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Delhi District Court

Shri Shyam Sunder vs Shri Harish Kumar on 8 September, 2015

 In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge of
              Central District at Tis Hazari Courts, Delhi

CS No.130/2014

In the matter of:
Shri Shyam Sunder,
S/o Shri Ram Gopal,
Through his Attorney, Smt. Sita Gupta
W/o Shri Shyam Sunder,
R/o H.No.2041, Bazar Sita Ram,
Delhi - 110006
                                                             ......Plaintiff
                                 VERSUS


1.      Shri Harish Kumar

2.      Shri Ashok Kumar

        Both sons of Shri Amir Chand,
        Both R/o 3046, Gali Sushila,
        Kali Masjid, Bazar Sita Ram,
        Delhi - 110006

        Also at Shop situated in property No. 2039­2041,
        Ground Floor, Bazar Sita Ram,
        Delhi - 110006
                                                     ........Defendants

                                    ORDER

1. Vide this order, I shall dispose of a preliminary issue framed vide order dated 27.01.2015 and treated as a preliminary issue vide order dated 01.04.2015.

"Whether the suit is barred under the provisions of Section 5, 6, 7 and 50 of the Delhi Rent Control Act"

2. Arguments have been heard. Record carefully perused.

3. Plaintiff has filed a suit for recovery of rent/arrears of rent of Rs.90,000/­. As per the admitted case of the parties, the defendants are tenants under the plaintiff in respect of "tenanted premises"

being ground floor, 2040, Bazar Sita Ram, Delhi­110006 at a monthly rent of Rs.50/­ excluding other charges. Admittedly, it is an old tenancy. The rent uptill 31.03.2013 @ Rs.50/­ per month has already been deposited by the defendant.

4. It is alleged by the plaintiff that the tenanted shop is about 180 square feet in area and as per the present prevailing market rate, the rent of the tenanted shop comes to about Rs.15,000/­ per month excluding other charges. Since the market rate of rent has increased, the defendants are liable to pay the increased rent. Reliance has been placed upon one decision of Apex Court in Mohd. Ahmed & Anr. Vs. Atma Ram Chauhan & Ors. Civil Appeal No.4422 of 2011 decided on 13.05.2011.

5. It is also alleged that the plaintiff had approached the defendant on several occasions requesting them to pay increased rent. However the defendants have been avoiding the payment. A legal notice dated 07.09.2013 was also served upon plaintiff. Still CS No. 130/14 Shyam Sunder v. Harish Kumar & Anr. Page 2 of 7 they failed to comply with the same. Hence, the present suit for recovery has been filed.

6. Ld. counsel for the defendants has objected to the present suit on the ground that the tenanted shop is squarely covered by the provisions of the Delhi Rent Control Act 1958 as admittedly the rate of rent is less than Rs.3500/­.

7. Section 4 of the Delhi Rent Control Act provides that any rent in excess of standard rent of the premises cannot be recovered from a tenant by the landlord except where rent is liable to periodical increase by virtue of an agreement entered into before the first day of January, 1939. Section 6 of the Delhi Rent Control Act provides for fixation of standard rent. Section 6A provides for the revision of rent in case there is no standard rent at the rate of 10% every three years. Section 7 of the Delhi Rent Control Act provides for lawful increase of standard rent in certain cases. Section 8 of the Delhi Rent Control Act provides for issuance of notice for increase of rent which provides for a 30 days notice by the landlord to the tenant. This section also provides that after the period of notice, the increase in rent so far the same is lawful under Delhi Rent Control Act shall become due and recoverable.

8. There is no provision under Delhi Rent Control Act which provides for unilateral increase of rent by the landlord to any exorbitant amount at any stage. The increase in rent claimed by the CS No. 130/14 Shyam Sunder v. Harish Kumar & Anr. Page 3 of 7 plaintiff for which the present recovery suit has been filed is highly illegal and barred by the provisions of Delhi Rent Control Act and accordingly the present suit is not maintainable.

9. The only argument led by ld. counsel for plaintiff is that the plaintiff is relying upon the decision of Mohd. Ahmed's case cited supra. I have carefully perused the said judgment. The manner in which the said judgment has been interpreted by the plaintiff in filing the present suit is absolutely incorrect. In the said judgment, there are observations by the Apex Court that in case the old tenants agree to pay the present prevalent market rate of rent of the old tenanted premises to the landlord, one half of the lis between landlord and tenants would not reach Courts. While disposing of the said appeal, the Apex Court had fixed some guidelines and norms for litigations between landlord and tenant with an intention to minimize the landlord­tenants litigations at all level. The said guidelines are reproduced herein for the sake of clarity :

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.

(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.

(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.

(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.

10. Perusal of the above mentioned guidelines fixed by the Apex Court clearly show that no authority has been given to any landlord to unilaterally enhance the rent to the prevalent market rate of rent. It is just a guidelines to the Courts to fix rent on the basis of prevalent market rate on the basis of valuation report in case of eviction suits between the parties in case required and asked for. Or such enhanced rate of rents can be fixed by bilateral agreement between a landlord and a tenant. In no case, the decision of the Hon'ble Supreme Court can be interpreted in a way giving unilateral right to any landlord to enhance the rent of the tenanted premises to any extent by merely giving a notice to the opposite party especially when the parties are governed by the provisions of Delhi Rent Control Act. Such an interpretation of the decision of Apex Court cited supra would make the entire Delhi Rent Control Act a useless piece of legislation.

11. Reliance in this regard is also placed upon the decision of our own High Court in Santosh Vaid v. Uttam Chand CM (M) No. 48/2011 decided on 15.02.2012 wherein it has been specifically held:

"A landlord of a premises governed by the Delhi Rent Control Act, 1958 is entitled to have increase(s) in rent only in accordance with Section 6A and 8 thereof and not otherwise; such a landlord cannot approach the Civil Court contending that the rent stands increased or should be increased in accordance with the inflation or cost price index; the jurisdiction of the Civil Court in this regard is barred by Section 50 of the Delhi Rent Act."

12. In view of the reasons given above, I have no hesitation in holding that the present suit is barred under the provisions of Delhi Rent Control Act. Not only this, the suit also lacks cause of action as no available reason for increase in rent has been pleaded. This issue is, accordingly, decided in favour of defendants and against the plaintiff.

13. Resultantly, the suit is dismissed being barred by the provisions of the Delhi Rent Control Act. The suit is also rejected under Order VII Rule 11 CPC being without any cause of action. No order as to costs. File be consigned to Record Room. Decree sheet be prepared accordingly.

Announced in the Open Court on 08.09.2015 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No. 130/14 Shyam Sunder v. Harish Kumar & Anr. Page 7 of 7