CHANDER MOHAN ARORA Vs. SUNIL JAIN

JUDGEMENT

(1.) Aggrieved by the order dismissing the suit by the Additional District Judge, the appellant has filed the present appeal. Appellant/defendant had filed suit for possession and recovery of Rs.1,60,350/- against the respondent/defendant. It was pleaded in the plaint that the plaintiff was owner of property no. C-49-A including basement, Mahendru Enclave, G.T. Karnal Road, Delhi. The respondent was tenant of the plaintiff in respect of basement measuring 950 sq. ft. shown red in the site plan marked as Ex.PW 1/1. It was contended that there was unregistered lease deed dated 1.1.2002 for a period of 23 months commencing from 1.1.2002 to 30.11.2003 executed between the parties. It was also contended that tenancy was from month to month basis at the agreed terms and conditions of the lease-deed. It was the case of the appellant that through his counsel he served a legal notice dated 4.5.2003 calling upon the defendant to pay entire arrears of rent along with the electricity and water charges and the tenancy was terminated w.e.f. 31.1.2003. That notice was also placed on record as Ex.PW 1/16. The defendant was served but failed to appear in the trial court and he was proceeded ex parte. Even in this Court in spite of service he has not appeared. Substituted service has been effected on the respondent. No one is present for the respondent today also.

(2.) Trial court committed grave error while dismissing the suit for possession of the appellant on the ground that the lease deed Ex.PW 1/2 could not have been exhibited as the same was unregistered document. The law is well settled that any lease deed for a period of more than 11 months needs registration and if the same is not registered, it may not be taken in evidence, however, it can be looked for collateral purposes. Even if the lease deed was unregistered, still it could have been looked by the Court for collateral purposes i.e. for determining agreed rate of rent and other terms and conditions. If the lease deed was unregistered, the natural corollary under Section 116 of the Transfer of Property Act would be that the lease would be month to month basis. If lease was from month to month basis then a notice under Section 106 of the Transfer of Property Act was required to be given. We have perused the copy of the notice Ex.PW 1/6, which is a valid notice terminating the tenancy of the respondent in terms of mandate of law. However, we find from the impugned judgment that suit was dismissed on the ground that the tenancy has not been validly terminated and there was no evidence that tenancy was from month to month basis. On the other hand, when the lease deed could not have been taken into consideration being an unregistered document for a period of 23 month, the same could have been taken for collateral purposes into consideration and in any event of the matter if there was no lease deed then the tenancy was from month by month. There was nothing on record to suggest that the possession of the respondent was on any other basis. As the respondent has not bothered to appear in Court and did not put up any defence, the notice Ex.PW 1/16 fulfills the requirement of Section 106 of the Transfer of Property Act. The finding of the trial court that there was no legal evidence of service of the notice, is also contrary to the evidence on record. Ex.PW 1/20 is the acknowledgment due receipt, PW 1/17 was postal receipt, PW 1/19 was the UPC certificate. What else was required to be produced by the plaintiff to prove that the notice has been sent? There is a presumption under the General Clauses Act that when a registered letter is delivered at the correct address, even if the same has been returned, the service is complete on the addressee. Judging from any angle we find that the judgment is totally perverse and without taking into consideration the material placed before the Court.

(3.) We set aside the impugned judgment of the trial court and pass a decree of possession in favour of the appellant against the respondent. We further pass a decree of arrears of rent from 1.11.2001 to 31.1.2003 except for the month of May, 2002 at the rate mentioned in the lease deed. If the premises are not vacated by the respondent within two months, the appellant shall be entitled to receive damages and compensation at the rate of Rs.10,000/- per month till the possession is taken by the appellant. Appeal is allowed with costs.