Sanjay v. Daljeet Kaur Pandey

1. Allowed, subject to all just exceptions.

2. The Application stands disposed of. RFA(COMM) 38/2024 CM APPL. 7829/2024 [Application for stay]

3. Issue Notice. Learned Counsel appearing on behalf of the Respondent accepts Notice.

4. With the consent of the parties, the matter has been taken up for hearing and disposal today.

5. The present Appeal has been filed impugning the order and judgment dated 07.12.2023 [hereinafter referred to as “Impugned Judgment”] passed by the District Judge (Commercial Court -09) Central District, Tis Hazari Courts, Delhi [hereinafter called “learned Commercial Court”] where an Application under Order XII Rule 6 [hereinafter called “the Application”] of the Code of Civil Procedure, 1908 [hereinafter called “CPC”], has been allowed and a partial decree for possession and costs qua the relief of possession has been passed by the learned Commercial Court in favour of the Plaintiff/Respondent [hereinafter called “the Landlord”] and against the Appellant/Defendant [hereinafter called “the Tenant”]. 5.[1] By the Impugned Judgment, it has been held that the Landlord is entitled to obtain the possession of two counters situated at ground floor in the property at No. 5616, Basant Road, Pahar Ganj, New Delhi – 110055 [hereinafter called “subject premises”]. The Impugned Judgment further directed that qua the relief of arrears of rent/damages/use and occupation charges/mesne profits, pendent lite and future interest as prayed in prayers ‘b’ to ‘f’ of the Plaint, would continue.

6. Briefly, the relevant facts are that the Landlord filed a suit for recovery of possession of the subject premises as well as for arrears of rent and damages in the sum of Rs. 2.75 lakhs and mesne profits for the unauthorized use and occupation of the property at the rate of Rs.40,000/- per month. It was averred in the Plaint that the Landlord is the owner and landlord of the subject premises, which was let out to the Tenant on 02.07.2019 for a period of 11 months, on the basis of an oral agreement. Thereafter, the tenancy was reduced to writing and an agreement dated 31.07.2019 was executed between the parties. 6.[1] It is not disputed that the monthly rental was Rs. 25,000/- per month payable in advance by the Tenant to the Landlord. The tenancy was for commercial purposes, and at the time of the entering into tenancy, the Tenant had given the Landlord a sum of Rs. 1,00,000/- as interest free security deposit. 6.[2] Since, the tenancy had expired by efflux of time on 01.06.2020 and the Tenant continued to remain in occupation of the subject premises, a notice dated 07.08.2020 under Section 106 of the Transfer of the Property Act, 1882 [hereinafter called “TPA”] terminating the tenancy was sent by the Landlord to the Tenant. 6.[3] The legal notice was replied to by the Tenant on 18.08.2020, however, since the possession of the subject premises was not handed over, the Landlord was constrained to file proceedings for the recovery of the possession of the subject premises. Accordingly, a suit for possession and arrears of rent/damages/use and occupation charges/mesne profits, pendent lite and future interest was filed by the Landlord before the learned Commercial Court. 6.[4] In his Written Statement filed before the learned Commercial Court, the Tenant admitted the jural relationship of a Landlord and a Tenant between the parties. However, it was contended on behalf of the Tenant that the subject premises are 2 counters, one each on ground floor and first floor, which were leased out to the Tenant for a period of 10 years and as such the Tenant is in possession of the property since 15.08.2017. It was further averred that the Landlord had taken advance rent for the months of June, July, and August, 2020, after expiry of the Lease Agreement between the parties and that too at an increased rent, thus the tenancy stood extended. It was also contended that the possession of the counter on the first floor was forcefully taken by the Landlord.

7. The Landlord filed the Application for judgment on admissions contending that there were unequivocal admissions on behalf of the Tenant, in as much as:

(i) The relationship of the landlord and tenant was admitted between the parties;

(ii) The rent was admitted at being more than Rs. 25,000/- per month [hence, it was not a protected tenancy[1] ]; and

(iii) The tenancy was validly terminated under the provisions of

Section 106 of the TPA. 7.[1] A reply to the Application was filed by the Tenant contending that the possession of the Tenant is authorised in view of the oral agreement for sale entered into between the Tenant and the Landlord on 15.08.2017, for which an advance sale consideration of Rs. 20,10,000/- was paid.

8. The learned Commercial Court found that the tenancy was a ‘month to month’ tenancy which had expired by efflux of time. It was further found in the facts of the present case that there was nothing on record to suggest the tenancy of the Tenant had been renewed by the Landlord and that the contention of the Tenant, that there was an oral agreement for sale of the subject premises had already been dealt with by the predecessor Court by its order dated 07.01.2023. Thus, the Application was allowed by the Impugned Judgment.

9. Aggrieved by the Impugned Judgment, the present Appeal has been filed.

10. The learned Counsel for the Tenant has submitted that the Written Tenancy protected under the Delhi Rent Control Act, 1958 Statement filed by the Tenant before the learned Commercial Court was not taken on record till 30.08.2022 and the Application under Order XII Rule 6 of CPC was dated 30.03.2022. It was further contended that this Application does not reflect in order sheets dated 31.03.2022, 17.05.2022, and 11.07.2022 of the learned Commercial Court. Since, the Written Statement was not on record on the date of filing of the Application, the Impugned Judgment emanating from the Application, is invalid and should be set aside. 10.[1] It was further contended by the Tenant that the Rent Agreement relied upon by the learned Commercial Court was in English and the Tenant, being semi-literate did not understand the document. This is evident from the fact that the Rent Agreement was signed by the Tenant in Hindi and not in English. 10.[2] It was additionally contended that the Landlord had forcibly taken over possession of one counter on the first floor from the Tenant during the pendency of the present case. Thus, a triable issue had been raised with respect to the possession and occupation of the Tenant which ought to have been decided prior to passing of the Impugned Judgment.

11. Per contra, learned Counsel for the Landlord has contended that the Tenant has concealed documents and has deliberately failed to file all the relevant documents and the orders of the learned Commercial Court. Reliance was placed on the copy of the order dated 31.10.2022 of the learned Commercial Court which was not part of the record but was handed over by the learned Counsel for the Landlord to submit that the Application was taken on record by the learned Commercial Court on 31.10.2022. 11.[1] The learned Counsel for the Landlord further submits that by an order dated 30.08.2022, the learned Commercial Court took on record the Written Statement filed by the Tenant and, thereafter, the Application was taken on record on 31.10.2022. 11.[2] It was additionally averred that the Written Statement filed by the Tenant contained unequivocal admissions based on which the Application was allowed and a decree was passed by the learned Commercial Court in terms of the site plan attached with the Plaint.