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2004(6) Supreme 353
SUPREME COURT OF INDIA
(From Delhi High Court)
Ashok Bhan & S.H. Kapadia, JJ.
Sri Inder Sain Bedi (Dead) by Lrs. -Appellant
versus
M/s. Chopra Electricals -Respondent
Civil Appeal No. 6405 of 2002
Decided on 27-8-2004
Counsel for the Parties :
For the Appellant : D.A. Dave, Sr. Advocate, T.N. Singh and V.K. Singh, Advocates.
For the Respondent : Parag Tripathi, Sr. Advocate, Ms. Priya Kumar, Saket Sikri and Ms. Neeru Vaid, Advocates.
Held : The appellant had admittedly filed the suit in respect of the premises as described in the two written documents between the parties. The portion shown in the green having been scored off and initialed by both the parties goes to show that portion shown in the green had not been let out by the appellant to the respondent. Even if it is assumed for the sake of argument, though we are not holding to be so, that the portion shown in green in the site plan Ex. P2 was in existence in the year 1980-81 it does not lead to the inference that this portion was leased out but was not shown as part of the leased premises apprehending proceedings being taken out for demolition at the behest of the Municipal Corporation Delhi. The finding recorded by the High Court that on the expiry of period of licence the respondent was taken as a tenant of the entire portion of the property is against the pleadings of the parties. This is altogether a new case which has been made out by the High Court. The High Court has misconstrued and misinterpreted the two deeds of licence/lease as well as the plaint in observing that the suit was filed only with respect to the portion shown in red colour in the plan whereas the tenancy had been created for both the portion shown in red colour as well as green and thus there was a splitting of tenancy which was not permissible in law. (Paras 16 and 17)
(ii) Transfer of Property Act, 1882-Section 106-Notice of termination of tenancy-Validity-Lease for manufacturing purpose created for a period of 11 months only-It was provided in clause 15 that tenancy could be terminated by either of the parties by giving two months notice-It was not necessary for appellant to terminate the tenancy by giving six months notice-Manufacturing lease which is not from year to year does not require six months notice for termination.
Held : According to the provisions of Section 106 of the Act a lease for the manufacturing purpose is deemed to be a lease from year to year but the same is subject to the contract to the contrary between the parties. The landlord and the tenant can mutually agree to create a tenancy for manufacturing purpose for a period less than a year. Only in the absence of this kind of contract the lease for manufacturing purposes would be deemed to be a lease from year to year. The same can be created by a registered document in view of the provision of Section 105 of the act. In the present case, admittedly the lease was created for a period of 11 months only and it was provided in clause 15 that tenancy could be terminated by either of the parties by giving two months notice. There was a contract to the contrary between the parties providing for termination of the lease between the parties by giving a notice of less than six months and as such it was not necessary for the appellant to terminate the tenancy by giving six months notice. In view of the terms of the contract between the parties the tenancy could be terminated by giving two months notice. In the present case, the lease in question was not from year to year or for a period exceeding one year. Since the lease was not from year to year there was no requirement of giving six months notice. Manufacturing lease which is not from year to year does not require six months notice for termination. It will fall in the second half of Section 106 requiring fifteen days notice of termination. (Para 21)
Keeping in view that the respondent is carrying on manufacturing activities in the demised premises his dispossession is stayed till 31.5.2005 provided he files an undertaking within a period of three weeks from today to vacate the premises and hand over possession of the same to the appellant on or before 31.5.2005. Further he is required to deposit arrears of rent, if any, and undertake to pay the rent in future as well. (Para 26)
JUDGMENT
Bhan, J.-Aggrieved against the judgment and decree dated 16.3.2000 passed by the High Court of Delhi, in Regular First Appeal No. 507 of 1993 whereby the High Court has allowed the appeal by setting aside the judgment and decree passed by the District Judge (hereinafter referred to as "the Trial Court") and dismissing the suit filed by the plaintiff/appellant (hereinafter referred to as "the appellant") has come up in this appeal.
2. Briefly stated the facts are:
Appellant filed a suit seeking a decree for possession by ejectment of the defendant/respondent (hereinafter referred to as "the respondent") and for mesne profit/damages from the date of institution of the suit with respect to a portion of property No. B-59/1, Naraina Industrial Area, Phase II, New Delhi, (hereinafter referred to as "the suit property") as shown in red colour in the site plan Ex. P.2. It was averred in the plaint that the Respondent had taken from the appellant one hall, three offices-cum-store room and toilets for workmen in the ground floor and two mezzanine halls on the mezzanine floor of the suit property shown in the red colour in the plan attached with the plaint. That the suit property had been taken by the respondent as a licencee in 1981 for a period of 11 months at a monthly licencee fee of Rs. 4500/- and that respondent continued to remain in possession even after the expiry of the period of licence and claimed himself to be tenant of the suit property at a rent of Rs. 4,500/- per month and that appellant accepted the respondent as his tenant. It was also alleged in the plaint that respondent had made several unauthorised additions/alterations etc. which had been shown in the green colour in the plan attached with the plaint, Appellant did not claim possession in respect of unauthorised additions/alterations made by the respondent in the suit. [We were informed during the course of the arguments by the learned counsel for the parties that the appellant filed Suit No. 519 of 1994 for possession of the portion shown in the green colour in the plan attached with the plaint.] That the appellant served a notice under Section 106 of the Transfer of Property Act (hereinafter referred to as "the Act") dated 6.3.1989 terminating the tenancy of the tenanted premises w.e.f. 31.5.1989. It was mentioned in the notice that if according to the respondent the tenancy ended on any other date other than the last date of English calendar month then the respondent should treat its tenancy as terminated from the close of such a month of tenancy on the expiry of two months of the service of the notice. By the said notice, respondent was also notified that in case respondent does not comply with the said notice, respondent would be liable to pay damages/mesne profits at the rate of Rs.1,000/- per day which claim was without prejudice to the rights of the appellant to claim possession. That the contents of the reply to the notice were false and baseless. That the respondent did not vacate the suit property hence the suit was filed for possession. Appellant also prayed for a preliminary decree directing enquiry about the amount of damages/mesne profits payable by the respondent in accordance with order 20 Rule 12 of Code of Civil Procedure.
3. Respondent in his written statement took preliminary objection that the plaint was liable to be rejected as the appellant has not given any valuation in the plaint regarding relief of mesne profit. Another preliminary objection taken was that notice to quit served upon the respondent was bad in law as the date from which the tenancy was alleged to have been terminated had not been specified and that premises let out had not been duly identified. On merits, the respondent pleaded that the respondent was a tenant in respect of the suit property vide agreement dated 26.5.1980 which though described as a licence deed was in fact a rent note. Rate of rent of Rs. 4,500/- per month was not denied. In reply to para 2 of the pla
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