TMI Blog2000 (8) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... s dated 12.4.1989, 10.5.1989 and 27.5.1989 were sent to vacate on expiry of the lease. A notice terminating the tenancy dated 10.6.1991 requiring to vacate the premises on the expiry of 30.6.1991 was also sent, though it is alleged that it was not necessary as the tenancy had already expired on expiry of fixed period of ten years. The defendant did not vacate and so the plaintiffs filed the suit for recovery of possession and mesne profits. 3. The defendant No. 1 has filed written statement contesting the suit. It is alleged that the premises was let out by plaintiffs and defendants No. 2 and 3 and the notice of termination of tenancy given and also the suit for ejectment filed on behalf of plaintiffs alone is not maintainable. Also that the notice of termination of tenancy dated 10.6.1991 is not valid as the earlier tenancy which was for a period of ten years commencing from 1.6.1979 expired on 1.6.1989 and the tenancy terminated with the expiry of 30th June 1989 is not valid. It is also alleged that it was agreed by the plaintiffs that defendant No. 1 shall continue as a monthly tenant after the expiry of 10 years period of tenancy; the defendant was treated as a monthly tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by law of pleading under Order 8 Rules 3 to 5 CPC. On the pleadings, triable questions of law and fact arise which could be decide after framing of issues under Order 14 Rule 1 CPC and recording evidence and so neither Order 12 Rule 6 nor Order 15 Rule 1 is attracted. It is also contended that after expiry of this period of 10 years, it was agreed that defendant No. 1 would continue as a tenant and defendant No. 1 had also been paying the rent every month by means of cheques. Those cheques have been accepted and retained by the plaintiffs; the monthly tenancy was created thereby also; that notice of termination dated 10.6.1991 was given also shows that monthly tenancy was created. That notice is not valid as the tenancy has not been terminated with the expiry of the tenancy month which would not expire on 30.6.1991 but on first day of following month. He has also relied on some case law. 7. I have considered the contentions, the pleadings of the parties and other material available on record. 8. Under Order 12 Rule 6 CPC, the Court on the application of plaintiff or on its own may make judgment upon the admission made by the opposite party. The object of this rule is to enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision for increase twice @ 10% from the commencement of 4th and 7th year. It is not disputed/denied that the rent was being so paid with agreed enhancement. The parties had agreed to these terms and had been acting thereon. They are bound by these terms. Even otherwise, the initial rent was more than ₹ 3,500/- and after amendment made in the Act in the year 1988, the premises where the monthly rent was more than s.3,500/- stood excluded from the purview of the Act. Admittedly, the agreed rent is more than ₹ 3,500/- per month. Though it is alleged that monthly standard rent is less than ₹ 3,500/-, however, it is not the case of the defendant that standard rent of the premises was fixed under the Rent Act. Unless standard rent is fixed, a tenant is bound to pay the rent as agreed. 12. The tenancy had commenced in the year 1979. By the amendment made in the Act in 1988, properties where rent was more than ₹ 3,500/- have been excluded from the purview of the Act. It was held in the case of D. C. Bhatia Vs. Union of India JT 1993 (7) SC 114 that this amended Act also applies to the tenancies created before this amendment came into force where the monthly ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10th May, 1989, we thought of bringing the facts on record. 17. Soon after receipt of it, plaintiff No. 1 by means of letter dated 27.5.1989 (Ex.P-7) refuted the allegations/stand taken by defendant No. 1 in their letter dated 22.5.1989 as false. To that, no rejoinder was sent by defendant No. 1. During continuance of lease period, question of creation or continuation of existing tenancy would not arise. Two letters dated 10.4.1989 and 10.5.1989 sent by the attorney of the lessors and third letter dated 27.5.1989 sent by plaintiff No. 1 indicate that the lessors had made it clear that the tenancy would not be continued after the term of the tenancy came to an end. The stand of the defendant obviously is false and mala fide. 18. Section 116 of the Transfer of Property Act Provides for creation of tenancy by holding over in two circumstances : (1) where the Lesser or his legal representative accepts rent from the lessee; or (2) otherwise assents to his continuing in possession. 19. After the expiry of the tenancy, it appears that some cheques were sent towards rent by defendant No. 1 to plaintiff No. 1. These cheques were not encased by the lessors. So, it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This notice thus also would not be available to defendant No. 1 to show that the lease by holding over came into existence after the expiry of the lease of ten years. In that view, it is not necessary to go into the question of legality or otherwise of this notice. 23. All the lessors are impleaded in the suit, some as plaintiffs and others as defendants No. 2 and 3 and thus as necessary parties are before the Court, an effective decree of possession can be passed against defendant No. 1. Moreover, defendant No. 2 has not filed any written statement and defendant No. 3 in her written statement has raised no objection in the plaintiffs filing the suit. Thus other co-owners have no objection in the plaintiffs filing the suit. This suit thus filed by plaintiffs who are co-owners is for the benefit of all the co-owners and thus is maintainable. 24. The defense set up by the defendant thus does not raise any triable and bona fide defense which needs investigation. In that view, the plaintiffs are entitled to a decree for possession against defendant No. 1. 25. On the day the case was fixed for arguments, defendant No. 1 filed an application under Order 6 Rule 17 CPC to incorpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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