Delhi High Court
Shalimar Paints Ltd. vs Bani Jagtiani Trust And Ors. on 12 September, 2003
Equivalent citations: 2004IAD(DELHI)357, 107(2003)DLT58, 2003(71)DRJ81
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, H.R. Malhotra
JUDGMENT Dalveer Bhandari, J.
1. This appeal is directed against the judgment and decree passed by the learned Senior Civil Judge dated 8.8.2002.
2. Brief facts which are necessary to dispose of this appeal are recapitulated as under.
3. Respondent, Bani Jagtiani Trust is a public charitable trust. The property A-60, Kailash Colony, New Delhi is the property of the trust. First floor of the said property besides a garage and a servant quarter was let out to the appellant by the trust at a monthly rental of Rs. 3, 000/- in the year 1980.
4. By resorting to Section 6A of the Delhi Rent Control Act, 1958 the rent could be increased by 10%. Section 6A 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. "
5. The respondent gave notice on 14.1.1997 calling upon the appellant to increase the rent by 10% w.e.f. 1.3.1997. the notice was duly served and consequently the rent was liable to be increased by 10% meaning thereby increasing the rent from Rs. 3000 to Rs. 3300 with effect from 1.3.1997.
6. The respondent trust filed an eviction petition under Section 22 of the Delhi Rent Control Act against the appellant which is said to be pending. It is alleged that the appellant instead of paying Rs. 3300 w.e.f. 1.3.1997 continued to deposit the rent at the rate of Rs. 3000 per month.
7. The respondent trust again issued notice after expiry of three years on 22.5.2000 to the appellant calling upon it to increase the rent by 10%. The said notice was also duly served, calling upon the appellant to increase the rent by 10% and to pay the rent at the increased rate of Rs. 3630 per month after the expiry of one month from the date of service of the notice. Since the rent of the suit premises after increasing on two occasions became more than Rs. 3500 per month, therefore, the tenancy of the appellant in respect of the suit premises went outside the purview of the Delhi Rent Control Act and as such the provisions of the Delhi Rent Control Act could no longer be made applicable to the suit property.
8. The respondent trust vide notice dated 17.8.2000 terminated the appellant's tenancy calling upon it to vacate and hand over the vacant possession of the suit property by 30.9.2000. The appellant was further informed that in case it considered its month of tenancy to expire on some other date, it was called upon to vacate the suit property by the end of such month of tenancy commencing next after receipt of the notice. The appellant did not vacate the premises and continued to occupy the same against the consent and wishes of the respondent. According to the respondent, occupation and possession of the appellant of the suit premises w.e.f. October, 2000 is unauthorised and illegal as it had no right to remain in the occupation of the same. Hence, the suit for recovery of possession of the suit property and recovery of rent at the rate of Rs. 3630 per month w.e.f. July 2000 was preferred because the appellant had paid rent up to September 2000 only at the rate of Rs. 3300 per month. The respondent also claimed damages at the rate of Rs. 50, 000 per month from October to December 2000.
9. The appellant before the trial court submitted that since the rent of the suit property was Rs. 3300 per month the relationship between the parties continued to be governed by the provisions of the Delhi Rent Control Act, 1958 and as such the civil suit for recovery of possession and damages as filed by the respondent was incompetent. The appellant also submitted that the respondent trust was also prosecuting an eviction petition under Section 22 of the Delhi Rent Control Act and as such the respondent could not avail of two remedies for the same (one) cause of action. It was also submitted that no notice for enhancement of rent was served upon the appellant.
10. The trial court on 20.3.2001 framed the following issues:-
ISSUES :
(1) Whether the suit is not maintainable as alleged in preliminary objection Nos. 1, 2 & 3 or either of them? OPD.
(2) Whether the tenancy of the defendant was validly terminated? If so, to what effect? OPP.
(3) If Issue No. 2 is proved in affirmative, whether the notice terminating the tenancy stands waived as alleged in preliminary object No. 5 of the written statement? OPD (4) Whether the suit is not maintainable as alleged in preliminary objection No. 7 of the written statement? OPD (5) Whether the plaintiff is entitled to the decree of possession of the suit premises? OPP (6) Whether the plaintiff is entitled to recover any rent?If so, to what amount? OPP (7) Whether the plaintiff is entitled to damages for the use and occupation/mesne profits? If yes, at what rate and for what period? OPP.
11. The trial court dealt with Issue No. 1 comprehensively and also carefully examined documents and number of decided cases and correctly arrived at a definite finding that the rent of the premises stood increased to Rs. 3630 per month w.e.f. July 2000 and consequently the tenancy came out of the purview of the Delhi Rent Control Act and as such the suit filed by the respondent trust was competent. The trial court also examined the aspect whether the trust could not avail two remedies for a single cause of action. The trial court came to clear finding that the right of the respondent trust to file an eviction petition crystallised under the Delhi Rent Control Act and after the rent was increased beyond Rs. 3500 per month, the suit property automatically went out of the purview of the Delhi Rent Control Act and the respondent trust became entitled to file a civil suit also as the said right accrued to it under the law as and when the rent became more than Rs. 3500.
12. The learned counsel appearing for the appellant submitted that since the rent of the suit property was Rs. 3300/-, the relationship between the parties continued to be governed by the provisions of the Delhi Rent Control Act and as such the suit filed by the respondent was incompetent.
13. The learned counsel for the appellant also submitted that the respondent was already prosecuting an eviction petition under Section 22 of the Delhi Rent Control Act and as such the respondent could not have availed two remedies for a single cause of action. He also submitted that no notice for enhancement of rent was duly served on the appellant.
14. In order to carefully examine the submission of the learned counsel for the appellant whether the rent of the suit property was Rs. 3300/- or Rs. 3630/-, we deem it appropriate to reproduce Section 8 of the Delhi Rent Control Act. Section 8 of the Delhi Rent Control Act reads as under:-
"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 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 the landlord and given in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
15. While examining Issue No. 1 regarding maintainability, the trial court on the basis of evidence came to the specific finding and the relevant portion of the finding reads as under:-
"16. Admittedly, the last rate of rent was Rs. 3300/- per month when a notice Ex.PW-1/12 dated 22.5.2000 was served upon the defendant, vide postal receipts Ex.PW-1/13 to Ex.PW-1/15. This notice was posted on three different addresses of the defendant and it is not claimed by the defendant that the address given therein is wrong. DW-1 Madan Lal has admitted in the cross-examination that the address given on the AD Cards EX.PW-1/17 & Ex.PW-1/18 is correct and these also bear the stamp of the defendant-company. As such, it is presumed that the notice Ex.PW-1/12 seeking increase in rent by 10% every three years is a lawful increase and as such would come into effect after the expiry of 30 days after the service of the notice. Accordingly the rent stood increased to Rs. 3630/- per month w.e.f July, 2000 and the tenancy stood removed from the provisions of the Delhi Rent Control Act and as such the civil suit is competent."
16. We have heard the learned counsel for the parties. In our opinion, the finding of the trial court is based on the correct interpretation of the Section 8 of the Delhi Rent Control Act and we hold that the rent of the premises stood increased to Rs. 3630/- per month w.e.f July, 2000 and the tenancy stood removed from the ambit of the provisions of the Delhi Rent Control Act and the suit filed by the respondent was competent.
17. We also examined the next contention of the appellant that the respondent could not avail two remedies for a single cause of action. So long as the rent of the premises was less than Rs. 3500/- the respondent legitimately moved a petition for eviction under the Delhi Rent Control Act. From July 2000 when the rent stood increased to Rs. 3630/- p.m and the rent went beyond Rs. 3500/- , the respondent legitimately became entitled to file a civil suit and that right accrued to him under the law.
18. It would be appropriate to crystallise the position of law by referring to a judgment delivered by their Lordships of the Supreme Court in Ambalal Sarabhai Enterprises Ltd v. Amrit Lal & Co and Another . This case relates to interpretation of the provisions of the Delhi Rent Control Act. Their Lordships also considered the effect of the amendment incorporated in Section 3[c] of the Delhi Rent Control Act. Section 3 reads as under:-
3. Certain provisions not to apply to premises.--(1) Nothing in this Act shall apply -
(a) ... .... ...
(b) ... .... ...
[c] to any premises, whether residential or not and whether let out before or after the commencement of this Act, whose monthly deemed rent on the date of commencement of this Act exceeds three thousand and five hundred rupees.
19. In this case similar question came up for consideration of their Lordships. The question was whether proceedings which were initiated before the Rent Controller having jurisdiction could continue even after the said amendment. The Court observed that the legislature has decided to take away the protection of the Delhi Rent Control Act from a section of the tenancies where the rent was more than Rs. 3500/- per month. The tenant had not acquired any vested right under the Delhi Rent Control Act, but had a right to take advantage of the provisions of the repealed Act so long as the law remained in force. So after the amendment when the premises were taken out of the Delhi Rent Control Act, the only remedy available to the respondent was to file a civil suit. Even according to the said judgment the pendency of the proceedings under the Delhi Rent Control Act would not be a bar for filing a civil suit. In the concluding para of the judgment the Court observed that "It will not be right for the landlord to continue with two parallel proceedings, one under the general law and the other before the Rent Controller. Hence we further order that the respondent landlord to withdraw one of the two proceedings within a period of 6 weeks from today."
20. Reliance has also been placed by the respondent on a judgment of this Court in Amrit Lal & Co v. Ambalal Sarabai Enterprises Ltd . The question which fell for consideration of this Court was that the rate of rent was Rs. 8625 per month and after the amendment, the protection was withdrawn and, therefore, the landlord having filed an eviction petition in the year 1985 could not have pursued simultaneously two remedies; one under unamended Delhi Rent Control Act and another by filing a suit for possession. The Court observed that if an eviction petition was filed in the year 1985 before Additional Rent Controller who was otherwise competent and having the jurisdiction because of subsequent amendment in 1988 it cannot be said that eviction petition cannot proceed because of the amendment.
21. In another Division Bench judgment of this Court Nirmaljit Arora v. Bharat Steel Tubes Ltd , this Court discussed a large number of cases. The Court observed that Section 3(c) of the Delhi Rent Control Act has a prospective operation and this section will not apply to the pending proceedings.
22. In view of the aforesaid position of law, we do not find any merit in the submission of the learned counsel for the appellant that the respondent cannot avail two remedies for a single cause of action. Even according to Ambalal's case (supra) there is no legal bar even in availing of two remedies but it will not be right for the landlord to continue two proceedings. In the instant case the 1st proceeding was initiated when the rent was less than Rs. 3500 and the second proceedings were initiated when the rent was more than Rs. 3500 and the tenancy fell outside the purview of the Rent Control Act. The respondent was wholly justified in initiating two proceedings in the facts and circumstances of this case.
23. The trial court on examination of the entire evidence on record has clearly come to the conclusion that the notice dated 17.8.2000 has been duly served on the appellant and the rent stood increased to Rs. 3630/-.
24. The trial court decided Issue No. 1 in favor of the respondent trust and against the appellant. Similarly Issue Nos. 2 and 3 were also decided in favor of the respondent and against the appellant. Issue No. 4 regarding the maintainability was also decided in favor of the respondent and against the appellant. In view of the finding of the trial court regarding the aforesaid issues, consequently Issue Nos. 5, 6 & 7 were also decided in favor of the respondent trust in which the trial court had taken the view that the respondent trust is entitled to a decree of possession of the suit property. The trial court also observed that the respondent is entitled to Rs. 990 as difference of rent for the months of July to September 2000. The trial court held that the respondent trust is entitled to mesne profits, use and occupation charges at the rate of Rs. 10, 000 per month w.e.f. October 2000 till the delivery of possession of the suit property with interest at the rate of 6% per annum.
25. In our considered opinion the impugned judgment of the trial court is based on correct evaluation of the evidence on record. The trial court has also correctly applied the law. No interference is called for.
26. The appeal being devoid of any merit is accordingly dismissed but in the facts and circumstances of this case we direct the parties to bear their respective costs.