Vijay Chopra vs Dharam Chand Jain
1985 Latest Caselaw 429 Del

JUDGMENT

Charanjit Talwar, J.

(1) By this second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') the tenant-appellant challenges the legality of the judgment passed on 24th January, 1985, by the Rent Control Tribunal (hereinafter called 'the Tribunal') setting aside the order of the Additional Rent Controller (herein called 'the Controller') passed under section 15(1) of the Act. The Controller bad directed that without prejudice to the respective contentions of the parties, the tenant would deposit the entire arrears of rent at the rate of Rs. 350.00 per month with effect from 1st March, 1983. The Tribunal, however, calculated the rent at the rate of Rs. 650.00 per month and directed its deposit at that rate.

(2) To appreciate the rival contentions of the parties a Few facts may be noticed. The landlord-respondent herein Shri D.C. Jain, filed a petition under section 14(1)(a) of the Act seeking a decree of eviction against the tenant-appellant herein, on the ground of non-payment of arrears of rent. In paragraph 13 of the petition the details of the monthly rent due and other charges, have been given as follows : "RS.350.00 per month as rent and Rs. 300..00 p.m. for furnitures and fittings exclusive of electricity, light, power and water charges". In paragraph 18(a) the ground on which the eviction is sought, it is alleged as follows: "Non-payment of rent. That the respondent-tenant has neither tendered nor paid the whole of the arrears of rent and charges for fixtures and fittings at the rate of Rs. 350.00 and Rs. 300.00 respectively per month with effect from 1.3.1983 up to date in spite of service of notice of demand dated 29.11.1983, thus the respondent is in arrears of rent and the charges aforesaid amounting to Rs. 8450.00 ".

In paragraph 18(b) of the petition it has been reiterated that a notice dated 29th November, 1983, was served upon the tenant. A copy of that notice was also annexed therewith. In paragraph I of that notice it is averred that the appellant herein was a tenant of the premises in question" on a monthly rent of Rs. 350.00 as rent and Rs. 300.00 per month for furniture and fixtures. The rent is exclusive of electricity and water charges". The arrears of rent were sought with effect from 1st March, 1983.

(3) The tenant in her written statement admitted the relationship of landlord and tenant between the parties. She further admitted service of the above-said legal notice. It was averred that the parties had entered into two separate agreements on 1st September, 1980-one was a lease agreement and the other was an agreement for "fixtures and fittings". The rent agreed to between the parties under the first agreement was Rs. 350.00 per month and hire charges for fixtures and fittings at the rate of Rs. 300.00 per month. A list of the fixtures and fittings was appended as Schedule A to the second agreement. The plea of the tenant was that eviction petition on the ground of non-payment of arrears of hire charges for fixtures and fittings was outside the scope of the Act and thus the petition qua that claim was incompetent.

(4) Thus, it is the admitted case of the parties on the pleadings and documents filed by them that the monthly rent of the premises in dispute is Rs. 350.00 per month and the hire charges for fittings and fixtures were Rs. 300.00 per month. From the order of the Controller passed under section 15(1) it seems that he was prima facie of the view that hire charges of fittings and fixtures at the rate of Rs. 300.00 per month could not be included in the rent of the premises. He accordingly directed the deposit of entire arrears of rent at the rate of Rs. 350.00 per month with effect from 1st March, 19.S3. As noticed above the direction was without prejudice to the respective contentions of the parties.

(5) In the appeal by the landlord, the Tribunal has concluded that the rent of the premises was at the rate of Rs. 650.00 per month. The pea of the landlord that the charges for fittings and fixtures were part of the rent has thus been accepted. On appreciation of facts the learned Tribunal found that the tenant herself had been depositing the rent at the rate of Rs. 650.00 per month and hence she could not be permitted to take a different plea in the written statement. Reliance was placed by the Tribunal for arriving at this finding on an application made by the tenant under section 27 of the Act. I have gone through the record. A photostat copy of that application is on the file of the Controller. Column Ii of that application reads:

"(2) The period for which For March and April, the rent is deposited and 83 @ Rs. 650.00 p.m. the rate per month : towards rent and fixture charges''.

The averment contained in that Column which have been noticed by the Tribunal in its judgment no doubt shows that the tenant was seeking to deposit Rs. 650.00 per month but it is prima facie clear that this consolidated amount including the hire charges for fixtures and fittings. This averment cannot be read out of context in view of the pleadings and documents of the parties, especially the two agreements placed on the record. The amount to be paid by the tenant was Rs. 650.00 ; Rs. 350.00 towards the rent and Rs. 300.00 towards the hire charges for fixtures and fittings. The averment in column 2 of the said application under Section 27 of the Act cannot thus be pressed into service in favor of the plea of the landlord that at this stage it ought to be held that prima facie the amount of Rs. 650.00 is the consolidated amount of rent per month of the premises in dispute. Thus, the finding of the learned Tribunal that "In other words as per the respondent herself the total amount is a consolidated amount of Rs. 650.00 p.m. and in that light it necessarily can be held while taking a prima facie view that the rent is admitted to be Rs. 650.00 p.m. Now altogether a different plea cannot be permitted in the written statement now being filed", cannot be upheld both in law and on facts. It is true that at the stage of section 15(1), in a case like the present, only a prima facie view can be taken. However, while coming to a prima facie view regarding the amount of rent the learned Tribunal has completely misdirected itself.

(6) Reliance by the Tribunal on Karnani Properties Ltd. v. Miss Augustine and others, , for coming to the prima facie view that the rent of the premises is Rs. 650.00 per month, is misplaced. In view of the fact that there are two different agreements in the present case, the conclusion of the Controller that the agreement relating to hire charges stood on its own footing, has to be upheld, atleast for the order under section 15(1) of the Act.

(7) The result is that the impugned Judgment of the Tribunal is set aside and that of the Controller is restored. The appeal is thus allowed but with no order as to costs.