M.S.A Siddiqui, J.— The plaintiffs have filed the application (IA No. 2546/98 under Order 12, Rule 6, CPC for judgment on admissions.
2. To appreciate the merits of the controversy, it will be necessary to give brief narrative of the material facts. The plaintiffs filed the present suit for eviction of the defendant from the 2nd floor of the premises No. 6, Community Centre, Basant Lok, Vasant Vihar, New Delhi (hereinafter called the ‘suit premises’) and for recovery of Rs. 8,46,861/- as compensation for use and occupation of the suit premises from 1.7.1995 to September, 1995 besides future mesne profits @ Rs. one lac per month. According to the plaintiffs, the defendant took the suit premises on rent after executing an unregistered lease deed dated 3.6.1986 in favour of the plaintiffs. The rent last paid by the defendant was Rs. 25,094/- per month. Since the defendant's tenancy was from month-to-month, the same was terminated w.e.f 2.3.1995 by the notice dated 7.1.1995 Despite service of the said notice under Section 106 Transfer of Property Act, the defendant did not vacate the suit premises.
3. The defendant resisted the suit and in the written statement apart from raising other objections regarding maintainability of the suit for non-joinder of M/s. P. Talwar & Co., it was asserted that the notice dated 7.1.1995 is invalid as the tenancy was not terminated by M/s. P. Talwar & Co., one of the joint land lords and further the contract of tenancy stands renewed till 3.6.1998 and thus the plaintiffs' suit for eviction is premature. It was also asserted that the amount of mesne profits claimed by the plaintiffs is highly excessive.
4. It is an admitted position that on 3.6.1986, the suit premises were leased out to the defendant at a monthly rent of Rs. 16,500 for a period of three years vide unregistered lease deed dated 3.6.1986 According to the lease agreement, the lease was renewable for a further period of three years with the mutual consent of the parties by paying 15% increased rent. It is also undisputed that the rent last paid by the defendant was Rs. 25,094/- per month. Learned Counsel for the defendant contended that since the defendant has been paying increased rent to the plaintiffs, the contract of tenancy stands renewed till 3.6.1998 in accordance with the terms of the lease agreement dated 3.6.1986 and that being so, the notice dated 7.1.1995 is invalid and the present suit for eviction is premature. I am unable to accept the aforesaid submissions of the learned Counsel. Section 107 of the Transfer of Property Act postulates that a lease of immovable property from year-to-year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. In view of the said provisions, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by the plaintiffs and the defendant. In the absence of registered instrument, the lease shall be deemed to be “lease from month-to-month”. The unregistered lease deed dated 3.6.1986 is clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendant. The proviso to Section 49 of the Registration Act is not applicable in the present case inasmuch as the terms of a lease are not a “collateral purpose” within its meaning. (Satish Chand v. Govardhan Das, (1984) 1 SCC 369 : AIR 1984 SC 143). Thus, the lease deed dated 3.6.1986 is inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term for want of registration under Section 17 of the Registration Act. Consequently, I find and hold that in the instant case, the lease shall be deemed to be a lease from month-to-month, terminable, on the part of either lessor or lessee by 15 days' notice under Section 106 of the Transfer of Property Act expiring with the end of a month of the tenancy.
5. Learned Counsel for the defendant further contended that since M/s. P. Talwar & Co. was one of the joint-landlords, the suit is bad for non-joinder of the necessary party to the suit. It is beyond the pale of controversy that by the agreement dated 3.6.1986 executed between M/s. P. Talwar & Co. and the defendant, M/s. P. Talwar & Co. had undertaken to render following services to the defendant:
“(a) Provide, and maintain tube-light fittings.
(b) Provide and maintain ceiling fans in the premises.
(c) Provide and maintain a booster pump for pumping water to overhead tank.
(d) Maintenance of the common passage including the staircase.
(e) Provide a night watchman for the security of the premises.
(f) Major breakdown in electricity and water lines shall also be looked after by the party of the second part including internal white washing/painting of the premises.
6. On a careful perusal of the said agreement, it becomes clear that M/s. P. Talwar & Co. had undertaken to render services to the defendant for a consideration of Rs. 3300/- per month. The said contract is independent of the contract of tenancy and it does not create relationship of landlord and tenant between the defendant and M/s P. Talwar & Co. Consequently, I find and hold that M/s P. Talwar & Co. is not a necessary party to this suit and so the suit is not bad for non-joinder of the necessary party.
7. Next it was contended by the learned Counsel for the defendant that notice dated 7.1.1995 is invalid and ineffective on the following grounds—
(a) that the plaintiffs have been accepting increased rent from the defendant and so the contract of tenancy stands renewed till 3.6.1998
(b) that by accepting rent from the defendant, the plaintiffs have waived the notice to quit;
(c) that as per the agreement dated 3.6.1986, three months' notice was necessary for termination of the tenancy;
(d) that no notice was given on behalf of M/s P. Talwar & Co. for termination of the tenancy.
8. As regards the contention for renewal of the contract of tenancy, learned Counsel for the defendant has invited my attention to clause 4 of the agreement dated 3.6.1986 It is undisputed that initially the suit premises were let out at a monthly rent of Rs. 16,500/- and the rent last paid by the defendant was at the rate of Rs. 25,094/- per month. According to the learned Counsel, rent of Rs. 25,094/- per month represents the increased rent in terms of clause 4 of the agreement. I have already held that the agreement dated 3.6.1986 is inadmissible in evidence to prove the transaction of lease and it was also ineffectual to create a valid lease for a renewed term for want of registration under Section 17 of the Registration Act. I have also held that in the instant case, the lease shall be deemed to be a lease from month-to-month, terminable on the part of either lessor or lessee by 15 days' notice under Section 106 of the Transfer of Property Act. In this view of the matter, it cannot be held that the contract of tenancy stands renewed till 3.6.1998 and further that three months' notice was necessary for its termination.
9. As regards the ground (d), I have already held that there was no contract of tenancy between M/s. P. Talwar & Co. and the defendant. That being so, no notice was necessary on behalf of M/s. P. Talwar & Co. for terminating the defendant's tenancy.
10. As regards waiver of notice dated 7.1.1995, it is an admitted position that after institution of the suit, the plaintiffs have received the amount for use and occupation of the suit premises. It is well settled that mere acceptance of rent by the landlord does not amount to waiver of notice to quit under Section 106 of the Transfer of Property Act. That apart, by the orders dated 16.5.1997, the plaintiffs have been permitted by this Court to collect the cheques representing the rent/compensation from the office of the defendant. Consequently, it cannot be held that the notice dated 7.1.1995 has been waived by the plaintiffs as alleged by the defendant.
11. Admittedly, the notice dated 7.1.1995 was received by the defendant. It is also undisputed that the defendant's tenancy commenced on 3rd day of each month. By the notice dated 7.1.1995, the defendant's tenancy was terminated with the end of the month of the tenancy. I, therefore, find and hold that the defendant's tenancy was validly terminated by the plain tiffs vide notice dated 7.1.1995 Viewing the aforesaid admissions in the pleadings, the plaintiffs are entitled to judgment on admissions under Order 12, Rule 6, CPC regarding the defendant's eviction from the suit premises. As regards the claim of mesne profits for use and occupation of the suit premises, there is a dispute between the parties, which necessitates an inquiry under Order 20, Rule 12, CPC.
12. For the foregoing reasons, the application (IA No. 2546/98) is allowed under Order 12, Rule 6, CPC to the extent indicated above.
13. It is, therefore, ordered and decreed that the defendant shall deliver vacant and peaceful possession of the suit premises to the plaintiffs. As regards the plaintiffs' claim for recovery of mesne profits, an inquiry shall be held under Order 20, Rule 12, CPC. A decree be drawn up accordingly.
Suit for possession decreed.