Full Text
Date of Decision: 8th May, 2018
SANJAY GUPTA ..... Plaintiff
Through: Mr. Manish Vashisht, Mr. Sameer Vashisht, Ms. Astha Gupta and Mr. Manashwy Jha, Advs.
Through: Ms. Priya Hingorani and Mr. Sarvesh Chowdhry, Advs.
JUDGMENT
1. This order is in continuation of the earlier order dated 16th March, 2018.
2. The plaintiff instituted this suit for ejectment of the defendants from property no.6-A, Anandlok, New Delhi after determination of tenancy at a rent in excess of Rs.3,500/- per month of the defendants with respect to the said premises and for recovery of arrears of rent of Rs.61,00,000/- and for recovery of mesne profits.
3. The suit was entertained and summons thereof issued. The defendants appeared in response to the summons and filed a written statement verified on 24th January, 2018. The suit was thereafter posted before the Court on 6th February, 2018, when none appeared for the defendants and the defendants were proceeded against ex parte 2018:DHC:3018 and for the detailed reasons given in the order dated 6th February, 2018, an ex parte decree for ejectment of the defendants from the premises and for recovery of Rs.61,00,000/- with interest and for recovery of mesne profits at the same rate as at which the defendants were claimed to be paying rent, was passed in favour of the plaintiff and against the defendants.
4. The defendants filed IA No.3711/2018 for setting aside of the said ex parte decree and which application came up first before this Court on 16th March, 2018, when finding that the defendants in the written statement filed had admitted the relationship of landlord and tenant with the plaintiff and though had disputed the rate of rent to be Rs.6,00,000/- per month but had admitted the rate of rent to be Rs.3,00,000/- per month, it was enquired from the counsel for the defendants/applicants as to what was the defence of the defendants/applicants to the suit insofar as the decree for ejectment was concerned. However, time was given on that date to the counsel for the defendants to prepare on the said aspect and the application posted for further hearing to today.
5. The counsel for the defendants, on the aspect of setting aside of the ex parte decree insofar as for ejectment, has argued (i) that the plaintiff claims to have terminated tenancy for the reason of the defendants having not paid the rent but the defendants in fact have paid the rent and were not in arrears of rent; (ii) that the defendants have to be given a proper opportunity to defend the suit; (iii) that all provisions of the Code of Civil Procedure, 1908 (CPC) have to be complied with and the defendants cannot be called upon at this stage, to state what their defence is to the claim of decree for ejectment; (iv) that the defendants should be given an opportunity to place documents in support of their defence to the claim of decree for ejectment;
(v) that the plaintiff has locked one of the rooms in the property in which all the documents of the defendants are lying and the defendants are thus unable to access the said room; and, (vi) that though there is no registered Lease Deed between the parties but the understanding of the parties and on which the parties have been acting, is that the defendants shall continue to remain as tenants in the premises forever and the defendants should be given an opportunity to prove the same.
6. The counsel for the defendants at this stage of dictation states that her argument is not that the understanding was of the defendants continuing in tenancy forever but of the defendants being entitled to remain in the premises till mutually agreed between the parties.
7. I have enquired from the counsel for the defendants that the defendants having admitted the relationship of landlord and tenant between the parties and the rent to be in excess of Rs.3,500/- per month and having also admitted non-existence of any registered Lease Deed whereunder the defendants can have any right to continue in the premises, what purpose will be served in giving opportunity to the defendants to lead evidence to prove the plea of ‘understanding between the parties’ when such plea has no basis in law.
8. The counsel for the defendants states that the ‘due process of law’ has to be followed.
9. The due process of law does not entitle a litigant to force the Court to blindly put all suits through the process of trial when the defendants in their pleading have been unable to disclose any defence. A suit in which the defendants in the written statement have not disclosed any defence or raised any substantial question of law or fact which if decided in favour of the defendants, can defeat the suit claim, does not require any issues to be framed and the suit has to be decreed forthwith. In the name of ‘opportunity’, ‘compliance of provisions of CPC’ and ‘observing due process of law’, the time of the Court is not to be wasted.
10. I reiterate that in view of the admissions already existing in the written statement of the defendants and in the reply of the defendants to the legal notice, the defendants have not disclosed any defence to the claim, insofar as for ejectment and ex parte decree for ejectment is not to be set aside when no purpose would be served by setting aside thereof and when the fate, even after hearing the counsel for the defendants and for which also opportunity has been given today, has to be the same.
11. Per Section 107 of the Transfer of Property Act, 1882, a lease of immovable property for any term exceeding one year can be made only by a registered instrument and all other leases may be made either by registered instrument executed by the lessor and lessee or by oral agreement accompanied with delivery of possession. The defendants in their written statement have pleaded lease agreement dated 23rd November, 2015, for a period of three years, executed by plaintiff and defendants and whereunder claim to be entitled to occupy premises till 31st October, 2018. The same is not registered and is admitted to be not registered. The same thus, under Section 49 of Registration Act 1908, cannot be received in evidence of any transaction effecting such property. Per Section 106 of Transfer of Property Act, in the absence of registered lease deed, a lease of immovable property for any purpose other than agricultural or marketing, is deemed to be a lease from month to month, terminable by a fifteen days’ notice. Supreme Court in Nopany Investments (P) Ltd. Vs. Santokh Singh (2008) 2 SCC 728 held that filing of an eviction suit under general law itself is notice to quit upon tenant. The said dicta was followed by Division Bench of this Court in Shri Ram Pistons and Rings Ltd. Vs. C.B. Agarwal HUF ILR (2009) III Delhi
249. Thus, even if suit for ejectment is filed without notice determining lease, after the same has remained pending for over fifteen days, it cannot be defeated on ground of non service of notice. Moreover, the defendants herein have in their written statement admitted service of notice of determination of tenancy. Upon amendment of Section 106 of Transfer of Property Act with effect from 31st December, 2002, a notice of determination of tenancy shall not be invalid merely because the period mentioned falls short of period specified thereunder, as long as the suit has been filed after specified period.
12. However, as far as the claim of the defendants for setting aside of the decree insofar as for recovery of Rs.61,00,000/- is concerned, the said claim of Rs.61,00,000/- has been made on the basis of the rate of rent being of Rs.6,00,000/- per month. The defendants, in the reply to the legal notice preceding the suit and even in the written statement, have disputed the rate of rent to be Rs.6,00,000/- per month and claimed rate of rent to be Rs.3,00,000/- per month and have further pleaded that up-to-date rent has been paid.
13. The counsel for the defendants, on enquiry states that rent has been paid till the month of April, 2018 @ Rs.3,00,000/- per month and has been paid by cheques which have been encashed.
14. The counsel for the plaintiff states that the cheque has been encashed without prejudice to the rights and contentions of the plaintiff.
15. In this view of the matter, insofar as the decree for recovery of monies is concerned, it is deemed appropriate to set aside the same for the reasons stated for non-appearance on 6th February, 2018.
16. Accordingly IA No.3711/2018 for setting aside of the ex parte decree, though is dismissed insofar as to the extent of setting aside of the ex parte decree for ejectment, which shall stand, but is allowed insofar as the decree for recovery of Rs.61,00,000/- with interest is concerned.
17. On the condition that the defendants, till further orders, without prejudice to the rights and contentions of the parties, continue to pay Rs.3,00,000/- per month to the plaintiff, in advance for each month by the 10th day of the English calendar month, IA No.3711/2018 is disposed of. CS(COMM) 646/2017.
17. The counsel fortheplaintiff,on enquirystatesthatthe plaintiffdoes not want tofilereplicationtothewrittenstatementandissuescanbeframed.
18. Needless to state, the ex parte decree for recovery of future mesne profits having been set aside, the plaintiff though had on 6th February, 2018 confined the relief for mesne profits @ Rs.6,00,000/per month, shall be entitled to mesne profits at a higher rate if proved in law.
19. On the pleadings of the parties, the following issues are framed qua the claim of the plaintiff for recovery of arrears of rent and for future mesne profits.
(i) Whether the Agreement of the defendants with the plaintiff of enhancement of rent of the property from Rs.5,00,000/- per month to Rs.6,00,000/- per month was subject to finalisation of the deal between the defendants and the State of Uttarakhand / Uttaranchal and did not come into effect and remained at Rs.3,00,000/- per month only? OPD
(ii) To mesne profits/damages for use and occupation at what rate, with effect from the date of institution of suit till the date of ejectment, is the plaintiff entitled to from the defendants? OPP
(iii) If the plaintiff is found entitled to any arrears of rent, whether the plaintiff is entitled to any interest thereon and if so, at what rate and for what period? OPP
(iv) Relief.
20. No other issue arises or is pressed.
21. The parties to file their list of witnesses within 15 days.
22. The counsel for the defendants has at this stage contended that an issue be also framed as to ‘whether the plaintiff has paid appropriate court fees on the plaint’. It is stated that the plaintiff has pleaded the value of the property of over Rs.50 crores but paid court fees on the annual rent only for the relief of ejectment.
23. I have enquired from the counsel for the defendants, the provision of the Court Fees Act, 1870, which governs the court fees of a suit for ejectment.
24. The counsel for the defendants seeks adjournment to show.
25. Attention of the counsel for the defendants is invited to Section 7 (xi) (cc) of the Court Fees Act which provides that on a suit between landlord and tenant including by a landlord against a tenant holding over after determination of tenancy, the court fees is to be on the value of the annual rent payable for the year next after the determination of the tenancy. The plaintiff is thus found to have valued the suit for the relief of ejectment in accordance with the Court Fees Act. As per Section 8 of the Suits Valuation Act, 1887, the valuation for the purposes of jurisdiction has to be the same as for the purpose of court fees.
26. The counsel for the defendants has also contended that the suit has to be sent to the District Court on the basis of the valuation as per the annual rent.
27. The plaintiff, besides valuing the suit at Rs.72,00,000/- for the purposes of ejectment has also valued the suit for the purposes of recovery of arrears of rent of Rs.61,00,000/- and the total valuation is in excess of Rs.1,00,00,000/- and the suit being a commercial suit has been filed in this Court. Thus, there is no merit in the said contention also.
28. The plaintiff to file affidavits by way of examination-in-chief of all his witnesses qua the issues, burden of which is on the plaintiff, within six weeks.
29. Option of having the evidence recorded before the Court Commissioner has been accepted by the counsel for the plaintiff but not by the counsel for the defendants.
30. The counsel for the plaintiff states that the plaintiff will bear the entire costs of commission subject to final order as to costs.
31. Accordingly, Mr. B.B. Chaudhary, Additional District Judge (Retd.) (Ph. No. 9910384611) is appointed as the Court Commissioner to record evidence in the suit.
32. The fee of the Court Commissioner, besides out of pocket expenses is tentatively fixed at Rs.1,00,000/-, to be borne initially by the plaintiff subject to final order as to costs in the suit.
33. The Court Commissioner is requested to record the evidence within the Court Complex and to complete the same within one year of the date of first appearance of the parties before him. He is granted liberty to have the matter placed before the Court if any of the parties are found delaying recording of the evidence.
34. The Registry is directed to send the file of the suit at the place and time fixed by the Court Commissioner for recording of evidence.
35. The parties to, with prior appointment, appear before the Court Commissioner within eight weeks for commencing recording evidence.
36. List after the recording of evidence is completed.
RAJIV SAHAI ENDLAW, J. MAY 08, 2018 ‘pp’..