Harvinder Singh vs M/s. Paradise Towers Pvt. Ltd. and Another

Rajiv Sahai Endlaw, J.—The plaintiff has filed this suit, pleading (insofar as relevant for the present purpose):

(i) that he purchased the First Floor together with constructed portion above the First Floor of property No. 8, Shaheed Bhagat Singh Marg, Gole Market, New Delhi from the defendant No. 2 M/s. AJS Builders Pvt. Ltd. for a consideration of Rs. 2,25,00,000/- vide registered Sale Deed dated 15.12.2009;

(ii) that at the time of the said sale, the constructed portion above the First Floor (i.e. on the Second Floor) of the property was in the possession of the defendant No. 1, as a tenant on a monthly rent of Rs. 1,10,000/-, and the plaintiff was accordingly handed over constructive/symbolic possession thereafter;

(iii) that though the defendant No. 1 paid rent to the plaintiff for a period of two months but stopped paying rent thereafter;

(iv) that shortly after the sale, the staff of the defendant No. 2 started operating from the said tenanted portion;

(v) that the plaintiff vide notice dated 14.05.2011 terminated the tenancy of the defendant No. 1 with effect from 15.07.2011 and also demanded arrears of rent etc.

The plaintiff has thus sued for:

(I) recovery of arrears of rent of Rs. 17,60,000/-;

(II) recovery of possession of the tenanted premises:

(III) recovery of pendente lite and future mesne profits with interest;

(IV) injunction restraining the defendants from parting with possession of the tenanted portion;

Summons of the suit and notice of the application for interim relief were issued and vide ex parte ad-interim order dated 22.12.2011 the parties were directed to maintain status quo with respect to title and possession of the tenanted portion. A Local Commissioner was also appointed to, after giving notice to the defendants, visit the property and to report as to who is in possession of the First and Second Floors of the aforesaid property.

Report dated 02.01.2012 has been filed by the Local Commissioner to the effect that the First Floor is in possession of the plaintiff and one hall on the Second Floor is in possession of the defendants and the two small rooms and the open terrace are in possession of the plaintiff.

Though IA No. 3241/2012 (under Order 39 Rule 4 of the CPC) was filed by the defendants and notice whereof was issued on 21.02.2012 but no written statement was filed inspite of repeated opportunities. Another application being IA No. 8736/2012 (also under Order 39 Rule 4 of the CPC) was filed by the defendant No. 2 and vide order dated 08.05.2012 thereon, the IA No. 3241/2012 was dismissed as withdrawn and the plaintiff was restrained from creating any hindrance in the enjoyment by the defendant No. 2 of the Second Floor of the property.

The appearance thereafter of the advocate on behalf of defendants is on behalf of defendant No. 2 only. The advocate for the defendant No. 2 on 24.07.2012 accepted notice of IA No. 13245/2012 of the plaintiff under Order 8 Rule 10 of the CPC. No reply however was filed to the said application also and last opportunity for the said purpose was granted on 31.10.2012.

Till date no written statement has been filed. In fact, the right of both the defendants to file the written submissions was also closed vide order dated 21.08.2012 of the Joint Registrar and the application of the plaintiff under Order 8 Rule 10 placed before the Bench for appropriate orders.

A new counsel Mr. Kuljeet Rawal Advocate, today appears for the defendant No. 2 and seeks adjournment to move appropriate applications along with written statement.

The senior counsel for the plaintiff opposes and seeks consideration of his application under Order 8 Rule 10 of the CPC.

The defendants, first appeared before this Court on 25.01.2012. One year has passed since then. The written statements have not been filed since then inspite of repeated opportunities. It is as such not deemed expedient to adjourn the matter today and the senior counsel for the plaintiff and the counsel appearing for the defendant No. 2, to the extent permissible, have been heard on the application under Order 8 Rule 10 of the CPC.

It has at the outset been enquired from the senior counsel for the plaintiff as to whether the application under Order 8 Rule 10 of the CPC can be considered vis-�-vis the relief claimed of possession only inasmuch as it is felt that as far as the reliefs of recovery of arrears of rent and mesne profits damages for use and occupation are concerned, evidence would be required.

The senior counsel for the plaintiff states that considering the financial health of the defendants, the possibility of execution of any money decree against the defendants even if obtained by the plaintiff is remote and the plaintiff as such gives up the other reliefs and seeks a decree under Order 8 Rule 10 of the CPC for recovery of possession only.

As far as the claim of the plaintiff for possession is concerned, the same is as a landlord. This Court is of the considered opinion that there is sufficient material before this Court for passing a decree for possession in favour of the plaintiff as a landlord, without requiring the plaintiff to lead any evidence. Though the counsel for the defendant No. 2 has referred to Balraj Taneja and Another Vs. Sunil Madan and Another, (para 29) to contend that the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC and must see that even if the facts set out in the plaint are treated to have been admitted, whether a judgment could possibly be passed without requiring the plaintiff to prove any fact mentioned in the plaint and has argued that there is nothing to show that the defendant No. 1 had attorned the plaintiff as landlord or had paid rent for two months to the plaintiff as pleaded by the plaintiff but I am of the view that the facts which the defendants in their application under Order 39 Rule 4 have not controverted and which the counsel for the defendant No. 2 even now is not controverting, are borne out from the documents on record and on the basis whereof a decree for ejectment under Order 8 Rule 10 can be passed. Rather, I have asked the counsel for the defendant No. 2 that if in these facts also, Order 8 Rule 10 cannot be invoked, in which facts it possibly can. The counsel has been unable to answer.

The claim of the plaintiff as landlord is on the basis of a registered Sale Deed executed by the defendant No. 2 in favour of the plaintiff and the execution whereof is not denied by the defendant No. 2 also. The said Sale Deed is also with respect to the tenanted portion and describes the defendant No. 1 as a tenant therein. Though it is the plea of the defendant No. 2 in the application under Order 39 Rule 4 CPC and as argued today also by the defendant No. 2 that the said Sale Deed was in lieu of other transactions between the parties and that no sale consideration as mentioned therein was paid but the said averments are directly in contravention of the contents of the registered document and inadmissible in evidence under Sections 91 and 92 of the Evidence Act, 1872.

As far as the argument of the counsel for the defendant No. 2 of the plaintiff being required to prove attornment by the defendant No. 1 in favour of the plaintiff and payment of rent by the defendant No. 1 to the plaintiff are concerned, once a title in the property (in occupation of tenant) is conveyed and which as aforesaid has been conveyed vide the registered Sale Deed, the coming into existence of relationship of landlord and tenant between the purchaser and the tenant in occupation of the property sold/conveyed is not dependent upon attornment by the tenant of such purchaser as landlord. Reliance in this regard, if any required, can be placed on Nalakath Sainuddin Vs. Koorikadan Sulaiman, , Mahendra Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogul and others, and Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Others, laying down that on such transfer of the tenanted premises by the landlord, the transferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and the tenant is not dependent upon any overt act on the part of the tenant. In this light of the matter, the question, whether the defendant No. 1 paid any rent for two months or not as pleaded by the plaintiff, also becomes irrelevant.

The counsel for the defendant No. 2 has also pleaded that there is nothing to show that the rate of rent was Rs. 1,10,000/- as pleaded by the plaintiff. However in view of the plaintiff having given up the claim for recovery of arrears of rent and mesne profits, the same is irrelevant. The counsel for the defendant No. 2 states that if the rent is less than Rs. 3,500/-, this Court would not have jurisdiction. In this regard, it is significant to note that the application being IA No. 3241/2012 under order 39 Rule 4 CPC is filed on behalf of both the defendants by the same Advocate and in which the plea is that it is in fact the defendant No. 2 who has been and is in possession of the tenanted premises and the tenancy of the defendant No. 1 is denied. However, the said plea is diametrically opposite to the version of the defendant No. 2 in the registered Sale Deed where tenanted premises is described as in the tenancy and possession of the defendant No. 1 and the defendant No. 2 has delivered constructive possession thereof to the plaintiff. There is also no denial in the said application under Order 39 Rule 4 of the rate of rent being Rs. 1,10,000/- per month. Moreover, I am of the opinion that no useful purpose will be served even if the plaintiff is to be directed to lead ex parte evidence. The same will only bring forth another affidavit by way of examination-in-chief, of the rate of rent being Rs. 1,10,000/-. The plaintiff has already affirmed the said fact in the affidavit accompanying the plaint. It is thus not as if there is no affidavit of the plaintiff to the effect that the rent is Rs. 1,10,000/-.

There is another aspect of the matter; the purchase of the property by the plaintiff vide registered Sale Deed is of the year 2009 and for a sale consideration of Rs. 2,25,00,000/-. It is against the grain of logic that such sale consideration would be paid for a property, part whereof is let out at less than Rs. 3,500/- per month. It is also admitted in the application under Order 39 Rule 4 CPC that the control of the defendant No. 1 Company is with the same persons/family members who control the defendant No. 2 Company. In fact, in the application it is also pleaded that the defendant No. 2 itself had no title to the Second Floor, which could be conveyed vide Sale Deed aforesaid to the plaintiff. Once it is the stand of the defendant No. 2 that the defendant No. 2 had no right also to the Second Floor which had vide registered Sale Deed been conveyed to the plaintiff, it does not lie in the mouth of the defendant No. 2 to contend that the plaintiff while asserting rights as landlord under the said Sale Deed should lead evidence to prove the rent being as pleaded by the plaintiff.

The only other question to be considered is as to whether any evidence is required to be led on the aspect of determination of tenancy. The plaintiff, along with the plaint has filed office copy of the legal notice dated 14.05.2011 of determination of tenancy bearing the signatures of the counsel for the plaintiff as well as the original postal receipts under which the same was sent by registered post AD to the defendants and the AD Cards bearing signatures and acknowledgment returned to the Advocate for the plaintiff. Moreover, Division Benches of this Court in Shri Ram Pistons and Shri Ram Pistons and Rings Ltd. Vs. C.B. Agarwal Huf and Others, and International Building and Furnishing Co. Pvt. Ltd. Vs. Life Insurance Corporation of India have held that the institution of a suit for ejectment itself amounts to determination of tenancy. The present suit has remained pending for consideration for the last over one year and the question of the date of determination of tenancy is not relevant as the plaintiff has already given up the claim for mesne profits. Thus it can safely be concluded that the tenancy stands determined. The plaintiff is thus found entitled to a decree for ejectment of the defendant No. 1 tenant and anyone else in possession of the portion shown as ''A-2'' in the site plan accompanying the Sale Deed executed by the defendant No. 2 in favour of the plaintiff and filed along with the plaint and a decree for possession is accordingly passed in favour of plaintiff.

Decree sheet be drawn up.

In the circumstances, no costs.