Delhi High Court
Abnash Rani Suri And Ors. vs Santosh Choudhry And Anr. on 7 December, 1990
Equivalent citations: 54(1994)DLT496, 1991(20)DRJ124, 1991RLR159
JUDGMENT P.N. Nag, J.
(1) In this application under Section 151 of the Code of Civil Procedure, 1908 the plaintiff has prayed that defendants may be directed to pay arrears of rent/occupation charges in future.
(2) The case set up by the plaintiff is that the defendants are the joint tenants of the plaintiffs of the property bearing No N-6, N.D.S.E. Part I, New Delhi at a monthly rent of Rs. 40,000.00 . Defendant No. 1 used to pay rent to plaintiffs 1 and 2 his half share, i.e , Rs. 20,000.00 . Defendant No. 2 used to pay his second half share to Rs.20,000.00 to plaintiffs 3 and 4 per month. The defendants used to pay rent in advance by the 10th day of each calendar month as agreed upon. Defendant No.1had paid the rents to the plaintiffs No 1 and 2 for the period ending 5th May, 1990 and she is in arrears of Rs. 60,000.00 toward the rents for the period ending 5th August, 1990. Similarly, defendant No. 2 has pot paid the rents after 6th June, 1990 and he is in arrears of Rs. 40,000.00 by way of rent for the period ending 5th August, 1990. Thus, the defendants are in total arrears of a sum of Rs. 1,00,000.00 by way of rents to the plaintiffs.
(3) Defendants have not paid the aforementioned amount of rent to the plaintiffs in spite of repeated requests although they have no right to withhold the same and remain in occupation of the premises. The plaintiffs have terminated the tenancy of the defendants and have filed the present suit (Suit No.2883 of 1990) for possession and recovery of Rs, 1,00,000.00 as areas of rent and for permanent injunction.
(4) Notice of this l.A. was issued to the defendant. The defendants have chosen not to file their replies and have argued the matter, without reply. However, they have filed written statement in the main suit and during the course of arguments they relied upon the written statement.
(5) Defendants have not contested the agreed rate of rent as Rs. 40,000.00 per month, as per lease deed. However, they , have justified the suspension of the payment of the rent on the ground that in terms of the lease and supplementary lease, the plaintiff was under obligation to get the plans sanctioned for additions and alterations of the premises and the plaintiff arbitrarily withdrew the application for sanction of additions and alterations thus, resulting in putting hindrance to the beneficial enjoyment of the property by the defendants. They have further opposed the application on the ground that the Lesser has leased the premises for residence cum- commercial purposes though ordinarily a lease would have provided for residential purposes. The annual rateable value of the property, keeping in view the Delhi Rent Control, Act was fixed at Rs. 15,150.00 per annum or Rs. 1,262.50 pm. This continues till today. Even if the rent at first letting is taken, the same would be well below Rs. 3.500.00 p.m. and, therefore, the property continues to be covered by the Rent Act, Further certain comprehensive rights as mentioned in the lease deed were given to the defendants including right to gel the permises of the previous tenant vacated. In case. such comprehensive rights were not given, the rent would have been more" than Rs. 2,500.00 p.m. (6) There is no dispute between the parties that the lease deed requires registration and that the present lease deed dated 6.8.1988 has not been, registered although the defendants have put blame on the plaintiffs that they are avoiding the registration of the lease dreed.
(7) Mr. Arun Mohan, counsel for the defendants, has strenuously contended that the rent of Rs. 40,000.00 p.m. cannot be paid to the plaintiff as vide lease deed entered into comprehensive rights were given to the defendants; that the plaintiffs.have leased the premises for residence cum commercial purposes and that defendants were authorised to carry out structural additions or. alterations in the premises and these were to be applied in the name of the plaintiffs and the plans for additions and alterations of building also to be signed, executed and sworn by the plaintiffs and they were to be submitted to the M.C.D. by the plaintiffs. However, the plaintiffs have failed to do so and therefore the premises could not be put to full use without additions or alterations and bad the defendants not authorised to make additions and alterations and permitted the use for residence-cum-commercial purposes, the rent would not have been so exorbitant. Therefore, in these circumstances, they are justified in suspending the payment of the rent to the plaintiffs. In fact, counsel for defendants has relied upon certain provisions of the lease deed, particularly Clauses 6, 7, 12. 14 and 15.
(8) Mr. Rohtagi, learned counsel for the plaintiff, however, submitted (bat the lease deed has not been registered although it requires registntion. Therefore, it is inadmissible and all the terms/clauses of the lease deed cannot therefore, be relied upon or looked into. Reliance has been placed by him on Bajaj Auto Limited v. Behari Lal Kohli (1989) 39 Dlt 55. In that case the Supreme Court has clearly held that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to tub-let. It follows that the appellant cannot, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed. On the face of this authority of the Supreme Court. I cannot look into the terms of the lease deed and therefore the submissions of Mr. Arun Mohan, learned counsel for the defendants, for justifying the suspension of the payment of the rent to the plaintiff because of certain terms and conditions of the tease deed are not sustainable in the eyes of law. Independently of the lease deed at this stage the only evidence which is available and which has not been disputed also by the defendants that the rent agreed to be paid was Rs. 40,000.00 by the defendants to the plaintiff and which is also dearly supported by the documents.
(9) It woul.d be relevant to refer to the notice dated 25th June, 1990. Para2 of the said notice dated 25(b June, 1990 (Pages 15.16) issued by the. plaintiffs to the defendants show that they have let out the entire property to the defendants on a monthly rent of Rs. 40,000.00 and tenancy commenced from 6.8.1988. In the reply received in response there to from the defendants dated 9.7.1990. (Page 17-18), this facts has been admitted by the defendants as it has only been stated In the reply that "... ...notice; is a matter of record". Other two letters sent by defendants dated 12.11.1988 and 27.3.1990 (at pages 12 and 13 of the documents file) also a bow that defendant No. 1 has paid his half share of rent, i.e., Rs.20,000.00 for the month of March and April, 1990. Various other letters dated 7.4. 1989 (page 5), 9.5.1988 (Page 6), 10.6.1989 (Page 7), 10.2.1989 (Page 8), 8.3.1989 (Page 9). 9.10.1988 (Page 10), 1 1.11.1988 (Page 11) and 12.11.1989 (Page 12) vide which rent @ Rs. 20,000.00 falling to the share of defendant No. 1 has been paid to the plaintiffs 1 and 2 as per lease agreement dated 6.4.1988 cannot be taken into consideration as these letters refer to the lease deed However, other documents aforementioned and the admission of the defendants in the written statement do demonstrate that the agreed rent payable by the defendants to the plaintiffs was no doubt Rs. 40,000.00 p.m. and they are required to pay this sum of Rs. 40,000.00 as charges for use and occupation of the premises even after termination of tenancy per month.
(10) The stand of the defendants, however, cannot be completely brushed aside simply because at this stage, the lease deed is the only document which is available to substantiate such a stand, which cannot be looked into. During the course of trial, the defendants may try to prove their case by way of oral evidence or otherwise that the payment of Rs. 40.000.00 per month as the rent by the defendants to the plaintiffs, was agreed subject to grant of certain rights given to them by the plaintiffs aforementioned. In case the defendants are successful in their endeavor, there may be reduction in the amount of the rent agreed upon. However, nothing can be said at this stage without the evidence on the record. The premises in disputes are in a very posh locality of which ( can take judicial notice to these circumstances, it will be highly inequitable and unjust if the defendants do not pay at all any rent/occupation charges to the plaintiff in view of the stand, taken by them. The ends of justice, in my opinion, would be met if as an interim measure the defendants are asked to pay approximately 2/3rd of the rent/occupation charges to the plaintiff and for the remaining 1/3rd the defendants are asked to the furnish bank guarantee.
(11) Having regard to all the facts and circumstances of this case, therefore, it would be expedient in the interest of justice to pass the following order:
(I)The defendants arc directed to pay a sum of Rs. 67.000.00 to the plaintiff, proportionately falling to their shares as agreed to among themselves, as arrears of rent/occupation charges up to the date of filing of the application within one week from today and furnish a bank guarantee for the balance amount of Rs.33,000.00 , proportionately falling to their shares as agreed to among them- selves, to the satisfaction of the Registrar of this Court.
(II)The defendants are further directed to pay2/3rd of the arrears of rent/occupation charges, after the filing of the application till pasting of ibis order to the plaintiff within one week and furnish a bank guarantee for the remaining 1/3rd of the arrears, to the satisfaction of the Registrar of this court, proportionately falling to their shares as agreed to among themselves.
(III)The defendants shall continue to pay to the plaintiff a sum of Rs. 27,000.00 per month as rent/occupation charges, proportionately falling to their shares as agreed among themselves, and shall also furnish bank guarantee for the balance amount of Rs. 13,000{- proportionately to the satisfaction of the Registrar.
(IV)The bank guarantees to be furnished by the defendants as above for payment of the amount to the plaintiffs incase they are found liable in the suit shall be furnished initially for a period of three years. In case the suit is not decided within three years then the same will kept alive fill the disposal of the suit.
(V)The bank guarantees shall be furnished within four weeks.
(12) This order will continue to operate till the disposal of the suit and is being passed without prejudice to the respective contentions of the parties.