Surjit Singh vs H.N. Pahilaj
1996 Latest Caselaw 894 Del

JUDGMENT

J.B. Goel, J.

(1) This appeal under Order 43 Rule 1(r) of the Civil Procedure Code has been filed by the appellant, who is the plaintiff in the suit before the Trial Court, against order dated 20.3.1992 passed by an Additional District Judge, Delhi whereby his application under Order 12 Rule 6, Order 39 Rule 10 (wrongly mentioned in the order as under Order 39 rules 1 & 2) and section 151 of the Civil Procedure Code . for interim relief, i.e., for order for payment of arrears of damages w.e.f. September, 1989 at the admitted rate of rent of Rs.4,000.00 per month has been disallowed.

(2) The respondent has died during the pendency of this appeal and his legal representatives have been substituted.

(3) Briefly, the facts are that the appellant claiming to be Landlord of the premises No.A-46, Kailash Colony, New Delhi has filed a suit against the deceased respondent (defendant in the Trial Court) for possession of demised premises and for recovery of arrears of damage/mesne profits. It was alleged that defendant was tenant since 1.11.1977 at a monthly rent of Rs.4,000.00 exclusive of water and electricity charges, his tenancy was terminated first by means of a notice dated 12.5.1989 and again by means of notice dated 3.11.1989 on 30.11.1989. Plaintiff appellant claimed damages /mesne profits from June, 1989 or in the alternative from December, 1989 at the current market rate of Rs.30,000.00 per month. Defendant/respondent filed a written statement and inter alia it was alleged that the plaintiff was only a Rent Collector of the premises, and was not the Landlord; that all the owners of the premises were necessary parties nor the tenancy has been terminated by all the owners. It was also alleged that the premises had been let out at a monthly rent of Rs.3,000.00 and Rs.1,000.00 was to be paid on account of charges for the then existing fittings and fixtures. Jurisdiction of the Civil Court to pass the decree for possession is also disputed as according to the defendant the rent was less than Rs.3,500.00 per month and only the Rent Controller was competent to entertain petition for and pass the order of eviction. The plaintiff has denied these facts who alleged that he had let out the premises and rent was Rs.4,000.00 p.m.

(4) During the pendency of the suit the appellant/plaintiff filed an application under Order 12 Rule 6, Order 39 Rule 10 and section 151 Civil Procedure Code . for interim relief to the effect to direct the defendant to pay to the plaintiff or deposit in the Court the arrears of damages w.e.f. September, 1989 up to date at the admitted rate of Rs.4,000.00 per month and also to continue to so pay or deposit the same in the Court at the said agreed rate in future every month. This application was also contested and the learned trial court vide impugned order dated 20.3.1992 observed that the defendant had disputed the rate of rent and as such there is no unambiguous and unequivocal admission in the pleadings on the part of the defendant and so the provisions of Order 12 Rule 6 Civil Procedure Code . were not attracted and dismissed the application.

(5) Being aggrieved the appellant has come in appeal.

(6) The first contention of the learned counsel for the appellant is that the rate of rent was Rs.4,000.00 per month and the tenant had also admitted that the rent was Rs.3,000.00 per month and another sum of Rs.1,000.00 was payable on account of fittings and fixtures. According to him premises are let out with fittings and fixtures which form part of the premises and as such any charge towards rent and towards fittings and fixtures is nothing but rent of the premises as part of the same tenancy and the rent is Rs.4,000.00 p.m. and not as claimed by the defendant. He has also contended that the fact that rent was Rs.4,000.00 was also admitted by the respondent/tenant in writ petition Cwp No.946/1990 titled H.N. Pahilaj Vs. Union of India & Ors filed by him in the Supreme Court of India. A copy of this writ petition has been placed on record wherein in Para 3(b) it has been pleaded as under:- "THAT the above referred premises was let out to the petitioner by way of oral monthly tenancy w.e.f. 1.11.1977. The rent payable in respect of the premises was fixed at Rs.4,000.00 per month. The petitioner has been in occupation of the premises ever since."

(7) Filing of this writ petition and the aforesaid statement made therein has not been disputed on behalf of the respondents; that this admission made by the defendant is binding on him and would be available for the purpose of Order 12 Rule 6 Civil Procedure Code . as admission could be made either in pleadings or otherwise. This admission, however, was made later on and was not available before the trial court at the time impugned order was passed.

(8) The learned counsel for the defendant on the other hand has contended that this is a disputed question of fact as to whether the agreed rent is Rs.3,000.00 or Rs.4,000.00 and as such as rightly held by the Trial Court there was no admission on the part of the defendant. It was also contended that the premises were governed by the Delhi Rent Control Act and the defendant has been depositing rent at the rate of Rs.3,000.00 per month in the Court of the Rent Controller and as such he was not liable to pay again for the same period. According to him suit for possession is not maintainable in Civil Court as rent is less than Rs.3,500.00 p.m.

(9) The question is what is the agreed rate of rent and whether the premises are governed by Delhi Rent Control Act or not?

(10) Delhi Rent control Act does not define the term 'rent'. However, it defines the word /term "premises" under section 2(i) as under:

"(I)"PREMISES"means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes,-

(I)THEgarden, grounds and outhouses, if any, appertaining to such building or part of the building;

(II)ANYfurniture supplied by the landlord for use in such building or part of the building;but does not include a room in a hotel or lodging house;Learned counsel for the appellant relied on Karnani Properties Ltd. Vs. Miss. Augustine and ors. and P.L.Kureel Talib Mankab Vidhan Parishad Vs. Beni Pershad & Anr. .

(11) The defendant in the written statement has taken the plea that he was paying Rs.3,000.00 as rent and Rs.1,000.00 as charges for fittings and fixtures. In the case of Karnani Properties Ltd. (supra) the question was whether the rent fixed which was consolidated sum for the rent and for supply of electric installations and charges for supply and electric installations and for electric energy and other services formed part of the rent or not under section 2(8) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. There also the term "rent" was not defined but the term "premises" was defined as under:-

"PREMISES"means any building or part of the building or any hut, part of a hut let separately and includes-

(A)THEgardens, grounds, and outhouses (if any) appertaining to such building or part of the building, or hut or part of hut,

(B)ANYfurniture supplied or any fittings affixed by the landlord for use of the tenant in such building or part of a building or hut or part of a hut, but does not include a room or a part of a room or other accommodation in a hotel or lodging house or a stall in a municipal market as defined in clause 44 of S.3 of the Calcutta Municipal Act, 1923............."

(12) In that case, the tenancy consisted of single room, bath room and covered verandah. The tenant was also provided use of number of fans, plug points, towel, racks, a basin, commode, and a glass shelf, supply of electricity for consumption by the tenant for the use of lamps, fans, radio, ovens for cooking, for ironing, laundering and refrigerators and the landlord was also responsible for repairs of the electric installations and sanitary fittings and also for supplying service of night guards, sweepers, liftmen etc. The landlord claimed that the rent included charges for amenities and charges for such amenities would vary due to increase in rates and taxes by the authorities so the premises did not fall within the purview of the term 'premises' under the Act inter alia in as much as the Act does not make specific provision for increasing the rent with reference to the charges for these amenities.

(13) After referring to two English Judgments it was held as under:

"(1)..... one of the Court of Appeal in the case of Property Holding Co. Ltd. Vs. Clark, 1948-1 Kb 630(B) and the case of Alliance Property Co. Ltd. Vs. Shaffer, 1948-2 Kb 464(C) the Hon'ble Court has held as under: "THE English decisions are authorities for the proposition that "rent" included not only what is ordinarily described as rent in an agreement between the landlord and a tenant but also payment in respect of special amenities provided by the landlord under the agreement between him and his tenant. The term "rent" has not been defined in the Act. Hence, it must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, the term "rent" is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord, the conclusion is irresistible that all that is included in the term "rent" is within the purview of the Act and the Rent Controller and other authorities had the power to control the same."

(14) Following this in it was held that, "rent" includes all payments agreed by the defendant to be paid to his landlord for the use and occupation not only of the building but also of the furnishing, electric installations, and other amenities.

(15) In the present case the premises let out includes fittings and fixtures therein. Fittings and fixtures form part of the premises let out and are not meant to be used separately and the rent of the premises and that for the fittings and fixtures will be the rent for use and occupation of the premises as part of the letting. The amount of Rs.1,000.00 will also form part of the "rent". In that view the rent of the premises is Rs.4,000.00 per month and not Rs.3,000.00 per month. The learned Trial Court has not appreciated this aspect and was not right in coming to the conclusion that there was dispute between the parties as regards the agreed rate of rent. The learned Trial Court should have bestowed its attention to the question as to whether such a plea had any basis and maintainable in law or was a wholly untenable plea. Only such pleas which raise disputed questions of law and facts and need investigation could be said to be disputed ones and not otherwise. Thus this plea of the defendant should not detract the Court from passing of the interim order claimed by the plaintiff. This finding is not valid and proper and is liable to be set aside.

(16) And as held by the Supreme Court in the case of D.C. Bhatia & Ors. Vs. Union of India and Anr. , as the monthly rent of the premises was more than Rs.3,500.00 in view of section 3(C) of the Delhi Rent Control Act as amended by the Delhi Rent Control (Amendment) Act, 1988 the premises even if let out prior to 1.12.1988 stands excluded from the purview of the Rent Act.

(17) The tenant has taken the plea that he has been depositing the rent under section 27 of the Delhi Rent Control Act in the Court of Additional Rent Controller for the period claimed by the plaintiff. When the Delhi Rent Control Act is not applicable no rent could be deposited before the Controller under the Delhi Rent Control Act and the deposit, if any made, is illegal, without jurisdiction and will not be a valid payment of rent by deposit to a landlord.

(18) Learned Counsel for the respondents has also contended that there is no relationship of landlord and tenant between the plaintiff and the defendant as the plaintiff is a mere Rent Collector and he cannot sue for possession from the defendant. This plea, according to him raises a dispute about the competency to file the suit and unless this dispute is determined on trial in favour of the plaintiff, no order for deposit of rent could be made. The Learned counsel for the appellant on the other hand has contended that it is not disputed that rent is being paid to the plaintiff and it is not disclosed as to for who the plaintiff is collecting rent as Rent Collector nor it is disclosed as to how the rent is being paid to the plaintiff if the premises were let out by some one else. His further contention is that it is now admitted that plaintiff is one of the Co-owner and obviously either the premises were let out by the plaintiff or the defendant has attorney to him. In that case the defendant is estopped in law from disputing the title of the plaintiff and his right to sue for possession. According to him even one of the co-owners can sue for possession for which reliance has been placed on S.K.Puri Vs. Smt. Sarla Chawla 1995(1)AD (Delhi) 485.

(19) It was not specifically pleaded in the written statement as to on whose behalf the rent was being paid to the plaintiff, however, an affidavit dated 24.3.1993 of one Shri K.D. Sharma, as attorney of defendant has been filed in this appeal where it is stated that there are six co-owners of the property, namely,(1) S. Dhanwant Singh, (2) S. Rani Adar Singh, (3) S. Surjit Singh, (4) S. Amarjit Singh, (5) S. Rajwant Singh and (6) S. Harinder Singh.

(20) The plaintiff thus admittedly is one of the co-owners of the premises. Appellant has also placed on record copies of two rent receipts dated 9.9.1988 and 6.1.1989 issued by plaintiff Surjit Singh for the rent paid by two cheques of Rs.4,000.00 by H.N. Pahilaj for the months of August, and December, 1988 in respect of these very premises. Defendant has also admitted that the plaintiff is the Rent Collector, meaning thereby that rent is being paid to him alone. This shows that either plaintiff had inducted the defendant as tenant or the defendant has attorney to him. Plaintiff is thus realising rent as a co-owner and is not a mere rent collector. Defendant thus cannot deny the title of the plaintiff as landlord of the premises. In S.K. Puri Vs. Smt. Sarla Chawla (supra) also it was held that a co-owner is as much an owner of the property as any sole owner and as such the co-owner is entitled to seek eviction without impleading other co-owners. This objection also thus cannot be said to be bonafide which needed any investigation or trial.

(21) It is not the case of the defendant that the rent of the premises has been paid to the plaintiff or any of the co-owners since September, 1989, though it is pleaded that rent was deposited in the Court of the Rent Controller. As already observed payment of rent under the Delhi Rent Control Act before the Rent Controller is not legal and valid and that would not amount payment or tender of the rent to the Landlord. As such the defendant is in arrears of rent or damages for use and occupation since September, 1989. Though the landlord has claimed damages after termination of tenancy at the rate of Rs.30,000.00 per month but it is not disputed by the defendant that he is liable to pay rent at the rate of Rs.4,000.00 per month. The defendant was liable to pay rent or damages at the rate of Rs.4,000.00 per month for the period he has not paid to the plaintiff/appellant or to any other co-owners even if the defendant has raised a dispute that he is liable to pay rent and not damages.

(22) This Court in Reeaa Hotel and Restaurants (P) Ltd. Vs. Anusri Enterprises has ordered payment of arrears of rent at the agreed rate during the pendency of the suit under Order 39 Rule 10 Civil Procedure Code . and again in Brig. S.S. Puri (AVSM) (Retd.) Vs. R. Chander Shekar where as against agreed rent of Rs.3800.00 damages for use and occupation was claimed at the rate of Rs.5,000.00 p.m. An application under section 151 Civil Procedure Code . was filed by the plaintiff for an order to deposit arrears of rent for the unpaid period at the agreed rate of Rs.3800.00 p.m.. That application was disallowed by the Trial Court. In revision, his Lordship Jaspal Singh, J. has held as under:

"......And, as far as the present case goes, there is not only an admission with regard to the agreed rate of rent but even with regard to the period for which it is due. Thus as far as the claim with regard to money is concerned, Rule 10 of Order 39 can be invoked. The power to pass an order thus clearly exists. Once it is held that a Court has the jurisdiction to pass an order, it matters not whether the application invokes only Section 151 of the Code of Civil Procedure failing perhaps inadvertently, to invoke Rule 10 of Order 39 also.

"12.And while I am on the question of jurisdiction, why ignore the principles underlying Order 12 Rule 1 of the Code of Civil Procedure? Does it not empower a Court to pass orders and decrees on admission? Is it not a mere extension of the principle underlined by me above? Why should this statutory principle be not applied in a case like the present one?

"13.The combined effect of Order 12 Rule 1 and Order 39 Rule 10 of the Code of Civil Procedure is that a Court can, in a case of this kind, in fair exercise of its judicial discretion order for deposit of money pending decision of a suit. Surely, the provisions of Section 151 of the Code of Civil Procedure can be invited in aid to cover all such cases as are analogous to these principles. This being the position, invocation of Section 151 in the present case would neither be in conflict with what has been expressly provided in the Code nor against the intention of the legislature."

(23) And the arrears of amount due at the agreed rate of rent were ordered to be deposited.

(24) This latter case has been followed in Smt. Jaya Para Lata Vs. Mrs. Adarsh Chug 1996 Ii Ad Delhi 560 where again it has been laid down that in a suit for eviction and recovery of rent, the order for deposit of rent as admitted may be ordered under Order 39 Rule 10 Civil Procedure Code .

(25) The suit out of which the present appeal has arisen was filed in the beginning of December, 1989 and obviously that case has not been decided by the Trial Court even though 7 years have elapsed. It will be extremely unjust and inequitable if the landlord should be deprived of his just claim for damages/rent for use and occupation at the agreed rate of Rs.4,000.00 simply because the defendant/tenant has raised all sorts of objections, which as noticed earlier have no substance and need no trial or investigation.

(26) The object of Order 12 Rule 6 Civil Procedure Code . is to enable a party to obtain speedy judgment at least to the extent of the relief, which according to the admission of the opposite party, he is entitled to. In my view this provision should also be available where liability to pay is not denied but is being avoided on the pleas which are not valid and tenable in law and as such need no trial. In such cases power could also be exercised under Order 39 Rule 10 Civil Procedure Code .

(27) Also Under Section 151 Civil Procedure Code . every court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and as inherent in its very constitution all such powers as may be necessary to do the right and to undo a wrong in the cause of the administration of justice.

(28) In appropriate cases the Court can exercise powers under Section 151 Civil Procedure Code . where Order 12 Rule 6 or Order 39 Rule 10 Civil Procedure Code . may not be applicable for the purpose of doing justice or to prevent abuse of the process of the court.

(29) In my view it will not be fair exercise of jurisdiction by the Court to be swayed simply by the pleas taken by a party when such pleas have no legal basis to stand and are not tenable. This is what has happened in the present case.

(30) For the foregoing reasons in my view the learned Trial Court ought to have exercised its jurisdiction if not under Order 12 Rule 6 under Order 39 Rule 10 or under Section 151 of the Civil Procedure Code . In the facts and circumstances of the case the impugned order cannot be said to be reasonable, valid and justified.

(31) I accordingly allow this appeal, set aside the impugned order and direct that the respondents/defendants shall pay to the applicant/plaintiff or deposit in the Trial Court arrears for use and occupation at the rate of Rs.4,000.00 per month from September, 1989 uptodate and shall continue to pay to the plaintiff or deposit in the Trial Court the same every month by the 7th day of each subsequent English Calendar month till the disposal of the suit. The uptodate arrears shall be paid within two weeks from today. The defendant, however, shall be entitled to claim adjustment of the amount if any, paid for use and occupation charges, to the plaintiff for the aforesaid period but not the amount which might have been deposited in the Court of Rent Controller/Additional Rent Controller.

(32) Costs of this appeal and in the Trial Court in respect of the proceedings out of which this appeal has arisen will be costs in the suit.