( 1 ) BY this order plaintiffs application under Order 12, Rule 6 of the Code of Civil Procedure (for short "cpc") for passing a decree of possession is being disposed of.

( 2 ) PLAINTIFFS have filed a suit for ejectment and mesne profits against defendant No. 1. Plaintiffs along with defendant Nos. 2 and 3 had leased out the property known as "rafat Mahal" bearing No. 19, Friends Colony (West), New Delhi to defendant No. 1 for a period of ten years w. e. f. 1. 6. 1979. A registered lease deed was also executed. The rent was agreed to be at Rs. 5,500 / - per month and in terms of the lease which provided two 10% increase every three years, the rent was increased to Rs. 6,050/- w. e. f. 1. 6. 1982 and then to Rs. 6,600/- w. e. f. 1. 6. 1985. Three notices dated 12. 4. 1989,10. 5. 1989, and 27. 5. 1989 were sent to vacate on expiry of the lease. A notice terminating the tenancy dated 10. 6. 1991 requiring to vacate the premises on the expiry of 30. 6. 1991 was also sent, though it is alleged that it was not necessary as the tenancy had already expired on expiry of fixed period of ten years. The defendant did not vacate and so the plaintiffs filed the suit for recovery of possession and mesne profits.

( 3 ) THE defendant No. 1 has filed written statement contesting the suit. It is alleged that the premises was let out by plaintiffs and defendant Nos. 2 and 3 and the notice of termination of tenancy given and also the suit for ejectment filed on behalf of plaintiffs alone is not maintainable. Also that the notice of termination of tenancy dated 10. 6. 1991 is not valid as the earlier tenancy which was for a period of ten years commencing from 1. 6. 1979 expired on 1. 6. 1989 and the tenancy terminated with the expiry of 30th June, 1989 is not valid. It is also alleged that it was agreed by the plaintiffs that defendant No. 1 shall continue as a monthly tenant after the expiry of 10 years period of tenancy; the defendant was treated as a monthly tenant as rent was sent monthly by means of cheques which were retained by defendant No. 1; the notice of termination of tenancy sent on 10. 6. 1991 also shows that monthly tenancy was created. It is also alleged that tenancy had commenced before the Delhi Rent Control (Amendment) Act, of 1988 and the suit was barred under the Delhi Rent Control Act, 1958 (for short "the Act" ). Though the factum of agreed rent with the increase in rent @ 10% every three years is not denied, however, it is alleged that the standard rent of the premises was less than Rs. 3,500/- per month. It is thus denied that the plaintiffs are entitled to a decree for possession or mesne profits.

( 4 ) PLAINTIFF s application under Order 12, Rule 6, CPC is also being contested on similar lines. It is denied that any admission is made for invoking Order 12, Rule 6. On the other hand, it is alleged that disputed questions of fact and law arise which need trial.

( 5 ) I have heard learned Counsel for the parties. Learned Senior Counsel for the plaintiffs has contended that the factum of tenancy for a fixed period of ten years, the agreed rent of Rs. 5,500/- per month and the last monthly rent paid @ Rs. 6. 600/- are not denied. Since the rent is more than Rs. 3,500/-, the Act will not be applicable. The tenancy had come to an end with the expiry of ten years period and no further notice of termination of tenancy was required, however, without admitting that it was a monthly tenancy, by way of abundant precaution, the notice of termination dated 10. 6. 1991 was sent and served on defendant No. 1, 15 days before the expiry of the tenancy month. It is also contended that the plaintiffs had never agreed for continuance of the tenancy nor had accepted rent and it is not a case of holding over, the cheques were sent by the defendant of their own without any demand by the plaintiffs and were not accepted as rent nor encashed. It is also contended that the notice of termination even otherwise is valid, and as all the les