{"id":112104,"date":"1998-08-31T00:00:00","date_gmt":"1998-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pindi-road-links-pvt-ltd-vs-sky-land-transport-co-on-31-august-1998"},"modified":"2017-11-17T14:13:58","modified_gmt":"2017-11-17T08:43:58","slug":"pindi-road-links-pvt-ltd-vs-sky-land-transport-co-on-31-august-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pindi-road-links-pvt-ltd-vs-sky-land-transport-co-on-31-august-1998","title":{"rendered":"Pindi Road Links Pvt. Ltd. vs Sky Land Transport Co. on 31 August, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Pindi Road Links Pvt. Ltd. vs Sky Land Transport Co. on 31 August, 1998<\/div>\n
Equivalent citations: 1998 VIIAD Delhi 327, 75 (1998) DLT 637, 1998 (47) DRJ 430, (1998) 120 PLR 53<\/div>\n
Author: A Kumar<\/div>\n
Bench: A Kumar, M Sarin<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Arun Kumar, J.<\/p>\n
1.  The respondent filed a suit for recovery of possession and damages  on 27th  August, 1991 against the appellant with respect to  premises  bearing No.  33, Transport Centre, Rohtak Road, Delhi. The suit premises  comprises ground  floor and first floor having a total area of 960 sq. ft. The  premises  was admittedly let out by the respondent plaintiff to the  respondent for  three  years w.e.f. 1st October, 1984 to 30th September, 1987  at  the monthly  rent  of Rs. 5,500 vide a registered lease deed.  This  lease  was extended for a further period of three years w.e.f. 1st October, 1987.  The extended  period of lease was to expire on 30th September, 1990.  The  rent was  enhanced  from  Rs. 5,500\/- per month to Rs. 6,500\/-  per  month.  The second  lease was however not registered. Admittedly the second  lease  was executed  on  same terms and conditions as were contained in  the  previous registered  lease deed. The first registered lease deed contained a  clause that the lease was for a period of three years and expires with the  expiry 30th  September, 1987. No notice whatsoever was required to  terminate  the lease and it was specifically provided that the lease would stand terminated  with  efflux of time. The same clause was admittedly  repeated  in  the subsequent lease also. Still the respondent landlord issued a notice  dated 31st August, 1990 calling upon the appellant to hand over vacant possession of the suit premises by the end of 30th September 1990. The notice  further contained a clause that if according to the addressee the month of  tenancy ended on a date other than the end of the month, i.e. 30th September, 1990, the  possession  could be handed over on expiry of midnight of  such  other date. The receipt of this notice is not disputed by the appellant.  Besides possession  of  the  premises, the plaintiff landlord  claimed  arrears  on account  of use and occupation of the premises w.e.f. 1st October, 1990  up to  31st  July, 1991 at the rate of Rs. 12,000\/- per month.  The  plaintiff also prayed for an inquiry under Order XX, Rule 12, Code of Civil Procedure to  ascertain  the amount of future damages\/menses profits  payable  by  the defendant to the plaintiff from the date of filing of the suit till handing over possession of the premises. The plaintiff under took to pay the requisite Court fee on such amount as may be finally ascertained in this behalf.\n<\/p>\n
2.   At  the  time of hearing of this appeal the learned  Counsel  for  the defendant urged the following points :\n<\/p>\n
     1. The lease had been renewed for a further period of three years   w.e.f.  1st  October, 1990 vide an agreement dated  8th  January,  1991  enhancing the rent to Rs. 7,500 per month  and,  therefore,    the  suit which was filed on 27th August, 1991 was premature  and not maintainable.\n \n\n     2. The notice of termination of tenancy is illegal and invalid.\n \n\n     3. Waiver.\n \n\n<\/pre>\n
3.   So  far as the first point regarding renewal of lease is concerned  it is  to be noted that no such alleged agreement dated 8th January, 1991  has been produced. The only proof regarding renewal of lease which is sought to be given is that the appellant had given three cheques for Rs. 6,500\/- each out  of which one cheque was encashed by the plaintiff in September,  1991. It  is submitted that the renewal of lease w.e.f. 1st October, 1990  for  a period  of  three  years was with enhancement of rent by  Rs.  1,000\/-  per month.  The cheques for Rs. 6,500\/- per month are explained by saying  that the balance of amount of rupees one thousand per month was paid in cash for which  there were entries in the books of account of the defendant. We  are unable  to  accept  this plea of renewal of lease by  further  three  years w.e.f.  1st October, 1991. The renewal could be only by way  of  registered lease because the period involved is three years as per the appellant’s own case which was not possible without a registered lease deed. Secondly,  the plea of increase of rent and payment of rent at the rate of Rs. 7,500\/- per month  is  also  on the face of it is false. Right from  the  inception  of tenancy the rent was always paid by cheques and it is unthinkable that  the renewal  of lease w.e.f. 1st October, 1990 would entail an element of  payment  of  Rs. 1,000\/- per month cash. It appears that this  plea  is  being raised  as  an  after thought only in order to make out a  defense  in  the present suit. Since the defendant was continuing to occupy the premises and after the plaintiff had already filed the present suit in August, 1991,  it appears  that  one of the cheques for Rs. 6,500\/- was got  encased  by  the plaintiff.  As per defendant’s case if the rent had been increased  to  Rs. 7,500\/-  per  month,  there is no reason why the landlord  would  have  not insisted  on the entire amount being paid through cheque as per past  practice.  We find no merit in this plea. Moreover, it has to be noted in  this context that the earlier two lease deeds referred to herein before specifically  provided that the period of lease on each occasion was  three  years and the lease would come to an end by efflux of time on the expiry of  that period. In the face of such a clause there could be no question of  renewal of lease by an oral agreement.\n<\/p>\n
4.   To  make good the second point regarding validity of the  notice,  the learned  Counsel for the appellant invited our attention to Section 110  of the  Transfer  of Property Act. On the basis of the said provision  it  was urged  that the lease in the present case was expressed as commencing  from 1st  day of October and, therefore, in computing the month of  tenancy  the first  day of the month had to be excluded. Thus according to  the  learned Counsel the tenancy month would have to be reckoned as from 2nd day of each English Calender month up to 1st day of the succeeding month. The notice of termination of tenancy which purported to terminate the tenancy w.e.f. 31st October,  1990 was thus said to be invalid. This argument, in our view,  is totally misconceived at least so far as the facts and circumstances of  the present case are concerned. Firstly the lease deed itself provides that  it would come to and end on the expiry of three years, i.e. on 30th September, 1987  in  the  first instance and the 30th September, 1990  in  the  second instance. It is admitted case of both the parties that the first lease deed is  a registered lease deed and it contains a clause in this behalf. It  is further  admitted  case of the parties that the second  lease,  though  not registered,  was executed on exactly same terms and conditions. The  appellant is bound by this admission and, there fore, the second lease, would be taken to be coming to and end on 30 September, 1990 and further it  follows that no notice of termination of tenancy was really required in view of the specific  provision of the relevant clause of the lease deed. Secondly,  in the  notice of termination of tenancy which has been issued in the  present case,  the landlord has taken care to say that if according to  the  tenant the  month  of  tenancy expired on a date other than the last  day  of  the English  Calender month, that could be taken as the day of  termination  of tenancy and where after the tenant was required to hand over vacant possession of the premises. This clause leaves the argument raised on Section 110
\nof the Transfer of Property Act totally devoid of any force.\n<\/p>\n
5.   Thirdly,  it  is appellant’s own case that the lease expired  on  30th September,  1990 and that is why it was pleaded that the lease was  renewed w.e.f. 1st October, 1990 for a further period of three years vide an agreement  dated 8th January, 1991. This admission on the part of the  appellant again renders the need for termination of tenancy by way of a notice  under Section  106 of the Transfer of Property Act redundant. It follows that  in the facts of the present case actually no notice of termination of  tenancy under Section 106 of the Transfer of Property Act was required. At the same time it is to be noted that requirement of notice stands satisfied  because of  the language of the notice stating that the month of tenancy  could  be taken  to be ending with whatever date which was acceptable to the  tenant. The second point also fails.\n<\/p>\n
6.   Lastly,  about the plea of waiver raised on behalf of  the  appellant, the learned Counsel for the respondent at the thresh-hold argued that  this plea  was never raised by the appellant\/defendant in the written  statement and, therefore, was not open to them. We find merit in the substance.  Plea of  waiver is both factual as well as legal and has to be pleaded so as  to enable  the  other side to effectively meet the same.  The  entire  written statement does not contain this plea. Faced with this situation the learned Counsel for the appellant tried to wriggle out from his plea of waiver  and tried  to rely on Section 116 of Transfer of Property Act to say  that  the appellant was a tenant holding over.\n<\/p>\n
7.   The  plea of waiver was sought to be made out on the basis of  encashment  of  one cheque for Rs. 6,500\/- by the landlord which  was  after  the service of notice of termination of tenancy. In view of the appellant’s own case  that  the revised rent for the relevant period was  Rs.  7,500\/-  per month, the plea of waiver cannot be sustained because the cheque encased by the landlord was only of Rs. 6,500\/-. The appellant tried to urge that  the balance  amount of Rs. 1,000\/- was paid cash for which, however, there  was no  proof  or material on record. In the absence of this we are  unable  to accept that rent was ever paid or a accepted at the enhanced rate. For this reason alone the plea of acceptance of rent after service of notice has  to be  rejected. The rent according to the appellant himself was  Rs.  7,500\/- per  month and this amount was never paid for any month at all by the  tenant.  We  have disbelieved the payment of Rs. 1,000\/- cash to make  up  the short fall in the cheque for Rs. 6,500\/-.\n<\/p>\n
8.   Reliance placed on Section 116 of the Transfer of Property Act by  the learned  Counsel for the appellant is also misconceived and  untenable.  In order  to invoke Section 116 the tenant is t o show that the lessor or  his legal representative accepted rent from the lessee or otherwise assented to his  continuing  in possession. This the lessee has failed to show  in  the present case. The lessee took a specific plea that the lease was renewed by increase  of  rent from Rs. 6,500\/- to Rs. 7,500\/- per month. There  is  no proof  of payment of rent even for a single month at the rate  of  Rs.7,500 per  month. Thus the lessee has failed to satisfy the  essential  condition under Section 116 of the Act. The plea of renewal of lease by holding  over and acceptance of rent by the lessor after the expiry of the earlier  lease has, therefore, to be rejected. As a matter of fact the lessee only claimed one  extension  for a period of three years w.e.f. 1st  October,  1990,  it claimed  a  second extension also w.e.f. 1st October, 1993. This  is  clear from para 10 of the preliminary objections contained in the written  statement  where  it is stated that the suit of the plaintiff  is  premature  as admittedly the tenancy could not have been terminated prior to 30th September,  1996. Further about the renewal of lease w.e.f. 1st October, 1990  at the rent of Rs. 7,500 per month the plea of the lessee was:\n<\/p>\n
  Para 11 of preliminary objection in the written statement :\n<\/p>\n
      \"The  plaintiff has admittedly renewed the lease on 8th  January, 1991  effective from October, 1990 and has accepted the  rent  of     Rs. 7,500 and as such after accepted the amount after renewal  of the lease the plaintiff is stopped from filing the present suit.\"\n \n\n 9.   Thus  the appellant took a definite stand that the lessor had  renewed the  lease  w.e.f. October, 1990 by a accepting the rent as Rs.  7,500  per month. In fact in the entire written statement on merits also the  definite stand  of  the  appellant was that the rent was Rs. 7,500  per  month.  The appellant  failed to make good this plea and, therefore, his case  on  this point has to fall as a whole with all the consequences which flow from this plea being found to be false.\n \n\n10.  We find no merit in any of the pleas raised on behalf of  the  appellant. This appeal is accordingly dismissed.\n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Pindi Road Links Pvt. Ltd. vs Sky Land Transport Co. on 31 August, 1998 Equivalent citations: 1998 VIIAD Delhi 327, 75 (1998) DLT 637, 1998 (47) DRJ 430, (1998) 120 PLR 53 Author: A Kumar Bench: A Kumar, M Sarin JUDGMENT Arun Kumar, J. 1. The respondent filed a suit for recovery […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-112104","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nPindi Road Links Pvt. 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