* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.131/2013 20th January, 2014 % NANAK RAM JAISINGHANI Through: ......Appellant Mr. Vinod Kumar, Advocate. VERSUS TILAK RAJ SALOOJA & ORS. Through: ...... Respondents Mr. Sandeep Sethi, Senior Advocate with Mr. Amit Sethi, Advocate and Ms. Puja Anand, Advocate. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. By this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC), the appellant/defendant impugns the judgments of the Courts below; of the appellate Court dated 17.5.2013 and of the trial court dated 5.3.2013; by which the suit of the respondent/landlord for possession and mesne profits has been decreed.
2. In Delhi, for a suit to be maintainable in a civil court against a tenant, there are three requirements:(i) There was a relationship of landlord and tenant between the parties. (ii) The rate of rent is more than Rs.3,500/- per month. (iii) Notice was served under Section 106 of the Transfer of Property Act, 1882 terminating the tenancy.
3. It is not disputed before me on behalf of the appellant that there was a relationship of landlord and tenant between the parties and rate of rent was more than Rs.3,500/- per month. However, what is argued before me is that in the notice terminating tenancy, ground of termination of tenancy which was pleaded was of sub letting and not of termination under Section 106 of the Transfer of Property Act, 1882 and since the tenancy was not legally terminated, the suit has to fail.
4. I have seen the copy of the notice which was shown to me during the Court proceedings on behalf of the respondent/landlord and I find that the said notice contains a paragraph that contractual tenancy of the appellant/tenant/defendant was terminated. This in my opinion is sufficient compliance of law as per Section 106 of the Transfer of Property Act, 1882. In any case, the appellate Court has referred to the judgment of this Court in the case of M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183 DLT712and which holds that service of summons in suit should be taken as a notice under Section 106 of the Transfer of Property Act, 1882 for terminating tenancy. The judgment in the case of M/s. Jeevan Diesels (supra) also gives other reasons with respect to serving the notice of termination of tenancy inasmuch as copy of the notice is filed with the plaint and which is served upon the defendant alongwith the summons of the suit and which also can be treated as service under Section 106 of the Transfer of Property Act, 1882. The relevant para 7 of the judgment in the case of M/s. Jeevan Diesels (supra) reads as under:
“7. The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:(i) The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4 to Ex.PW1/6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.7.2006 was duly served upon the appellant resulting in termination of the tenancy. (ii) The Supreme Court in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC728has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant. (iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/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 the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the 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 the Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises. (iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex.PW1/3 is that the respondents/plaintiffs admittedly filed a copy of this notice alongwith the suit way back in the year 2007. Once the summons in the suit alongwith documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court.”
An SLP against the said judgment being SLP No.15740/2011 has been dismissed by the Supreme Court on 7.7.2011.
5. In view of the above, I do not find any question of law, much less a substantial question of law, arising for this appeal to be maintainable under Section 100 of CPC. Appeal is therefore dismissed, leaving the parties to bear their own costs. JANUARY20 2014 Ne RSA No.131/2013