IMPORTANT POINT
Order IXV Rule 2 of CPC confers no jurisdiction on a Court to decide mixed questions of fact and law as preliminary issues.

Mukta Gupta, J.— On 5th March, 2013 issues were framed by this Court wherein Issue No. 4, which reads as under, was treated as a preliminary issue. “4. Whether the present suit is barred under the Delhi Rent Control Act? (OPD)”

2. The objection of the Defendant is that the Plaintiff has filed the present suit seeking decree of possession, recovery of a sum of Rs. 1.20 crores, damages and cost of the suit in respect of property situated at Atma Ram Mansion, Scindia House, Connaught Place, New Delhi. The Defendant has been a tenant in the building since 14th May, 1948 pursuant to Rent Deed executed between the erstwhile owners of the building and the predecessor of the Defendant on 15th May, 1939. The rent agreed between the parties CS (OS) No. 574 of 2010 Page 2 of 13 was Rs. 627.50 per month and thus the Defendant is protected under the provisions of the Delhi Rent Control Act. 1958 (in short “the DRC Act”). In view of the said protection the present suit is not maintainable as the same is actually a suit for eviction of the tenant which has to be filed in terms of the DRC Act. It is contended by learned counsel for the Defendant that Section 3 (c) of the DRC Act does not apply to certain premises whether residential or otherwise whose monthly rent exceeds Rs. 3,500/-. The Plaintiff by including the house tax payable on the tenanted premises, as rent, which is now assessable on the basis of unit area system and not on the basis of actual rent cannot treat the same as rent, thus taking the tenancy of the Defendant out of the purview of the DRC Act. The notice dated 4th September, 2009 under Section 106 of the Transfer of Property Act (in short “TP Act”) does not seek eviction of the Defendant as a tenant and only seeks payment of house tax pursuant to amendment in the byelaws. Section 8 of the DRC Act prescribes the form in which notice is required to be issued to the tenant expressing the intention of the landlord to increase the rent. The notice does not say about the enhancement of rent. Since no notice of enhancement of rent has been given to the Defendant thus the rent of the Defendant would be deemed to be the one agreed between the parties, that is, less than Rs. 3,500/-. There is no provision in law which permits house tax levied to be automatically treated as rent. Thus the tenancy of the Defendant would be covered under the provisions of DRC Act. Hence the present suit is liable to be dismissed on this count itself.

3. Learned counsel for the Plaintiff on the other hand contends that the landlord is required to seek eviction for non-payment of rent under Section 14 (1) (a) of the DRC Act only if the premises fetch rent below Rs. 3,500/-. Since payment of house tax is the liability of the tenant, the same would also be treated as rent thereby enhancing the rent above Rs. 3,500/- and taking the suit out from the purview of the DRC Act. The Plaintiff issued a notice to the Defendant under Section 106 of the Transfer of Property Act (in short “the TP Act”) which was replied vide letter dated 10th August, 2009 by the Defendant stating that it was not the Defendant’s liability to pay the house tax. Since the New Delhi Municipal Council Act, 1994 (in short “NDMC Act”) is a later act the provisions thereof would prevail over the DRC Act and in view thereof the house tax now levied would be “rent” in the eyes of law and thus the suit of the Plaintiff is not liable to be dismissed. Reliance is placed on Calcutta Gujarati Education Society and another vs. Calcutta Municipal Corpn and others, 2003 (10) SCC 533. and Ganga Ram vs. Mohd. Usman, ILR 1978 (1) Delhi 139 (Full Bench). Relying upon United Indian Assurance Company Ltd. vs. Smt. Anup Kaur, RSA No. 251/2008 decided on 28th April, 2011 it is stated that this Court has even treated the maintenance charges to be paid to a third party as part of the rent thereby holding that the bar of Section 50 DRC Act would not be applicable. Relying on Section 105 of the TP Act it i