Delhi District Court
Avinash Paruthi vs Amarjit Singh on 16 January, 2008
1
IN THE COURT OF DR.SUDHIR KUMAR JAIN, ADDITIONAL RENT CONTROL TRIBUNAL, DELHI
RCT No: 11/2007
Date of Institution: 14.05.2007
Date of Decision : 16.01.2008
Avinash Paruthi,
S/o S.C.Paruthi,
R/o 7/292, Lalita Park,
Laxmi Nagar,
Delhi. ... Appellant
Versus
Amarjit Singh,
S/o Late Bechan Singh,
R/o D-351, Laxmi Nagar,
Delhi - 110 092. ... Respondent
APPEARANCES:
For the appellant: Sh.R.K.Mehta, Advocate
For the respondent: Sh.C.S.Tomar, Advocate
APPEAL UNDER SECTION 38 OF THE DELHI RENT CONTROL ACT,
1958 AGAINST THE IMPUGNED ORDER PASSED IN EVICTION CASE
NO.E-18/05 BY THE COURT OF ARC, KARKARDOOMA COURTS,
DELHI
JUDGMENT
This judgment shall decide an appeal filed by the appellant/tenant Avinash Paruthi against the respondent/landlord Amarjit 2 Singh impugning the judgment dated 21.11.2005 (hereinafter referred to as "the impugned judgment") and order dated 02.01.2006 passed by the Additional Rent Controller, Karkardooma Courts, Delhi giving the benefit u/s 14(2) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") to the appellant/tenant.
2. Briefly stated the relevant facts of the case are that the respondent/landlord has filed a petition u/s 14(1)(a) of the Act against the appellant/tenant by pleading that the respondent/landlord has let out a shop forming part of the property bearing no. D-351, Laxmi Nagar, Delhi as shown in red colour in the site plan Ex.PW1/K annexed with the plaint to the appellant/tenant w.e.f.14.03.1991 vide agreement dated 14.03.1991 Ex.PW1/A at a monthly rent of Rs.350/ p.m.excluding electricity charges which was stated to be enhanced at Rs.514/-p.m.with the consent of the appellant/tenant w.e.f.14.03.2003 as per the details dated 07.08.2004 Ex.PW1/D; the appellant/tenant has not paid the arrears of rent for the last 8 preceding years amounting to Rs.19,730/- excluding electricity charges in terms of details dated 07.08.2004 Ex.PW1/D and further monthly rent @ Rs.514/- w.e.f.September, 2004 despite notice dated 09.11.2004 Ex.PW1/F. Hence the 3 respondent/landlord filed the petition u/s 14(1)(a) of the Act.
3. The appellant/tenant has contested the petition and filed the written statement. The appellant/tenant has alleged that the rate of rent is Rs.350/- p.m. which has never been enhanced to Rs.514/- w.e.f.14.03.2003 in terms of alleged details dated 07.08.2004 Ex.PW1/D; the appellant/tenant has paid the rent in advance till April, 2005 and also send the rent for more than three months @ Rs.350/-p.m.to avoid controversy; the respondent/landlord has never issued the rent receipt; the appellant/tenant has never executed details dated 07.08.2004 Ex.PW1/D. The appellant/tenant also controverted other allegations of the respondent/landlord.
4. The respondent/landlord has filed the rejoinder wherein reasserted and reaffirmed the previous stand and denies the pleas taken by the appellant/tenant.
5. The trial court vide order dated 11.07.2005 has passed an order u/s 15(1) of the Act whereby directed the appellant/tenant to pay the entire arrears of rent amounting to Rs.19,730/-and monthly rent @ Rs.514/- p.m.w.e.f.September, 2004 till date and also to continue to pay or deposit future rent @ Rs.514/-p.m.on or before 15th day of succeeding 4 month for the preceding month.
6. Both the parties have led their respective evidence. The respondent/landlord has examined himself as PW1 and tendered his affidavit which is Ex.PW1/X; V.K.Varsney as PW2 who tendered his affidavit which is Ex.PW2/A; and Ravi Gupta as PW3 who tendered his affidavit which is Ex.PW3/A. The PW1 has referred documents which are Ex.PW1/A to Ex.PW1/K in affidavit Ex.PW1/X. The appellant/tenant has examined himself as RW1 and tendered his affidavit which is Ex.RW1/X; S.C.Paruthi as RW2 who tendered his affidavit which is Ex.RW2/A; and Ajay Chauhan as RW3 who tendered his affidavit which is Ex.RW3/A. The appellant/tenant in his affidavit Ex.RW1/X has referred documents which are Ex.RW1/A to Ex.RW1/I.
7. The trial court vide impugned judgment has not modified order u/s 15(1) dated 11.07.2005 whereby the trial court has directed the appellant/tenant to pay or deposit the entire previous arrears of rent amounting to Rs.19,730/- and rent @ Rs.514/-p.m. w.e.f.September, 2004 within one month and to continue to pay or deposit future rent month by month at the same rate by the 15th day of each succeeding month for the preceding month. The report of Nazir was also called for 5 extending the benefit u/s 14(2) of the Act to the appellant/tenant. The trial court vide order dated 02.01.2006 has granted the benefit u/s 14(2) of the Act to the appellant/tenant.
8. The appellant/tenant being aggrieved has filed the appeal and has challenged the impugned judgment and order dated 02.01.2006 on the grounds that the findings of the trial court were erroneous and passed on the inherent lack of jurisdiction; the details dated 07.08.2004 Ex.PW1/D was violative of mandatory provisions laid down in Section 23 of the Contract Act; the details dated 07.08.2004 was contrary to the mandatory provisions of Section 6A and 8 of the Act; the petition u/s 14(1)(a) of the Act is maintainable only in the case of arrears of rent legally recoverable against the tenant besides other grounds.
9. Sh.R.K.Mehta, Advocate for the appellant and Sh.C.S.Tomar, Advocate for the respondent heard. Impugned judgment dated 21.11.2005 and order dated 02.01.2006 alongwith trial court record perused.
10. Sh.R.K.Mehta, Advocate, counsel for the appellant/tenant has argued that the impugned judgment whereby the appellant/tenant was directed to pay the rent @ 514/- p.m.was against mandatory provisions 6 of section 6A and 8 of the Act as such the impugned judgment is not sustainable in law. Sh.Mehta argued that the respondent/landlord has obtained the signature of the appellant/tenant on a blank paper on the pretext of issuing No Objection Certificate for getting an electricity connection in the tenanted shop which later on has been misappropriated by the respondent/landlord. Sh.Mehtra also relied upon judgments cited as National Cooperative Consumer Federation of India Limited V Jwala Pershad Ashok Kumar Chopra, 74 (1998) DLT 842 (DB), Crack Detectives Pvt.Ltd. V P.S.Malhotra, 129 (2006) DLT 584, Lt.Gen.J.S.Dhillon H.U.F. V Continental Profiles Ltd., 104(2003) DLT 1018 and Nutan Kumar and others V IInd Additional District Judge, Banda and others, AIR 1994 Allahabad 298.
Sh.C.S.Tomar, Advocate, counsel for the respondent has argued that the impugned judgment is based on the basis of provisions of law and cannot be set aside.
11. There is no dispute between the parties that the appellant/tenant is a tenant under the respondent/landlord in respect of the shop as shown in red colour in the site plan Ex.PW1/K w.e.f.14.03.1991 vide rent agreement Ex.PW1/A at the initial rent of Rs.350/-p.m.excluding 7 electricity charges. The appellant/tenant has also filed a petition against the respondent/landlord u/s 45 of the Act for restoration of electricity and said petition was compromised as reflected from the proceedings Ex.PW1/E. The appellant/tenant at the time of compromise recorded in the said proceedings u/s 45 of the Act had paid Rs.9,600/- towards electricity usage charges for the preceding 8 years in terms of details dated 07.08.2004 Ex.PW1/D. It is also not disputed between the parties that the respondent/landlord has served a legal notice dated 09.11.2004 Ex.PW1/F which was replied vide reply dated 15.12.2004 Ex.PW/J.
12. The main dispute between the parties is regarding the rate of rent as well as the period of arrears of rent. As per the respondent/landlord, the rate of rent has become Rs.514/-p.m.w.e.f.14.03.2003 in terms of details dated 07.08.2004 Ex.PW1/D while as per the appellant/tenant the rate of rent was never enhanced in terms of Section 6A and 8 of the Act and the rate of rent has remained @ Rs.350/-p.m. The respondent/landlord has stated that the appellant/tenant was in arrears of rent amounting to Rs.19,730/- excluding electricity charges and also in arrears of rent w.e.f.September, 2004 @ Rs.514/-p.m.till the date of filing of the suit. The appellant/tenant has stated that he had paid the rent upto April, 8 2005 and also send the rent for the next three months @ Rs.350/-p.m.to avoid any controversy. The entire claim of the respondent/landlord is based upon the details dated 07.08.2004 Ex.PW1/D. It is not the case of the respondent/landlord that before increase of rent he has served the notice for enhancement of rent in terms of Section 6A and 8 of the Act. This appeal also involves the important question of law whether the rent can be increased by the landlord without resorting to the provisions of Section 6A and 8 of the Act. To appreciate the controversy between the parties, it is necessary to determine whether the appellant/tenant has executed details of rent dated 07.08.2007 Ex.PW1/D and whether the rent can be increased without resorting to the provisions of section 6A and 8 of the Act.
13. Now coming to the first proposition whether the appellant/tenant has executed the details of rent dated 07.08.2004 Ex.PW1/D. To prove the execution of details of rent dated 07.08.2004 Ex.PW1/D, the respondent/landlord has examined himself as PW1 and tendered his affidavit Ex.PW1/X. The respondent/landlord deposed that the appellant/tenant is the habitual defaulter in the payment of rent which was @ Rs.514/- p.m.w.e.f 14.03.2003 vide details dated 07.08.2004 9 Ex.PW1/D. The respondent/landlord has also examined V.K.Varsney as PW2 and Ravi Gupta as PW3 who in their respective affidavits Ex.PW2/A and Ex.PW3/A have deposed that the details of rent dated 07.08.2004 Ex.PW1/D was executed in their presence whereby the appellant/tenant has agreed to pay the arrears of rent without electricity charges by 07.08.2004 to the respondent/landlord. The appellant/tenant in his affidavit Ex.RW1/X stated that in terms of agreement dated 14.03.1991 the rent was agreed upon between the parties @ Rs.350/- p.m. excluding electricity and water charges which was never enhanced and he has paid the rent till April, 2005 vide cheque for Rs.15,000/-. The appellant/tenant further deposed that details dated 07.08.2004 Ex.PW1/D has never been prepared by him in any manner but the respondent/landlord has obtained his signature on the blank paper on the pretext of installation of an independent electricity connection.
14. It is not disputed between the parties that the appellant/tenant has filed a petition u/s 45 of the Act against the respondent/landlord titled as Avinash Paruthi V Amarjit Singh bearing no M(45) - 44/2004. The said petition was compromised between the parties and both the parties have submitted compromise deed dated 26.10.2004. The statement of the parties were also recorded by the court of ARC on 26.10.2004 which is 10 Ex.PW1/E. The perusal of statement of appellant/tenant reflects that the appellant/tenant has admitted the details dated 07.08.2004 and stated that he will ask for no objection certificate on payment of Rs.9,600/- towards electricity usage charges for the preceding 8 years as per the agreement entered between the appellant/tenant and respondent/landlord dated 07.08.2004. The appellant/tenant during his own cross examination has admitted that he is an educated person and as such not supposed to sign any blank paper. He further deposed that he has not stated in the petition u/s 45 of the Act before the court of ARC that the respondent/landlord has got any blank paper signed by him for obtaining an electricity connection. He further admitted that he has paid Rs.9,600/- towards electricity charges vide compromise deed dated 26.10.2004 before the court of ARC. The appellant/tenant as RW1 in cross-examination has also admitted that he has not initiated any legal proceedings such as legal notice, filing of civil case for non-issuance of rent receipts by the respondent/landlord. The appellant/tenant in the eviction petition has disputed the execution of details dated 07.08.2004 Ex.PW1/D but in the compromise recorded before the court of ARC on 26.10.2004 in petition u/s 45 of the Act, he himself has referred the agreement dated 07.08.2004 Ex.PW1/D. It is not believable that the 11 appellant/tenant who is claimed to be an educated person shall hand over a blank signed paper to the respondent/landlord or any other person only for the restoration of electricity connection. The appellant/tenant has also admitted his signature on details dated 07.08.2004 Ex.PW1/D. After perusal of record, I am of the considered opinion that the appellant/tenant has executed the details/writing dated 07.08.2004 Ex.PW1/D.
15. Now coming to the question whether the parties can increase rent by mutual agreement without contravening the provisions of section 6A and 8 of the Act or whether the rent can only be increased as per section 6A and 8 of the Act.
16. Section 6A of the Act deals with the revision of rent. It provides that the rent which was agreed upon between the landlord and tenant may be increased by 10% every three years. Section 6A of the Act 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 percent every three years.
17. Section 8 further provides that where a landlord wishes to increase 12 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, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty day's from the date on which the notice is given. Section 8 reads as under:--
8. Notice of increase of rent.--(1) Where a landlord wishes to increase the rent of any premises, he shall given 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 day's from the date on which the notice is given.
(2) Every notice under sub-section (1) shall be given in writing signed by or on behalf of the landlord and given in the manner provided under Section 106 of the Transfer of Property Act, 1882 (4 of 1882).
18. The landlord shall give a notice to the tenant to enhance the rent by 10% but such enhancement can only be after passing of three years either from the date of creation of tenancy or from the last such increase. The law does not provide that such increase will be automatic. The tenant also cannot take away the right of the landlord to increase the rent u/s 6A of the Act. The increase of rent is also provided u/s 8 of the Act. Section 8 of the Act contemplates a notice before the rent is increased. However, the combined reading of section 6A and 8 of the 13 Act reflects that the landlord is required to give the notice to express his intention for increasing the rent when only the landlord wants to or wishes to increase the rent. This section contemplates unilateral action on the part of the landlord for increasing the rent and if the landlord has fulfilled the requisite condition as provided u/s 6A and 8 of the Act then the tenant is obliged to increase the rent after a period of three years by 10%. However section 6A and 8 of the Act do not prohibit the landlord and tenant to increase the rent by mutual consent. The rent between the landlord and tenant is the result of bilateral agreement and it can be changed with the mutual consent of the parties. There is absolutely no bar under the Act regarding the change or enhancement of rent with the consent of the landlord and tenant.
19. There is no dispute between the parties that initially the rate of rent was Rs.350/-p.m.excluding electricity charges. The parties have settled their rate of rent vide details dated 07.08.2004 Ex.PW1/D. The appellant/tenant has himself agreed to enhancement of rent which was increased to Rs.514/-p.m.w.e.f.14.03.2003. Both the parties have worked out the arrears of rent and Ex.PW1/D is signed by the appellant/tenant himself. It is not the case of the appellant/tenant that 14 Ex.PW1/D was written under pressure, coercion rather the plea of the appellant/tenant that the respondent/landlord has got signed one blank paper does not inspire any confidence. The increase of rent does not hit by the provisions of section 6A and 8 of the Act as alleged and argued on behalf of the plaintiff.
20. The authorities cited by Sh.R.K.Mehta, Advocate, counsel for the appellant perused. In case of National Cooperative Consumer Federation of India Limited V Jwala Pershad Ashok Kumar Chopra, 74 (1998) DLT 842 (DB) it was observed that if there is a gap of 3 years between the revision of rents then the statute permits increase in rent only prospectively. In case of Crack Detectives Pvt.Ltd. V P.S.Malhotra, 129 (2006) DLT 584, it was observed that the increase in rent to be sought by the landlord must be in accordance with section 6A of the Act. In case of Nutan Kumar and others V IInd Additional District Judge, Band and others, AIR 1994 Allahabad 298, it was observed that an agreement against the contravention of statutory provision is unenforceable in law. There cannot be any dispute regarding the said propositions of law. However, in my humble opinion, the said authorities are not applicable to the case of the appellant/tenant. It has 15 not been laid down by their Lordships in any of the authorities cited that the rent as agreed upon between the landlord and tenant cannot be increased by mutual consent and it has to be increased only as per the provisions of the Rent Act. The provisions of section 6A and 8 of the Act are applicable only when the landlord unilateral wishes or wants to increase the rent.
21. Now coming to the impugned judgment whereby the trial court has directed the appellant/tenant to pay the arrears of rent amounting to Rs.19,730/-. On earlier occasion while passing the order u/s 15(1) of the Act dated 11.07.2005 similar directions were given to the appellant/tenant. The petition was filed on 25.01.2005. As per section 14(1)(a) of the Act, the landlord can claim arrears of rent which are legally recoverable from the tenant. The respondent/landlord cannot recover the arrears of rent for a period more than three years preceding the institution of the petition. The appellant/tenant cannot be directed to deposit the arrears of rent for a period of 8 years preceding to the date of institution of petition as per details dated 07.08.2004 Ex.PW1/D. The impugned judgment needs modification. The appellant/tenant is only liable to pay the arrears of rent for the period of three years preceding 16 from the date of institution of the petition i.e.the arrears of rent @ Rs.467/-p.m.w.e.f.27.01.2002 to 13.03.2003 and @ Rs.514/- p.m.w.e.f.14.03.2003 till the filing of the petition. The order u/s 15(1) of the Act is accordingly modified. The excess rent deposited by the appellant/tenant shall be refunded or if already released to the respondent/landlord then shall be adjusted in the future rent. The impugned judgment does not require any further modification on facts and law. The trial court has analyzed the facts carefully and has taken into consideration each and every piece of evidence placed on record. There is no ground to interfere in the impugned judgment. The trial court has already given the benefit u/s 14(2) of the Act to the appellant/tenant. The appeal is accordingly disposed of. No order as to costs. A copy of this judgment be sent to the trial court alongwith TCR for necessary information and action. File be consigned to the record room.
Announced in the open court (Dr.Sudhir Kumar Jain) Dated: 16.01.2008 Additional Rent Control Tribunal, Delhi 17 RCT NO. 11/07 16.01.2008 Present: Proxy counsel for the parties.
Vide separate judgment. the appeal is disposed of. No order as to costs. A copy of this judgment be sent to the trial court alongwith TCR for necessary information and action. File be consigned to the record room.
(Dr.Sudhir Kumar Jain) Additional Rent Control Tribunal, Delhi