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Cites 7 docs - [View All]
Smt. Thakamma Mathew vs M. Azamathulla Khan And Others on 15 December, 1992
Section 106 in The Transfer of Property Act, 1882
Section 53A in The Transfer of Property Act, 1882
B.S. Viswanath vs Smt. Chandika Ben J. Mehta And ... on 31 July, 1989
The Transfer of Property Act, 1882
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P.P..A. Impex Pvt. Ltd. vs Mangal Sain Mittal on 30 November, 2009
Inder Mohan Singh & Ors. vs Sube Singh on 10 November, 2014
Deluxe Stores vs Allahabad Bank on 18 April, 2006
Guru Nanak Vidya Bhandar Trust vs Union Of India (Uoi) And Ors. on 8 March, 2006

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Delhi High Court
Atma Ram Properties Pvt. Ltd. vs Air India on 1 December, 1996
Equivalent citations: 1997 IAD Delhi 641, 65 (1997) DLT 533
Author: K Ramamoorthy
Bench: K Ramamoorthy

JUDGMENT K. Ramamoorthy, J.

(1) The plaintiff has filed the application under Order Xii Rule 6 read with Section 151 Civil Procedure Code for a decree being passed against defendant. The plaintiff has prayed for the following reliefs in the plaint :

(A)That by way of a decree for possession the plaintiff may be put into the actual, physical and vacant possession of the premises bearing Flat No. 34, including the barest portion, alongwith the toilet room, F-l, show room garage bearing Nos. 74,75 and 81 and servant quarters No. 108, 109 & 110 as well as bath room and W.C. under the stairs by evicting the defendant No. 1 from the aforesaid premises situated in Atma Ram Mansion (Scindia House), Connaught Circus, New Delhi.

(B)That a decree for Rs. 33,37,475.00 as arrears of rent for the period from 1.12.1991 to 15.7.1992 and from 1.9.1993 to 31.10.1993 @ Rs. 3,54,321.00 per month may be passed in favour of the plaintiff and against the defendants alongwith interest @ 18% per annum from the date of suit till the actual realisation.

(2) The defendant herein filed written statement admitting the tenancy but stated that the suit has been filed only in respect of part of the premises and therefore, the plaintiff is not entitled to the reliefs. In para 11 of the written statement it is stated thus : The tenancy premises comprises of ground floor area measuring 3,209 sq. ft, 2,792 sq. ft on the mezzanine floor above the ground floor, 1700 sq. ft on the first floor, 3,317 sq. ft on the second floor, 850 sq. ft on the second floor (mezz) 2389 sq. ft back portion garage and servant quarter and 850 sq. ft on the third floor. The plaintiff has filed a suit for a part of the premises.

(3) It is further stated that there was a right of renewal and therefore, the plaintiff is not entitled to relief. In para 17 of the preliminary submissions the defendant stated thus: That even in terms of the draft agreement, the plaintiff is entitled to have the tenancy renewed for a further period of five years subject to the increase of rent by 15%. That other terms have been reduced into writing and the defendant in these circumstances is duly protected by the provisions of the Section 53A of the Transfer of Property Act and cannot be evicted from the suit premises.

(4) While reapling on the merits, the defendant stated that the notice of termination dated 12.10.1993 is illegal and void and no effect can be given to the notice.

(5) The plaintiff has filed the replication referring to the lease deed dated 1.11.1989. The lease deed is not registered and it cannot be admitted in evidence. The plaintiff has referred to the actual portion let out to the defendant. The plaintiff has referred to the correspondence that has passed between the parties and denied the case of renewal set out by the defendant. At page 19 of the replication the area let out to the defendant is as under: Floor Area Rate of rent Total Ground Floor 3209 50.00 p.sq.ft. 1,60,450.00 Second Floor 3317 23.00 p.sq.ft. 76,291.00 Mezzanine Floor 2792 25.00 p.sq.ft. 69,800.00 Back Portion 2389 20.00 p.sq.ft. 47,780.00 (Garrage and servant quarters) G. Total 3,54,321 .00 The averments in the written statement have been repudiated by the plaintiff in the replication. Earlier the plaintiff has filed an application being Ia No. 8919/94 for direction to the defendant to pay arrears of rent. A direction was issued to the defendant. The defendant took up the matter in appeal to the Division Bench. On 14.2.1996 the Division Bench appointed a local Commissioner for the purpose of ascertaining the facts referred to by the defendant. On 12.4.1996 the Division Bench dismissed the appeal. At the end of the judgment their Lordships were pleased to observe as follows : Before parting with the case, we may state that the landlord (respondent) had given notice under Section 106 of the Transfer of Property Act on 12.10.1993 terminating the tenancy with effect from 31.10.1993 and the suit was filed in September, 1994 for eviction and other reliefs. The defendant-appellant (AIR India), which is a public-sector organisation, has not vacated the premises so far, inspite of the fact that admittedly, it has taken another premises on lease at a monthly rental of Rs. 8.27 lakhs and paid advance deposit and inspite of the fact that the appellant is not using the premises in question (as is revealed from the Local Commissioner's report dated 28.2.96, which shows that the premises inside is in very bad shape). It is unfortunate that public monies of Rs. 66 lakhs and even now Rs, 3 lakhs and odd per month are being incurred for this building which is not under use. Rs. 3 lakhs and odd directed to be paid in future is, in fact, on the basis of 1989 rent. Damages could be more. It is unfortunate that public monies are being squandered in this fashion. It is a fit case for an enquiry".

Their lordships further directed that - A copy of the Judgment delivered today be sent to the Secretary, Ministry of Civil Aviation and the Secretary, Ministry of Finance for action, if any. A copy will be sent to the Finance Minister and Minister for Civil Aviation, for information. Now the plaintiff seeks a decree as said above for possession.

(6) Mr. S. Ganesh learned Counsel for the defendant vehemently contended that, on three grounds, the application filed by the plaintiff is liable to be dismissed one is that the notice of termination issued by the plaintiff is not legal but second there is a right to renewal to the defendant for further period of five years from 1994 and therefore the plaintiff cannot seek possession till the end of 1999 and third there is divergence between what was demised and what is in actual possession of the defendant, and the plaintiff is asking for possession of only a part of.the premises.

(7) In the order passed earlier which has been confirmed by the Division Bench, I had noticed that there was no dispute about the tenancy. The object of Order 12 Rule 6 is that litigation as far as possible should see the end as early as possible without much delay and if the Court can find out whether there has been an admission on the part of the defendant about the claim of the plaintiff, and if could be found out that there has been an admission, the Court should dispose of the matter on that basis. Invariably in all cases the defendant with a view to getting over an admitted fact which would clothe the plaintiff with a right to get a decree would come forward with other pleas which are not only specious but also seemingly arguable. In such cases the Court has perforce to undertake the task of going into the core of the issue and then decide the point. If the other points raised by the defendants, deserve to be considered, the Court can say that these points should be decided at the time of trial of the case. If the other points are without any substance,. the Court in my view, is bound in an application under Order 12 Rule 6 to consider and then pass the order. The Court has also to consider whether the determination on those points could be done without any evidence being let in by the parties and whether the parties should be asked to go for a trial of the case on those points.

(8) Reverting back to the facts of this case, I have not able to appreciate the contention of Mr. Ganesh on the question of renewal. It is not disputed that the defendant has neither filed a suit seeking to enforce right of renewal nor has the defendant made a counter claim in the suit in that behalf. The cause of action of the claim of right of renewal, assuming that the defendant had got that right, arose in 1994 when the first five years period expired and no demand was made on the plaintiff. The document on which right of renewal is claimed is not registered one and, therefore, the right of renewal itself is without any basis. Therefore, I have no hesitation in coming to the conclusion the plea of right of renewal is put forth only to protract the proceedings. The Court can consider the case put forth by the defendant on the anvil of Order 16 Rule 6, CPC.

(9) Relating to the plea of validity of notice, it is significant to note that the defendant had not sent reply to the notice. It is not stated as to how the notice issued is invalid. I have gone through the notice and it is in accordance with the Transfer of Property Act, 1882 and it cannot be said to be invalid on any ground.

(10) Regarding the case of the defendant that the plaintiff has come forward only with the part of the premises, I am not able to agree with Mr. Ganesh that the plaintiff does not seek possession of the entire possession let out to the defendant. The facts are very clear. The plaintiff is seeking possession with reference to only what was let out to the defendant and for which the defendant has been paying rents to the plaintiff.

(11) It is really intriguing as to why inspite of the observations made by the Division Bench, the defendant spending huge public money should cling on to the property. I do not know whether the defendant is fully alive to its obligation to the society while involving itself in an unnecessary legal battle with the plaintiff. As noticed by their Lordships of the Division Bench, the defendant has taken out on rent some other premises, and the property in question is kept idle by the defendant with no justification. This is only by the way, and I am not influenced by this fact in deciding the question that has arisen for consideration in the application under Order 12 Rule 6, CPC.

(12) Trying to expound the law on the scope of Order Xii Rule 6, Mr. Ganesh learned Counsel for the parties brought to my notice the following cases : B.S. Viswanath v. Smt. Chandika Ben J. Mehta and Ors., , Smt. Radha Lal v. M/s. Jessop & Company, , Smt. Thakamma Mathew v. M. Azamathulla Khan & Ors., , M/s. S.L. Associates Pvt. Ltd.v. Kamataka Handloom Dev, and Ved Prakash Khullar & Ors. v. M/s. Genelec Ltd., .

(13) No one can quarrel with the proposition of law laid down in these cases. But the question is how to apply to the principle to the fact of the case. If the defendant raises a point which deserves to be considered at the time of trial of the case nobody can have any exception to the course that the matter should go on for trial. But if the defendant raises defense which cannot be countenanced at all, I ask myself the question what is the purpose of posting the matter for trial and keeping the matter pending for years which will not serve any purpose. By this process, cases have to be kept pending unnecessarily, I have no doubt, in my mind on the facts presented before me, the plaintiff is entitled to the relief asked for in this application.

(14) Mr. Bhatia, learned Sr. Counsel, appearing for the plaintiff submitted that there is a sum of Rs. 29 lakhs with the plaintiff which represents advance paid by the defendant. The plaintiff has no objection to deposit or pay the amount to the defendant if a decree of possession is passed by this Court. Mr. Ganesh learned Counsel for the defendant did not dispute the quantum while submitting that he is not agreeable to such a course.

(15) Under the circumstances, Ia No. 3645/96 under Order Xii Rule 6, Civil Procedure Code is allowed.

(16) There shall be a decree (I)directing the defendant to put the plaintiff in possession of the suit. property within one month.

--- *** ---

(II)directing the plaintiff to pay to the defendant a sum of Rs. 29 lakhs within one month from today;

(III)directing the parties to bear their own costs. The suit and Ia stand disposed of.