CHARANJIT LAL MEHRA Vs. KAMAL SAROJ MAHAJAN

JUDGEMENT

(1.) This Special Leave Petition is filed against an order dated August 25, 2004 passed by the learned single Judge of the High Court of Delhi at New Delhi whereby learned single Judge has set aside the order dated February 13, 2004 passed by the trial court whereby the trial court declined to pass an order of eviction moved by the plaintiff under Order XII, Rule 6 of the Code of Civil Procedure (hereinafter to be referred to as C.P.C.) and observed that the application made at this stage is not maintainable and the suit shall be decided recording necessary evidence of the parties in order to do complete justice and dismissed the application of the plaintiff filed under Order XII, Rule 6, C.P.C. Hence the present revision was filed before the High Court. The said revision application came to be disposed of by the learned Single Judge of the High Court on August 25, 2004.

(2.) In order to dispose of the present petition, brief facts may be detailed herein. Respondent No.1 filed a suit for eviction, arrears of rent and damages/mesne profit against the defendant-petitioners alleging therein that the premises in question was let out to the defendant-petitioners jointly on a monthly rent of Rs. 2500/- vide agreement dated September 4, 1977. The tenancy commenced with effect from October 1, 1977. The rent was increased from time to time at the rate of 10 per cent per month. For the period from September 1, 1998 to August 31, 2001 the defendant-petitioners paid rent at the rate of Rs. 3327/-per month. On July 28, 2001 the plaintiff-respondent No.1 served a notice on the defendant-petitioners under Section 6-A read with Section 8 of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as the Act), notifying therein that the rent would be increased by 10 per cent with effect from September 1, 2001. Since the monthly rent of the demised premises became Rs. 3659/- which is more than Rs. 3500/- with effect from September 1, 2001, the provisions of the Act ceased to apply to the demised premises. The plaintiff-respondent No.1 then terminated the tenancy of the defendant-petitioners by separate legal notice dated October 8, 2001. The said notice was duly served on the defendant-petitioners by registered post with acknowledgment due on October 11, 2001. The plaintiff-respondent No.1 thereupon filed the suit for recovery of possession as well as for recovery of arrears of rent for the month of September and October, 2001 and pendente lite and and future interest and mesne profit/ damages at the rate of Rs. 40,000/-.

(3.) The suit was contested by the defendant-petitioners by filing written statement. The defendants did not dispute the existence of relationship of landlord and tenant between the parties. It was also admitted that the tenancy commenced from October 1, 1977 on a monthly rent of Rs. 2500/- under rent note dated September 4, 1977. The rent was increased from time to time by serving notice under Section 6-A of the Act. Service of notice dated July 28, 2001 under Section 6-A of the Act and notice dated 8th October, 2004 under Section 106 of the Transfer of Property Act was not denied. The defence put in by the defendant-petitioners was that the tenancy was not a joint one but it was a separate, independent and distinct tenancy of the four individuals and they were liable to pay rent individually. In their written statement they also made a reference to letters dated August 3, 1992 and September 17, 1992, which according to the defendants, supported their version that they were separate, independent and distinct tenants. It was pointed out that in the communication made by the plaintiff on September 17, 1992 the plaintiff refused to accept the cheque for a sum of Rupees 42,000/- as it was tendered on behalf of one of the defendants only. But later on the plaintiff accepted the cheque on March 24, 1994 for a sum of Rs. 60,000/- which was tendered on behalf of all four defendants. This according to the defendants, indicated that the plaintiff herself treated the defendants as separate tenants. It was also contended that the defendants individual share of rent never reached the figure of Rupees 3,500/-. Therefore, the question of non-applicability of the provisions of the Act does not arise. The defendants did not dispute their liability to pay the arrears of rent from September, 2004 but they denied the liability to pay damages/ mesne profits.