Important Point – Service of summons in suit is treated as notice under Section 106 of Transfer of Property Act.

VALMIKI J. MEHTA, J.

1. (i) By this judgment the two Regular Second Appeals are being disposed of. Both the appeals have been filed by the tenant. Two appeals pertain to disposal of two suits. One suit is the suit filed by the appellant/tenant for specific performance seeking grant of a registered lease deed every three years for the suit premises pursuant to Clause 2 at internal page 5 of the last registered lease deed dated 1.4.1987. The second suit is the suit filed by the respondent/landlady seeking possession of the suit/tenanted premises by terminating tenancy as the appellant/tenant on account of rent being more than Rs.3500/-, (i.e. Rs.3660.25/-) did not have protection of the Delhi Rent Control Act, 1958.

(ii) By the impugned judgments the suit for specific performance filed by the appellant/tenant stands dismissed and the suit of the respondent/landlady has been decreed on the aspect of possession.

(iii) As regards the issue of the right of mesne profits to be paid by the appellant to the respondent, trial is going on before the court below.

(iv) The judgment of the trial court is a common judgment disposing of the two suits and is dated 20.1.2014. The common judgment of the first appellate court dismissing the two appeals filed by the present appellant is dated 6.5.2017.

2. The suit property is a commercial flat bearing no. 207, second floor, Rohit House, Tolstoy Marg, New Delhi-110001. As per the lease deed appellant/tenant had an area of approximately 540 sq. ft. with one store of 45 sq. ft.

3. That there is a relationship of landlady and tenant between the parties is not disputed and nor is disputed the fact that rate of rent became Rs.3660.25 w.e.f. 1.4.1999. Rent was regularly increased by 10% every three years after expiry of the lease deed dated 1.4.1987.

4. Once there is a relationship of landlord and tenant between the parties and the rate of rent admittedly is above Rs.3500/-, then suit for possession filed by the respondent/landlady with respect to the suit premises had necessarily to be decreed because the legal notice dated 9.7.1999 terminating tenancy has been proved before the trial court as Ex. PW1/4 and reply of the appellant/tenant to the legal notice is Ex.DW1/PX2. In any case, the issue of service of notice terminating tenancy under Section 106 of the Transfer of Property Act, 1882 is no longer required inasmuch as service of summons in the suit is treated as notice under Section 106 of the Transfer of Property Act in terms of the judgment of this Court in the case of M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183 DLT 712.

5. Therefore, let us examine the only relevant issue which is to be decided as to whether the appellant was entitled to grant of lease deed every three years in terms of Clause 2 at internal page 5 of the registered lease deed dated 1.4.1987. It is also argued on behalf of the appellant that the relevant Clause 2 at internal page 5 in fact amounts to a perpetual lease deed. This relevant Clause 2 reads as under :-

“2. That the Lease is for the period of 3 Yrs. commencing from 1.4.87 and after the expiry of the period of this lease deed on 31.3.90. Fresh lease deed will be executed. The rent will be increased by 10% by the Lessee and after every 3 years of the last paid rent and the Lease shall stand extended automatically for further period of 3 Yrs. on the same terms & conditions and the said lease shall accordingly stand extended thereafter.”

6. The issues which have been framed by the trial court and the evidence which has been led by the parties are stated in para 4 and 6 of the judgment of the trial court and these paras read as under :-

“4. On completion of pleadings of parties, following common issues for both these suits were framed on 22/01/2004 in Civil Suit No.97/10/1998:

(i) Whether the plaintiff is entitled for the decree of possession as prayed? OPP

(ii) Whether the plaintiff is entitled for the recovery of mesne profits