The legal notice increasing the rent can legally increase the rent by 10% after 30 days, and a preliminary decree is not necessary for deciding on mesne profits.

VALMIKI J. MEHTA, J

1. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 17.9.2011 decreeing the suit of the respondent/landlord for mesne profits and possession.

2. The facts of the case are that the appellant/defendant was a tenant of premises being Flat No. 308, third floor, Laxmi Bhawan, 72, Nehru Place, New Delhi measuring 352 sq. ft. The lease originally commenced in October, 1979 at a monthly rent of Rs.1161.60/-. Thereafter, pursuant to the provision of Sections 6A and 8 of the Delhi Rent Control Act, 1958, which allows enhancement of rent by 10% every three years, rent was regularly increased and the last undisputed enhancement was of Rs.2489.30/-per month with effect from 23.4.2004. The respondent/plaintiff, thereafter, got issued another legal notice dated 7.5.2007 enhancing the rent to Rs.3618.23/-with effect from 23.4.2007.

This amount of rent includes maintenance charges of Rs.880/-per month. With the rent being more than Rs.3,500/-per month, the premises no longer enjoyed the protection under the Delhi Rent Control Act, 1958. The tenancy of the appellant was, thereafter, terminated by a legal notice dated 7.9.2007, under Section 106 of the Transfer of Property Act, 1882 and on failure of the appellant/defendant to vacate the suit premises, the subject suit for possession and mesne profits came to be filed.

3. The appellant contested the suit and raised several defences. One defence was that the notice dated 7.5.2007 increasing the rent to Rs.3618.23/-per month was not served. Another defence was that the notice was defective because this notice sought to increase the rent retrospectively.

4. Before proceeding further, I may note that whereas the respondent/plaintiff led evidence in the trial Court, however, no evidence was led on behalf of the appellant/defendant. Since in spite of imposition of costs, no evidence was led, the evidence of the appellant/defendant was closed by the trial Court, and which order has become final. This order of closing evidence was not challenged and nor were the costs imposed paid. This order of closing of evidence has also not been challenged in the present appeal.

5. The trial Court has held that the notice dated 7.5.2007 which was sent to as many as seven addresses is held to be served. It has also been held by the trial Court that although the language of the notice may be defective by which rent was sought to be increased retrospectively, however, even if the illegal demand seeking retrospective enhancement is taken away yet in any case the notice will statutorily operate to increase the rent by 10% after the expiry of 30 days from the date on which notice is given as per Section 8 of the Delhi Rent Control Act, 1958. The trial Court has thereafter considering the evidence led on behalf of the respondent/plaintiff, decreed the suit for possession and mesne profits.

6. Learned counsel for the appellant argued the following points before this Court:-

(i) The notice dated 7.5.2007 increasing the rent to Rs.3618.23/-per month (inclusive of amount of Rs.880/-payable as maintenance charges) was not served. While on this argument, I must note that the appellant accepted before the trial Court that an amount of maintenance charges is included in rent and this fact is noted in para 9 of the judgment at internal page 16.

(ii) The notice dated 7.5.2007 was illegal because the notice given under Sections 6A and 8 of the Delhi Rent Control Act, 1958 cannot increase the rent retrospectively.

(iii) In the present case no preliminary decree was passed under Order 20 Rule 12 CPC and therefore impugned judgment and decree is liable to be set aside.

7. I am unable to agree to any of the arguments as raised on behalf of the appellant. So far as the first argument is concerned, it is absolutely misconceived in law inasmuch as the present is a case where notices were se