ASA SINGH VIRDI Vs. ASIT KUMAR SARKAR

JUDGEMENT

(1.) Actual date notice was issued which was duly served on the respondents as per office report. But inspite of service no one put in appearance in the week commencing 6th March, 1995. Earlier also notice was served but none appeared. It is in this background that I do not consider it necessary to serve the respondent afresh.

(2.) The short point involved in this petition is, whether fresh revised agreed rent or the initial fixed rent would be the determining factor to calculate arrears of rent? The Additional Rent Control (in short the ARC) relying on the judgment of this Court in the case of Allied Engineers Vs. Smt. Harbaksh Gill 1985 Rajdhani Law Reporter 128 held that initial rent would prevail because the mutually agreed rent fixed by the parties thereby refixing the rate of rent at Rs. 950.00 w.e.f. 1st September, 1990 was a periodical increase. Since it was a periodical increase in rent due to the agreement arrived at between the parties hence the petitioner would not be entitled to an order under Section 15(2) of the Delhi Rent Control Act (in short the Act).

(3.) Facts giving rise to this petition are that the respondent was inducted as a tenant on a monthly rent of Rs. 575.00 excluding water and electricity charges on 20th November, 1981. Subsequently thereto fresh agreement was arrived at between the parties whereby it was agreed that the rent would be Rs. 950.00 per month w.e.f. 1st January, 1988. Respondent started paying rent at that rate of Rs. 950.00 per month w.e.f. 1st January, 1988 and paid the same till 31st August, 1990. However, w.e.f. 1st September, 1990 he did not pay the rent. The petitioner filed eviction petition on two grounds covered under Section 14(1)(b) & (d) of the Act. He also filed an application seeking fixation of interim rent under Section 15(1) of the Act. As already observed above, the Additional Rent Controller after holding that the enhanced agreed rent at the rate of Rs. 950.00 per month w.e.f. January, 1988 was only a periodical increase, therefore, could not be claimed by the landlord. The demand of arreares @ Rs. 950.00 p.m. was hit by the provisions of Section 4 of the Act. Section 4 of the Act provides that no tenant shall, notwithstanding any agreement to the contrary, be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of premises, unless such amount is lawful increase of the standard rent in accordance with the provisions of the Act. The learned ARC treated this fresh agreement to be a periodical increase by virtue of oral agreement and, therefore, held that since fresh agreed rent at the rate of Rs. 950.00 was in excess of the standard rent, hence under Section 4 of the Act the petitioner was not entitled to claim the arrears of rent at the rate of Rs. 950.00 per month. I am afraid this reasoning of the learned ARC cannot be supported on the basis of the facts which have come on record. Justice Sultan Singh in Allied Engineers (Supra) was dealing of a case where the rent agreement contained a Clause No. 2 para 3 which provided that the rent was to get increased by 10% after every three years. Because of this Clause, thereby empowering the landlord to increase the rent by 10% after every three years, that this Court interpreted such a Clause to be a periodical increase Clause of the agreement. In the facts of that case, particularly keeping in view the terms of the agreement, this Court, therefore, concluded that it was a periodical increase. But that is not the case in hand. An oral agreement was entered into by the parties afresh thereby agreeing to refix the rent at the rate of Rs. 950.00 per month effective from 1st January, 1988. This cannot be called a periodical increase. There was no Clause in the rent agreement entered into between the parties enabling the landlord to increase the rent periodically after a certain period. Hence it can safely be said that in the absence of any term in the agreement to increase the rent after a certain period, the agreement arrived at between the parties thereby fixing fresh rate of rent cannot be called periodical increase. Initial rent was fixed at the time of inception of tenancy i.e. in 1981. Therefore, when the fresh agreement was arrived at in January, 1988, it was not on account of any agreement by virtue of which power vested with the landlord to enhance the rent.