INTEROCEAN SHIPPING Vs. Y R PURI

JUDGEMENT

(1.) This is tenant's appeal against the judgment anddecree dated 5/03/1991 of the learned Additional District Judge, Delhi,whereby he decreed the suit of the plaintiff landlord for possession. Theproperty in question is Flat No. B on the Ninth Floor in Atma Ram House, 1,Tolstoy Marg, New Delhi, with a floor area of 941.52 sq. ft. The plaintiff isnow respondent before us. He filed a suit for possession under the ordinarycivil law staling that the defendant-appellant was his tenant at a monthly rent ofRs. 4,000.00 and, thus, outside the purview of Delhi Rent Control Act, 1958.He said this rate of rent was agreed w.e.f. 1/04/1988. The plaintiff alsosaid that he had served a notice terminating the tenancy of the defendant andthereafter filed the suit which, as noted above, was decreed with costs.

(2.) It is unnecessary for us to refer to all the issues as in this appealtwo principal points were raised by Mr. Rawal who appeared for the appellant,He said the notice terminating the tenancy was not served on the defendant andfurther that the Delhi Rent Control Act was in fact applicable in the facts andcircumstances of the case. He said that it was admitted case of the parties thatthe premises were let out to the defendant on 18/06/1974 at a monthly rent ofRs. 2,655.00. The lease deed clearly stipulated that any increase in house-taxetc. shall be borne and payable by the defendant as the lessee. He said on therepresentation of the plaintiff that house-tax had since increased the rent wasincreased by a sum of Rs. 500.00 and w.e.f. April 1982 rent was being paid at therate of Rs. 3.155.00. Again on the similar representation of the plaintiff the rentwas increased to Rs. 8,750.00 per month w.e.f. I April, 1985. The last increase inrent happened on the similar representation of the plaintiff and w.e.f. I April,1986 the rent was increased to Rs. 4,000 .00 per month. It can at once be seenfrom the increase in rent that it has no correlation with any increase of thehouse tax. In fact It was found that the house-tax had in fact decreased. Mr.Rawal said the tenant bad no means to find out if the house-tax had increasedand the solely depended on the representation of the plaintiff-landlord. This toour mind cannot be so. We are, thus, of the opinion that the learned Additional District Judge was right in holding that rent was not increased in termsof the lease deed between the parties which provided any increase in payment ofhouse-tax by the tenant-defendant. Section 7 of the Delhi Rent Control Act towhich renference was made and so far as it is applicable provided that house-tax etc. is to be payable by the landlord. This Section to our mind if notapplicable in the present case as the rent in the present case has not been increased because of any increase in house-tax but because of agreement between theparties. Once it is held that the rent is Rs. 4.000.00 per month the premises falloutside the purview of provisions of the Delhi Rent Control Act and a civil suitis maintainable. Mr. Rawal then said that the validity of the amendment Actthough upheld by this Court is pending challenge in the Supreme Court. Butthat certainly cannot be a reason for keeping the appeal pending when law hasbeen laid down by this Court itself upholding the amendment to the Delhi RentControl Act. Coming to the question of notice terminating the tenancy we findthat notice was properly addressed to the tenant at his address by registeredA.D. post. A notice was also addressed to Capt. K.C. Saigal. Proprietor of the defendant, at his residential premises. There is no disputethat the addresses as given of the defendant were not correct. Mr. Rawal saysacknowledgement card which was returned does not bear the signature of Capt.K.C. Saigal himself. The fact, however, remains that the notice was addressedat a proper address at the office of the defendant. If somebody received theregistered A..D. notice on behalf of the defendant, it cannot be said that thedefendant has not been properly served. Otherwise there is no challenge to thevalidity of the notice as such. This contention of Mr. Rawal also fails. Accordingly, we do not find any merit in the appeal and the same is dismissed.

(3.) During the course of hearing it was pointed out that the whole ofthe building In which the premises in question are situate has been lying sealedbecause of a certain fire incident that occured there in March 1990. Mr. Rawalsaid that the defendant-tenant is not presently in possession of the premisesand be cannot enter therein unless permitted by the authorities and afterpremises are declared safe. Mr. Nayyar who appeared for the Caveator-landlord said that rent has not been paid to him as from March 1989, butthat is not the issue in the present appeal.