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DELHI HIGH COURT
Valmiki J.Mehta, J.
Shri Radhakrishan Temple Trust Maithan, Agra - Appellant
Versus
Hindco Rotatron Pvt.Ltd.& Ors. - Resopndent
RFA No.40 of 2010
Decided On : 20-12-2011
tenant - Delhi Rent Control Act - 1958 - Section 106 of the Transfer of Property Act, 1882 - Order 7 Rule 7 of Code of Civil Procedure, 1908 - [Summary of Acts and Sections: The court discussed the application of Section 106 of the Transfer of Property Act, 1882, as amended by Act 3 of 2003, and its impact on the suits for possession filed by landlords against tenants. The court also considered the provisions of Order 7 Rule 7 of the Code of Civil Procedure, 1908, in light of subsequent events during the pendency of the suit.]
Fact of the Case:
The appellant, as the landlord, filed a suit for possession against the tenant and legal sub-tenants of a property not protected by the Delhi Rent Control Act, 1958. The trial court dismissed the suit on the grounds of lack of termination of the monthly tenancy by a proper notice under Section 106 of the Transfer of Property Act, 1882, and the subsequent notice sent during the pendency of the suit.
Finding of the Court:
The court found that the suit for possession could not be dismissed solely due to lack of a valid notice terminating the tenancy before filing the suit, as the amended Section 106 of the Act allowed for a 15-day notice period to vacate the premises. The court also applied the principle of Order 7 Rule 7 of the Code of Civil Procedure, 1908, to take notice of subsequent events and decreed the suit for possession.
Issues: The issues included the validity of the notice terminating the tenancy before filing the suit, the effect of a subsequent notice sent during the pendency of the suit, and the applicability of the suit for possession based on the cause of action of possession due to the tenancy having expired after the efflux of time.
Ratio Decidendi: The court held that the amended Section 106 of the Act allowed for a 15-day notice period to vacate the premises, and subsequent events during the pendency of the suit could be considered under Order 7 Rule 7 of the Code of Civil Procedure, 1908, to decree the suit for possession.
Final Decision: The court set aside the impugned judgment and decreed the suit for possession of the property in favor of the landlord, entitling them to mesne profits from the date the tenancy was terminated until the tenants handed over vacant physical possession of the premises.
2. The admitted facts between the parties are that the appellant is the owner/landlord of the premises comprising of first floor and mezzanine floor of the property bearing No. 6/90, P Block, Connaught Circus, New Delhi, of which the respondent No. 1 is the tenant and the respondent Nos. 2 and 3 are the legal sub-tenants. It is also not in issue; inasmuch as it is admitted; that the suit premises fall outside the protection of Delhi of Rent Control Act, 1958 inasmuch as the premises were sublet to a subtenant who was paying rent in excess of Rs. 3,500/- per month. This is the legal position in Delhi by virtue of Division Bench judgment in the case of P.S. Jain Company Ltd. v. Atma Ram Properties Ltd. 1997 (65) DLT 308. The sole basis for dismissal of the suit by the trial Court is that since the tenancy was a monthly tenancy, and which tenancy was not terminated by means of a legal notice under Section 106 of the Act prior to the filing of the suit, the suit was not maintainable when filed. The trial Court has also observed that after filing of the suit i.e. during the pendency of the suit, a notice dated 10.12.1999 was sent by the appellant/plaintiff/landlord stating that the earlier notice dated 7.3.1994 was defective and the lease was terminated by means of the subsequent notice dated 10.12.1999, thus making the suit filed on the basis of the earlier notice dated 7.3.1994 incompetent. This Court therefore is required to consider that if a suit for possession is filed without serving a notice under Section 106 of the Act, can such a suit be decreed. Also, to be examined is that what is the effect of a notice sent during the pendency of the suit by a landlord to a tenant terminating the tenancy and admitting that the earlier notice terminating tenancy was defective.
3. As per Section 106 of the Act, a lease of an immovable property which is not for a manufacturing purpose, is a monthly tenancy, and the monthly tenancy can be terminated by service on the tenant of a notice of 15 days. Before the amendment to Section 106 of the Act by Act 3 of 2003 the notice had to terminate the tenancy on a date expiring with the tenancy month. In this avatar, in which Section 106 of the Act was prior to its being amended by Act 3 of 2003, hundreds nay th
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