Sh. Ajay Jain vs Sh. T.L. Juneja

Valmiki J Mehta, J.—The challenge by means of the present Regular First Appeal u/s 96 Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 2.12.2010 whereby the suit of the Respondent/plaintiff for recovery of possession has been decreed against the Appellant/tenant under Order 12 Rule 6Code of Civil Procedure.

The admitted facts are that the Appellant became the tenant of ground floor at the rate of rent of Rs. 9,500/- per month w.e.f. 1.11.2007 for a period of 11 months. Therefore, the rate of rent being more than Rs. 3,500/- the tenancy was outside the purview of the Delhi Rent Control Act, 1958 and that there is a relationship of landlord and tenant between the parties is not disputed. The Appellant was served legal notice dated 18.5.2010 for termination of tenancy and which the trial court has held that the same is deemed to have been served in view of Section 2(27) of General Clauses Act, 1897 because it has been sent to an address, which the Appellant did not dispute was his address.

In view of the above I do not find that there is any error in the impugned judgment and decree which calls for any interference by this Court. In fact, in case of a tenancy which expires by efflux of time there is no need to serve notice on the tenant and as per the decision of the Supreme Court in the case of Sarup Singh Gupta Vs. S. Jagdish Singh and Others, the amount which is received by the landlord after the tenancy expires by efflux of time has to be taken as charges for use and occupation of the premises.

Learned Counsel for the Appellant very vehemently contended that the Respondent had taken a loan of Rs. 5 lakhs from the Appellant and which was repayable with interest @ 2% per annum and as per the said agreement it was agreed that till the amount is repaid, the Appellant will be entitled to continue to be in the possession of tenanted premises by virtue of Section 111(b) of the Transfer of Property Act, 1882. It is accordingly contended that the tenancy could not have been terminated. Learned Counsel for the Respondent in reply has argued that the alleged agreement of loan is in fact a forged and fabricated document.

I need not go into this issue whether the agreement is forged and fabricated and that any loan was taken by the Respondent, inasmuch as any tenancy for a period of more than 11 months has necessarily to be by a registered instrument as per Section 107 of the Transfer of Property Act, 1882 and 17(1)(d) of the Registration Act, 1908 and if not so done only a monthly tenancy results, which tenancy can always be terminated by a legal notice.

I am of course forced to note at this stage that the alleged loan agreement which is filed at page 46 of the paper book does not even show how this amount of Rs. 5 lakhs was allegedly paid by the Appellant to the Respondent i.e. by cheque or bank draft and therefore, it prima facie appears that the document seems to have been forged and fabricated by the Appellant to continue his illegal possession of the suit premises. This practice is clearly to be deprecated. However, I have already adverted to above that I am not deciding this case on the basis of whether the agreement in question is forged and fabricated and the case is being decided on a legal issue that if the said document creates a tenancy for a period of more than 11 months, it cannot be looked into by virtue of Section 107 of the Transfer of Property Act, 1882 and Section 17(1)(d) of the Registration Act, 1908.

In view of the above, I do not find any merit in the appeal which is, therefore, dismissed with costs of Rs. 10,000/- to be paid within two weeks from today.