Delhi District Court
The Wesman Engineering Co. Pvt. Ltd vs . on 8 December, 2011
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE, ADDL. DISTRICT JUDGEV,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
MCA no. 18/11
In the matter of :
The Wesman Engineering Co. Pvt. Ltd.
Vs.
Kushaljeet Singh
08.12.11
ORDER
Vide this order, I shall decide the appeal filed u/s 96 CPC against the order dated 04.01.11.
2 The respondent had filed the suit for recovery of possession/ejectment, for recovery of arrears of rent, damages/ mesne profits, and also for permanent injunction, in respect of their property bearing no. Shop no. 101, 1st floor, 7374, Sheetla House, Nehru Place, Kalkaji District Center, New Delhi.
3 The impugned order was passed U/o 12 Rule 6 CPC. The impugned order was passed on the basis that appellant had admitted in his WS before Ld. trial court the following facts :
i Relationship of landlord and tenant between respondent and him. The Wesman Engineering Co. Pvt. Ltd. Vs. Kushaljeet Singh Contd....Page 1 of 6 : 2 : Ii Execution of lease deed dated 15.07.1981 for a period of six years w.e.f 22.05.1981.
iii Termination of lease by efflux of time. Iv Payment of maintenance charges directly to the society @ Rs. 2,322/ per month. V Service of legal notice dated 01.12.2008 whereby the respondent terminated the tenancy of the appellant. 4 A perusal of WS filed by the appellant shows that the appellant
had admitted that the monthly rent of tenanted premises is Rs.2,686/ per month w.e.f. August, 2006 and he has not denied that he is paying Rs.2,322/ per month as maintenance charges to the society in terms of the lease deed. 5 It is a settled law that if rent of suit premises is below Rs.3500/, the jurisdiction of civil court is barred u/s 50 of Delhi Rent Control Act.
Appellant has preferred the present appeal against the order dated 04.01.11 and the ground of objections is that the rent paid by him to the respondent and maintenance charges paid to the society cannot be clubbed together to constitute the rent when there is expressed or implied agreement between the parties not to include the maintenance charges in the rent. In view of this averment made by the appellant in his WS, the appellant has filed the present appeal that there was no clear admission on his part and accordingly, Ld. trial court could not have passed the impugned order u/o 12 Rule 6 CPC. The Wesman Engineering Co. Pvt. Ltd. Vs. Kushaljeet Singh Contd....Page 2 of 6 : 3 : 6 A perusal of lease deed 15.07.1981 reveals that agreed rate of rent at the time of execution of lease deed was enhanced to Rs.2,220.24 per month from 22.05.1981. It was also specifically provided that the appellant shall pay each month's maintenance charges to the maintenance society or any other body, association or the lessors as the case may be. Para 5 of plaint filed before Ld. Trial court reads as "It is submitted that as per the plaintiff, the maintenance charges are Rs.3.64 per sq.ft.. Thus, the maintenance charges for the premises are approximately Rs.2,322/ per month. The aggregate of rent payable to the plaintiff and the maintenance payable to the society Rs. 4,764/. Thus, the premises are touching rent more than Rs.3,500/ per month and are not protected under the provisions of Delhi Rent Control Act." A perusal of this para clearly reveals that it is an admitted case of the respondent / plaintiff that appellant was paying maintenance charges directly to the society. Appellant / Defendant in his WS in reply on merits to para 5 has specifically denied that the two sums can be clubbed together. It is further submitted by Appellant / Defendant that rent of the premises is not Rs.2444/ per month but it is Rs.2686/ per month w.e.f. August, 2006 and thus the rent being less than Rs.3500/ per month, the tenanted premises is well within the provisions of DRC Act. Appellant / Defendant had also specifically submitted that the rent is payable to the plaintiff directly and maintenance charges are to be paid to the maintenance society directly. Respondent has relied on reply to para 5 in WS of the Appellant / Defendant in his application u/o 12 Rule 6 CPC and the The Wesman Engineering Co. Pvt. Ltd. Vs. Kushaljeet Singh Contd....Page 3 of 6 : 4 : impugned order has been passed on the basis of the admissions made in the WS.
7 Appeal has been filed and objections have been taken that the admissions on part of Appellant / Defendant were not made and thus impugned order could not have been passed.
8 Ld. counsel for respondent advanced his arguments and submitted that there is no infirmity in the impugned order. Ld. counsel for respondent relied on law laid down in the matters of Standard Pharmaceuticals Limited Vs. Gyan Chand Jain & Another, 97(2002) DLT 290; West Coast Paper Mills Ltd. Vs. Asha Kapoor, 2007 (97) DRJ 548 and Sewa International Fashions Vs Smt. Suman Kathpalia & Ors, AIR 2000 Delhi 69.
9 Nobody appeared on behalf of appellant to advance its arguments despite being given opportunity.
10 The main controversy revolves around the meaning and expanse of the expression rent. Appellant has submitted that the rent of the property is below Rs. 3,500/ as monthly rent is Rs.2686/ and maintenance charges are Rs.2332/ which is given by the appellant to the Society and is thus not part of rent. To controvert this contention of the appellant, the counsel for the respondent drew my attention to the judgment in the matter of Sewa International Fashions Vs Smt. Suman Kathpalia & Ors, AIR 2000 Delhi 69, The Wesman Engineering Co. Pvt. Ltd. Vs. Kushaljeet Singh Contd....Page 4 of 6 : 5 : wherein Hon'ble High Court of Delhi held that the payment made towards the maintenance charges of the premises rented out and also for providing amenities to the tenant would also come within the expression rent as rent includes all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building but also of furnishing electric installation and other amenities.
11 I have perused the judgment in the matter of Sewa International Fashions Vs Smt. Suman Kathpalia & Ors,(supra). In the said matter, the maintenance charges were being paid by the tenant to the landlord and landlord was paying the same to the Maintenance Society and the Hon'ble High Court of Delhi held the said amount to be a component part of rent. 12 It has been held by the Hon'ble Supreme Court in the matter of Karnani Properties Ltd. Vs Miss Augustine, AIR 1957 SC309, that the term 'rent' is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation of its appurtenances but also of furnishing, electrical institutions and other amenities agreed between the parties to be provided by and at the cost of landlord. Similar is the decision of Hon'ble Supreme Court in Pushpa Sen Gupta Vs Susma Ghose, (1990) 2SCC 651.
13 In the present matter, the fixed maintenance charges are being paid periodically by the tenant to the Maintenance Society directly. In the matter of United India Insurance Company Ltd. Vs. Anup Kaur, RSA NO. 251/2008 The Wesman Engineering Co. Pvt. Ltd. Vs. Kushaljeet Singh Contd....Page 5 of 6 : 6 : and C.M. NO.17860/2008 and 11828/2010 decided on 28.04.2011; Hon'ble High Court of Delhi while dealing with the argument that the maintenance charges if paid directly to the society is not a component part of rent has held that it forms a part of rent. In Para 18 of the aforesaid judgment, it was observed that "In the civil appeal preferred against the order passed by High Court of Delhi in Sewa International Fashion's case, the Supreme Court of India has clearly observed that the maintenance charges are payable to the maintenance society, even then maintenance charges would form part of rent of suit premises." Thus the monthly rent in the present case is not below Rs. 3500/. per month as admittedly on adding the amount of rent with the maintenance charges, the amount of rent is more than Rs.3500/ per month. 14 Given the facts of the case in the light of judgments referred herein, the necessary requirements for passing the decree for possession under Order XII rule 6 in favour of the respondent do exist. Accordingly, I find no infirmity in the impugned order and the appeal is accordingly dismissed 15 TCR be sent back along with copy of the order.
16 File be consigned to Record Room after necessary compliance.
Announced in the open court (DR. NEERA BHARIHOKE)
on 08.12.2011. ADJV/SD/New Delhi.
The Wesman Engineering Co. Pvt. Ltd. Vs. Kushaljeet Singh Contd....Page 6 of 6