HON'BLE SRI JUSTICE B. CHANDRA KUMAR 
Second Appeal No. 511 of 2008
23-03-2011
K.Sajjan Raj
Gopisetty Chandramouli
Counsel for Appellant : Sri B.V. Bakshi
Counsel for respondent :Sri R. Chandrashekar Reddy
:Judgment:
This appeal is directed against the judgment and decree dated 03.03.2008
passed in A.S. No.149 of 2006 by the I Additional Chief Judge, City Civil Court,
Secunderabad, confirming the judgment and decree dated 25.07.2006 passed in O.S.
No. 770 of 2004 on the file of the I Junior Civil Judge, City Civil Court,
Secunderabad.
The appellant herein is the defendant in the original suit. The parties
hereinafter will be referred to as they are arrayed before the trial Court for
the sake of convenience.
The plaintiff is the owner of the building in which the suit schedule
Mulgi is situated. The father of the defendant was inducted as tenant in the
suit schedule premises in the year 1952. After his demise, the defendant became
a tenant. Initially, the monthly rent was at Rs.500/-, but subsequently the
same was enhanced to Rs.1100/- per month, exclusive of electricity consumption
charges, from December 2001. The tenancy is month to month commencing from
first of the month to end of the month according to English Calendar. The
plaintiff issued a quit notice dated 28.05.2004 terminating the tenancy and
calling upon the defendant to vacate the premises and handover the vacant
possession of the suit premises within 15 days from the date of service of the
notice. The said notice was sent through speed post as well as under
certificate of posting. Though the registered envelop was returned with an
endorsement "as not claimed returned to Sender", but the plaintiff's case is
that the notice sent under certificate of posting was served on the defendant.
Since the defendant failed to vacate the premises, the plaintiff filed the suit
for eviction. The plaintiff also averred that the premises under the occupation
of the defendant would fetch a rent of Rs.5000/- and therefore the defendant is
liable to pay Rs.5,000/- per month towards mesne profits/damages for the use and
occupation of the property from the date of suit till the date of delivery of
vacant possession.
The defendant resisted the claim of the plaintiff and denied that he did
not claim the notice sent by the plaintiff. His specific case is that he left
for Rajastan on pilgrimage on 30.05.2004 and returned to Secunderabad only in
the night of 20th June 2004 and that he did not receive any notice prior to
30.05.2004 from the plaintiff and that he had learnt about the notice sent under
certificate of posting only on 21.06.2004. His main case is that after his
return from pilgrimage he tried to contact the plaintiff on 21.06.2004, but he
could not contact the plaintiff and at last on 24.06.2004 he met the plaintiff
and the plaintiff agreed to talk with him after about one week. Then the
defendant again met him on 02.07.2004 and they again met on 06.07.2004 and
finally agreed to renew the lease on the following terms.
(a) that the lease shall be for a period of twenty (20) years; commencing from
01.06.2004.
(b) That, the monthly rent shall be Rs.2,000/- (Rupees Two Thousands only)
exclusive of electricity consumption charges, to be enhanced by 20% for every
five years.
(c) That, the monthly rent shall be payable on or before 5th of every month.
(d) That, the premises should not be sub-let or the nature of business be
changed, nor any partnership be entered into to carry on the business without
prior written permission of the landlord.
(e) That, this lease deed should be got registered within 4 months from
06.07.2004; and the stamp and registration charges therefor be shared equally by
the Lessor and the Lessee. All the other conditions as are envisaged in the
Transfer of Property Act.
It is also the specific case of the defendant that the plaintiff did not inform
him about the filing of the suit when he met the plaintiff on the above
mentioned dates. The further case of the defendant is that in compliance of the
said arrangement, the plaintiff had been receiving the renewed rent of
Rs.2,000/- per month from 01.06.2004 and that on 10.07.2004 the plaintiff
received the monthly rent for the months of June and July 2004 and passed
receipts. Thus, the specific case of the defendant is that in view of the
subsequent agreement and renewal of lease, the suit became infructuous.
On behalf of the plaintiff, the plaintiff himself was examined as PW.1 and
Exs.A1 to A5 were marked. On behalf of the defendant, the defendant himself was
examined as DW.1 and one S. Prakash was examined as Dw.2 and Exs.B1 to B7 were
marked.
The learned Junior Civil Judge, having appreciated the evidence, came to
the conclusion that when the plaintiff had sent a notice dated 28.05.2004
through speed post to the defendant and when it is returned as not claimed and
when the notice is sent to the correct address, it is deemed that there is
service of notice. It is also observed that non-filing of rejoinder by the
plaintiff would not automatically prove the averments made by the defendant.
The learned Judge also held that the defendant did not produce even an iota of
evidence with regard to alleged renewal of lease and with regard to terms and
conditions of the fresh renewal agreement. Holding so, the suit was decreed.
Aggrieved by the same, the defendant carried the matter in appeal. The lower
appellate Court also disbelieved the version of the defendant with regard to
fresh lease agreement and further observed that subsequent payment of Rs.2,000/-
per month also not in conformity with the alleged fresh lease agreement and
accordingly dismissed the appeal. Challenging the said judgment, the defendant
filed the present second appeal.
Sri B.V. Bakshi, learned counsel for the defendant/appellant, submitted
that the defendant had been on pilgrimage during the relevant period and that he
did not receive the notice sent by the plaintiff and that after his return the
defendant had contacted the plaintiff and there was fresh agreement of lease
extending the lease by a period of 20 years and enhancing the rent to Rs.2000/-
per month and that this agreement was acted upon. His main submission is that
the plaintiff admitted that he has received the rents at Rs.2000/- per month and
this circumstance clearly supports the version of the defendant that there was
renewal of the earlier lease. It is also his contention that when the defendant
met the plaintiff he was not even informed that the plaintiff filed a suit for
eviction of the defendant and that after the defendant received summons in the
suit and when he filed a suit for specific performance, the plaintiff stopped
receiving the rents. His main submission is that when the defendant had taken a
specific plea about the fresh lease agreement and when the plaintiff has not
denied the same by filing a rejoinder it amounts to admission, and as per the
provisions of Section 58 of the Indian Evidence Act an admitted fact need not be
proved. It is also his submission that once a fresh lese agreement has been
entered into between the parties and acted upon, the earlier quit notice becomes
ineffective. It is also his submission that the courts below failed to
appreciate the evidence in proper perspective and simply held that the defendant
failed to prove the fresh lease agreement. It is also his submission that an
unregistered agreement of lease is admissible in evidence under Section 49 of
the Registration Act as evidence of part performance. In support of his
contention, he has relied on the judgment in case between Maneklal Mansukhbhai
v. Hormutsji Jamshedji Ginwalla and sons1. It is also his submission that
specific performance can be ordered even where the agreement to sell is oral and
where a property has been delivered in pursuance of the agreement of sale.
Learned counsel for the respondent/plaintiff submitted that the plaintiff
has issued quit notice to the correct address of the defendant and the same has
been admitted by the defendant and when a notice is sent to the correct address
it is deemed to have been served and therefore the finding of the Courts below
on this aspect is correct. It is also his submission that the plaintiff in his
notice had categorically mentioned that the defendant is liable to pay damages
at Rs.5000/- per month till the vacant possession of the premises was delivered
to him and any amount paid by the defendant after termination of tenancy would
be accepted under protest and without prejudice to his contentions. It is also
argued that as far as denying the averments made by a party are concerned the
defendant in a suit is required to deny all the material averments made by the
plaintiff under Order VIII Rule 3 CPC and if any averment is not specifically
denied the same amounts to an admission under Order VIII Rule 9 CPC. It is also
his contention that admittedly the defendant did not make any counter claim or
pleaded set off and only in case where the defendant had claimed counter claim
or pleaded set off then it becomes obligatory on the part of the plaintiff to
file a rejoinder to the said counter claim or set off under Order VIII Rule 6-A
CPC. It is his specific submission that merely because the plaintiff did not
file rejoinder that will not amount to an admission. It is also his submission
that after amendment of the Registration Act by Act 4 of 1999, agreement of
lease must be registered one and if not registered, such agreement of lease is
invalid. It is also submitted that the judgments relied on by the defendant are
not applicable to the facts of this case, since they are based on Section 53(a)
of the Transfer of Property Act., i.e., where possession has been delivered in
pursuance of the agreement of sale and that situation did not arise in this
case.
The substantial question of law that arises for consideration is that when
a pleading in the written statement is not denied by filing a rejoinder whether
such pleading in the written statement can be taken as admission.
It is not in dispute that the plaintiff is the owner of the premises and
that the defendant is a tenant of the said premises and monthly rent of the said
premises was at Rs.1100/- before the dispute arose between the parties. The
specific case of the plaintiff is that he got issued a quit notice dated
28.05.2004 calling upon the defendant to hand over the vacant possession of the
premises and that the defendant evaded to receive the notice. Admittedly, the
notice Ex.A1, dated 28.05.2004, was sent by speed post. Ex.A2 is the speed post
receipt, Ex.A3 is the returned registered envelop and Ex.A4 is the certified
copy of posting coupon. It is an admitted case that the notices were sent to
the correct address of the defendant. Therefore, the finding of the lower
Court, that when a notice has been sent to the correct address of a party and
when the same has been returned 'as not claimed', the same amounts to service of
notice, need not be disturbed.
Though the defendant claimed that he was not in the town and that he had
been on pilgrimage and that he left Secunderabad on 30.05.2004, but the
documents filed by him, particularly the railway ticket Ex.B6, go to show that
he left Secunderabad on 31.05.2004. A perusal of the postal endorsement reveals
that the postman went to the address of the defendant on 29.05.2004 and on
31.05.2004. Therefore, the contention of the defendant that he was not
available in Secunderabad when the said notice was tendered also appears to be
not correct. However, since no arguments have been advanced on this point,
there is no need to discuss this issue any further.
The only claim of the defendant is that subsequently there was an oral
agreement between the parties by which the lease was extended on certain terms
and conditions and in pursuance of that oral agreement he has paid monthly rent
of Rs.2000/- to the plaintiff and that the plaintiff has accepted the same. It
is a fact that the defendant has made a specific averment in his written
statement about the renewal of the lease and with regard to fresh agreement of
sale on 06.07.2004. It is also mentioned as per the agreed terms the lease
period is extended by another 20 years commencing from 01.06.2004 on a monthly
rent of Rs.2,000/- exclusive of electricity consumption charges and the said
rent has to be enhanced by 20% for every five years. Admittedly, the plaintiff
has not filed any rejoinder. Order VIII CPC deals with the filing of written
statement by a defendant. Rule 2 of Order VIII is as follows.
2. New facts must be specially pleaded.- The defendant must raise by his
pleading all matters which show the suit not to be maintainable, or that the
transaction is either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the plaint, as, for
instance, fraud, limitation, release, payment, performance, or facts showing
illegality.
Thus, Rule 2 of Order VIII envisages that new facts such as that the suit
is not maintainable or that the transaction is either void or voidable in law
and also all such grounds of defence such as fraud, limitation, release,
payment, performance, or facts showing illegality must be specifically raised.
Rule 3 of Order VIII specifies that the denial of plaint averments must be
specific i.e., each allegation made by the plaintiff must be specifically
denied.
Sub-rules (1) and (2) of Rule 5 of Order VIII are as follows.
5. Specific denial.-(1) Every allegation of fact in the plaint, if not
denied specifically or by necessary implication, or stated to be not admitted in
the pleading of the defendant, shall be taken to be admitted except as against a
person under disability:
Provided that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the
Court to pronounce judgment on the basis of the facts contained in the plaint
except as against a person under a disability, but the Court may, in its
discretion, require any such fact to be proved.
Thus, under Order
VIII Rule 5, the allegation of fact made in the plaint if not denied, is to be
taken as admitted.
Rule 6 of Order VIII deals with the set-off, which is as follows.
6. Particulars of set-off to be given in written statement.-(1) Where in a suit
for the recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable by him from
the -plaintiff, not exceeding the pecuniary limits of the jurisdiction of the
Court, and both parties fill the same character as they fill in the plaintiff's
suit, the defendant may, at the first hearing of the suit, but not afterwards
unless permitted by the Court, present a written statement containing the
particulars of the debt sought to be set-off.
(2) Effect of set-off.-The written statement shall have the same effect as a
plaint in a cross-suit so as to enable the Court to pronounce a final judgment
in respect both of the original claim and of the set-off: but this shall not
affect the lien, upon the amount decreed, of any pleader in respect of the costs
payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written
statement in answer to a claim of set-off.
Thus, the effect of plea of set-off shall have the same effect as a plaint in a
cross-suit and when the plaintiff files an answer to a claim of set-off the
rules relating to a written statement shall apply to such answer. Thus, the
plaintiff steps into the shoes of the defendant while filing an answer to the
claim of a set-off pleaded by the defendant. Rule 6A deals with a counter claim
by the defendant and the counter claim has to be treated as a plaint and
governed by the rules applicable to plaints under sub-rule (4) of Rule 6A and
the plaintiff shall be at liberty to file a written statement in answer to the
counter-claim of the defendant within such period as may be fixed by the Court
under sub-rule (3) of Rule 6A.
Rule 6B is as follows.
6B. Counter-claim to be stated.-Where any defendant seeks to rely upon any
ground as supporting a right of counter-claim, he shall, in his written
statement, state specifically that he does so by way of counter-claim.
It is not the case of the learned counsel for the defendant/appellant that the
defendant sought to rely upon any ground as supporting a right of counter-claim
nor that he has specifically mentioned that he does so by way of counter claim
in this case. Thus, it is clear that the appellant herein did not follow Rule
6-B as quoted above.
Rule 7 of Order VIII is as follows.
7. Defence or set-off founded upon separate grounds.-Where the defendant relies
upon several distinct grounds of defence or set-off or counter-claim founded
upon separate and distinct facts, they shall be stated, as far as may be,
separately and distinctly.
Rule 8 of Order VIII is as follows.
8. New ground of defence.-Any ground of defence which has arisen after the
institution of the suit or the presentation of a written statement claiming a
set-off or counter-claim may be raised by the defendant or plaintiff as the case
may be, in his written statement.
Rule 9 of Order VIII is as follows.
9. Subsequent pleadings.-No pleading subsequent to the written statement of a
defendant other than by way of defence to set-off or counter-claim shall be
presented except by the leave of the Court and upon such terms as the Court
thinks fit; but the Court may at any time require a written statement or
additional written statement from any of the parties and fix a time of not more
than thirty days for presenting the same.
Thus, Rule 9 of Order VIII specifies that no pleading subsequent to the written
statement of a defendant other than set-off or counter-claim shall be presented
without the leave of the Court. Learned counsel for the defendant/appellant
could not show any provision to show that if any allegation made in the written
statement is not denied specifically the same amounts to admission by the
plaintiff. No such provision appears to be available under the Code of Civil
Procedure. Therefore, what the law envisages is that as far as the defendant is
concerned, he has to deny the specific averments or allegations made by the
plaintiff and when the defendant makes a specific plea of set-off or counter
claim, then only the plaintiff is required to file an answer to the counter
claim or the set-off pleaded by the defendant. As far as the other averments
made by the defendant, which do not come within the definition of set-off or
counter claim, the plaintiff is not required to answer the same. Therefore,
non-filing of any answer by the plaintiff to the specific pleading of the
defendant that there was fresh lease or the renewal of lease on 06.07.2004
cannot be taken as an admission made by the plaintiff.
Learned counsel for the defendant/appellant submits that though the renewal of
lease or fresh lease is not registered, but when the circumstances point out
that the said agreement was acted upon, a formal lease is not necessary to
attract the application of Section 53A of the Specific Relief Act.
He has relied on a decision reported in Maneklal Mansukhbhai v. Hormutsji
Jamshedji Ginwalla and sons (1 supra). In that case, the appellant desired to
erect a ginning factory and with that object approached the Talukdari Settlement
Officer for permanent lease of certain lands. The said Officer agreed to grant
a lease subject to sanction of the Government. The Government of Mumbai granted
requisite sanction and to that effect a letter was sent to the Commissioner and
to the Talukdari Settlement Officer by the Chief Secretary to Government. Then
the factory was set up and the Talukdari Settlement Officer continued to receive
the rents. However, the agreement of lease was not registered. Section 53 of
the Transfer of Property Act came to be considered in that case. The issue was
whether the transfer could be ascertained with reasonable certainty. Ex.181 is
the resolution, by which the Government of Mumbai granted requisite sanction.
The apex Court observed as follows.
".................Once it is held that Ex.181 is good secondary evidence of the
agreement of lease, there can then be no hesitation in holding that by an offer
and an acceptance made in writing and signed by the respective parties an
agreement was completed between the Talukdari Settlement Officer and the
predecessor-in-interest of the defendant and that necessary sanction of the
Government was also in writing signed by the officer concerned. It has further
to be held that the terms of the contract can be fairly deduced from the
recitals of this document."
In that case, the lessee had taken possession in part performance of the
agreement, but also paid rents continuously for some period. In the above
circumstances, it was held that an agreement of lease creating a present demise
but not registered is admissible under Section 49 of the Registration Act as
evidence of part performance and Ex.181 is secondary evidence of that agreement.
It was further observed that a formal lease is not necessary to attract the
application of Section 53-A of the T.P. Act. All that is required is that an
agreement in writing signed by the transferor can be gathered from the evidence.
The correspondence mentioned in Ex.181 fully establishes that fact. The facts
of that case are entirely different to the facts of the present case. In that
case, in pursuance of the agreement of lease possession was delivered to the
lessee and the plaintiff who disputed the agreement of lease admittedly did not
produce necessary documents which were in its possession and an adverse
inference was drawn against the plaintiff in that case. More over, the facts
and circumstances of that case reveal that the agreement was acted upon and
secondary evidence as in Ex.181 was available in that case.
Admittedly, in this case, the lease agreement is not registered. More so, there
is no written agreement at all. The defendant pleads only an oral agreement of
lease. That too, the lease period is said to be extended by 20 years. Except
the self-serving statement of the defendant, there is no iota of evidence to
show that there was an oral agreement between the plaintiff and defendant
extending the lease for another period of 20 years. It has to be seen that the
defendant had already come to know about the quit notice issued by the
plaintiff. He was informed that a notice has been received under certificate of
posting and then he says that he approached the plaintiff on 21.06.2004 and on
24.06.2004 and again on 04.07.2004 and on 06.07.2004. It is not the case of the
defendant that he had taken any mediators along with him. When the plaintiff
had issued a quit notice, the appellant/defendant would have, in all
probabilities, insisted for a written and registered agreement of lease, that
too when the period of lease is said to be extended by another 20 years.
Therefore, as observed by the Courts below, there is no iota of evidence to
prove the oral lease. More over a lease of such nature, admittedly, requires
registration.
Learned counsel for the defendant/appellant has also relied on a decision
reported in Smt. Anjali Das v. Bidyut Sarkar2. In that case, the respondent
therein was the owner of the flat and he agreed to sell the same to the
appellant therein. However, permission of co-operative society was required and
both of them applied to the society seeking permission and the appellant was put
in possession of the property and in the above circumstances, protection
available under Section 53A of the T.P. Act came to be discussed. Admittedly,
the plaintiff was given possession of the flat, then she had also applied to the
society for membership. She was granted membership. Of course, the agreement
of sale was not registered one. It was held that when the vendor delivered
possession on receiving part of sale consideration the same must be held to be
in pursuance of part performance of contract. The facts of that case are
entirely different and admittedly in that case both the parties applied to the
society for permission and on the facts it was held that the appellant was
entitled to protection under Section 53A of the T.P. Act.
Here, in this case, the defendant was in possession of the property as a lessee
and it is not in dispute that the plaintiff had issued quit notice and in spite
of receiving the said notice, the defendant did not vacate the premises. His
plea is that there was a fresh lease. Admittedly, no evidence has been adduced
in support of the fresh lease. Therefore, it cannot be said that he entered
into the possession by virtue of fresh lease agreement. Where in a given case,
in pursuance of an oral agreement, if a vendee or a lessee is put in possession
of the property and there is satisfactory evidence to show their possession and
where there is cogent evidence corroborated by all surrounding circumstances to
presume the lease or an agreement of sale, then in those circumstances, even if
a registered document such as a registered lease or registered agreement of sale
is not available, the agreement of sale or an agreement of lease even if not
registered can be looked into for collateral purpose to the possession of Vendee
or Lessee, as the case may be. But, there are no such facts in this case to
presume a fresh lease between the parties. The only circumstance relied upon by
the learned counsel for the defendant/appellant is that the respondent/plaintiff
has accepted the rent at Rs.2000/- per month and that could be only in pursuance
of the fresh lease. No doubt, the plaintiff has accepted the rent at Rs.2,000/-
per month from May 2004 to October 2004 and passed receipts. But, it has to be
seen that the plaintiff in his legal notice has categorically stated that
without prejudice to his contentions he will be receiving any amount paid to
him. He had also claimed Rs.5,000/- per month towards damages and categorically
mentioned in his notice that any amount paid by the defendant after termination
of the tenancy will be accepted under protest and without prejudice to his
contentions to seek the eviction of the defendant. Therefore, the plaintiff
with abundant caution had specifically mentioned that he will be receiving
whatever amounts paid towards the lease without prejudice to his contentions.
Merely because the plaintiff had accepted the rent of Rs.2000/- per month, it
cannot be presumed that there was an oral fresh lease agreement between the
parties. It has to be seen that the plaintiff stopped receiving the said amount
soon after filing of the written statement by the defendant. It gives an
impression that as soon as the plaintiff came to know that the defendant had
taken a plea in his written statement and pleaded fresh lease or renewal of
lease the plaintiff stopped receiving the amounts from the defendant. This
circumstance also supports the case of the plaintiff. Anyhow, the settled legal
position is that receiving of rents after issuing quit notice cannot be said to
be a conduct of signifying "assent" to the continuance of the lease even after
expiry of lease period (Refer Shanti Prasad Devi and another v. Shankar Mahta
and others reported in 2005 (4) ALD 116 (SC) = AIR 2005 SC 2905). Relying on
the said decision, this Court in K. Srinivasa Rao v. N. Ramachandramurthy3, held
that mere acceptance of rent for period subsequent to expiry of lease period
during which lessee continued to occupy lease premises cannot be said to be a
conduct signifying "assent" to continuance of lease even after expiry of lease
period.
In view of the above discussion, it has to be held that though the defendant had
taken a specific plea in his written statement and even if the same is not
denied by way of filing a rejoinder or additional written statement by the
plaintiff, the same does not amount to an admission. There are no merits in the
second appeal and the same is liable to be dismissed.
Accordingly, the second appeal is dismissed. However, in the circumstances, the
defendant/appellant is granted time till 30th June 2011 to vacate the suit
schedule premises and to hand over vacant possession of the same to the
plaintiff subject to payment of rents. No costs.
?1 AIR 1950 Supreme Court 1
2 AIR 1992 Calcutta 47
3 2010 (6) ALD 765
