C.G. Pillai vs Swaran Dhawan (since deceased) through L.R.

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 26.04.2008 which has been endorsed the finding of the Trial Judge dated 04.07.2005, whereby, the suit of the plaintiff Swaran Dhawan had been decreed for possession under the provisions of Order 12 Rule 6 of the CPC (hereinafter referred to as ''Code'').

plaintiff had filed a suit for possession, permanent injunction and mesne profits. The suit property comprised of two bedrooms, one drawing room, one kitchen, one bathroom, one W.C and a passage with a covered area of 1100 square fit situated on the Ground Floor of the property bearing No. D-1, NDSE, Part-I, New Delhi.

Property had been let-out by the plaintiff to the Defendant vide lease deed dated 01.10.2003. Tenancy was for a period of 11 months. It had expired by efflux of time on 31.08.2004. Rate of rent was Rs. 5,000/- per month. Vide legal notice dated 27.07.2004, the tenancy of the Defendant stood terminated. Defendant had been directed to hand over the vacant and peaceful possession of the suit property to the plaintiff on or before 01.09.2004. In spite of request, the Defendant did not pay any heed. Suit was filed.

Written statement was filed by the Defendant. During the course of the proceedings, an application under Order 12 Rule 6 of the Code has been filed by the plaintiff to which a reply has been filed.

The Trial Judge allowed the application of the plaintiff under Order 12 Rule 6 of the Code; the suit of the plaintiff was decreed for possession. This was on 04.07.2005. The admissions made by the Defendant in his written statement had been adverted to. Trial Judge had noted that the relationship of landlord and tenant was not disputed; rate of rent was more than Rs. 3,500/- per month; the tenancy had expired by efflux of time on 01.09.2004 and also in terms of the legal notice dated 27.07.2004 terminating the tenancy of the Defendant w.e.f. 31.08.2004 which was again not a disputed document.

The first Appellate Court had endorsed this finding. This was on 26.04.2008. Appeal has been dismissed.

This is a second appeal filed on behalf of the Appellant. It has been urged that there are certain factual disputes which had been raised by the Appellant/Defendant; there were no unequivocal and unambiguous admissions on his part which would qualify a decree to be passed on the application under Order 12 Rule 6 of the Code. It is pointed out that the Defendant had paid rent even after the termination of tenancy i.e. for the months September, October & November, 2004 which rent had been withdrawn by the plaintiff and this position is admitted. In this view of the matter, the legal notice dated 27.07.2004 stood waived. Counsel for the Appellant has placed reliance upon a judgment of this Court reported in Madho Ram Budh Singh Vs. National Rifle Association, . It is pointed out that where a factual dispute arises, a plea of the waiver of notice has been set up by the Defendant; the said plea could only be dealt with after evidence of the intention of the parties; provisions of Order 12 Rule 6 could not have been adverted to. For the same preposition, reliance has been placed upon Mohan Prasad Jha Vs. Shri Shambhu Prasad Singh, . It is pointed out that in this case as well where dispute has been raised by the Defendant in the written statement that the rent of the premises stood paid beyond the period with effect from which date the tenancy was terminated, the said issue gave rise to a tribal issue and could not be decided on an application under Order 12 Rule 6 of the Code.

Per contra, the Respondent has disputed this position. It is pointed out that mere acceptance of rent after the termination of the tenancy which has expired by efflux of time as also by the afore-noted legal notice would not create a new tenancy. Counsel for the Respondent has placed reliance upon a judgment of this Court reported in Deenar Builders Pvt. Ltd Vs. M/s. Khoday Distileries Limited, . To support her submission that a notice is per se not waived by acceptance of rent, reliance has also been placed upon a judgment passed by Division Bench of this Court reported in Delhi Jal Board Vs. Surendra P. Malik, .

Record has been perused. Admittedly in this case, the tenancy was for a period of 11 months. It had commenced on 01.10.2003 in terms of the admitted lease agreement between the parties. Clause 5 stipulated that the tenancy shall stand terminated on 31.08.2004. On 31.08.2004, the tenancy had admittedly expired by efflux of time. As an abundant precaution, legal notice dated 27.07.2004 had also been served upon the Defendant terminating his tenancy from 01.09.2004. The receipt of this notice is not disputed. It also not disputed that it does not fulfill the requirement of Section 106 of the Transfer of Property Act (hereinafter referred to as "TP Act").

In the judgment of Delhi Jal Board (supra), a Bench of this Court had upheld the decision of Trial Judge to decree possession of the suit property under Order 12 Rule 6 of the Code. In the said case also, lease was for a fixed period of two years. It had expired by efflux of time on 30.03.1967. It was held that mere acceptance of rent after the termination of the lease would not create a new lease; subsequent occupation of the premises was not in pursuance of any contract, express or implied between the parties.

So also in the instant case, the lease had admittedly expired by efflux of time on 31.08.2004. By way of precaution the legal notice dated 27.07.2004 had been served upon the Defendant terminating his tenancy w.e.f. 01.09.2004. The Defendant has not disputed the relationship of landlord and tenant between the parties. Rate of rent is also admitted. It is admittedly over and above Rs. 3,500/- per month. The bar of Section 50 of the Delhi Rent Control act is not applicable. The receipt of notice terminating the tenancy has also not been disputed. All these admissions of the Defendant were clear, unequivocal and unambiguous. They created no dispute whatsoever.

There are two concurrent findings against the Appellant before this Court. The contention of the learned Counsel for the Appellant that the acceptance of rent after 01.09.2004 by the plaintiff would amount to a waiver of the notice in terms of Section 113 of the TPA is incorrect. The intention of the parties was clear; there was a clear and unequivocal intention to terminate the tenancy w.e.f. 01.09.2004 which had been even otherwise expired by efflux of time on 31.08.2004. Subsequent withdrawal of the rent which had been deposited in the court without anything more to indicate that the landlord had assented to the continuance of the tenancy would not amount to a waiver. The question of holding over u/s 116 of the TPA would also not arise in this instant scenario. Defendant was retaining the property in spite of a clear intention on the part of the plaintiff to terminate his tenancy.

No question of law much less any substantial question of law has arisen in this appeal. Appeal as also the pending applications are dismissed in limine.