JUDGMENT
T.S. Thakur, J.
1. This is yet another case in which a tenant in occupation of the demised premises has suffered a decree for eviction as no friable issue arose from the pleadings of the parties. Since the tenancy in question was not protected under the Rent Control Act, the validity of the notice issued under Section 106 of the Transfer of Property Act, 1882 was by far the only defense seriously urged before the court below. A somewhat desperate plea suggesting that the plaintiff had not signed the plaint was also urged but repelled by the trial court while decreeing the suit to the extent it related to delivery of possession under Order 12 Rule 6 of the CPC. The appellant has assailed the validity of the said judgment and decree before us in the present appeal.
2. A portion of the property bearing No. 58 situate on the Ring Road, Lajpat Nagar-III, New Delhi was let out to the defendant appellant herein in terms of a lease deed executed on 6th July, 2000. Monthly rental of Rs. 30,000/- settled between the parties was payable to the landlord by the 10th of every calender month. Although the lease deed purported to create a tenancy for a period of three years, yet since the document was not duly registered, the tenancy remained a month to month tenancy which was terminated by a notice dated 12.01.2003, with effect from the midnight of 31.01.2003. Since the defendant did not vacate the premises, a suit for possession by eviction of the defendant tenant became necessary in which apart from the relief of possession, the plaintiff claimed rent @ Rs. 30,000/- for the period 01.01.2003 to 31.01.2003 and mesne profits/damages w.e.f. 31.01.2003 @ Rs. 2,00,000/- per month till peaceful possession of the premises was surrendered and handed over by the tenant.
3. In the written statement filed by the defendant, it was inter alia alleged that the plaint had not been signed and verified by the plaintiff as he was bed ridden for two years preceding the institution of the suit. It was also alleged that the notice of termination was not issued under the instructions of the plaintiff. Receipt of the notice was, however, admitted but the validity thereof questioned and a prayer for dismissal of the suit on that account made by the defendant.
4. Before the suit could proceed to trial, the plaintiff made an application under Order 12 Rule 6 of the CPC for a judgment on admissions. This application was unsuccessfully opposed by the defendant before the trial court who agreed with the plaintiff that the ownership of the suit property being admitted by the defendant and so also the receipt of the notice terminating its tenancy, the defendant had no defense to the suit insofar as the same related to a prayer for possession of the demised premises. The suit was accordingly decreed to that extent relying upon the decisions of this Court in
S.L. Associates Pvt. Ltd.
v. Karnataka Handloom Dev Corporation Ltd. 1996 5 AD (Delhi) 473, Delhi Jal Board
v. Surendra P. Malik 2003 (68) DRJ 284, Sona Devi and Anr. v. Puran Chand Packaging Industries Pvt. Ltd. 2000 (54) DRJ 850 and I.T.D.C. Ltd.
v. Chander Pal Sood and Son 2001 (1) AD (Delhi) 353.
5. Appearing for the appellant, Mr. Nigam made a three fold submission before us. Firstly he contended that the plaintiff had not signed the plaint. According to him, someone else had impersonated for the plaintiff which fact was according to Mr. Nigam evident from a comparison of the signatures found on the lease deed with those on the plaint. Alternatively, he submitted that the trial court was in error in having passed a decree under Order 12 Rule 6 of the CPC disregarding the fact that there were factual inaccuracies in the averments made in the said application. He submitted that while it was open to the trial court to pass a decree on admissions under Order 12 Rule 6 suo motu, the decree in the instant case was not based on the suo motu exercise of that power. The proper course for the plaintiff, according to Mr. Nigam, was to seek an amendment of the application and correction of the factual inaccuracies before presenting the application for grant of a decree. It was lastly urged that although the defendant had in the written statement clearly disputed the assertion made by the plaintiff that the tenancy started from the first day of every English calender month and alleged that the notice of termination was legally bad, the court below had failed to advert to that aspect of the matter. This, argued Mr. Nigam, was sufficient to justify a remand of the case to the court below for a fresh hearing and disposal in accordance with law.
6. On behalf of the plaintiff-respondent, it was per contra argued by Mr. Mehta that the plaint had been signed by the plaintiff although he was not keeping good health around the time the suit was filed. He submitted that a comparison of the signatures on the plaint and the Vakalatnama would dispel any suspicion regarding the signatures of the plaintiff. Signatures of an individual, argued Mr. Mehta, could change with the passage of time especially when the person concerned was not keeping good health. There was in any case absolutely no basis for alleging that the plaint was signed by someone other than the plaintiff by impersonation.
7. On the question of factual inaccuracies in the application filed under Order 12 Rule 6, learned Counsel submitted that there were certain typographical mistakes in the said application but the same were wholly inconsequential keeping in view the admitted facts of the case. The rate of rent was not in dispute and any typographical mistake in the application made little difference for disposal of the suit or the application. The court in any case had the powers to suo motu decree the suit on admissions. Even if the application was excluded from consideration, the judgment and decree did not suffer from any error of law or jurisdiction to warrant interference.
8. As regards the question of validity of the notice of termination served upon the defendant appellant, Mr. Mehta placed reliance upon the amendment to Section 106 of the Transfer of Property Act, 1882 and the transitional provisions made by Act 2 of 2003. He submitted that in the light of the said provisions, the validity of the notice was also beyond question.
9. We have given our anxious consideration to the submissions made at the bar and perused the record. The plaint has been signed by the plaintiff as also by Sh. Amit Andley, his counsel. The affidavit accompanying the plaint has been sworn by the plaintiff in which the deponent has been identified by Sh. Andley, before the Oath Commissioner who has attested the affidavit. A comparison of signatures on the plaint, the affidavit accompanying the same as also the Vakalatnama filed by Sh. Amit Andley, his counsel leaves no manner of doubt that the signatures in all the three documents are of the same person. That apart, no dispute was ever raised by the plaintiff regarding his signatures during this life time or by his LRs who were substituted in his place after his demise. The argument of Mr. Nigam based as it is on a comparison of the signatures on the plaint with those found on the lease deed is therefore a far cry. The very fact that there is some difference between the signatures found on the lease deed and those found in the plaint would not in itself give rise to any inference that someone other than the plaintiff had signed the plaint on his behalf or in his name. We have, in that view, no hesitation in rejecting the first limb of the argument advanced by Mr.Nigam.
10. Equally untenable is the alternative submission made by learned Counsel for the appellant. Factual inaccuracies in an interim application whether the same are on account of typographical mistakes or otherwise may be of little consequence in cases where the essential facts stated in the pleadings are admitted. It is not in dispute that the rate of rent was Rs. 30,000/- per month but the application stated the rent to be Rs. 35,000/- per month. This inaccuracy did not make any difference in the light of the averments made in the plaint where the rate of rent was correctly mentioned. What the plaintiff perhaps intended to convey in the application was that the rate of rent is more than Rs. 3500/- per month the upper limit for protection of the tenancy under the Delhi Rent Act. Similarly the date on which the three years period expired may have been wrongly mentioned in para 2 of the application but the same was also inconsequential as the absence of registration of the deed had rendered the contractual period of tenancy unenforceable. The tenancy would have remained a month to month tenancy so long as the deed was not properly registered. Suffice it to say that the inaccuracies in the application referred to by Mr. Nigam did not materially affect the nature of the pleas raised either by the plaintiff or the defendant for that matter. The admitted facts on record continued to be so notwithstanding such inaccuracies. Super added to all this was the fact that the court had the power to suo motu act under Order 12 Rule 6 and decree the suit. This meant that even if the application stood removed from the scene, the order could still be sustained by reference to the suo motu powers of the court. The fact that the court had not described the order to be one passed suo motu too would be immaterial so long as the order was referable to a source of power available with the court, as it is in the present case.
11. That brings us to the third and the only other submission urged on behalf of the defendant appellant. Section 106 of the Transfer of Property Act, 1882 after the same was amended by Act No. 3 of 2003 reads as under:
Section 106: Duration of certain leases in absence of written contract or local usage:
1. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either Lesser or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either Lesser or lessee, by fifteen day’s notice.
2. Notwithstanding anything contained in any other law for the time being in force, the period mentioned in Sub-section (1) shall commence from the date of receipt of notice.
3. A notice under Sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceedings is filed after the expiry of the period mentioned in that sub-section.
4. Every notice under Sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
12. The above would show that the requirement stipulated by the unamended provision that the notice of termination must expire with the end of the month of tenancy in cases where the lease is from month to month no longer remains on the statute book. All that is now stipulated is that the Lesser or the lessee terminates the lease by 15 days notice. Sub-section 3 to Section 106 goes a step further and provides that a notice would not be invalid merely because the period mentioned therein falls short of the period specified under that sub-section. More importantly, Transfer of Property (Amendment) Act, 2002 (Act 3 of 2003) which admittedly came into force after the institution of the present suit makes a transitory provision in Section 3 which reads:
Section 3: The provisions of Section 106 of the principal Act, as amended by Section 2, shall apply to-
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and
(b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement.
13. It is evident from the above that all notices in pursuance of which any suit or proceeding was pending at the commencement of the Act were to be governed by the provision of Section 106 of the principal Act as amended by Section 2 of the amending Act mentioned above. The suit in the instant case was admittedly pending on the date the amending Act came into force. The provisions of Section 106 as amended were, therefore, applicable to the said proceedings no matter the termination of the tenancy had taken place at a point of time when the unamended provision of Section 106 held the field. It is, in the light of the specific provisions extracted above, futile to argue that the notice of termination was bad on account of the notice period not expiring with the end of the month of tenancy as stipulated in the old provisions. That is so even if one were to assume for the sake of an argument that the month of tenancy started on the 20th of the month and expired on the 19th day of the next month as alleged by the plaintiff.
14. There is no merit in this appeal which fails and is hereby dismissed with costs assessed at Rs. 5,000/-