Decided on May 31,2007



J.M.MALIK, J. - (1.) After having lost the case before both the courts below, the appellant/tenant has preferred this second appeal before this Court. The facts of the present case are these. The respondent/plaintiff is the owner of flat bearing No. 406, IVth Floor, in the building known as Milap Niketan situated at 8 A, Bahadurshah Zafar Marg, New Delhi. The appellant/defendant was inducted as a tenant in the above-said property vide agreement to lease executed on 20th September, 1980. The relevant paragraphs of the lease deed are reproduced as under: "4. That the present lease is for a period of five years and it can be renewed by the Second Party for further periods of five years after increasing the rent by 15% (Fifteen per cent) on the last rent paid each time the lease is renewed for five years. 21. That the First Party hereby agrees to lease the said premises on the terms and conditions contained in this agreement to the nominees of the Second Party viz. Messrs Siemens India Limited as and when the Second Party decides to vacate the premises and terminates the lease. This will not constitute as subletting in terms of clause 20 above. 23. That in case the Second Party continues to pay the rent hereinafter reserved and observe and perform the conditions, the Second Party shall enjoy the premises for a duration of lease period or the renewed periods."
(2.) The lease started from 1st November, 1980, and expired on 30th October, 1985. The respondent refused to renew the lease for a further period of five years. The lease agreement dated 20th September, 1980 stood terminated by afflux of time. However, the appellant continued to be in possession of the premises as a tenant on a month to month basis. The month to month tenancy of the appellant was terminated by the respondent vide a notice dated 2nd August, 1989. The appellant responded vide reply dated 8th September, 1989. Under these circumstances, the plaintiff/respondent filed a suit for recovery of possession and recovery of damages for use and occupation of the suit premises.
(3.) The appellant defended the instant suit. The principal defence set up by the appellant was that the agreement dated 30th September, 1980, is an agreement to lease and not a lease agreement and as such, it does not require any registration. Again, in pursuance to the above-said agreement to lease the possession of the premises in question also stood transferred in favour of the appellant, who had performed his part of the contract. The respondent was debarred under Section 53-A of the Transfer of Property Act, 1982 from bringing the instant suit. It was explained that the said agreement envisaged the execution of the lease deed at a later stage which was never executed by the respondent at that time. In view of the abovesaid clauses of the agreement to lease detailed above, the intention of the party was apparent that the appellant was given lease of the suit premises on a permanent basis and right, if any, of termination was reserved only with the appellant/defendant. Again, the respondent has accepted the increased rent by 15% since the month of October, 1985, and therefore, he could not terminate the tenancy because the acceptance of the increased rent amounts to waiver of the said right.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.