidence is required and legal question which calls for determination is as to whether it is a rent of Rs. 1,540/- paid by tenants to the landlord or it is a rent of Rs. 24,701.75 paise paid by sub-tenant to tenants which would be a determinative factor in such proceedings. This issue is no more res integra. Identical question came up for consideration before the Division Bench of this Court in the case of P.S. Jain Company Ltd. v. Atma Ram Properties (P) Ltd. & Ors., reported in 65 (1997) DLT 308 (DB). In para-5, the question which fell for consideration was posed. It reads as under: ―The point for consideration in the appeal is: Whether a tenant who is paying a rent of Rs. 900/p.m. (less than Rs. 3,500/- as specified in Section 3(c) of the Delhi Rent Control Act, 1958) can be evicted by a simple notice under Section 106, Transfer of Property Act, through the Civil Court if he has lawfully sub-let the premises to two tenants, one for Rs. 40,000/- p.m. and another for Rs. 4,500/- p.m. (in each case for more than Rs. 3,500/- p.m.) ?‖ The answer to this question is found in paras 8, 9 and 12 of that judgment. After relying upon four Supreme Court judgments dealing with purposeful construction of a statute rather than adopting mechanical approach, in para-12 the Court observed as under: ―12. In our view, the intention behind Section 3(c) is that a premises which fetches a rent of Rs. 3,500/- p.m. should be exempt and that protection should be restricted to buildings fetching a rent less than Rs. 3,500/- p.m. In case a tenant paying less than Rs. 3,500/- p.m. to his landlord has sublet the very same premises may be lawfully for a rent above Rs. 3,500/- p.m., then the question naturally arises whether such a tenant can be said to belong to weaker sections of society requiring protection. By sub-letting for a rent above Rs. 3,500/- p.m., the tenant has parted with his physical possession. He is receiving from his tenant (i.e. the sub-tenant) more than Rs. 3,500/- p.m. though he is paying less than Rs. 3,500/- p.m. to his landlord. The above contrast is well-illustrated by the facts of the case before us. The appellant-tenant is paying only Rs. 900/- p.m. to the plaintiff, while he has sublet the premises in two units, one for Rs. 40,000/- p.m. and another for Rs. 4,500/- p.m. In regard to each of these units, the sub-tenants have no protection of the Rent Act. In our view, the purpose of Section 3(c) is not to give any protection to such a tenant.‖
15. It is contended by counsel for respondent that the appellant has not denied the sale of the suit premises but has only pleaded that the alleged sale is not within his knowledge. Further contending that a general denial is of no consequence and in fact no denial in the eyes of law, the counsel has drawn the attention of the court to para 1 of the plaint and its reply in the written statement. Para 1 of the plaint reads as under; ―1. That the Plaintiff, M/s Dhruv Devansh Investment and Finance Pvt. Ltd. named above, is the (new) owner and consequently the landlord in respect of the immovable property earlier known as Ramjas Building, bearing municipal No. 2537, Ward No. X, now commonly known as 4/11, Asaf Ali road, Near Delhi Gate, New Delhi-110002 having acquired the same in terms of a sale deed dated 15th June, 2007 (duly registered in accordance with law) executed by the erstwhile owners (namely Shri Jagdish Prasad Vohra S/o late Shri Hira Lal R/o 14, The Mall, Amritsar and his other co-sharers/co-owners).‖ Para 1 of the amended written statement reads as under; ―1. The contents of paragraph no. 1 of the plaint are not to the knowledge of the defendant and are denied. The Plaintiff is put to strict proof of the same.‖
16. The counsel has further drawn the attention of the court to the reply dated 12.09.2007 sent by the appellant to the notice dated 08.08.2007 wherein the appellant has not denied the factum of sale of the suit property but only required the respondent to furnish details and supply a copy of the registered sale deed. The counsel contends that lack of knowledge of a fact pleaded by the plaintiff does not tantamount to denial of existence of a fact and reliance is placed on Jahuri Sah v. DP Jhunjhunwala reported at AIR 1967 SC 109 and more particularly at para 10 which reads as under: ―10. In our opinion the High Court was right in holding that the Act is inapplicable to this case. The plaintiffs and defendants were admittedly co-owners of the property. As the property had not been partitioned it was open to either or both the parties to occupy it. The defendants occupied the property except a small portion which was in possession of the tenants. The plaintiffs acquiesced in it because of an agreement between the parties that the defendants would pay Rs 200 p.m. as compensation to them. The defendants did not dispute that there was an agreement about payment of compensation between the parties but their plea was that the amount agreed to was Rs 50 p.m. and not Rs 200 p.m. Their contention in this behalf was rejected by the High Court which accepted the plaintiffs‘ contention that the amount was Rs 200 p.m. This part of the High Court‘s judgment is not challenged before us by Mr Sarjoo Prasad. He, however, challenged the finding of the High Court that the claim to compensation was enforceable. But before we deal with this matter it would be appropriate to deal with the reasons given by him in support of the contention that the suit was not maintainable. He reiterated the argument urged before the trial court based upon the non-joinder of Shankarlal as a party to the suit. According to him, as Shankarlal‘s adoption has not been established by the plaintiffs he was also a co-owner of the property and his non-joinder as a party to the suit rendered the suit incompetent. The High Court has pointed out that the plaintiffs have clearly stated in para 1 of the plaint that Shankarlal had been given in adoption to Sreelal. In neither of the two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in para 1 of the plaint. Bearing in mind that Order 8 Rule 5, CPC provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial. No specific issue on the question of adoption was, therefore, raised. In the circumstances the High Court was right in saying that there was no occasion for the parties to lead any evidence on the point. However, Sreelal who was examined as a witness on behalf of the plaintiffs has spoken about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption. It is true that he admits the existence of a deed of adoption and of its non-production in the court. This admission, however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence in proof of adoption inadmissible. We, therefore, agree with the High Court that the plaintiffs‘ suit for partition of their half share in the property was not incompetent because Shankarlal was not made a party thereto.‖
17. I have heard the counsel for the parties and have carefully perused the entire material on record. The contention of the counsel for appellant may be summarised as under: The appellant is entitled to protection under the Delhi Rent Control Act since the rent of the suit premises is less than Rs.3500 per month For a decree under Order XII Rule 6 CPC, the admissions must be unequivocal, absolute and unambiguous. The appellant has not made any such admission so to entitle the respondent to a decree under Order XII Rule 6 CPC. Suit not maintainable since no notice to quit has been served upon the sub-tenant M/s Bajaj Auto Ltd who is in lawful possession of the premises and no relief has been pressed against it. Sh. OP Gupta is not authorised to sign and verify the plaint on behalf of the respondent company.
18. The arguments of the counsel for respondent may be summarised as under Since property has been sublet at a monthly rent exceeding Rs 3500/-, the appellant is not entitled to the protection under the Delhi Rent Control Act and the tenancy is governed by the provisions of the Transfer of Property Act and there is no requirement of service of notice to the sub-tenant. Respondent is entitled to a decree under Order XII Rule 6 CPC since the appellant has admitted the rate of rent and the receipt of notice dated 08.08.2007. The appellant has not denied the sale of the suit property but has only pleaded lack of knowledge of the alleged sale.
19. The law with regard to Order XII Rule 6 CPC is fairly well settled. The principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgement as regard so much of the rival claim about which there is no controversy. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India reported at (2000) 7 SCC 120, the Apex Court observed as under: