JUDGMENT
Sharda Aggarwal. J.
1. Defendants have filed this application under Order 14 Rule 5 CPC for framing of additional issues. The plaintiff did not file reply to this application. However, argument were addressed by counsel for the plaintiff.
2. A narration of brief facts is necessary. The plaintiff being owner let out the ground floor of property No. S-48, Panchsilla Park, New Delhi to defendants vide lease deed dated 9th February, 1987 at a monthly rent of Rs. 6,000/-. By a supplement agreement dated 26th May, 1987, defendants were permitted to construct two bed rooms with attached bath and lobby on the first floor of the said building for the cost of Rs. 3,00,000/-. According to the plaintiff, said portion was treated to be under the tenancy of defendants at a monthly rent of Rs. 5,000/-, to be adjusted against the cost of Rs. 3,00,000/-. A fresh lease deed dated 26th December, 1992 was executed. As per the plaintiff, both ground floor and first floor were let out to the defendants at a monthly rent of Rs. 11,000/-. The plaintiff’s claim is that the tenancy came to an end by efflux of time and it was also terminated finally by a notice dated 8th October, 1997. The plaintiff has filed this suit for possession and for recovery of damages/mesne profits.
3. The defendants in their written statement have not disputed various agreements executed between the parties. However, the defendants case is that they required more accommodation and the plaintiff had permitted them to construct on the first floor and had agreed that she would let out even the fist floor for a rent of Rs. 5,000/- per month which would be payable w.e.f. the date of Occupancy Certificate granted by Government Authorities in that respect. The construction on the first floor was completed in June/July, 1998 and the defendants informed the plaintiff to obtain the necessary Occupancy Certificate. The plaintiff instead of obtaining Occupancy Certificate agreed to sell the property in question to defendants at a sale consideration of Rs. 40,00,000/-. The plaintiff executed a receipt dated 3rd May, 1998 for Rs. 1,00,000/- as part consideration and an affidavit incorporating the terms of the agreement. The balance consideration was payable at the time of execution of sale deed. Requisite permission from various Authorities for sale was to be obtained by the plaintiff which she never did. The defendants’ further case is that the relations between the parties being cordial, at the request of the plaintiff, defendants had been giving further amounts of money towards part consideration. It was also agreed at the time of executing the agreement to Sell that defendants shall remain liable to pay rent at the prevalent rate till the execution of the sale deed which could be increased by mutual agreement, had there been any delay in execution of the sale deed. Subsequently, it was also agreed that instead of Rs. 6,000/-, a sum of Rs. 11,000/- per month would be paid as rent which could be increased by 15% over the last paid rent after every five years. To this effect, lease deed dated 26th December, 1992 was executed between the parties. This lease deed contained a clause of automatic renewal of lease after five years. The rent was also increased from Rs. 11,000/- to Rs. 12,600/- per month giving effect to 15% increase as per the terms of the lease deed. Accordingly the defendants case is that till the execution of the sale deed, in pursuance to the agreement to sell, they are entitled to continue as tenants in the suit property on payment of agreed rent. After the receipt of notice of filing of the present suit, defendants filed a suit for specific performance of the agreement to sell against the plaintiff. In the present suit, plaintiff has filed a counter claim for specific performance of the agreement dated 26th December, 1992 for grant/extension/renewal of lease of the property in question at a rental of Rs. 12,650/- per month from 27th May, 1997 for a term of five years and on other terms and conditions contained therein with an option to defendants to have the said lease renewed/extended/have a fresh lease granted in their favor of the said premises for successive term of five years each time on the same terms and conditions.
4. Issues in this case were framed on 27th April, 2001. Defendants claim that the following additional issues also arise from the pleading of the parties :-
i) Whether the defendants are entitled to continue in possession as tenant in the premises till the completion of the sale of the premises in their favor?
ii) Whether the alleged notice of determination of tenancy stands waived?
iii) Whether the plaintiff has allowed the defendants to make constructions, additions, alterations and building activity of permanent nature in the property leased and if so, to what effect?
5. It is contended that trial of the case has not yet begin and the plaintiff would not be prejudiced if the the above mentioned additional issue are framed.
6. As regards Issue No. 1, defendants have categorically averred in the written statement that they are entitled to continue in possession as tenants in the suit premises so long the sale deed is not executed in their favor in pursuance of the agreement to sell. This averment is denied by the plaintiff. The additional issue No. 1 does arise from the pleadings of the parties. The burden of issue No. 1 would be on the defendants.
7. Regarding additional issue No. 2, learned counsel for the defendants points out that there are specific averments in the written statement by which it can be inferred that the alleged notice of termination of tenancy stood waived. Learned counsel for the plaintiff has referred to para No. 4 of the reply of defendants to plaintiff’s application (IA. No. 3994/98) for directions to pay damages/mesne profits. In para No. 4 of the said reply, reference is to the claim of Rs. 6,00,000/- towards damages and mesne profits for the period 27th October, 1997 to 26th April, 1998. There is no reference to the termination of tenancy in this paragraph. Defendants in their reply only stated that they had been tendering rent as per the agreement, but the plaintiff was not accepting the same. Defendants, on the other hand, have referred to page 42 para 11 of his written statement where there are specific allegations that the plaintiff had waived her letter dated 8th October, 1997. This fact is, of course, denied in the replication. Additional issue No. 2 also arise from the pleadings of the parties, burden of which also be on the defendants.
8. With regard to additional issue No. 3, defendants have referred to para No. 30 of the written statement where defendants have taken an alternative plea that without prejudice to their other pleas, plaintiff had allowed the defendants/tenants to make construction, additional alterations etc. This fact is also denied in the replication. Accordingly the additional issue No. 3 as claimed by the defendants also arise from the pleadings of the parties, burden of which would also on the defendants. The application is accordingly allowed and the aforesaid additional issue arising out of the pleading are framed.