Vijender Jain, J.
1. This appeal arises out of the judgment of the Additional District Judge where the suit for recovery of possession of the ground floor of 8, Ishwar Nagar East, Mathura Road, New Delhi along with damages for use and occupation was dismissed. In the plaint the case set out by the appellant/plaintiff was that they were the owners and landlords of the premises. Entire ground floor with garage on a monthly rent of Rs.4000/- was leased by lease deed dated 3rd May, 1984 for a period of three years to the respondent. The lease was to expire on 2nd May, 1987. The respondent did not vacate the premises after 2nd May, 1987, lease having been expired after efflux of time. The appellant by way of abundant precaution served upon the respondent registered notices dated 13.9.1989 and 3.10.1989, the appellant also claimed compensation/manse profit from 3rd November, 1989 to 18th November, 1989 at the rate of Rs.2,000/- and from the date of institution of the suit till the date of recovery of possession at the rate of Rs.4,000/- per month.
2. In the written statement filed by the respondent the respondent took the plea that the suit was not maintainable as the same was filed for partial tenancy. It was also contended that the appellant/plaintiff had waived their right to seek possession of the premises subsequent to the period 2nd November, 1989 as the plaintiffs have received the rent from the respondent/defendant. thereforee, it was pleaded that notices dated 13.9.1989 and 3.10.1989 were invalid. It was contended that in law the plaintiff could not have terminated the tenancy from 2nd November, 1989. From the pleadings of the parties, the trial court framed the following issues :-
(1) Whether the suit is bad being for eviction of the partial tenancy? OPD(2) Whether the lease stood determined by efflux of time as pleaded in the plaint in terms of the lease-deedbetween the parties? If so the effect? OPP(3) Whether a notice of termination of tenancy was required to be given as pleaded in the written statement?If so the effect? OPD(4) If Issue no.3 is proved in the affirmative, whether thetenancy of the defendant was lawfully terminated bya valid notice? OPP(5) Whether the plaintiff had waived his right to claim possession as pleaded in the written statement? OPD(6) Whether the plaintiff is entitled to any mesne profits?If so, at what rate and for what period? (7) Relief.
3. Evidence of the parties were record. Issue nos.2, 4, 5 and 6 were decided in favor of the respondent and the suit was dismissed.
4. Mr. H.L. Tiku, learned senior counsel for the plaintiff/appellant has contended that the decision on issue no.2 - whether the lease stood determined by efflux of time in terms of lease-deed, was wrongly decided by the trial court as there was a registered lease-deed and pursuant to the terms and conditions of the lease-deed which is Ex.P1 (at page 37 of the paper-book). Paragraph 5 of the said Ex.P1 is to the following effect :
'That the period of the lease granted by the Lessers to the Lessee for the premises had been agreed to be for Three Years commencing from 3rd May, 1984 to 2nd May, 1987.'
5. It was also contended by counsel for the appellant that there was no renewal clause in the said lease-deed. The trial court instead of returning a finding that the lease stood terminated by the efflux of time on the basis of Ex.P1, ought to have returned the finding that the lease stood determined by efflux of time. The finding of the trial court that the tenancy continued to be month by month as the rents were accepted after 2nd May, 1987 till 13th September, 1989 and, thereforee, the tenancy was not for a fixed period, is patently erroneous and illegal and untenable. It was contended before us by Mr. Tiku that nowhere in the written statement it was pleaded that respondent was tenant by holding over as contemplated under Section 116 of the Transfer of Property Act. It was also contended that no issue was framed by the Court whether it was a tenancy by holding over and, thereforee, has assailed the finding of the trial court. Mr. Tiku has assailed the findings of the trial court on issue nos.4, 5 and 6. It was contended by Mr. Tiku that during the pendency of the proceedings in the trial court on 19th August, 1992, a notice under Order 12 Rule 8 CPC requiring certain documents, was served along with the affidavit and respondent filed an affidavit and took the plea that the documents as mentioned in Seriall no. 1 to 12 and no notice dated 13.9.1989 was ever received by the deponent. The receipt mentioned at Seriall nos. 2 to 12 were never received by the deponent. On the basis of the said affidavit it was contended that it was not denied that Ex.PW 3/1, i.e. the notice dated 3.10.1989 was not received by the respondent. Ex.PW 3/1 is the copy of the said notice on record. Mr. Tiku has contended that there was evidence on record to show that Vimal Goel, Advocate, who was produced in the witness box as PW 3 has deposed that he had sent a legal notice to the defendant on behalf of the plaintiff. He has also acknowledged having sent Ex.PW 3 on 3.10.1989. The copy of the said notice was proved by Vimal Goel as Ex.PW 3/1. He also stated that the said notice was sent under UPC and the postal receipt was proved as Ex.P 4. On the basis of the above evidence it was contended that the finding of the trial court that notice was not received by the respondent was highly improper and incorrect. It was also contended in the cross-examination that the defendant has himself admitted that he has seen a letter Ex.PW 3/1 which is a notice by Vimal & Co. That was correctly addressed to him. On the basis of aforesaid, it was argued that once service of notice dated 3.10.1989 stood proved, the finding on issue no.4 that tenancy was not terminated pursuant to a valid notice is illegal.
6. In spite of this overwhelming evidence on record, the finding of the trial court that no notice was served on the respondent was illegal and against the record and without perusing the evidence produced by the parties. It was contended by Mr. Tiku that the finding of the trial court that the rent was accepted as rent, was without taking into consideration the material on record. Attention of this Court was invited to Ex.P 8 (which is at page 65 of the paper-book). It is a letter written by the appellant to the respondent sent under regd. AD cover as well as UPC. It has specifically mentioned that the acceptance of the sum of Rs.4,000/- sent by the respondent shall not be treated as waiver of our notice dated 13.9.1989 and 3.10.1989 to quit. It was also contended that in the very operating lines of said letter it was mentioned that it was without prejudice to the termination of the tenancy with regard to 8, Ishwar Nagar East, Mathura Road, New Delhi by efflux of time and without prejudice to the notices dated 13.9.1989 and 3.10.1989 to quit. The appellants were accepting the sum of Rs.4,000/- sent by the respondent by cheque dated 3.10.89 drawn on Oriental Bank of Commerce as compensation/damages for use and occupation of the ground floor of 8, Ishwar Nagar East, Mathura Road, New Delhi. Mr. Tiku has contended that, thereforee, the finding of the trial court that the rent was accepted for the month of September and October, thereforee, appellant has waived his right to claim possession is contrary to the evidence on record. Mr. Tiku has contended that the respondent has been taking shifting stands and has relied upon paragraph 3 of the written statement. It was contended that the stand taken by the respondent was that although lease deed was executed between the parties, but the understanding between the parties was that the defendant would continue to remain in occupation of the premises in dispute till such time he continues to pay rent to the plaintiffs regularly. As a matter of fact, the tenancy was in perpetuity. On the basis of above arguments it was contended that the plaintiffs' suit could not have been dismissed as notice terminating the tenancy was sent by the plaintiffs, the same was received and the respondent has no right to be in possession and in the absence of any plea of holding over having been taken and there was not evidence that the tenancy was in perpetuity as the stand taken by the respondent in the written statement, the decree for possession ought to have been passed by the trial court granting mesne profit.
7. On the other hand, Mr. Harish Malhotra, learned counsel for the respondent/defendant has contended that the suit was correctly dismissed after efflux of time pursuant to the provision of Transfer of Property Act, it was a tenancy month by month as the appellant has accepted the rent from 2nd May, 1987 till 13th September, 1989, the trial court rightly returned the finding that the tenancy did not get determined by efflux of time. Mr. Malhotra has contended that provision of Section 59 of Contract Act would also apply. Section 59 of the Contract Act is to the following effect :
'59. Application of payment where debt to be discharged is indicated. - Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly.'
8. Taking the aid of Section 59 of the Contract Act, it was contended before us by Mr. Malhotra that appellants ought to have given a notice to the respondent before encashment of the cheque that the same was encased for the purpose of damages. No such notice was given by the appellant. In support of his contention that if the lease was for a period exceeding one year and in the absence of subsequent registered instrument, it was a case of holding over of the premises, Mr. Malhotra has relied upon Burmah Shell Oil Distributing Co. now known as Bharat Petroleum Corporation Ltd. Vs . Khaja Midhat Noor & Ors. : [1988]3SCR811 . It was contended by Mr. Malhotra that carbon copy of the notice which was placed on record was not signed by Vimal Goel, Advocate, and, thereforee, no credence could have been given to the testimony of Vimal Goel that the notice was sent by him.
9. We have given our careful consideration to the arguments advanced by learned counsel for the parties. Before adverting to the discussions on the issues, let us discuss the testimony of respondent who has appeared as DW 4 in the witness box. At page 35 of the paper-book is his cross-examination, which is very relevant and the same is reproduced below :
'I never wrote any letter before receipt of notice and before filing of the suit that the lease is in perpetuity. It is correct that the lease was for a fixed period. It is correct that prior to the taking of the said premises on rent I was living at 34, Ferozshah Road, New Delhi with respect to which I entered into a collaboration agreement for construction of flats with Kailash Nath & Associates who had agreed to complete a job within a period of two to three years. It is correct that keeping that period in mind I entered into a fixed period of lease in this case with the plaintiff. It is correct that I had given an undertaking to the plaintiff to vacate the premises on the expiry of lease. Ex.DW 4/6 is the undertaking which I gave to the plaintiff after the signing of the lease deed. I never received the notice from the plaintiff. It is correct that the plaintiff after institution of the suit is whole-heartedly contesting the same. It is also correct that the plaintiff has not abandoned the suit or right after the institution of the suit. It is correct that after 3rd October, 1989 or 13th September, 1989 the plaintiff has not met me and has never written to me that I am his tenant. It is correct that the plaintiff has never treated me as a tenant. Vol. I. I am paying rent regularly. I am not in possession of any rent receipts after 13th September, 1989 or 3rd October, 1989 uptill today.'
10. Trial court having framed issued no.2 whether the lease stood determined by efflux of time when there was a written document, the finding that the tenancy was month by month in the absence of any issue and in the absence of any such plea in the written statement, was totally contrary to the material placed before the trial court. As observed by us earlier that plea in paragraph 3 of the written statement was that the lease was in perpetuity so long respondent pays the rent regularly. Neither any issue was framed nor the respondent had requested the Court to frame any such issue nor any evidence on that score was led before the trial court. thereforee, the finding of the trial court on this issue was totally perverse and contrary to records. Similarly, the finding of the trial court on issue no.4 whether the tenancy was terminated lawfully by a valid notice and the finding thereon was totally misconceived. We have perused the evidence. We have perused the notice under Order 12 Rule 8 given by the appellant to the respondent requiring certain documents. We have seen the reply of the said notice of the respondent. Nowhere it was denied by the respondent that he has not received Ex.PW 3/1, i.e. the notice dated 3.10.1989. Copy of the said notice is Ex.PW 3/1. Once the notice has been proved by the testimony of Vimal Goel as Ex.PW 3/1 and the postal receipt has been proved as Ex. P4, the finding of the trial court that tenancy was not terminated validly by issuance of a valid notice, is totally perverse and contrary to records. In view of the testimony of Vimal Goel, PW 3 that the notice was sent by the counsel, that evidence could not have been summarily rejected by the trial court. There is no force in the argument of the respondent that the carbon copy of the notice has not been signed by the said lawyer. If the carbon copy is not signed, it will not lead to the conclusion, in view of the evidence of the counsel who appeared as PW 3 and nothing adverse came out from the cross-examination of the said witness that the witness was deposing falsely. thereforee, the finding on this issue also is contrary to the material on record.
11. The finding of the trial court as to whether the plaintiff has waived his right to claim possession is totally perverse and the reliance placed by the trial court on the various judgments as well as provision of law is misconceived. There was a letter which was written by the plaintiff which is at page 65 of the paper-book, it was specifically stated by the appellant that acceptance of the sum of Rs.4000/- was without prejudice to the termination of the tenancy and said sum was on account of compensation/damages for use and occupation of the tenanted premises. The finding on this issue is totally contrary to the material placed on record. The reliance placed by learned counsel for the respondent on Section 59 of the Contract Act is also misplaced. In view of the illustrations given in the said Section and in what context the provision of Section 59 would be applicable, certainly not in the case before hand. More so because said sum was not accepted as rent in Ex.P 8 has been totally ignored by the trial court. The trial court totally ignored the shifting stand of the respondent inconsistent pleas and the conduct even after Ex.DW 4/6 on record, which is an undertaking dated 28th April, 1984 of respondent. The same is to the following effect :-
'My present residence 34, Firozeshah Road is being demolished and residential flats are going to be constructed under a collaboration agreement with M/s Kailash Nath & Associates. I shall, along with my family, shift to seven of these newly built residential flats immediately on expiry of the lease which I am taking from you i.e. 8, Ishwar Nagar, New Delhi. I write this to assure that you will be free to occupy your residence at No.8, Ishwar Nagar, New Delhi immediately after expiry of the lease or earlier.'
12. In the written statement filed by the respondent in paragraph 3, respondent took the plea that the tenancy was in perpetuity and he could remain in occupation of the premises in dispute till such time he continued to pay rent to the plaintiff regularly. No issue was framed nor the respondent requested the Court to frame such an important issue if respondent was serious of the stand taken in the written statement. The whole conduct of the respondent was to somehow remain in possession of the suit property.
13. The net result of the discussion is that the trial court judgment is set aside. A decree of possession is passed for entire ground floor as per the site plan Ex.P 2. We have been told that the mesne profit at the rate of Rs.4000/- per month up to September, 2003 has been paid. The respondent is directed to pay from October, 2003 till date at the rate of Rs.4000/-. We have been told that the premises are in posh south Delhi colony and the plot area is 600 sq. yds. It has got four bed rooms on the ground floor apart from drawing and dining rooms. If the premises are not vacated by the respondent who has been in the premises after efflux of time from 2nd May, 1987 for almost 17 years and the premises are not vacated and the peaceful possession of the premises is not handed over to the appellant within one month from today, the appellant shall be entitled for mesne profit at the rate of Rs.20,000/- per month till possession is delivered.
14. Appeal stands disposed of.