Lakshmikant Shrikant (huf) Through Its Karta L.k. Jhunjhunwala v. M.n. Dastur & Company Private Limited

J.B. Goel, J.

1. In this application under Order 12 Rule 6 of the Code of Civil Procedure (for short the Code) the plaintiff seeks a decree for possession of the premises/property No. 2, Rajdoot Marg also known as 75/48, Chanakyapuri, New Delhi in a suit filed for recovery of possession of the premises besides recovery of rent and mesne profits.

2. It is alleged that the defendant had been a tenant of the plaintiff and in February, 1990 the rent was Rs. 8,000 per month. The plaintiff had filed a suit for possession against the defendant where a compromise was arrived at and the rent was increased to Rs. 20,000 per month with effect from 1.1.1991 for a period of six years and since then the defendant has been paying rent at this rate but after expiry of six years, agreed period the defendant did not vacate the premises; and the tenancy of the defendant has been terminated by means of notice dated 1.1.1997 but the defendant has not vacated the premises, hence the present suit.

3. The defendant has filed written statement contesting the suit. It is not disputed that the plaintiff had let out the premises to the defendant. However, it is alleged that the premises were initially let out by a lease dated 28.11.1960 for a composite monthly rent of Rs. 2,050 and the same rent is the standard rent and as this rent is less than Rs. 3,500 per month the suit is not maintainable in view of the Delhi Rent Control Act. It is admitted that in February, 1990 the defendant was paying rent @ Rs. 8,000 and then @ of Rs. 20,000 after the earlier suit was compromised; however, it is alleged that that is not the rent payable under the Delhi Rent Control Act. Receipt of notice dated 1.1.1997, terminating the tenancy and the reply dated 14.1.1997 is admitted.

4. In reply to application under Order 12 Rule 6, it is disputed that the plaintiff is entitled to decree under Order 12 Rule 6.

5. Learned Counsel for the plaintiff has contended that the relationship of landlord and tenant, termination of tenancy and the fact that the rent had been agreed to be increased to and is being paid @ Rs. 20,000 per month with effect from 1.1.1991 is not disputed; and the plea of the defendant that the standard rent of the premises is Rs. 2,050 or that rent in excess of Rs. 2,050 is not recoverable is not bona fide and is a vexatious plea. He has referred to documents placed on record showing that the defendant has been paying the rent after deducting TDS under the Income Tax Act on the basis of the monthly rent of Rs. 20,000, the standard rent as contemplated under Delhi Rent Control Act has not been fixed and in the absence of standard rent, contractual rent as mutually increased from time-to-time is the rent payable, the defence is mala fide and vexatious and no bona fide triable issue arises for determination and plaintiff is entitled to decree of possession on admission. He has relied on M/s. Sun Chandra and Company v.Punjab & `Sind Bank, 1996 (5) AD (Del.) 323; R.N. Sachdeva v. Ram Lal Mahajan Charitable Turst, 1997 (III) AD (Del.) 997, Asa Singh Virdiv.Asit Kumar Sarkar,1997 (43) DRJ 87 [LQ/DelHC/1997/219] and M.M. Chawla v.J.S. Sethi, 1970 (2) SCR 390.

6. Whereas learned Counsel for the defendant has contended that the premises were let out in the year 1960 at a composite monthly rent of Rs. 2,050 and that would be the standard rent under Section 6 of the Delhi Rent Control Act and any amount in excess of the same is not the rent legally recoverable. He has further contended that the power under Order 12 Rule 6, CPC is discretionary and two issues arise, namely, whether the landlord is entitled to rent in excess of Rs. 2,050 the suit is not barred under Delhi Rent Control Act; and in these circumstances discretion should not be exercised. He has relied onState Bank of Indiav.Midland Industries and Ors., AIR 1988 Delhi 153; and Bhagwan Din Tewari and Anr. v. Sheoraj and Ors.AIR 1931 Oudh 321 (2).

7. In the case of Bhagwan Din Tewari (supra) the plaintiffs suit was dismissed by the Additional Subordinate Judge and the appeal was dismissed by the District Judge. In second appeal, before the High Court, it was argued that one of the eight defendants had admitted in the lower Appellate Court the plaintiffs claim and as such a decree should have been made by that Court against that defendant. This contention was considered in view of Order 12 Rule 6 and it was observed that the lower Appellate Court after considering the matter had come to the conclusion that no decree should be made on the mere admission of the plaintiffs title even as against the defendant who admitted it. In that context it was noticed that this rule invested the Court with a discretion as to the order or judgment which it would make under this provision and that the Court is not bound to give judgment in accordance with the admission and instead it may in its discretion require facts admitted to be proved otherwise than by admission. The High Court in the facts of the case found no ground for interference with discretion exercised by the lower Appellate Court. In the second case of State Bank of India (supra) the plaintiff-bank had filed a suit for recovery of their dues. The suit was contested on various pleas and 7 issues were framed. The plaintiff sought a decree under Order 12 Rule 6, CPC. It was observed that judgment on admission by the defendant under Order 12 Rule 6 is not a matter of right and is rather a matter of discretion of the Courts though such discretion has to be judicially exercised and where a case involves questions which cannot be conveniently disposed of on a motion under the rule the Court is free to refuse exercise of the discretion. On this case, on facts, it is observed that the objections raised go to the root of the case and if these were found against the plaintiff are likely to non-suit the plaintiff. Obviously, the defence raised triable issues in that case and the application was disallowed in peculiar facts of that case.

8. Each case has to be considered and decided on its own facts and circumstances. There is no dispute to the proposition that discretion vested in a Court or authority must be exercised along sound judicial lines and not arbitrarily. It is indeed impossible to lay down hard and fast rule in matters that affect discretion.

9. Under Order 14 Rule 1, CPC the Court is required to frame issues of facts or of law that necessarily and properly arise for determining the real controversy involved on the pleadings of the parties. Such issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. The Court would not frame an issue which does not arise on the pleadings nor an issue need be framed on a point of law which is perfectly clear. The Court is required to apply its mind and understand the facts before framing issues.

10. Learned Counsel for the defendant laying great stress on Sections 4, 5 and 6 of the Delhi Rent Control Act has contended that the premises were let in 1960 at a monthly rent of Rs. 2,050 and that rent is the standard rent under Section 6 of that Act, and rent or increase in rent in excess of that rent is not legally recoverable under Sections 4 and 5 of that Act. He has further contended that in view of this dispute/plea raised no decree can be passed under Rule 6 or in any case discretion thereunder ought not be exercised at this stage.

11. As noticed earlier the discretion has to be exercised reasonably and not arbitrarily, If a triable issue of fact or law arises bona fide which need investigation that will not entitle to a judgment under this Rule and discretion will necessarily be exercised against such claimant. However, if the plea is mala fide or preposterous, or vexatious and can be disposed of without going into facts or is contrary to law or settled legal position will it be justified for the Court to keep its hands off and allow the game of the defendant to have its sway In my view the answer is No.

12. Under Section 12 of the Delhi Rent Control Act, 1958, application for standard rent could be made within two years of letting and only then Rent Controller could fix the standard rent. No such application is alleged to have been made in this case and no such standard rent has at any time been fixed; hence the rent agreed between the parties continues to be contractual rent. Section 4 or 5 of that Act would be attracted only after standard rent is fixed under Section 6 or 9 of that Act and so long as the standard rent of the premises is determined by the Controller, the tenant must pay the contractual rent. There is no legal bar which may disentitle the parties to agree mutually to enhance the rent from time-to-time(M.M. Chawla v.J.S. Sethi,(1970) 2 SCR 390; and Amar Singh Virdi v.Asit Kumar Sarkar,1997 (43) DRJ 87 [LQ/DelHC/1997/219] ).

13. In view of this settled legal position the contention that rent of Rs. 2,050 which was agreed initially is the standard rent has no basis and obviously is mala fide and vexatious. This plea cannot be pressed to decline discretion under Order 12 Rule 6.

14. Admittedly, the rent has been mutually increased from time-to-time, it was Rs. 8,000 per month in February, 1990 and from 1.1.1991 it was mutually enhanced to Rs. 20,000 per month. It is not disputed that since then rent is being paid at this enhanced rate of Rs. 20,000. Plaintiff has also placed on record the Certificates/Declarations given by the defendant having deducted TDS under the Income Tax Act on the basis of rent being Rs. 20,000. Correctness of these is not disputed.

15. Receipt of notice under Section 106 of the Transfer of Property Act terminating the tenancy is not disputed which is also acknowledged by defendant in their reply dated 14.1.1997. No illegality in this notice is alleged or pointed out.

16. The position that emerges is that (i) the relationship of landlord and tenant is admitted; (ii) the tenancy has been validly terminated; (iii) the rent is Rs. 20,000 per month i.e. more than Rs. 3,500 the suit is beyond the purview of Delhi Rent Control Act. On these facts plaintiff is entitled to judgment under Order 12 Rule 6.

17. I, accordingly, allow this application and pass a decree for possession under Order 12 Rule 6 of the Code in favour of the plaintiff and against the defendant and direct the defendant to hand over the possession of the premises, namely, 2, Rajdoot Marg, New Delhi also known as 75/48, Chanakyapuri, New Delhi. Plaintiff will also get proportionate costs on this relief.