Asa Singh Virdi v. Asit Kumar Sarkar

USHA MEHRA, J.

(1) ACTUAL date notice was issued which was duly served on the respondents as per office report. But inspite of service no one put in appearance in the week commencing 6th March, 1995. Earlier also notice was served but none appeared. It is in this background that I do not consider it necessary to serve the respondent afresh.

(2) THE short point involved in this petition is, whether fresh revised agreed rent or the initial fixed rent would be the determining factor to calculate arrears of rent The Additional Rent Control (in short the ARC) relying on the judgment of this Court in the case of Allied Engineers Vs. Smt. Harbaksh Gill 1985 Rajdhani Law Reporter 128 held that initial rent would prevail because the mutually agreed rent fixed by the parties thereby refixing the rate of rent at Rs. 950. 00 w. e. f. 1st September, 1990 was a periodical increase. Since it was a periodical increase in rent due to the agreement arrived at between the parties hence the petitioner would not be entitled to an order under Section 15 (2) of the Delhi Rent Control Act (in short the Act).

(3) FACTS giving rise to this petition are that the respondent was inducted as a tenant on a monthly rent of Rs. 575. 00 excluding water and electricity charges on 20th November, 1981. Subsequently thereto fresh agreement was arrived at between the parties whereby it was agreed that the rent would be Rs. 950. 00 per month w. e. f. 1st January, 1988. Respondent started paying rent at that rate of Rs. 950. 00 per month w. e. f. 1st January, 1988 and paid the same till 31st August, 1990. However, w. e. f. 1st September, 1990 he did not pay the rent. The petitioner filed eviction petition on two grounds covered under Section 14 (1) (b) and (d) of the Act. He also filed an application seeking fixation of interim rent under Section 15 (1) of the Act. As already observed above, the Additional Rent Controller after holding that the enhanced agreed rent at the rate of Rs. 950. 00 per month w. e. f. January, 1988 was only a periodical increase, therefore, could not be claimed by the landlord. The demand of arreares @ Rs. 950. 00 p. m. was hit by the provisions of Section 4 of the Act. Section 4 of the Act provides that no tenant shall, notwithstanding any agreement to the contrary, be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of premises, unless such amount is lawful increase of the standard rent in accordance with the provisions of the Act. The learned ARC treated this fresh agreement to be a periodical increase by virtue of oral agreement and, therefore, held that since fresh agreed rent at the rate of Rs. 950. 00 was in excess of the standard rent, hence under Section 4 of the Act the petitioner was not entitled to claim the arrears of rent at the rate of Rs. 950. 00 per month. I am afraid this reasoning of the learned ARC cannot be supported on the basis of the facts which have come on record. Justice Sultan Singh in Allied Engineers (Supra) was dealing of a case where the rent agreement contained a Clause No. 2 para 3 which provided that the rent was to get increased by 10% after every three years. Because of this Clause, thereby empowering the landlord to increase the rent by 10% after every three years, that this Court interpreted such a Clause to be a periodical increase Clause of the agreement. In the facts of that case, particularly keeping in view the terms of the agreement, this Court, therefore, concluded that it was a periodical increase. But that is not the case in hand. An oral agreement was entered into by the parties afresh thereby agreeing to refix the rent at the rate of Rs. 950. 00 per month effective from 1st January, 1988. This cannot be called a periodical increase. There was no Clause in the rent agreement entered into between the parties enabling the landlord to increase the rent periodically after a certain period. Hence it can safely be said that in the absence of any term in the agreement to increase the rent after a certain period, the agreement arrived at between the parties thereby fixing fresh rate of rent cannot be called periodical increase. Initial rent was fixed at the time of inception of tenancy i. e. in 1981. Therefore, when the fresh agreement was arrived at in January, 1988, it was not on account of any agreement by virtue of which power vested with the landlord to enhance the rent.

(4) THAT even otherwise in this case no standard rent had been fixed. The statutory period of one year to move for fixation of standard rent had already expired. Hence in the absence of standard rent having been fixed by the Rent Controller, the provisions of Section 4 of the Act could not be made applicable in the facts of this case. To arrive at this conclusion I am supported by the decision of the Supreme Court in the case of M. M. Chawla Vs. J. S. Sethi [1970] 2 SCR 390. In that case also on account of non payment of rent the landlord filed proceedings for ejectment. The interim rent was fixed, but the tenant committed defaults. Therefore, proceedings for ejectment were initiated. In the written statement the tenant asked the Rent Controller to fix the standard rent and sought benefit of Section 14 (2) of the Act. The Rent Controller rejected his prayer but the Tribunal and the High Court reversed the findings. The Supreme Court negative the contention of the tenant by holding that on the asking of the tenant in written statement after the expiry of the limitation, standard rent could not be fixed. Unless standard rent is fixed Section 4 of the Act cannot be invoked. It observed as under : -.

" (a) The prohibition in Sections 4 and 5 of the Act operates only after the standard rent has been fixed and not before. Untill the Rent Controller has fixed the standard rent under S. 5, the contract between the landlord and tenant determines the liability. Section 6 cannot be interpreted to mean that standard rent can be regarded as fixed without an order from the Controller.

(b) When Section 15 (3) refers to a case in which there is a "dispute as to the amount payable by the tenant" the dispute referred to is about contractual rent payable and not about the standard rent. The expression "having regard to the provisions of the Act" has reference to Sections 9 and 12. The scheme of sub-section (3) of Section 15 is that the interim rent will be paid at the rate ordered by the Controller and if before the proceedings is disposed of standard rent is fixed by the Controller in an application under Section 12 then in order to obtain the benefit of Section 6 the tenant must pay the arrears calculated on the basis of the standard rent within one month from the date on which the standard rent is fixed or within such further time as the Controller may allow.

If in a proceeding under Section 14 (1) (a) the tenant raises by way of defence a contention that the standard rent be determined the Controller may treat that as an application under Section 12 and deal with it according to law. But the Act confers no power under Section 15 (3) upon the controller. The power to determine standard rent is exercisable under Section 12 only.

(c) Acceptance of the appellants contention would lead to anomalous resultes. Under Section 12 standard rent may be given retrospective operation for not more than one year. But if a tenant is in arrears for more than one year, on the contention of the appellant, the tenant would be liable to pay arrears at the rate of standard rent determined for a period not longer than one year before the date on which he made a claim in his written statement for determination of standard rent and may be entitled to reopen closed transactions. The legislature could not have intended that the tenant in default should be entitled to evade the statutory period of limitation prescribed by the expedient of refusing to make an application so as to Obtain an advantage to which he is not entitled if he moves the Controller in a substantive application for determination of standard rent.

(5) THEREFORE, it is clear that the provisions of Section 4 or for that matter 5 and 6 would not be attracted till the standard rent has been fixed by the Controller. In this case admittedly no standard rent was fixed by the Rent Controller, therefore, the parties were to be governed by their contractual rent which they mutually agreed and fixed w. e. f. 1st January, 1988 at the rate of Rs. 950. 00 per month. Had the standard rent been fixed the petitioner would have been disentitled to recover any amount in excess of the standard rent from the date on which it was determined. Under the scheme of the Act the standard rent of a given tenantment is that amount which the Controller determines. Untill the standard rent is determined by the Controller, the contract between the landlord and tenant determines the liability of the tenant to pay the rent. Almost in identical circumstances the Bombay High Court in the case of Mohd. Ibrahimkhan deceased through his LRs Vs. Mehboobkhan 1991 (2) Vol. VIII All India Rent Control Journal 130 held that where no fair rent is fixed under Section 9 of the Act, paties are at liberty to enhance the rent which will be called the agreed rent and the parties would be governed by the said agreed rent.

(6) SINCE in the present case no standard rent had been fixed, therefore, it was not right on the part of the Controller to hold that the agreed rent which the parties mutually fixed at the rate of Rs. 950. 00 per month effective from 1. 1. 88 was not the rent on the basis of which order Under Section 15 (2) of the Act could be passed or that rent would not govern the payment of rent by the respondent. In view of the authoritative pronouncements of Supreme Court in the case of M. M. Chawla (Supra) I have no hesitation to hold that the parties in the present case were to be governed by the mutually agreed rate of rent i. e. Rs. 950. 00 effective from 1. 1. 88.

(7) FOR the reasons stated above, the impugned order cannot be sustained. The same is accordingly set aside. Respondent is given one months time to pay arrears of rent. I have been told that the respondent had been depositing rent @ Rs. 575. 00. While depositing the arrears of rent respondent would be entitled to adjustment of rent already deposited.