( 1 ) THIS order shall dispose of an application under Order 12 Rule 6 read with Section 151 CPC. In this case, the plaintiff claims that the defendant is tenant in the premises in suit on monthly rent of Rs. 5,926. 53. 00 under the lease agreement dated 9th April, 1988. Receipt of notice Ex. P-2 is also not disputed. The certificate Form-A of the Registrar of Firms has been filed. In view of the disputed documents, the entire case of the plaintiff stands admitted. A prayer for decree of possession of the suit property, could be separated from the prayer for mesne profits.

( 2 ) THE only dispute which has been raised by the learned counsel for the defendant is that initially the premises were let out in January, 1994 on monthly rent of Rs. 3,279. 00. The rent was enhanced from time to time under the garb of execution of fresh lease deed (Annexures 3, 4, 5 and 6 of the written statement) and thus, the rent enhanced periodically by Rs. 5,926. 53. 00. The lease deed dated 9th April, 1988 had been allegedly terminated by the notice dated 28th April, 1989. No notice was given under Section 6-A of the amended Delhi Rent Control Act, 1958. The rent of the premises legally remains to be Rs. 3,279. 00 per month. Notice dated 28th April, 1989 is for the termination of tenancy. Therefore, rate of rent is onlyrs. 3279. 00 and consequently, the case is covered by the Delhi Rent Control Act and this Court has no jurisdiction.

( 3 ) I have heard the parties counsel and gone through the record. Section 62 of the Indian Contract Act which deals with the novation of contract and the judgment in Theeta Industrial Healing Equipments (P) Ltd. Vs. Harvinder Singh, 1996 (39)DRJ (DB) 739 are complete answer to the arguments advanced by the learned counsel for the defendant. Section 62 reads as under:

"62. Effect of novation, recession and alteration of contract. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. "

( 4 ) IT is not in dispute that the defendant is paying rent in accordance with the subsequent lease deed. It shall mean that the tenancy which existed before the last lease deed stood surrendered and the new tenancy had been replaced thereafter. Consequently, it is not continuation of the same tenancy which was created as far back as 1979. Since the defendant agreed to pay rent and was paying rent @ 5. 926. 23. 00 , they cannot dispute, now, by alleging that the rate of rent was only Rs. 3,279. 00. It may further be mentioned that the defendant after having taken advantage of the subsequent agreements is, now, estopped from agitating continuity of the old tenancy which was surrendered several times whenever fresh lease deeds were executed. Novation or a new contract in an extinguishment or recission of an original contract, and it is a question of fact. After the novation, a legal subsequent contract is enforceable and that subsequent contract would govern the relationship of parties. Conduct of a party, if it is clear and unambiguous, may, in certain events, raise the inference that the parties have agreed to modify their contract, but short of that such conduct cannot have the effect of changing the operation of an unambiguous agreement. In the case in hand, the parties have entered into a subsequent contract in writing and not only that, they have acted upon it. Consequently, the defendant cannot get rid of the same by advancing superfluous arguments.

( 5 ) THE tenancy appears to have been validly terminated by notice Ex. P-2, for the learned counsel for the defendant, Mr. R. P. Sharma, is fair enough not to question the validity of notice.

( 6 ) FOR the foregoing reasons, the suit has to be decreed for possession in respect of portion of property No. 1e/13, Jhandewalan Extension, New Delhi in the occupation of the defendant as shown red in the site plan attached. As regards the question of mesne profit and interest thereon, that