SHYAM KISHOR AND ORS. Vs. ROOP SAREE KENDRA

JUDGEMENT

(1.) DEFENDANT filed this application order 6 Rule 7 and order 12 Rule 6 read with section 151 CPC which is being contested by the plaintiffs. Plaintiffs filed suit for possession of first and second floors and terrace of property No. 450 Katra Choban, Chandni Chow and mesne profits on 29th November, 1999. Allegations in plaint which are relevant for deciding the application, are that the plaintiffs are owners of said property No. 450, Katra Choban and the defendant was let out first floor consisting of a big hall, bath room and second floor and terrace thereof initially on monthly rent of Rs. 2,000/ - besides water and electric charges. Rent was increased to Rs. 3,000/ - per month with effect from 1st January, 1989 and again to Rs. 3,450/ - per month with effect from 1st January, 1992. By mutual consent rent was further increased to Rs. 6,000/ - per months w.e.f. 1st January, 1995. Defendant had been paying rent to the plaintiffs by account payee cheques. Since the plaintiffs did not want to keep the defendant as tenant, they served a notice dated 2nd January, 1996 terminating its tenancy and requiring it to vacate the property by 31st January, 1996 which they failed to do.

(2.) IN the written statement it is alleged that first floor of property excluding passage for second floor was taken on rent from the plaintiffs in the year 1971 vide lease -deed dated 28th July 1971 on a monthly rental of Rs. 900/ - exclusive of electricity and water charges for which rent receipts were issued. Second floor with roof was taken on rent in or about July 1974 on a rental of Rs. 800/ - per month exclusive of water and electricity charges after the same was vacated by M/s. South Saree House who were tenants therein on a rental of Rs. 600/ - per month Defendants is, thus, tenant of two distinct and separate floors of the property. It is further alleged that rent for the months of August and September, 1974, totaling Rs. 3450/ - in respect of both the portions was paid to the plaintiffs for which they issued one composite receipt for Rs. 3400/ -. Plaintiffs represented to the defendant that for sake of convenience a composite receipt was being issued to it. Plaintiffs are close relations of the partners of defendants as sister of one of the partners named Madhu was married to Prakash Mehra, son of the plaintiffs on 9th March 1974. In 1979 the plaintiff asked the defendant to increase rent to which it could not object. Rent of first floor was raised to Rs. 1100/ - while that of second floor to Rs. 900/ - per month. Rent of first floor was again enhanced to Rs. 1610/ - while that of second floor to Rs. 1316/ - per month with effect from 1st November, 1989, totaling Rs. 2926/ - which was rounded off to Rs. 3.000/ - per month. Rent of first floor was again enhanced to Rs. 1930/ - while that of second floor to Rs. 1520/ - per month. Aggregate amount of both the floors was Rs. 3450/ - per month with effect from 1st January 1992. It is claimed that along -with there has been two separate tenancies, the plaintiffs have been issuing composite rent receipts for both the said floors. It is empathically denied that by mutual consent or otherwise the rent was enhanced to Rs. 6,000/ - per month in 1995 or at any time thereafter as alleged.

(3.) SUBMISSION advanced by Sh. L.R. Gupta for defendant was that the plaintiffs having that defendant is holding lease deed executed in the year 1973 by which first floor of property was let out on a monthly rental of Rs. 900/ - and rent receipt in respect thereto as also that second floor was taken on rent by the defendant in the year 1974, with intent to evade and circumvent the said facts, took somersault in the replication taking absolutely new and inconsistent plea that second floor with roof above was given on rent to the sister concern of defendant, namely, M/s. South Saree House in the year 1971 on monthly rental of Rs. 600/ - and after M/s. South Saree House vacated the said portion in July 1974, the defendant after surrender of tenancy was let out first and second floors with roof above, on a rent of Rs. 1700/ - per month in July, 1974. According to the learned counsel although in Para No. 5 of the plaint the plaintiffs alleged that rent was increased from Rs. 3450/ - to Rs. 6,000/ - per month with effect from 1st January, 1995 by mutual consent of properties but in replication they have alleged that increase in rent was made by the defendant in order gain goodwill of the plaintiffs voluntarily. In support of the prayer made in application, reliance was placed particularly on the decisions in Kuppa Viswapathi Vs. Kuppa Venkata Krishana Sastry, : AIR 1963 Andhra Pradesh 9; Hardail Singh and others Vs. Sardarni Jaswant Kaur, : AIR (3) 1943 Lahore 159; Muhammad Yahya Vs. Rahem Ali, : AIR 1929 Lahore 165 and Kadar Nath & Ors. Vs. Ram Parkash & Ors., 76 (1998) DLT 755 (FB).