Ms.Rohini Varshnei vs R.B.Singh
2008 Latest Caselaw 2151 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           RFA 829 of 2005


%                                       Reserved on : 14.11.2008
                                     Date of Decision: 04.12.2008


Ms.Rohini Varshnei                               ...APPELLANT

                     Through:        Mr.Dinesh     Aganani      and
                                     Mr.Narendra Kalia, Advocates

                                 Versus

R.B.Singh                                        ...RESPONDENT

                     Through:        Mr.Vikram     Nandrajog        and
                                     Mr.L.K.Singh, Advocates.

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG

1.       Whether the Reporters of local papers
         may be allowed to see the judgment?          Yes

2.       To be referred to Reporter or not?           Yes

3.       Whether the judgment should be               Yes
         reported in the Digest?

SANJAY KISHAN KAUL, J.

1. A lease deed was executed on 24.10.1996 by Smt.Shakun

Vohra, the owner in favour of Ms.Rohini Varshnei as tenant

(appellant herein) in respect of second floor of House No.G-

72, 2nd Floor, Masjid Moth, Residential Scheme, New Delhi

consisting of two rooms with one attached bathroom,

kitchen, covered verandah, open terrace and servant‟s

bathroom. The lease provided for a rent of Rs.3,500/-per

month for the premises and the fittings & fixtures. The

tenant was also liable to pay Rs.50/- as water charges and

electricity charges had to be paid according to the bills

received from the authorities.

2. Smt. Shakun Vohra executed a registered sale deed dated

21.11.2001 in favour of Sh.R.B.Singh (respondent herein) in

respect of the said second floor with terrace rights along

with undivided, impartible and individual share in the plot

measuring 180 square metres.

3. The respondent served a notice through counsel on the

appellant dated 09.05.2002 informing her about the sale.

The notice also stated that the rent being paid was low as

per the prevalent rent and notified the appellant to increase

the rent by 10 per cent with effect from 21.06.2002, which

would amount to Rs.3905/- per month. This notice was

replied to by the appellant on 23.05.2002 wherein the

factum of the respondent being the landlord was denied in

view of the absence of any notice. The right to claim

increase in rent was also denied. A copy of the sale deed

by which the respondent purchased the property was

sought for. The counsel for the respondent thereafter vide

letter dated 28.06.2002 forwarded a copy of the sale deed.

4. The respondent served legal notice through counsel dated

22.07.2002 terminating the tenancy and seeking possession

of the property by 20.08.2002. The notice also provided

that in order to avoid any ambiguity, if the appellant

considered the tenancy month as per the English calendar,

the date of expiry may be taken as 31.08.2002. This notice

was replied to by the appellant through counsel on

02.08.2002.

5. The respondent thereafter filed a suit for recovery of

possession and for recovery of arrears of rent,

damages/mesne profits. This suit was contested by the

appellant. The respondent also moved an application under

Order 12 Rule 6 of the Code of Civil Procedure, 1908 („the

said Code‟ for short). This application has been allowed by

the impugned order dated 14.10.2005 by the learned

Addl.District Judge.

6. Learned counsel for the parties were heard and they have

also filed their written synopsis. The Trial Court Record was

called and has been perused.

7. In the suit, the respondent made a categorical assertion

about the sale of the property to him in para 2 of the plaint

which has not been denied. In para 3 of the plaint, the

respondent claimed that the monthly rent was Rs.3550/-,

but the appellant has claimed the rent as Rs.3,500/- per

month. The receipt of notice as referred to aforesaid is not

denied and in fact has been replied to by the respondent.

The only real defence raised in the written statement is the

protection under Delhi Rent Control Act, 1958 („the said Act‟

for short) on account of the fact that the rent was Rs.3,500/-

per month and thus the jurisdiction of the Civil Court is

barred as per the provisions of Section 50 of the said Act.

In respect of the aforesaid plea, it may be noticed that

originally the said Act did not envisage a distinction

between the premises deriving different rates of rent per

month, but in pursuance of the amendment to the said Act

carried out with effect from 01.12.1988 the provisions of

Section 3 of said Act were amended by incorporating clause

(c). In terms of the said incorporation, the said Act is not to

apply to any premises whether residential or not whose

monthly rent exceeds Rs.3,500/-. Thus if the rent is only

Rs.3,500/- and not in excess thereof than the jurisdiction of

the Civil Court would be barred while on the other hand if

the rent is in excess thereof, such protection would not be

available. The amendment carried out by Act 57 of 1988

referred to aforesaid also incorporated Section 6A which

reads as under:

"6A. Revision of rent--Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent every three years."

8. The effect of the aforesaid provision is that starting from

01.12.1988, the landlord of a premises as provided by the

said Act is entitled to claim enhancement of rent by 10 per

cent every three years.

9. The application of the respondent has to be examined

keeping in mind the aforesaid provisions of the said Act.

The application is filed under Order 12 Rule 6 of the said

Code, which reads as under:

"ORDER XII - ADMISSION (THE FIRST SCHEDULE)

6. Judgment on admissions

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

10. It is trite to say that in order to obtain a judgment on

admissions, the admissions must be clear and unequivocal.

In the matter of landlord and tenant, there are only three

aspects which are required to be examined:

i) A relationship of landlord and tenant;

ii) Expiry of the tenancy by afflux of time or

determination by valid notice to quit; and

iii) The rent of the premises being more than Rs.3,500/-

per month in view of the provisions of the said Act.

11. In the present case, there is no dispute about the

landlord and tenant relationship in view of the respondent

having acquired the property through a registered sale deed

and there being an unequivocal admission in that behalf in

the written statement.

12. The tenancy was for a period of two years

commencing from 01.11.1996 and expiring on 31.10.1998.

There is no subsequently registered lease deed and thus

the appellant was a month to month tenant. A legal notice

of determination of tenancy has also been issued on

22.07.2002, the receipt of which is not in dispute. The

notice is clear and unambiguous. In view of the aforesaid,

the only aspect which thus arises for consideration is about

the rate of rent since it is the case of the respondent that

the rate of rent is Rs.3,550/- per month inclusive of water

charges while it is the case of the appellant that the rate of

rent is Rs.3,500 per month and Rs.50 per month as water

charges was never paid separately as the water was never

supplied.

13. A reading of the impugned judgment shows that the

Trial Court has taken note of the observations made by the

Apex Court in Pushpa Sen Gupta v. Sushma Ghosh; (1990) 2

SCC 651 which defined the expression „rent‟ as to include

not only what is strictly understood as rent but also

payment in respect of the amenities or other services

provided by the landlord under the terms of tenancy. Since

water is an amenity being provided by the landlord, the Trial

Court deemed it appropriate to take the amount for the

same and club it with the lease amount to come to the

conclusion that the total rent is Rs.3550/-.

14. Learned counsel for the appellant assailed the

aforesaid reasoning to contend that no such decision was

possible on an application under Order 12 Rule 6 of the

Code and such matters could at best have been decided

after evidence had been led by both the parties.

15. Learned counsel for the respondent, on the other

hand, submitted that even if the aforesaid plea raised on

behalf of the appellant was taken on its face value, the

same would not come to the aid of the appellant for the

reason that the said Act itself provided for an increase of

rent by 10 per cent every three years. Such notice of

increase of rent had been issued on 09.05.2002. No doubt

the increase was sought on the basis of monthly rent of

Rs.3550/- with 10 per cent increase on the same, but it is

not the case of the appellant that she paid the 10 per cent

increase on the rent amount less water charges. The

appellant denied the liability to pay the increase of rent.

The submission of the respondent thus is that assuming that

the premises were protected by the said Act originally, on

the notice dated 09.05.2002 being served, the rent would

increase at least to Rs.3,850/- per month with a ten per cent

increase as provided in Section 6A of the said Act and

thereafter the premises would be outside the purview of the

said Act. The notice of termination of tenancy has been

issued subsequently on 22.07.2002, the receipt of which is

not denied.

16. We may notice that learned counsel for the appellant

has referred to three judgments to support its stand on the

manner of construction of Order 12 Rule 6 of the said Code

while dealing with such issues. The first judgment of

learned Single Judge of this Court is RFA 106/206 Surinder

J.Sud v. R.R.Bhandari decided on 25.03.2008. However, a

reading of the said judgment shows that in the facts of the

case, there was no admission of either the relationship of

land and tenant or the monthly rent. In fact, the learned

Judge noticed that there was no admission about the title of

the landlord. The second judgment is in RFA 299/2004

Sh.Arun Kumar Jain and Anr.v. Raghubir Saran Charitbale

Trust & Ors decided on 21.09.2007 by a Division Bench of

this Court. There were four reasons set out in the judgment

why the application under Order 12 Rule 6 could not be

allowed though in that case also on 10 per cent increase of

rent being sought, the total rent had exceeded Rs.3,500/-

The first was the factum of agreement of sale between the

parties in respect of the tenanted property and continued

negotiations even subsequently. Secondly, a suit for

specific performance having been filed in that behalf before

the District Judge. The third aspect was that there was in

fact no application under Order 12 Rule 6 of the said Code

while the learned judge sought to pass an order on a non

existing application and did not suo motu exercise power

under Order 12 Rule 6 of the Code giving credence to the

plea of non application of mind by the Trial Court. The fourth

aspect was the existence of various factors showing

complete non application of mind by the learned Trial Court

to the factual matrix on record. The next judgment

referred to is FAO (OS)228 of 2008 Daljeet Singh Anand v.

Harjinder Singh Anand decided on 02.09.2008. The facts of

the case, in fact, bear no relevance to the controversy in

question.

17. On examination of the rival contentions of learned

counsel for the parties, we find no merit in the plea of the

appellant. Our decision is predicated on the important

aspect of the respondent having sought increase of 10 per

cent of the rent in terms of Section 6A of the said Act and

the appellant‟s failure to increase the rent. This is a

statutory entitlement of the respondent and on the failure of

the appellant to increase the rent, it would amount to non

payment of the appropriate rent. Once the earlier rent of

Rs.3,500/- is at least not in dispute, the 10 per cent increase

would take the rent to Rs.3850/- and thus take the dispute

outside the protection of the said Act. This is naturally the

consequence of the notice dated 09.05.2002.

18. Before filing of the suit, the appellant had issued a

notice determining the month to month lease and seeking

possession on 20.08.2002, receipt of which is not disputed

and the notice has been replied to. At the stage when such

possession was sought, the correct undisputed rent would

have been Rs.3850/- assuming that the original rent was

only Rs.3,500/- per month and not Rs.3,550/- per month.

Thus these three ingredients required for passing a decree

for possession also stands satisfied. We may also notice

that the aforesaid approach would amount to adopting a

different reasoning than the Trial Court while passing a

judgment on admission under Order 12 Rule 6 of the said

Code but that itself would not make any difference since the

judgment is predicated on the legal pleas advanced by the

parties and factual matrix available on the record.

19. It may also be observed that in Para 6 of his plaint the

respondent categorically stated that on issuance of legal

notice dated 09.05.2002 the appellant was called upon to

increase the rent by 10% w.e.f. 21.06.2002 and therefore

rents stood increased from 3,500 to 3,850 w.e.f.

21.06.2002. It has also been stated that the said notice was

duly received and acknowledged by the appellant who also

sent a reply dated 23.05.2002 through her counsel. In the

aforesaid reply the appellant simply denied the right of the

respondent to increase the rent which is untenable in view

of the right available to the respondent to increase the rent

under Section 6A of the DRC Act.

20. In these circumstances, the appellant having accepted

the receipt of the notice became liable to pay the rent at the

enhanced rate, that is, by adding 10% which would make

the rent to 3,850 even if the rent is taken as 3,500 as on

09.05.2002. The suit has been filed only thereafter i.e. on

20.10.2004, at which time, the enhanced rate had become

payable.

21. A reference can also be made to the judgment of this

Court in Nischint Bagga Vs. Goliath Detectives Pvt.

Ltd. & Anr; 78 (1999) DLT 432 where following

observations have been made:

"7. Therefore, after receipt of the notice under Sections 6A and 8 of the Act, the rent became more than Rs. 3,500 per month and consequently the tenant lost the protection of the Delhi Rent Control Act. Section 6A and Section 8 reads as under:

"6-A. Revision of rent--Notwithstanding anything contained in this Act, the standard rent, or where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent every three years."

"8. Notice of increase of rent--(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and insofar as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of tenancy after the expiry of thirty days from the date on which the notice is given.

(2) Every notice under Sub-section (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."

8. The receipt of notice dated 7.4.1994 calling upon defendant No. 1 to increase the rent at the rate of 10% per annum in terms of Sections 6A and 8 of the Delhi Rent Control Act, 1958 is admitted. The increase of 10% in the last paid rent makes it Rs.3,850 per month which excludes applicability of the Delhi Rent Control Act, 1958 to the suit premises. In other words, the defendants cannot claim any protection of the Delhi Rent Control Act when the rent is beyond Rs. 3,500 per month."

22. On hearing of the matter, an endeavour was made to

find out if the appellant was willing to vacate the tenanted

premises subject to some further time being granted, but

response of the counsel for the appellant was that the

appellant wanted to only purchase the property!

23. We are thus of the considered view that the

respondent is entitled to a decree on admission albeit for

different reasons than the Trial Court. We thus sustain the

decree passed by the impugned order and dismiss the

appeal with costs quantified at Rs.10,000/-.

24. We may also observe that insofar as the prayer made

by the appellant for damages and other reliefs is concerned,

that being subject matter pending before the Trial Court,

the same will be decided by the Trial Court in accordance

with law.

25. The Trial Court Record be sent back and the parties to

appear before the Trial Court on 12.01.2009.

SANJAY KISHAN KAUL, J.

December 04, 2008                                MOOL CHAND GARG, J.
dm