Delhi District Court
Sh. Deepak Nijhawan vs Mr. R.N. Abrol on 23 February, 2012
IN THE COURT OF SHRI PITAMBER DUTT; ADJ (CENTRAL-17) DELHI
RCA No. 17/2011
Unique I.D No. 02401C0213852011
1. Sh. Deepak Nijhawan
S/o Late Sh. B.K. Nijhawan
2. Smt. Kanchan Mala Nijhawan\
W/o Sh. Deepak Nijhawan
Both R/o 10906, Talon Way, Louisville,
Kentucky- 40332, U.S.A
Also at
16A/511, Faridabad,
Haryana Appellants
Versus
Mr. R.N. Abrol
S/o late Sh. R.P. Abrol
R/o 1337, Ground floor, Sector-D,
Pocket-1, DDA flats,
Vasant Kunj,
New Delhi
Respondent
ORDER
1 Vide this order I shall decide an appeal filed by the appellant/plaintiff against the impugned judgment and decree dated 4.4.2011 whereby the Ld. Trial court rejected the plaint of the plaintiff qua the relief of the possession of the suit property under order 7 Rule 11 CPC on the ground that the jurisdiction of civil court is barred under Section 50 of the Delhi Rent Control Act.
Brief Facts 2 The appellant filed a suit for possession, recovery of mesne profit RCA- 17-11 1/9 and damages against the respondent/defendant alleging that the suit property was let out to the defendant by the father and attorney of appellant no. 1 Sh. B.K. Nizhawan on 13.06.1988 at the monthly rent of Rs. 2500/- per month excluding other charges. Father of plaintiff no. 1 during his life time filed an eviction petition against the defendant under Section 14 (1) ( e) of DRC Act 1958 bearing eviction petition No. E73/94. The said eviction petition was dismissed on 03.04.2011 by the court of Sh. Dharmesh Sharma, the then ld. ARC, Delhi. During the pendency of the said eviction petition an application under Section 15 ( 2) of DRC Act was filed. Reply to that application was filed by the defendant/respondent who admitted in his reply that the rent was Rs. 2750/- till November 1997. It is further averred that defendant himself addressed a letter dated 10.02.1993 admitting the rent of the premises as Rs. 2730 besides other charges. It is further averred that father of plaintiff no. 1 sent a notice to the defendant dated 8.7.1994 under Section 6-A of Delhi Rent Control Act for increase of 10% statutory rent w.e.f 19.6.1994 and the rent stood increased to Rs. 3025 from 2750. Another notice dated 1.11.1997 was served upon the defendant for increase of the rent and accordingly the rent stood increased to Rs. 3328 w.e.f 19.6.1997. The father of the plaintiff no. 1 again sent a notice dated 19.6.2000 under Section 6-A for statutory increase in the rent by 10% accordingly the rent was increased to Rs. 3661. It is further averred that defendant/respondent has been running into arrear of rent w.e.f July 2003 and has deliberately paid the rent @ RS. 2750 despite the increased.
3 Respondent/defendant filed written statement taking preliminary objection that suit is hit by Section 50 of Delhi Rent Control Act as rent of the suit property is Rs. 2750/- It is denied that defendant/respondent had received any notice of enhancement of rent sent by the plaintiff under Section 6-A of DRC Act.
RCA- 17-11 2/9It is averred that defendant has been depositing the rent in the account of Sh. B.K. Nizhawan before filing the eviction petition and after dismissal of the said petition the defendant continue to deposit the rent in the said account. All other averments have been denied by the defendant.
4 The ld. Trial court heard the matter and passed the impugned judgment and decree dated 4.4.2011 whereby ld. Trial court rejected the plaint filed by the plaintiff with respect to the relief of possession under Order 7 Rule 11 CPC on the ground that suit is hit by Section 50 of the D.R.C. Act.
Feeling aggrieved from the impugned judgment the appellant has filed the present appeal.
5 Ld. Counsel for the appellant contended that ld. Trial court has wrongly held that suit is barred under Section 50 of the DRC Act and has failed to appreciate that as per the notice dated 19.6.2000 sent by the appellant/plaintiff the rent of the suit premises was revised from Rs. 3328 to Rs. 3611 per month therefore the rent was above Rs. 3500/- and suit was barred under Section 50 of the Delhi Rent Control Act. He further contended that no notice is required for increasement of the rent if tenant agreed to increase the rent by 10% on its own. He further contended that enhancement would not become due from the date of the demand of the enhancement but it would become due when the tenant become liable to pay the enhancement. He prayed that appeal may be accepted, impugned judgment and decree dated 4.4.2011 may be set aside and the suit of the plaintiff for possession be decreed..
6 Per contra ld. Counsel for the respondent contended that ld. Trial court has rightly rejected the plaint under Order 7 Rule 11 CPC as same RCA- 17-11 3/9 was barred under Section 50 of the Delhi Rent Control Act. He further contended that ld. Trial court committed an error by holding the notice dated 1.11.1997 as lawful notice whereas the said notice was not in accordance with the Section 8 of the Delhi Rent Control Act. He prayed that appeal be dismissed.
7 The controversy involved in the present appeal revolves around the interpretation of Section 6-A and Section 8 of Delhi Rent Control Act, 1958 which reads as under:-
6 A 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 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 of the landlord and given in the manner provided in Section 106 of the Transfer of Property Act, 1882.
8 A perusal of the above shows that vide Section 6-A of the Act an option has been given for landlord for seeking increase of rent by 10% in every three years where no standard rent is fixed under the Act. However, before any such increase can be sought the condition provided in Section 8 of the Act are to RCA- 17-11 4/9 be complied with. As per Section 8 a landlord who wishes to increase the rent shall give a notice of his intention to the tenant. Such increase rent would become only in respect of the tenancy after the expiry of 30 days of such notice. As per Clause 2 of the Section 8, such notice is required to be given in writing signed by the landlord or his agent.
9 In the instant case the suit property was let out by the father appellant no. 1 to the respondent at the monthly rent of Rs. 2500/- per month vide agreement dated 13.06.1988 Ex. PW-1/5. As per the appellant the first revision of rent as per Section- 6-A of the Act became due in June 1991 various requests were made but the respondent increased the rent vide his letter dated 10.02.1993.
Ld. Counsel for the appellant contended that although the revised rent was paid by the respondent vide its letter dated 10.02.1993 but it was become operative from June 1991 when it became due and various oral requests were made, pursuant to which respondent agree to enhance the rent.
10 The said contention of ld. Counsel for the appellant cannot be accepted for the simple reason that as per Section 8 of the Act revision of rent shall take effect only after the service of the notice of such intention upon the tenant. Admittedly, appellant had not given any such notice as provided under Section 8 of the Act, thus the rent agreed between the parties was not revised by 10% automatically since June 1991 because the compliance of Section 8 of the Act is mandatory.
A perusal of the letter dated 10.2.1993 itself shows that respondent had consented for revision of rent only from 10th February 1993 onwards and not from June 1991 as contended by ld. Counsel for the appellant. Thus the RCA- 17-11 5/9 contention of appellant that revision of 10% of rent became operative vide letter dated 10.02.1993 w.e.f June 1991 cannot be accepted.
11 Ld. Counsel for the appellant contended that appellant served noticed dated 8.6.1994 Ex. PW-1/6, dated 01.11.1997 Ex. PW-1/8, notice dated 19.06.2000 Ex. PW-1/11 for revision of rent after the expiry of three years. These notices have not been replied by the respondent despite service thus the rent of the said premises was revised as per law and was more than Rs. 3500/- per month at the time of filing of the suit. Therefore, the premises was out of the purview of the Delhi Rent Control Act and suit was not hit by Section 50 of the Delhi Rent Control.
12 Per contra ld. Counsel for the respondent contended that none of the notice given by the appellant were in conformity of the law. He further contended that notice dated 1.1.1997 Ex. PW-1/8 was also not in conformity of the mandatory provision of Section 8 of the Act. The respondent is not liable to pay rent @ 3025/- but he has to pay rent @ last enhanced rate i.e @ Rs. 2750/- only as increased by him vide letter dated 10.02.1994.
13 The appellant relied upon notice dated 8.7.1994 Ex. PW-1/6 and he contended that vide that notice the rent was further increased by 10%. The notice Ex. PW-1/6 was not in accordance with the Section 6-A and Section 8 of the Act. The first revision of rent was taken place vide letter dated 10.2.1994 written by the respondent. The next revision of rent was to take place as per Section 6-A after the expiry of three years period i.e after 10.02.1997 however the notice Ex. PW-1/6 was given on 8.7.1994 demanding the revision of rent from 19.06.1994 onwards. Thus same was not in conformity of law having been RCA- 17-11 6/9 given before the expiry of three years from the revision of the rent vide letter dated 10.02.1993.
14 The said notice is also not valid for the simple reason that the subsistence of land lord and tenant relations between the parties qua the suit property is pre-requisite for the invoking Section 6-A of the Act, however, the said notice was given on the basis that the tenancy of the respondent was terminated w.e.f 30.06.1992. Once the land lord alleges that tenancy of the tenant had come to an end he cannot seek revision of the rent of recourse by taking Section 6-A of the Act.
In view of the above, I am of the considered view the notice Ex. PW-1/6 delivered by the appellant upon respondent was not a valid notice as per Section 6-A and Section 8 of Delhi Rent Control Act, therefore ld. Trial court has rightly discarded the said notice and has held that no revision can take place on the basis of the same.
15 The appellant has served another notice Ex. PW-1/8 for revision of rent and sought increase of rent from Rs. 3025 to 3328 w.e.f 19.06.1997. The revision of rent sought by the appellant vide notice Ex. PW-1/8 was not correct because the initial rent was Rs. 2500/- which was increased into Rs. 2750 w.e.f 10.02.1993 vide letter dated 10.02.1993 sent by the respondent thus 10% of increase as per Section 6-A of the Act became due on 10.02.1996 onwards. However, such a revision could have only taken place after 30 days from the service of the notice as per Section 8 of the Act. The notice Ex. PW-1/8 has been given on 1.11.1997 therefore the increased rent would become payable w.e.f 1.12.1997 onwards. No doubt that vide notice Ex. PW-1/8, the appellant has sought revision of rent from Rs. 3025 to Rs. 3328 which is not a correct RCA- 17-11 7/9 amount, however, on this ground alone the notice Ex. PW-1/8 cannot be held invalid, as law permits 10% revision in the last paid rent after the expiry of three years by giving notice as provided under Section 6-A and 8 of Delhi Rent. The notice Ex. PW-1/8 has been given after the expiry of three years from the last given rent thus it would increase the rent by 10% to the last paid rent. The last paid rent qua the tenanted premises was Rs. 2750/- thus respondent shall be liable to pay the increased rent of Rs. 3025 per month after one month of the notice Ex. PW-1/8 i.e w.e.f 1.12.1997. The ld. Trial court has rightly held that notice Ex. PW-1/8 is lawful one and I find no infirmity in the said finding.
16 The next revision after 19.12.1997 was to take place on 19.12.2000 when the appellant could have asked for revision of rent by 10% as per the Section 6-A of the Act, however, the appellant has given a notice dated 19.07.2000 Ex. PW-1/11 whereby he called upon respondent to pay the increased rent. The said notice was not in conformity of Section 6A of the Act, because same was given before the expiry of three year period from the last revised rent. The said notice was issued when there was no any cause of action for seeking revision of rent because under the law revision of rent can be sought only after the expiry of three years by giving notice in writing which shall become payable after one month of the service of such notice as per Section 6-A and Section -8 of the Act. The notice for revision of rent can be issued after the expiry of three years period from the last revision and not before that. The requirement of law is mandatory and non-compliance of the same would not confer cause of action to the appellant to seek revision of the rent. The notice Ex. PW-1/11 thus was not a valid notice, having been given by the appellant to the respondent before the expiry of three years from the last revision of the rent. The said notice is not in accordance with Section 6-A of Delhi Rent Control Act, RCA- 17-11 8/9 therefore same cannot be taken into consideration. The ld. Trial court has thus rightly discarded the notice Ex. PW-1/11 and has held that notice Ex. PW-1/11 is not valid being pre-mature.
17 In view of the above facts and circumstances, I am of the considered view that the ld. Trial court has rightly held that the rent of the suit premises was Rs. 3025/- per month at the time of filing of the suit i.e less than Rs. 3500/- per month, therefore, the suit is barred under Section 50 of the Delhi Rent Control Act. The ld. Trial court has thus rightly rejected the plaint with respect to the relief of possession because as civil court has no jurisdiction. I find no infirmity in the judgment and decree dated 4.4.2011, accordingly appeal is dismissed. TCR be immediately sent back. Appeal file be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
Today i.e. 23.02.2012 ADDL. DISTT. JUDGE
DELHI
RCA- 17-11 9/9