Full Judgment Text
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CASE NO.:
Appeal (civil) 6405 of 2002
PETITIONER:
Sri Inder Sain Bedi (Dead) by Lrs.
RESPONDENT:
M/s Chopra Electricals
DATE OF JUDGMENT: 27/08/2004
BENCH:
Ashok Bhan & S.H. Kapadia
JUDGMENT:
J U D G M E N T
BHAN, J.
Aggrieved against the judgment and decree dated 16.3.2000
passed by the High Court of Delhi, in Regular First Appeal No. 507 of
1993 whereby the High Court has allowed the appeal by setting aside
the judgment and decree passed by the District Judge (hereinafter
referred to as "the Trial Court") and dismissing the suit filed by the
plaintiff/appellant (hereinafter referred to as "the appellant) has come
up in this appeal.
Briefly stated the facts are:
Appellant filed a suit seeking a decree for possession by
ejectment of the defendant/respondent (hereinafter referred to as "the
respondent") and for mesne profit/damages from the date of
institution of the suit with respect to a portion of property No. B-59/1,
Naraina Industrial Area, Phase II, New Delhi, (hereinafter referred to
as "the suit property") as shown in red colour in the site plan Ex. P.2.
It was averred in the plaint that the Respondent had taken from the
appellant one hall, three offices-cum-store room and toilets for
workmen in the ground floor and two mezzanine halls on the
mezzanine floor of the suit property shown in the red colour in the
plan attached with the plaint. That the suit property had been taken
by the respondent as a licencee in 1981 for a period of 11 months at
a monthly licencee fee of Rs. 4500/- and that respondent continued to
remain in possession even after the expiry of the period of licence
and claimed himself to be tenant of the suit property at a rent of Rs.
4,500/- per month and that appellant accepted the respondent as his
tenant. It was also alleged in the plaint that respondent had made
several unauthorised additions/alterations etc. which had been shown
in the green colour in the plan attached with the plaint, Appellant did
not claim possession in respect of unauthorised additions/alterations
made by the respondent in the suit. [We were informed during the
course of the arguments by the learned counsel for the parties that
the appellant filed Suit No. 519 of 1994 for possession of the portion
shown in the green colour in the plan attached with the plaint.] That
the appellant served a notice under Section 106 of the Transfer of
Property Act (hereinafter referred to as "the Act") dated 6.3.1989
terminating the tenancy of the tenanted premises w.e.f. 31.5.1989. It
was mentioned in the notice that if according to the respondent the
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tenancy ended on any other date other than the last date of English
calendar month then the respondent should treat its tenancy as
terminated from the close of such a month of tenancy on the expiry of
two months of the service of the notice. By the said notice,
respondent was also notified that in case respondent does not
comply with the said notice, respondent would be liable to pay
damages/mesne profits at the rate of Rs. 1,000/- per day which claim
was without prejudice to the rights of the appellant to claim
possession. That the contents of the reply to the notice were false
and baseless. That the respondent did not vacate the suit property
hence the suit was filed for possession. Appellant also prayed for a
preliminary decree directing enquiry about the amount of
damages/mesne profits payable by the respondent in accordance
with order 20 Rule 12 of Code of Civil Procedure.
Respondent in his written statement took preliminary objection
that the plaint was liable to be rejected as the appellant has not given
any valuation in the plaint regarding relief of mesne profit. Another
preliminary objection taken was that notice to quit served upon the
respondent was bad in law as the date from which the tenancy was
alleged to have been terminated had not been specified and that
premises let out had not been duly identified. On merits, the
respondent pleaded that the respondent was a tenant in respect of
the suit property vide agreement dated 26.5.1980 which though
described as a licence deed was in fact a rent note. Rate of rent of
Rs. 4,500/- per month was not denied. In reply to para 2 of the plaint
wherein the appellant had described the extent of accommodation let
out to the respondent, respondent pleaded that the premises
described in para 2 of the plaint was substantially correct.
Respondent denied having made any unauthorised
additions/alterations and pleaded that the portion shown in green
colour in the plan attached with the plaint alleged to have been
unauthorisedly constructed by the respondent had in fact been let out
as it is from the commencement of the tenancy in May 1980. It was
stated that the shed in the rear and the mezzanine portion shown in
the green colour in the plan attached with the plaint were in
existence at the time of letting out of the premises as was clear from
the rent agreement originally executed although the said portion had
been scored off since the appellant did not want to mention the same
as he was apprehensive of the trouble from the Municipal Corporation
of Delhi. Liability to pay damages at the rate of Rs. 1000/- per day
was also denied.
Appellant filed replication to the written statement filed by the
respondent denying the averment in the written statement and
reiterated the averment set out in the plaint.
On the pleadings of the parties the following issues were
framed by the Trial Court:
"i) Whether the plaintiff is entitled to a
decree for possession? OPD
ii) Whether the plaintiff is entitled to claim
damages/mesne profits for use and
occupation of the disputed property from
the defendants? OPP.
iii) Whether the tenancy of the defendant is
terminated validly? OPP
iv) Whether the suit is not maintainable in
the present form? OPD
v) Whether the suit has not been properly
valued for the purposes of court fee and
jurisdiction? OPD
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vi) Whether the suit is not maintainable in
view of provisions of Delhi Rent Control
Act? OPD
vii) Whether the premises were not let out
for manufacturing purposes? OPD
viii) Relief?"
Issue No. (vii) was amended vide order dated
21.3.1991:
"Whether the premises are let out for
manufacturing purposes? OPD"
Issue Nos. 2 and 5 were taken up together. It was held that
the tenancy of the respondent had been validity terminated and
respondent having failed to vacate the tenanted premises after
termination of the tenancy, the appellant is entitled to claim mesne
profits/damages from the respondent for use and occupation of the
suit property. Issue No. 4 was decided in favour of the appellant and
against the respondent and it was held that the suit was maintainable.
Issue No. 5 was not pressed by the respondent, and therefore the
same was decided in favour of the appellant. Issue No. 6 was
decided in favour of the appellant and against the respondent and it
was held that since property had been let out at a rent of more than
Rs. 3,500/- the provisions of Delhi Rent Control Act were not
applicable. The only avenues open to the appellant to seek
ejectment of the respondent was to file a suit for possession. Issue
No. 7 was decided against the appellant and in favour of the
respondent and it was held that the suit property had been let out for
manufacturing purposes. Issue Nos. 1 and 3 which are the crucial
issues were taken up together. Both these issues were decided in
favour of the appellant and against the respondent.
Validity of the notice terminating of the tenancy as also the right
of the appellant to claim possession of the suit property was disputed
by the respondent on two grounds: (1) that the tenancy between the
parties had been created for manufacturing purposes and the same
could be terminated in terms of section 106 of the Act by giving six
months notice which was not done; and (2) that the suit for
possession of a part of tenanted premises was not maintainable and
relief of ejectment from a part of tenanted premises could not be
granted. Both the contentions were negatived by the trial Court and
the suit was decreed. It was held that tenancy had been terminated
validly by giving two months notice in terms of clause 15 of the
lease/licence document. Since the lease/licence document was not
registered document and the tenancy was from month to month the
same could be terminated by giving 15 days notice under Section
106 of the Act. Further, the Trial Court held that the suit had been
filed for the entire tenanted premises and not for a part of it as alleged
by the respondent.
Aggrieved against the judgment and decree of the trial Court
the respondent filed the first appeal which has been disposed of by
the impugned order. The findings recorded on issue Nos. 2,4,5 to 7
were not contested by either of the parties and accordingly they were
confirmed. Findings on issues No. 1 and 3 were contested. The
High Court reversed the findings of the trial Court and accepted the
appeal. It set aside the order of the trial Court and held that the
appellant had let out the entire premises including the portions shown
in green in plan Ex.P.2. That the appellant had claimed eviction of
the respondent only from a portion of the tenanted premises which
amounted to splitting of the tenancy which was not permissible in law.
The unity and integrity of the tenancy could not be splitted by the
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landlord by claiming possession of a part of the demised premises
from the tenant. For the same reason notice of termination of
tenancy was also held to be invalid.
Ex. D1 is the licence deed dated 26.5.1980. According to the
appellant on the basis of this licence deed, the respondent was
permitted to use portion shown in red as a licencee for a period of 11
months. Ex. P. 3 is another licence agreement dated 1.5.1981 also
for the same portion shown in red but for the subsequent period of 11
months. While describing the portion permitted to be used by the
respondent on licence basis in both the documents, one line has
been scored off. It is not disputed that the line, which has been
scored off in both the documents relate to the green portion in plan
Exp. P.2. Ex. D1 describes the licensed premises as under:
"AND whereas the licencee has approached
the licensor for the use of a part of the building
which include main hall on the ground floor, 3
offices cum store rooms, 2 mezzanine halls,
toilets for workmen shed in the back portion of
the premises and part of open premises
excluding one room with attached W.C."
Similarly in the document Ex P3 the licensed portion of the premises
has been described as:
"AND whereas the licencee has approached
the licensor for the use of a part of the building
which include main hall on the ground floor, 3
offices cum store rooms, 2 mezzanine halls,
toilets for workmen shed in the back portion of
the premises and part of open premises
excluding one room with attached W.C."
Underlined portion in both the documents has been scored off.
Shri D.A. Dave, learned senior counsel appearing for appellant
contended that the contents of documents Ex. D1 and P3 will govern
the rights of the parties. Portion shown in green was not included in
the two documents and did not form part of tenancy and the same is
unauthorisedly occupied by the respondent. The suit has been filed
for the portion shown in red in the site plan Ex. P2 which had been let
out to the respondent. In para 2 of the plaint the appellant has
specifically pleaded that the respondent had taken on rent from him a
portion comprising of hall, 3 office cum store rooms, two mezzanine
halls and toilet on the ground floor of the demised premises. In reply
to this averment, respondent in his written statement pleaded that the
premises described in para 2 in the plaint as having been let out to
the respondent was substantially correct. This reply clearly amounts
to admission of the allegations made in the corresponding paragraph
of the plaint. That in view of this admission made by the respondent
the High Court has gravely erred in recording a finding to the effect
that the appellant had let out the portion shown in green as well to the
respondent. That the High Court has built a new case for the
respondent, which was not even pleaded by him, in holding that on
the expiry of period of licence the respondent was taken as a tenant
of the entire property of the appellant which was in occupation of the
respondent. It was also contended that there was no registered
instrument executed creating tenancy therefore tenancy will be
deemed to be from month to month terminable with 15 days notice
and the High Court has erred in holding to the contrary.
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As against this, Shri Parag Tripathi, learned senior counsel
appearing for the respondent contended that the green portion was
also in existence during the year 1980-81. It was not made part of
the licence agreement because of some apprehension on the part of
the appellant about the Municipal Corporation of Delhi taking action
for demolition of the said portion, which appeared not to have been
constructed on the basis of any sanction obtained from the said
authority. He made reference to the original documents Ex. P3 and
Ex. D1 in support of his submission that the portion delineated in
green in the plan Ex. P2 was in existence and formed part of
tenancy. Suit was filed only with respect to the portion shown in red.
The suit was filed with respect to a portion of the tenanted premises
which is not permissible in law. As the premises were let out for
manufacturing purposes and the respondent was carrying on
manufacturing activities therein the tenancy will be deemed to be for
manufacturing purposes terminable by giving six months’ notice as
provided in Section 106 of the Act. The tenancy was not terminated
in accordance with law.
The High Court came to the conclusion that the portion shown
in green was in existence at the time of the creation of the lease in
favour of the respondent. Otherwise there was no reason why in
documents D1 and Ex.P.3 the same would find mention. That the
appellant did not want the green portion to be made a part of the
licence/lease apprehending proceedings to be taken for demolition of
the same at the behest of the Municipal Corporation of Delhi. From
this the High Court inferred that the portion shown in green was in
existence in 1980-81. After coming to this conclusion the High Court
proceeded to record the following finding :
"In view of this, it has to be inferred that on
expiry of the period of licence the defendant
was taken as a tenant of the entire portion of
property of the plaintiff, which was in
occupation of the defendant."
In para 2 of the plaint the appellant had made a specific
averment that the respondent had taken from the appellant a portion
comprising of hall, 3 office cum store rooms and toilet on the ground
floor and two mezzanine halls in the mezzanine floor. In para 2 of
the written statement filed by the respondent it was pleaded that the
premises described in para 2 of the plaint as having been let out to
the respondent was substantially correct. This reply amounts to
admission of the allegations made in the corresponding paragraph in
the plaint. Apart from this accommodation which had been let out
to the respondent was specifically mentioned in the rent notes
executed between the parties, i.e., Exs. D1 and P3. The
accommodation shown in these documents is the same as had been
mentioned in para 2 of the plaint and shown in red colour in the site
plan Ex. P2. The line "shed in the back portion of the premises and
part of open premises" in the said two documents had been scored
off and had been initialed by both the parties. The submission of the
learned counsel for the respondent that portion shown in green colour
in the site plan Ex. P2 was a part of the tenanted premises but the
appellant did not want this clause to be retained in these two
documents because of some apprehensions of trouble from the
Municipal Corporation of Delhi, which found favour with the High
Court cannot be accepted. In fact, by deleting this line from the
agreement, the intention of the landlord becomes clear that the
portion which had been scored off was not intended to be let out and
form a part of the tenanted premises. In so far as the
accommodation shown in these two documents, i.e. one hall, 3 office
cum store rooms and toilet on the ground floor and two mezzanine
halls on the mezzanine floor, there is no dispute that the portion
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shown in red colour in the site plan Ex. P2 was this portion and for
which a decree of possession was being claimed in the present suit.
In view of the written documents Ex. D1 and P3 it is not permissible
to the respondent to urge or prove or attempt to prove what had
actually been scored off in the said agreements was also intended to
be a part of the tenanted premises.
The appellant had admittedly filed the suit in respect of the
premises as described in the two written documents between the
parties. The portion shown in the green having been scored off and
initialed by both the parties goes to show that portion shown in the
green had not been let out by the appellant to the respondent. Even
if it is assumed for the sake of argument, though we are not holding
to be so, that the portion shown in green in the site plan Ex. P2 was
in existence in the year 1980-81 it does not lead to the inference that
this portion was leased out but was not shown as part of the leased
premises apprehending proceedings being taken out for demolition at
the behest of the Municipal Corporation of Delhi.
The finding recorded by the High Court that on the expiry of
period of licence the respondent was taken as a tenant of the entire*
portion of the property is against the pleadings of the parties. This is
altogether a new case which has been made out by the High Court.
The High Court has misconstrued and misinterpreted the two deeds
of licence/lease as well as the plaint in observing that the suit was
filed only with respect to the portion shown in red colour in the plan
whereas the tenancy had been created for both the portion shown in
red colour as well as green and thus there was a splitting of tenancy
which was not permissible in law.
Law laid down by this Court in Mohar Singh Vs. Devi Charan
& Ors., 1988 (3) SCC 63 on which reliance has been placed by the
High Court would not be applicable to the facts and circumstances of
the present case, inasmuch as it is clearly evident from the
documents, i.e., Ext. D1 and Ext P3, that in fact there is no splitting
off the tenancy and suit was filed for recovery of possession of the
suit property already found indicated in the said document as well as
in Plan Ext. P2 in the red colour.
Validity of the notice as also the right of the appellant to claim
possession of the tenanted premises was questioned by the
respondent on the ground that as tenancy between the parties had
been created for manufacturing purposes the same could be
terminated only after giving six months’ notice to quit as provided
under Section 106 of the Act, which was not done. The trial Court
has negatived this submission by holding that according to the
provision of Section 106 of the Act a lease for manufacturing purpose
is deemed to be a lease on year to year basis but the same was
subject to the contract to the contrary if any between the landlord and
the tenant. The landlord and the tenant can agree to create a
tenancy even for manufacturing purpose for a period of less than one
year. That in Clause 15 of the lease document it is specifically
mentioned that the tenancy could be terminated by either of the
parties by giving notice of two months. That the tenancy of the
respondent had been validly terminated by serving a notice in terms
of Clause 15 of the lease document. The High Court has not given
any reason for reversing this finding and holding that the termination
of the tenancy was invalid.
We agree with the view taken by the Trial Court that the
tenancy has been validly terminated. Clause (1) of Section 106 reads
thus:
"106. Duration of certain leases in absence
of written contract or local usage. \026 (1) In
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the absence of a contract or local law or
usage to the contrary, a lease of immovable
property for agricultural or manufacturing
purposes shall be deemed to be a lease from
year to year, terminable, on the part of either
lessor or lessee, by six months’ notice; and a
lease from month to month, terminable, on the
part of either lessor or lessee, by fifteen days’
notice."
According to the provisions of Section 106 of the Act a lease
for the manufacturing purpose is deemed to be a lease from year to
year but the same is subject to the contract to the contrary between
the parties. The landlord and the tenant can mutually agree to
create a tenancy for manufacturing purpose for a period less than a
year. Only in the absence of this kind of contract the lease for
manufacturing purposes would be deemed to be a lease from year to
year. The same can be created by a registered document in view of
the provision of Section 105 of the act. In the present case,
admittedly the lease was created for a period of 11 months only and it
was provided in clause 15 that tenancy could be terminated by either
of the parties by giving two months’ notice. There was a contract to
the contrary between the parties providing for termination of the lease
between the parties by giving a notice of less than six months and as
such it was not necessary for the appellant to terminate the tenancy
by giving six months’ notice. In view of the terms of the contract
between the parties the tenancy could be terminated by giving two
months’ notice. In the present case, the lease in question was not
from year to year or for a period exceeding one year. Since the lease
was not from year to year there was no requirement of giving six
months’ notice. Manufacturing lease which is not from year to year
does not require six months’ notice for termination. It will fall in the
second half of Section 106 requiring fifteen days’ notice of
termination.
This Court had the occasion to examine this point in Shri Janki
Devi Bhagat Trust, Agra Vs. Ram Swarup Jain (dead) by Lrs.,
1995 (5) SCC 314, and it was held thus:
"Section 106 provides, inter alia, that in the
absence of a contract between the parties, a
lease of immovable property for
manufacturing purposes shall be deemed to
be a lease from year to year terminable by six
months’ notice. In the present case there is a
clear finding to the effect that the lease in
question was not from year to year or for a
period exceeding one year. Therefore, even
though the lease may be for a manufacturing
purpose, since the lease was not from year to
year, six months’ notice was not required. A
manufacturing lease which is not from year to
year does not require six months’ notice of
termination. It will fall in the second half of
Section 106, requiring fifteen days’ notice of
termination. A lease from month to month or
a lease other than a lease from year to year is
terminable by fifteen days’ notice. Hence the
notice in the present case is a valid notice to
quit. The High Court, having come to the
conclusion that the lease was not for a period
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exceeding one year, and was not a lease from
year to year erred in holding that six months’
notice to quit was required. Such a notice is
required, provided there is no contract to the
contrary, only when a manufacturing lease is,
or is deemed to be, from year to year. This
not being the case, the lease is terminable by
fifteen days’ notice even if the lease is a
manufacturing lease."
We respectfully agree with the view taken by this Court in the
above quoted case. Since the lease was for a period of less than one
year notice of six months to quit was not required to be given In the
present case there was a contract to the contrary between the parties
providing that the tenancy could be terminated by giving two months
notice. The tenancy had been validly terminated.
We are of the considered view that the High Court has erred in
holding that the appellant had split the tenancy and had asked for
possession of a portion of the tenanted premises. The High Court
has also erred in holding that the tenancy had not been validly
terminated by serving a notice in accordance with law.
For the reasons stated above, the judgment of the High Court is
set aside and the judgment and decree passed by the Trial Court is
restored. The suit filed by the plaintiff/appellant stands decreed and
the appellant would be entitled to take possession of the demised
premises. Appeal is allowed with no order as to costs.
Keeping in view that the respondent is carrying on
manufacturing activities in the demised premises his dispossession is
stayed till 31.5.2005 provided he files an undertaking within a period
of three weeks from today to vacate the premises and hand over
possession of the same to the appellant on or before 31.5.2005.
Further he is required to deposit arrears of rent, if any, and undertake
to pay the rent in future as well.