Smt. Santosh Vaid & Anr. vs Shri Uttam Chand
2011 Latest Caselaw 2557 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No.48/2011

%                                                        12th May, 2011

SMT. SANTOSH VAID & ANR.                                 ...... Petitioner


                                Through:    Mr. S.D.Sharma, Adv. for the
                                            appellant along with appellant in
                                            person

                          VERSUS

SHRI UTTAM CHAND                                         ...... Respondent
                                      Through:    Respondent in person.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?   Yes

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


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this petition under Article 227 of

the Constitution of India, is to the impugned order dated 25.10.2010

which has dismissed the suit by holding that the Civil court has no

jurisdiction to entertain a suit for possession where the rent is less than

Rs.3,500/- per month.      It has been held that the plaint is liable to be

rejected under Order 7 Rule 11 CPC, 1908 because the jurisdiction will be

of the Rent Controller under Section 50 of The Delhi Rent Control Act,

1958.



CM(M) No.48/2011                                                   Page 1 of 5
 2.          Learned counsel for the petitioner relies upon Pearey Lal

Workshop      Pvt.   Ltd.   vs.   Raghunandan      Saran    Ashok    Saran

155(2008) DLT 145 to argue that this issue could not have been decided

on an application under Order 7 Rule 11 CPC.

3.          A reference to the decision in the case of Pearey Lal

Workshop Pvt. Ltd. (supra) shows that the ratio of the decision is that

since the provisions pertaining to fixation of standard rent under the Delhi

Rent Control Act, 1958 have been held to be ultra vires in the case of

Raghunandan Saran Ashok Saran Vs. UOI, 92(2002)DLT 508, a Civil

Court is entitled to determine if the agreed rent which was fixed at

Rs.400/- in 1956, in view of passage of time, becomes a rent higher than

3,500/- per month, on account of inflation over the years. It has been held

that though the tenant continues to pay the agreed rent which is less than

Rs.3,500/- per month, yet, such suits cannot be dismissed or the plaint be

rejected at the threshold (although Section 50 of Delhi Rent Control Act,

1958 bars the jurisdiction of the civil courts) and the case can be decided

only after evidence is led in such suits.

4.          Though the provisions with respect to fixation of standard rent

have been held to be ultra vires as per the decision of the Division Bench

in the case of Raghunandan Saran Ashok Saran (HUF) vs. UOI &

Ors., 95 (2002) DLT 508, however, I do not think that would

automatically mean that an agreed rent can get increased merely

because of inflation and that a suit for possession of a tenanted premises

can be filed in a civil court, although agreed rent is less than Rs.3,500/-


CM(M) No.48/2011                                               Page 2 of 5
 per month. As per the provisions of the Delhi Rent Control Act, quoted

hereinafter, even if there is no fixation of standard rent, the agreed rent

can only be increased in terms of the procedure specified in the relevant

sections and which read 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. Notice of increase of rent.- (1) Where a landlord
           wishes to increase the rent of nay premises, he shall
           give the tenant notice of his intention to make the
           increase and in so far as such increase is lawful under
           this Act, it shall be due and recoverable only in respect
           of the period of the 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, 1982 (4 of 1882)."

5.          Accordingly when the agreed rents are less than Rs.3,500/-

per month and tenancies are governed by the Delhi Rent Control Act,

1958, there is a specified procedure prescribed by virtue of Section 6A

and Section 8 of the Act for increase of the rent. There are no provisions

in the statute that the agreed rent is bound to be taken at higher figure on

account of inflationary issues. In terms of the provisions of Section 6A and

Section 8 of The Delhi Rent Control Act, 1958, rent is increased by 10%

after every 3 years provided the requisite notice is given under Section 8

for increase of the rent and is served upon the tenant. It is only after the

notice under Section 8 of the Act is given that the rent stands revised by



CM(M) No.48/2011                                               Page 3 of 5
 10%, and that too only after the expiry of 30 days on the date on which

notice was given. In my opinion, therefore, there cannot be retrospective

enhancement in rent in view of the specific language of Section 8 of The

Delhi Rent Control Act, 1958, and much less on inflationary aspects, and

which ingredients which are not found in any of the provisions of the Delhi

Rent Control Act, 1958. Accordingly, in my opinion since the decision in

the case of Pearey Lal Workshop Pvt. Ltd. (supra) does not take into

consideration the binding provisions of Section 6A and Section 8 of The

Delhi Rent Control Act, 1958, the ratio of the said decision, in my opinion,

may require reconsideration.      Once a statute provides that a thing

(increase of rent) may be done in a particular manner, the same thing

cannot be done in any other manner. In fact the Supreme Court in the

case of N. Bhargavan Pillai Vs. State of Kerala, 2004 (13) SCC 217,

para 14, holds that a decision rendered without analysing a statutory

provision cannot be considered as a binding precedent and such decision

is to be considered as per incuriam.

6.          Accordingly, let the present case be fixed before a larger

Bench of this Court, as per orders to be passed by Hon'ble the Chief

Justice, for consideration of the validity of the ratio in the case of Pearey

Lal Workshop Pvt. Ltd. (supra) in view of the fact that the specific

provisions of Section 6A and Section 8 have not been considered in the

said judgment.




CM(M) No.48/2011                                                Page 4 of 5
 7.          List before the concerned Court in terms of the directions of

Hon'ble the Chief Justice on 11th July, 2011.




MAY 12, 2011                                    VALMIKI J. MEHTA, J.

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