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TMI Blog2012 (5) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. There is no renewal clause in the lease deed. The respondent claims that upon the expiry of the aforesaid lease, she requested the appellant to hand over the peaceful possession of the suit property to her. 3. Vide notice dated 20th June, 2009, the respondent notified the appellant that the registered lease deed dated 7th November, 2006 expired by efflux of time on 6th November, 2008, and the respondent does not wish to keep the appellant as her tenant any more. The respondent further notified the appellant to hand over the vacant and peaceful possession of the suit property on or before 15th July, 2009. The respondent also demanded the arrears of rent and mesne profits. 4. The aforesaid notice was sent by registered AD post to the registered office of respondent at K-26, Connaught Place, New Delhi - 110001 as well as at D-29, Okhla Industrial Area, Phase I, New Delhi. K-26, Connaught Place, New Delhi has been mentioned as the registered office of the appellant in the lease deed dated 7th November, 2006 whereas D-29, Okhla Industrial Area, Phase I, New Delhi is the present office of the appellant as per the memorandum of the appeal. 5. The notice sent to the registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Without prejudice, it is submitted that the notice is not valid as it has not been given by all the co-owners of the suit property. The appellant has disputed the title of the respondent and has urged that the dispute between the respondent and the other co-owners of the suit is pending before the Court. It is further submitted that respondent let out the suit property to the appellant in violation of a status quo order passed in a suit between the co-owners. It is lastly submitted that the appellant has not made any admission before the Trial Court. It is submitted that the decree on admissions under Order XII Rule 6 of the Code of Civil Procedure can be passed on unambiguous, clear and un-conditional admissions and the written statement has to be read as a whole. 9. The learned counsel for the respondent in reply has submitted that the appellant has admitted the lease deed dated 7th November, 2008 between the parties as well as the payment of rent to the respondent. As such, the admission of relationship of landlord and tenant between the parties and the expiry of lease by efflux of time of 6th November, 2008 is unambiguous, clear and unconditional. It is further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act, (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. 13. Duty of a Tenant under Section 108(q) read with Section 111 of Transfer of Property Act, 1882 13.1 Under Section 108(q) of Transfer of Property Act, 1882, it is the statutory obligation of the lessee to restore the possession of the leased property to the lessor on determination of the lease. Section 108(q) of Transfer of Property Act, 1882 is reproduced hereunder:- Section 108. Rights and liabilities of lessor and lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties. 13. ... In any case, this aspect does not assume any importance as no notice under Section 106 was required to be served on appellant due to the expiry of the Lease between the parties by efflux of time. (Emphasis supplied) 13.5. In Usha Rani Jain v. Nirulas Corner House Private Limited, ILR (2005) II Delhi 349, this Court held as under:- 17. Though a plea was taken in the written statement about non determination of the lease because no notice to quit as envisaged under Section 106 of the Transfer of Property Act has been served on the defendants before filing of the present suit, but this aspect was not pressed at the hearing. Even otherwise, it is a well settled proposition of law that when the term of the lease has expired by efflux of time, there is no need for a landlord to determine the lease by serving quit notice. (Emphasis supplied) 13.6. In Inmacs Limited v. Prema Sinha, 153 (2008) DLT 311 (DB), the Division Bench of this Court held as under:- 13. ...If a lease is eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a tenancy by holding over comes into operation by virtue of the provisions of Section 116 of the Transfer of Property Act 1882, which reads as under:- 116. Effect of holding over - If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. 24. The words 'accepts rent or otherwise assents to his continuing in possession' in Section 116 of the Transfer of Property Act contemplate that from the side of the lessee there should be an offer to take a new lease and on the side of the lessor there must be a definite consent to the continuation of possession. In other words, there must be a bilateral contract. Such a bilateral contract could be express or implied. (Emphasis supplied) 14. Termination of Lease under Section 106 of the Transfer of Property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. (Emphasis supplied) 14.2 Section 51 of the Companies Act, 1956 Section 51 of the Companies Act, 1956 provides the mode of service of document on a company. The Section provides that the documents may be served on a company by sending to the company at the registered office by post under a certificate of posting or by registered post or by leaving at its registered office. Section 51 of the Companies Act, 1956 is reproduced hereunder:- Section 51. Service of documents on company - A document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at its registered office. 14.3 In Union Bank of India v. Sushila Goela and others, 2005 VIII AD (Delhi) 541, the Division Bench of this Court held that the object of a notice under Section 106 of the Transfer of Property Act, 1872 is to inform the other party as to the intention of the person issuing the notice that he wants the premises back. Section 106 Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng shown that a letter has been posted, the Court may draw a presumption that the letter was received by the addressee. Section 114 of the Evidence Act incorporates presumption of fact and provides that the Court may presume the existence of probable facts regard being had to the common course of natural events, human conduct and common sense in relation to the facts of the particular case. Section 114 of the Indian Evidence Act, 1872 covers a wide range of presumption of facts which can be used by the Courts in the course of administration of justice. According to illustration (f) to the Section, the Court may presume ''that the common course of business has been followed in particular cases . Section 114 entitles a Court to presume that a common course of business was followed so that if it is proved a postal cover duly addressed was sent by registered A.D. post, having regard to the common course of events, it would have been received by the addressee or if it is returned with the endorsement by the postal authorities that it was refused, that it was so tendered and refused. This would raise a presumption of fact. If however, it is shown at the same time that the common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the facts of the particular case. The illustrations mentioned in that Section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the Section itself. Whether or not a presumption can be drawn under the Section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behavior is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and con-flue human behavior within strait-Jackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake. (Emphasis supplied) 15.5. In Tukaram Ganpat Pandare v. State of Maharashtra, (1974) 4 SCC 544, the Supreme Court held that Section 114 of the Indian Evidence Act enables the Court to use common sense as a judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addreseee. ...It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed, with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act. (Emphasis supplied) 15.8 In M/s Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630, the Supreme Court held that a notice sent by registered post is presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The observations of the Supreme Court are reproduced hereunder:- 6. ...All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption...‖ 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.... Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed.... (Emphasis supplied) 15.10 In M/s Interocean Shipping v. Lt. Col. Y.R. Puri, 45 (1991) DLT 221 (DB), the Division Bench of this Court held that a notice addressed to the defendant is properly served even if the A.D. card does not contain the signature of the addressee. The relevant findings of this Court are reproduced hereunder:- 2. ...Coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit. The relevant portion of the judgment reads as under:- 7. The second argument that the legal notice dated 15.7.2006 was not received by the Appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows: xxx (ii) The Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the Appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant. (iii) In the suits for rendition of accounts of a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice alongwith documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court. 8. Therefore, looking at it from any point i.e. the fact that legal notice terminating tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice alongwith documents was duly served to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that law as relied upon by the learned Trial Court with respect to presuming the service upon the appellant, does not suffer from any legal infirmity or illegality. 3. I do not find any error in the reasoning of the Courts below in holding that the notice terminating tenancy can be said to have been served upon the appellant. 4. In any case, the arguments as raised by learned Counsel for the appellant has been dealt with by me and negated in the case of M/s. Jeevan Diesels and Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) and Anr., RFA 179/2011 decided on 25.3.2011 in which I have held that the summons of the suit with which the plaint is accompanied, can also be treated as a notice under Section 106 of the Transfer of Property Act, 1882 read with Order 7 Rule 7, Code of Civil Procedure considering the intendment of Act 3 of 2003 by which Section 106 of the Transfer of Property Act, 1882 was amended to do away with the defence of the inadequacies in termination of tenancy, once otherwise a period of 15 days expires prior to filing of the suit. In the case of M/s Jeevan Diesels Electricals Ltd. (supra), I have also held that along with the suit for possession, the copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the pendency of the suit ought to be taken note of under Order 7 Rule 7 of Code of Civil Procedure, 1908 (CPC), keeping the requirement of substantial justice in mind. 2. The admitted facts between the parties are that the appellant is the owner/landlord of the premises comprising of first floor and mezzanine floor of the property bearing No.6/90, P Block, Connaught Circus, New Delhi, of which the respondent No.1 is the tenant and the respondent Nos.2 and 3 are the legal sub-tenants. It is also not in issue; inasmuch as it is admitted; that the suit premises fall outside the protection of Delhi of Rent Control Act, 1958 inasmuch as the premises were sublet to a subtenant who was paying rent in excess of ₹ 3,500/- per month. This is the legal position in Delhi by virtue of Division Bench judgment in the case of P.S. Jain Company Ltd. Vs. Atma Ram Properties Ltd. 1997 (65) DLT 308. The sole basis for dismissal of the suit by the trial Court is that since the tenancy was a monthly tenancy, and which tenancy was not terminated by means of a legal notice under Section 106 of the Act prior to the filing of the suit, the suit was not maintainable when filed. The trial Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was an invalid notice as the monthly tenancy was not terminated by a notice ending with the tenancy month, were done away with as long as a 15 day notice period was given to the tenant to vacate the premises. Suits for possession thus could not be dismissed on the ground of invalidity of the notice terminating the tenancy. Obviously, this amendment was in accordance with real intention and spirit of Section 106 of the Act whereby the tenant was only required to be given a reasonable time to vacate the property. The legislature considers this reasonable time to be of 15 days. Therefore, every tenant by virtue of amended Section 106 of the Act is put to notice that in case the landlord is legally entitled to ask the tenant to vacate the premises, the tenant shall vacate the premises as long as the tenant has a 15 days notice period to vacate the tenanted premises. That the legislative intention for not delaying the suits for possession filed by landlords can be further noticed from the fact that the amended Section 106 was also to apply to all pending litigations. 5. It is keeping the aforesaid legislative intent behind the amended Section 106 of the Act that one has to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered lease for a fixed period entitling the tenant to stay in the premises, once a 15 days notice period is given to the tenant to vacate the premises, the conclusion that the suit for possession must not be dismissed but decreed, falls in place. Therefore, even if the notice by which tenancy is terminated prior to the filing of the suit is held to be invalid, then, in my opinion, service of summons of the suit for eviction of the tenant showing the categorical intention of the landlord asking the tenant to vacate the tenanted premises can be taken as a notice under Section 106 of the Act read with Order 7 Rule 7 CPC. Of course, one consequence will be that if the tenancy was terminated prior to the filing of the suit validly, the liability towards the mesne profits would begin from such earlier date by which the tenancy was terminated, but where the Court takes termination of tenancy by means of service of summons in the suit or on the basis of any other subsequent act/event then the only consequence could be that though the suit for possession will have to be decreed because the tenant has 15 days notice to vacate the premises, however, mesne profits could be said to be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit between landlord and tenant, the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such. 17.4 In D. Satyanarayana v. P. Jagadish, AIR 1987 SC 2192, the Supreme Court held as under:- 3. ...Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words during the continuance of the tenancy have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third person. The effect of such a disclaimer is that it brings to an end the relationship of landlord and tenant and such a tenant is liable to be evicted forthwith. 18.2 In Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375, the Supreme Court held as under:- 12. ...Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh v. Amarjeet Bali, 154 (2008) DLT 211, this Court held as under:- 5. ...Section 111(g) of Transfer of Property Act provides that a lease of immovable properties come to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus, once a lease stands forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111(g) is based on public policy and the principle of estoppel. A person who takes premises on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises... (Emphasis supplied) 18.4 In Bhagirothi Mohanty v. Kasinath Das, 1996 AIHC 4918, the Orissa High Court held as under:- 8. Section 116 of the Evidence Act envisages that a tenant is stopped to deny the landlord s title. This doctrine is based on equitable principle inasmuch as once one enters into the premises as a tenant and continues to possess in that capacity, he cannot be heard to deny the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. (Emphasis supplied) 19.3 In Surjit Sachdev v. Kazakhstan Investment Services Private Limited, 66 (1997) DLT 54 (DB), the Division Bench of this Court held as under:- 16. A bare reading of Rule 6 would suggest that Court either on the application of any party or on its own motion and without waiting for determination of any other question between the parties proceed to give judgment as it may think fit having regard to the admission... 17. ...The factors which deserve to be taken into consideration in order to enable the Court to pass a decree in plaintiff's favor as regards possession in such like suit. are: (a) existence of relationship of Lesser and lessee or entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on a particular day of the tenancy and the question is only about the form of the tenancy beyond that date -- one at sufferance or one from month-to-month. 49. To put it differently, in the former case there is no dispute either about title or about the permissive nature of occupation whereas in the latter case the dispute is about title and there is no question of the possession being permissive. Here it is hostile. Even otherwise, a plea or a defense as a tenant is a pleading of a permissive title. It carries with it an admission that someone else, be it the plaintiff or be it another, is the one carrying a superior title and in whom vests the reversionary rights known in common parlance as ownership... 50. In a suit for ejectment, all that the Court is required to examine is whether on a calendar date representing the expiration of a particular tenancy month, the defendant-tenant's status became one of a 'tenant at sufferance' or it continued as one 'from month-to-month.' There is really nothing else to be tried in such a suit. A suit of this variety could in most cases be decided at the first hearing itself either on the pleadings and documents as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the defendant. 12. In view of the record placed by the plaintiff and in light of the fact that the notice was dispatched to the defendant s correct address through registered post and the AD card was also received back from the defendant, the denial in respect of the said notice by the defendant has no value. The rebuttal in this case, does not go beyond a bald and interested denial of service of the notice by the defendant, which does not displace the onus to rebut the presumption of service. I am unable to accept the arguments advanced by the defendant before this court that by merely saying the AD card bears somebody else s signature, they have discharged the initial burden to rebut the presumption. 13. In my considered view all the requirement of Order XII Rule VI C.P.C are satisfied, as far as the factum of landlord and the tenant relationship; and the factum of amount of rent is above Rs. 3,500/- both is undisputedly admitted by the defendant and in view of the documents placed on record by the plaintiff, the denial of service of termination of notice is sham and false denial, it was observed by this court that such kind of bald denial should be ignored in such kind o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reach the conclusion whether any rebuttal is forthcoming from the party who is deemed to have been served. We have already referred to hereinbefore as to how the notice terminating the tenancy was sent to Hill Elliott. A perusal of the relevant paragraphs of the written statement filed by Hill Elliott would show that it had simply denied the receipt/service of notice. The circumstances under which the notice dated 9.08.2008 was not received by Hill Elliott were not stated either in para 7 of the Preliminary Objections of the written statement or in reply to Para 5 of the Plaint. Hill Elliott has not stated that the premises during the period the notice is purported to have been served were lying locked; that no responsible person of Hill Elliott was present in the premises during this time or there was any other reason by which the normal course of business of service of notice was prevented. Thus, the denial of service of notice shall be treated as a vague denial and thus deemed to have been admitted. 17. In the absence of specific denial, we find no merit in the contention raised on behalf of Hill Elliott that the presumption being rebuttable opportunity should have been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. 2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. (Emphasis supplied) 20.3 In Satyender Singh v. Gulab Singh, MANU/DE/1047/2012, the Division Bench of this Court following Dalip Singh v. State of U.P. (supra) observed that the Courts are flooded with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Courts time for a wrong cause. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h courts, if tenant agrees to pay the present prevalent market rate of rent of the tenanted premises to the landlord. In that case landlord would also be satisfied that he is getting adequate, just and proper return on the property. But the trend in the litigation between landlord and tenant shows otherwise. Tenant is happy in paying the meager amount of rent fixed years ago and landlord continues to find out various grounds under the Rent Acts, to evict him somehow or the other... 21.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), the Supreme Court held that inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent, if continuation of possession is permitted upon payment of market rent. The Supreme Court held as under:- Mesne Profits 90. Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the Courts do not cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t fails in its task of doing justice. If Courts pass orders directing payment of realistic costs and compensation that sufficiently make up for the losses of the other, the motivation behind raising of disputes will be removed and the Courts will be freed of a lot of frivolous litigation. 50. Keeping in view this state of affairs and the prevalent general impression, it will be a useful approach if the Court, when deciding a matter, considers what all orders ought to be passed so as to do complete justice and ensure that the party which has lost, does not get away without having to compensate the other for the deprivation it caused to it by raising the dispute. (Emphasis supplied) 22. Restitution 22.1 In Indian Council for Enviro and Legal Action v. Union of India, (2011) 8 SCC 161, the Supreme Court explained the concept of restitution. The Court held that it is the bounden duty and obligation of the Court to neutralize any unjust, enrichment and undeserved gain made by any party by invoking the jurisdiction of the Court. A person in a wrongful possession should not only be removed as early as possible but be compelled to pay for wrongful use of the premises, fine, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y discourage fraudulent, unscrupulous and dishonest litigation. 192. The court s constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 197. The other aspect which has been dealt with in great detail is to neutralise any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view: (1) It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. (2) When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. (3) Unscrupulous litigants be prevented from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per examination the irrelevance and hollowness of those pleadings and documents come to light. 38. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants. 39. Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case. 23. Imposition of Costs 23.1 In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Supreme Court has held that the Courts have to take into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e compelled to contest and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years. 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. (Emphasis supplied) 23.2 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra) the Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences as under:- 85. This Court in a recent judgment in Ramrameshwari Devi and Ors. (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with costs of Rs.15,10,000/- to be recovered from the petitioners jointly and severally. If any amount has been paid towards user charges, the same shall be adjustable. 9. Before parting with this case, I consider it necessary to pen down that one of the reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court judgment in the case of Ram Rameshwari Devi and Others (supra).... Dishonest and unnecessary litigations are a huge strain on the judicial system which is asked to spend unnecessary time for such litigation. 8. In view of the gross conduct of the appellant in the present case, I dismiss the appeal with costs of ₹ 2 lacs. Since the respondents are not represented, costs be deposited in the account of Registrar General of this Court maintained in UCO Bank, Delhi High Court Branch for being utilized towards juvenile justice, surely a just cause. Costs be deposited within a period of four weeks from today. Obviously, the costs may be peanuts for a huge organization such as the appellant-bank but I hope the spirit of the costs will be understood by the appellant-bank as also all other tenants who refuse to vacate the premises although they have overstayed their welcome in the tenanted premises. (Emphasis supplied) The Supreme Court has dismissed the SLP against the aforesaid judgment. The Supreme Court passed the following order:- On hearing Mr. Dhruv Mehta, Senior Advocate appearing for the petitioner, and on going through the judgment of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reproduced often quoted quotation which reads as under: Every trial is voyage of discovery in which truth is the quest‖ 37. This Court observed that the power is to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth. 38. Lord Denning, in the case of Jones v. National Coal Board, (1957) 2 QB 55 has observed that: In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries. 39. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that every trial is a voyage of discovery in which truth is the quest . In order to bring on record the relevant fact, he has to play an active role; no doubt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society doubt and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court.... 2.15 The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. J. Lee Havens, 446 U.S. 620, 100 St.Ct. 1912, it was held that the government may use illegally obtained evidence to impeach a defendant's fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of arriving at the truth, which is a fundamental goal of our legal system . 49. Justice Cardozo in his widely read and appreciated book The Nature of the Judicial Process discusses the role of the judges. The relevant part is reproduced as under: There has been a certain lack of candour, in much of the discussion of the theme [of judges' humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. 50. Aharon Barak, President of Israeli Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case. 76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence. (Emphasis supplied) 24.2 In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (supra), the Supreme Court held as under:- ENTIRE JOURNEY OF A JUDGE IS TO DISCERN THE TRUTH 24. The entire journey of a judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of justice delivery system. This Court in Dalip Singh v. State of U.P. and Ors. (2010) 2 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. 6. Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 7. The watchman, caretaker or agent holds the property of the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession. 8. The protection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truth and justice would suffer, if he did not. 25.4 The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty. 25.5 The scope of Section 165 of the Indian Evidence Act has been discussed by the Supreme Court and High Courts in Ramchander v. State of Haryana, (1981) 3 SCC 191; Ritesh Tewari v. State of Uttar Pradesh, (2010) 10 SCC 677; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158; State of Rajasthan v. Ani, AIR 1997 SC 1023; Mohanlal Shamji Soni v. Union of India, 1991 Supp. (1) SCC 271; Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178; Jai Prakash v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of monthly lease. The tenant resisting the claim for possession has to plead with sufficiently detailed pleadings, particulars and documents why he must not be ejected and what right he has to continue in possession. There is really nothing else to be tried in such a suit. A suit of this nature can ordinarily be decided on first hearing itself either on the pleadings and the documents or, if need be, by examining the parties under Order X of the Code of Civil Procedure or Section 165 of the Indian Evidence Act. 26.6 A suit for ejectment of a lessee is not a type of a case where by forging a postal receipt and falsely claiming the issue of the notice to quit, the plaintiff would gain any particular advantage for he could have always served a notice and filed a suit three weeks later. On the other hand, by serving a self- serving denial, the defendant seeks to get an advantage of dragging the proceedings and continuing to enjoy the property without having to pay the current market rent. Having regard to the common course of natural events, human conduct and probabilities, if a notice which can be issued and served again without loss of opportunity, the probability that a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot remain a silent spectator and allow the abuse of process of law. The eyes of the Courts are wide enough to see the truth and do justice so that the faith of the people in the institution of Courts is not lost. 26.10 In view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003, no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat the decree for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises. 26.11 A suit for possession cannot be dismissed on the ground of invalidity of notice of termination because the tenant is only entitled to a reasonable time of 15 days to vacate the property. Therefore, even if the notice of termination is held to be invalid, service of summons of the suit for possession can be taken as notice under Section 106 of the Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue the occupation on payment of rent fixed years ago. The continuation of possession in such cases should therefore be permitted upon payment of market rent. In that case, inherent intent of the unscrupulous tenant to continue frivolous litigation would be reduced to a large extent. 26.16 In all proceedings relating to possession of an immovable property against an erstwhile tenant, the Court should broadly take into consideration the prevailing market rentals in the locality for similar premises and fix adhoc amount which the person continuing in possession must pay or deposit as security. If such amount, as may be fixed by the Court, is not paid or deposited as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence. This is a very important exercise for balancing equities. The Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind. This is the requirement of equity and justice. 26.17 In the last 40 years, a new creed of litigants have cropped up who do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duty, to explore all avenues open to him in order to discover the truth and, to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. The Court can also invoke Section 30 of the Code of Civil Procedure to ascertain the truth. 26.22 Unless the Courts ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the Courts scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases. It becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that the dice is always loaded in their favour, since even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars the correct addresses of the appellant. The Department of Posts has also certified the delivery of notice on the appellant on 22nd June, 2009. The aforesaid original documents placed on record by the respondent raise a presumption of service under Section 27 of the General Clauses Act, 1897 and Section 114(f) of the Indian Evidence Act, 1872 read with Section 51 of the Companies Act, 1956 and Section 3 of the Commercial Documents Evidence Act, 1939. The vague denial of notice of termination is not sufficient to raise an issue. Far from being plausible plea, it is incredible and misconceived. The appellant does not say in its pleading supported by affidavit that after receiving the complaint and the document, he checked up with the post office and they told him that no such letter was posted or the postal receipt filed by the respondent is forged and fabricated. Self serving denial by the defendant and more so in this type of case, cannot hold back the Court from exercising its jurisdiction to decree the suit under Order XII Rule 6 of the Code of Civil Procedure. 27.3 Even assuming that the notice of termination was not served upon the appellant, though there is legal presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt s plea that the respondent cannot recover the possession because of the status quo order in Suit No.941/2002 between the respondent and other co-owners is misconceived. Vide order dated 18th March, 2003, this Court in Suit No.941/2002 has restrained the respondent from letting out of the suit property to a new tenant after the appellant vacates the same but there is no restraint on the respondent receiving back the possession. Even otherwise, the status quo order between the respondent and a third party cannot be interpreted to mean that the respondent cannot receive back the possession from her erstwhile tenant. 27.10 In order to discover the truth to do complete justice, this Court in exercise of its power under Section 165 of the Indian Evidence Act, examined the Managing Director of the appellant on oath under Section 165 of the Indian Evidence Act, 1872 on 12th October, 2011. The Managing Director on oath admitted that the appellant took the suit property on lease for a period of two years from the respondent and the lease was renewed for a period of two years in 2004 and again in 2006. The lease deed dated 7th November, 2006 is a registered document and the said lease e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Ramrameshwari Devi v. Nirmala Devi (supra) and Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra) and of this Court in Punjab National Bank v. Virender Prakash (supra) and Padmawati v. Harijan Sewak Sangh (supra). The appellant is a dishonest litigant, who has raised the frivolous pleas with the hope that the appellant can, with the Court delays, drag the case for years and the other side would succumb to buy peace. If the other side does not so settle in the end, they are hardly compensated and remains a loser. The appellant s lease expired by efflux of time on 6th November, 2008 and the appellant was under statutory obligation under Section 108 (q) of the Transfer of Property Act to restore the possession of the suit property to the respondent on 6th November, 2008. However, the appellant failed in its statutory obligation and continued the possession, whereupon the respondent sent a notice of termination to the appellant on 20th June, 2009. The appellant again failed in his obligation to restore the possession upon termination of the tenancy and compelled the respondent to file the suit for possession. The summons of the suit were served o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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