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High Court Of Delhi
LAKSHMIKANT SHRIKANT - Appellant
Versus
M.N.DASTUR AND COMPANY PRIVATE LIMITED - Respondent
L.P.A. 6573 of 1997
Decided On : 01/27/1998
Held: Under Order 14 Rule 1 CPC the court is required to frame issues of facts or of law thai 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 a 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.
The discretion has to be exercised reasonably and not arbitrarily. If a friable issue of fact or law arises bonaftde 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 malafide 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 hand off and allow the, game of the defendant to have its sway? In my view the answer is No.
Order 12 Rule 6 — Decree on admission — Exercise of discretion — If the defense raised by the defendant is malafide or preposterous, decree can be passed on the basis of admission.
Delhi Rent Control Act 1958 - Section 12 — Standard rent — Limitation for application — Such applicationcan only be made within 2 years from tenancy.
Under Section 12 of the Delhi Rent Control Act, 1958 application for standard rent could he 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 in 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.
Transfer of Properly Act, 1882 - Section 106 — Termination of tenancy — Admission of — Protection of Rent Control Act not available — Decree of eviction can be granted on the basis of admission of tenancy.
( 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. 00 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. 00 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 I. I 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. 00 and the same rent is the standard rent and as this rent is less than Rs. 3,500. 00 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. 00 and then @ of Rs. 20,000. 00 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. 00 or that rent in excess of Rs. 2,050. 00 is not recoverable is not bonafide 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. 00 , 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 malafide and vexatious and no bonafide 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 and Sind Bank, 1996 (5) AD (Del.) 323; R. N. Sachdeva v. Ram Lal Mahajan Charitable Trust. 1997 (III) AD (Del.) 997, Asa Singh Virdiv. Asit Kumar Sarkar, 1997 (43) DRJ 87 and MM. Chawla v. JT. 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. 00 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, Civil Procedure Code is discretionary and two issues arise, namely, whether the landlord is entitled to rent in excess of Rs. 2,050. 00 ; the suit is not barred under Delhi Rent Control Act; and in these circumstances discretion should not be exercised. He has relied on State Bank of India v. Midland Industries and Ors. , AIR 1988 Delhi 153; and Bhagwan Din Tewari and Am. v. Sheoraj and Ors. ,
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