J.D Kapoor, J.— IA No. 1678/2000
1. Through, this application under Order 12 Rule 6 CPC the plaintiff seeks a decree for possession in respect of the suit property in view of the admission as to relationship of landlord and tenant, rate of rent and termination of tenancy firstly by efflux of time and subsequently by way of notice under Sec. 106 of Transfer of Property Act.
2. Put briefly, the relevant facts are as under:
i) The tenancy in respect of the suit property was created on 8.12.1976 by way of an unregistered lease deed for a period of ten years but it continued till 7.12.1995 as it was renewed from time to time by way of increasing the rent; ii) the tenancy stood terminated by efflux of time on 7.12.1995 whereafter the plaintiff did not accept any rent or damage for use and occupation; iii) legal notice dated 12.12.1995 was served upon the defendant whereby the tenancy was terminated in terms of Section 106 of Transfer of Property Act (hereinafter referred to as TP Act) and the defendant was called upon to hand over the possession by the mid-night of 31.1.1996; iv) vide legal notice dated 28.2.1996 the tenancy was again terminated and the defendant was called upon to hand over the possession; v) Letter dated 4.7.1996 was written by the defendant to the plaintiff asking the plaintiff to further extend the tenancy for a minimum period of 3 years and for maximum period of 10 years. Reply alongwilh draft licence agreement to extend the tenancy for a period of 3 more years was sent. It remained unresponded as terms were not acceptable; vi) another notice dated 8.4.1997 was served whereby the tenancy was again terminated under section 106 of tp act and the defendant was asked to had over the possession by May, 1997. Since the defendant failed to hand over the possession, relief has been sought through instant suit.
3. Main gravamen of the contentions of the counsel for the plaintiff in favour of decree of possession on strength of the aforesaid documents and admission of facts by the defendants is that the tenancy of the defendant was never renewed after 7.12.1995 as no rent was accepted by the plaintiff after that date as the tenancy stood terminated by efflux of time and the occupation of the defendant became that of a trespasser and it was by way of abundant precaution that the tenancy of the defendant was terminated by legal notices dated 28.2.1996 and 8.4.1997 as per provision of section 106 of the tp act because negotiations between the parties to extend the tenancy did not fruitify and the defendant failed to hand over the possession.
4. Learned counsel for the defendant has assailed the legality of termination of the tenancy and validity of the notice dated 8.4.1997 It is contended that since the plaintiff served a notice dated 12.12.1995 stating therein that the defendant was in illegal occupation, and that his status after 7.12.1995 was that of a trespasser, there was no lease in respect of the said property as the tenancy got converted into month to month tenancy. Further the service of notice dated 28.2.1996 terminating the tenancy itself presumed that the defendant continued to be a tenant on month to month basis and to say that tenancy stood terminated by efflux of time on 7.12.1995 is legally not correct. Stretching this concept further, the learned counsel contends that the stand taken by the plaintiff is itself contradictory as on the one hand the plaintiff claims that the tenancy expired by efflux of time while on the other hand the legal notice dated 8.4.1997 terminating the tenancy was served and this amounts to waiver of the earlier notice or doctrine of termination of tenancy by efflux of time.
5. According to the learned council the tenancy continues to be month to month and has till date not been terminated. At the outset, concept of waiver needs to be dealt with first, As per provisions of section 113 of the tp act the notice given under Section 111 stands waived with the express or implied consent of a person to whom it is sent showing the intention to lease as subsisting. Illustration (b) to the said Section is itself evident. A, the lessor, gives B, the lessee; notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
6. The moot question that arises for determination is whether the tenancy had expired by efflux of time or whether it was from month to month tenancy and in latter case whether a legal notice was required to be served under Sec. 106 of the TP Act or not.
7. As regards the provisions of Order 12 Rule 6 a decree can be passed either on admission of facts or on question of law. In the instant case the relationship of landlord and tenant is not in dispute nor the service of notice dated 12.12.1995 is in dispute nor the service of subsequent notices though the validity of the last notice has been challenged. There is an unvarying unanimous current of opinion that once the relationship of landlord and tenant is established and termination of tenancy either by way of efflux of time or by way of notice of termination is not in dispute nothing survives in the defence of the tenant against the decree for possession.
8. Almost similar question arose for consideration in I.T.D.C Ltd. v. Chander Pal Sood & Son, 2000 (53) DRJ 96 (DB) : 84 (2000) DLT 337 before the Division Bench of this Court. In the said case the landlord had filed a suit on 4.5.1998 against the tenant for recovery of possession and for damages/mesne profits for unauthorised use and occupation of flat No. 9, 3rd floor, New Delhi House, Barakhamba Road, New Delhi alleging therein that he was the landlord/owner of the suit premises which were in occupation of the tenant on a monthly rent of Rs. 5,000/-; although the tenancy Had expired by efflux of time on 13.4.1997 yet by way of abundant caution, fresh notice dt. 3.3.1998 was issued terminating the tenancy with effect from 31st of March, 1998 and calling upon the tenant to hand over vacant possession of the suit premises.
9. In view of the admission as to the relationship, a decree for possession was sought under Order 12 Rule 6 CPC While referring to the provisions of section 106 of tp act that provide for duration of lease in the absence of written contract and Section 107 of the Act which provides that in case of a lease existing for a period of one year, it is required to be through registered instrument only it was held that in the absence of any instrument the lease has to be construed on month to month basis. In the said case, lease was for a period of 3 years commencing from 1st of May 1994. A plea was taken in the written statement that the parties had agreed to increase the rent at the rate of 10% every 3 years and since no fresh lease was executed after the expiry of the said lease the lease was construed as month to month basis and, therefore, could be validly terminated by giving 15 days notice. The plea of the tenant that the landlord was estopped from terminating the tenancy was not accepted for the reasons that there cannot be any estoppel against the statute. Reliance was placed on Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. v. Khaja Midhar Noor & Ors., AIR 1988 SC 1470 wherein it was observed that in view of the provisions of section 107 of the tp act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be “lease from month-to-month” as section 107 of tp 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.
10. In ITDC Ltd. case (supra) it was argued that the stand of the tenant that the tenancy had expired and terminated by efflux of time was not contradictory to the stand in the earlier suit where it was pleaded that vide notice dated 3rd of March, 1998 the tenancy was terminated w.e.f 31st of March 1998. It was held that such an argument can be of no help to the tenant. In the said case the landlord continued accepting the rent for several months after service of notice of termination and plea was also taken that notice should be waived. It was further held that in the face of the admission as to the relationship of landlord and tenant, the service of notice terminating the tenancy, the tenant was required to vacate the premises by the end of the tenancy and the fact that the tenancy was month to month basis there is nothing that survives in the defence of the tenant as a decree of possession could be passed on admitted facts. The other pleas raised by the defendants in the written statement were held to be of no relevance.
11. Another case relied upon by the counsel for the plaintiff is Deenar Builders Pvt. Ltd. v. Khoday Distilleries Limited, 2000 (52) DRJ 372 : 82 (1999) DLT 809. A suit for possession was Filed by the landlord together with mesne profits and recovery of maintenance and other charges. Monthly rent was agreed to be increased by 15 percent on the expiry of 3 years in the event of lease being renewed. The renewals did take place from time to lime. However, the tenant stopped paying rent and as a sequel, the lease was terminated w.e.f 15.5.1992 There was evasive denial of the service of notice and also the date on which the cause of action arose. As many as 3 notices of termination were sent. Here too, a cryptic defence was taken that notice was not valid. The last notice was dated 18.3.1993 In the said case the lease was also not registered. Objection was raised that in the absence of unregistered lease deed the suit was not maintainable but no substance was found in the objection. The tenancy was held to be treated as monthly on which was terminable by notice as provided in Section 106 of the TP Act.
12. In Shukla Malhotra v. Vyasa Bank Limited., 1998 (45) DRJ 504 : 1998 III AD (Del) 628, this Court has observed that as per section 106 of the tp act, the tenancy is terminable by a notice of 15 days if the tenant continues in possession of the property exceeding agreed period of tenancy as such a tenancy shall be deemed to be month to month tenancy.
13. However, the contention of the learned counsel for the defendant with regard to the implied waiver of earlier notice by the plaintiff while giving the notice dated 8.4.1997 is mainly with regard to the pecuniary jurisdiction of this Court. According to the counsel if the lease notice is held to be valid notice then the quantum of damage and mesne profits will be assessable from the date of notice and the quantum so assessed will oust pecuniary jurisdiction of this Court. I am afraid this contention is wholly devoid of merit as once the tenancy is terminated by efflux of time and the tenant refuses to hand over the possession any subsequent notice served by the landlord calling upon the tenant to hand over the possession is merely a renewal of request to vacate the premises even if such a notice terminates the tenancy as per provisions of section 106 of tp act. It is the intention of the landlord which is to be seen and not the legal quagmire. The pecuniary jurisdiction is decided and determined not on the basis of the date of termination of tenancy but from the date when the landlord was entitled to receive damages or mesne profits or arrears of rent.
14. However, the doctrine of waiver is not available in the instant case as the tenancy was firstly terminated by efflux of time and after the expiry of lease period it became a month to month tenancy. If at all there was any doubt left as to the termination of tenancy the same was removed by the act of the plaintiff in serving the respondent with another notice terminating the tenancy as well as calling upon to hand over the vacant possession. It is not the case where the landlord had renewed the tenancy at any subsequent point of lime. So much so the landlord was cautious enough not to accept even the damages for the use and occupation after the expiry of the tenancy by efflux of time. Until and unless the tenant had agreed to renew the tenancy as a result of negotiations between the parties any kind of negotiations between the parties or talks do not amount to extension of time or renewal of tenancy either by way of written document or orally.
15. It is the factual position and ground reality that has to be borne in mind while dealing with such eventualities or situations. Had the tenancy in question not expired due to efflux of time the question of negotiations between the parties for creation of fresh tenancy or extension of the period would not have arisen. When the terms of fresh tenancy or extended tenancy as set up by the plaintiff were not accepted by the defendants the matter ended there. If the landlord either under legal advice or by way of abundant precaution sends notice after notice for termination of tenancy after expiry of tenancy by way of efflux of time, his intention is not to terminate the tenancy as many times as the notices are sent but his intention is to insist and impress upon the tenant to hand over the possession after the agreed period of tenancy had expired.
16. In order to invoke the provisions of O. 12 R. 6 CPC the Court has to scrutinise the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of notice or as to the nature of tenancy. In the instant case the factum of admission of two notices sent prior to the negotiations for renewal of tenancy and the last notice after the negotiations fall through leads to following conclusions:
i) That the tenancy in question stood terminated by efflux of time on 7.12.1995;
ii) After termination of such tenancy, the tenancy became month to month tenancy;
iii) The monthly tenancy was validly terminated by the notices dt. 1.2.12.1995, 28.2.1996 and 7.4.1996 There was no intention of waiver of notice nor was any intention to allow the defendant to continue in possession as a tenant; iv) The occupation of the tenant after 7.12.1995 was unauthorised.
17. Aforesaid reasons persuade me to allow the application and pass a decree for possession which will be executable after two months from today. A decree sheet be drawn accordingly.
IA stands disposed of.