Interim Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 11 CS SCJ 968/24 KAVITA SOOD Vs. SONU UPADHYAY
13.11.2024
Present: Sh. Ld. Counsel for plaintiff with plaintiff.
Sh. Ld. Counsel for defendant with defendant.
WS filed on behalf of the defendant. Copy has
already been supplied.
Replication has also been filed on behalf of the
plaintiff. Copy supplied.
WS as well as replication be taken on record.
1. The present suit has been filed against the
defendant in respect of tenanted suit property bearing no.
G-4/34, Sec.11, Rohini, Delhi second floor which was let out
to defendant on month to month tenancy for 11 months for
Rs.9,500/- p.m. and a rent agreement for a period of 11
months was executed on 01.05.2024.
2. It is further stated that previously a rent
agreement dated 20.06.2023 was executed between
plaintiff’s husband and defendant and the said rent
agreement was finalized only after the defendant affixed his
signatures on the same.
3. It is noted that defendant was examined U/o 10
CPC wherein he had stated that he is tenant under the
tenancy of plaintiff and it is admitted by the defendant that
the rent agreement for the year 2024 was for 11 months,
however it is stated that the rent has been paid to the plaintiff
in cash for the period upto Dec. 2024.
4. It is noted that the defendant has taken the stand
in his WS that rent was paid by the defendant every month in
cash on time but no rent receipts were issued by the plaintiff.
Contd…...2/-
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(2)
5. It is further stated in written statement that a
legal notice was sent by the plaintiff after receiving rent from
June 2024 to Dec. 2024.
6. It is pertinent to note that this court has examined
the defendant on 13.11.2024, wherein the defendant had
answered to the court questions as under:
"Statement of Sh. Sonu Upadhyay S/o Sh.
Inderdev Upadhyay R/o G-4/34, 2nd Floor, Sec.11,
Rohini, Delhi.
On S.A.
Q. Whether the plaintiff is/was your landlord?
Ans. Yes.
Q. What was the duration of rent agreement
executed between you and the plaintiff?
Ans. Initially it was for 11 months i.e. 18.06.2023 to
18.05.2024 and then on 01.05.2024 to 01.04.2025.
Q. Have you paid rent till July, 2024?
Ans. Yes.
Q. Have you received any legal notice from the
plaintiff for vacating the suit property?
Ans. I had received one legal notice in Nov. 2023
from the husband of the plaintiff.”
7. In his examination U/o 10 CPC the defendant
had stated that he is tenant under the tenancy of plaintiff and
it is admitted by the defendant that the rent agreement for the
year 2024 was for 11 months however the rent has been paid
to the plaintiff in cash for the period upto Dec. 2024.
8. Upon perusal of plaint, written statement and
replication, I am of the considered opinion that the defendant
has admited that he was tenant of plaintiff and that it was a
tenancy for a period of 11 months. Contd…..3/-
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(3)
9. Further, it is also admitted that rent agreement
dated 30.04.2024 was executed with plaintiff. Now, as per the
rent agreement executed between the parties, the tenancy can
be terminated by either party after serving one months notice to
the other party and after which the tenancy shall be treated as
terminated. (As per para 15).
10. Also, the defendant has admitted in his WS at para
no.11 that legal notice was received by the defendant though it
is stated that the rent has been paid up to Dec.2024. Be that as
it may, it is settled position of law, as enunciated in Nopany
Investments (P) Ltd. vs. Santokh Singh (HUF) 2008 (2) SCC
728 that serving of summons was sufficient notice as
required U/s 106 of TPA.
11. In addition to the abovesaid, even if it is
considered that facts asserted by the defendant are gospel
then also the defendant cannot deny that the plaintiff is his
landlord/landlady or that the tenancy has been terminated.
The only issue that needs to be answered is regarding the
period of notice as the suit had already been filed. In my
considered opinion, the said issue also has to be answered in
favour of plaintiff and for the said opinion, I am supported by
the observation of Hon'ble Delhi High Court made in case
titled as Jeevan Diesels & Electricals Ltd. vs M/s Jasbir
Singh Chadha ( HUF) 182 (2011) DLT 402 as under -
“ Once we take the service of plaint in the suit to
the defendant as a notice terminating tenancy, the
provision of Order 7 Rule 7 CPC can then be applied to
take notice of subsequent facts and hold that tenancy
Contd…..4/-
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(4)
will stand terminated after 15 days of receipt of service
of summons. ”
and while discussing object of 15 days notice
observed -
“This rationale ought to apply because after all
the only object of giving a notice U/s 106 of TPA is to
give 15 days to the tenant to make alternative
arrangements. In my opinion, therefore, the argument
that tenancy has not been validly terminated, and the suit
could not have been filed, fails for this reason also. In
this regard, I am keeping in view the amendment
brought about to Section 106 of TPA by Act 3 of 2003
and as per which amendment no objection with regard to
termination of tenancy is permitted on the ground that
legal notice did not validly terminate the tenancy, as
long as a period of 15 days was otherwise given to the
tenant to vacate. The intention of the legislature is
therefore clear that technical objections should not be
permitted to defeat substantial justice.”
12. In the instant case, the present suit was filed on
04.09.2024 and summons of the suit was served upon the
defendant on 06.09.2024. The serving of summons can thus
be treated as notice to vacate, keeping in mind the object of
Section 106 of TPA.
13. Thus, considering the matter from perspective it
has to be held that defendant was a tenant of plaintiff in the
suit property and the said tenancy has been duly terminated.
14. As per Section 108 (q) of TPA, a lessee is under
obligation to vacate the tenanted property and hand over the
possession to landlord/lessor on termination of tenancy.
Contd….5/-
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(5)
15. At this stage, it is relevant to refer to Kapahi and
Others vs. Lal Chand Public Charitable Trust and
Another, (2010) 4 SCC 753 wherein it was observed that :-
“In the 54th Law Commission Report, an
amendment was suggested to enable the Court to
give a judgment not only on the application of a
party but on its own motion. It is thus clear that the
amendment was brought about to further the ends
of justice and give these provisions a wider sweep
by empowering judges to use it `ex debito
justitiae, a Latin term, meaning a debt of justice.
In our opinion the thrust of the amendment is that
in an appropriate case, a party, on the admission of
the other party, can press for judgment, as a matter
of legal right. However, the Court always retains
its discretion in the matter of pronouncing
judgment.
It has been further held by Hon'ble Delhi High
Court in the case titled as Delhi Jal Board vs Surendra P.
Malik 104 (2003) DLT 151 (DB) that the only pre requisite
for passing a decree under Order 12 Rule 6 CPC is that there
must be admission of fact arising in the suit, be that in the
pleadings or otherwise or orally or in writing and that the
admissions must be clear and unequivocal, unconditional
and unambiguous. Further, the admissions need not be made
specifically or expressly and could be a constructive
admission as well. So it is not required in law that admission
only has to be in the pleadings. Contd….6/-
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(6)
Furthermore in Keshav Chander Thakur &
Anr. Vs. Krishan Chander & Ors. 211 (2014) DLT 149
(DB), it was similarly held by Hon'ble Delhi High Court
that :-
"However, in our view given the nature of pleadings and
admitted documents on record and the extensive
arguments advanced by the parties on the issues
discussed herein, this was a fit case for the Court to
exercise powers under Order XII Rule 6 CPC where the
Court has powers to suo moto pass a judgment. There is
no requirement in Order XII Rule 6 CPC for filing of a
formal application. The Court can on its own motion
without any application by a party proceed to pass a
decree on admissions as stated in Order XII Rule 6
CPC."
16. As discussed above, the defendant had admitted
that he is tenant of plaintiff and notice of termination of
tenancy has already been served on him. It is agitated by
defendant that he had paid rent till Dec.2024 and the same is
disputed by plaintiff. Whether the rent for the said period was
paid or not remains a triable issue and would require trial.
However, the plaintiff is entitled to part-decree with respect
to possession. Accordingly, the suit of the plaintiff is partly
decreed. Defendant is hereby directed to vacate the suit
property i.e G-4/34, Second Floor, Sector-11, Rohini,
Delhi-110085 within 45 days from today.
17. Decree sheet be prepared accordingly.
18. Record is perused carefully.
Pleadings are complete.
Contd…..7/-
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(7)
After going through the pleadings and hearings
following issues are framed.
1. Whether plaintiff is entitled for decree of mesne profit
@ Rs.9500/- per month till delivery of possession against the
defendant? OPP
2. Whether plaintiff is entitled for decree of damages
against the defendant? OPP
3. Whether plaintiff is entitled for cost of the suit against
the defendant? OPP
4. Relief, if any.
No other issue is arising or pressed upon by the
parties.
Let the list of witnesses be filed within 15 days.
Affidavit of all the Pws be also filed by the plaintiff after
supplying the copies to the opposite counsel in advance.
Be put up for PE on 24.02.2025.
(Nitish Kumar Sharma)
JSCC/ASCJ/GUDN. JUDGE
North Rohini, Courts,Delhi/13.11.2024
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