JUDGMENT
R.S. Sodhi, J.
1. R.S.A. 75 of 2005 seeks to challenge the judgment and order dated 25.5.2005 of the learned Additional District Judge, Delhi, in R.C.A. No. 76 of 2004 whereby the learned Judge has, while adjudicating upon an appeal from the judgment and decree dated 22.5.2005 in suit for possession and mesne profits, dismissed the appeal.
2. Brief facts of the case, as noted by the first appellate court, are that –
The appellant-defendant was inducted as tenant by the respondent-plaintiff in premises Flat No. 48, Plot No. 20, Triveni Apartments, Budella Residential Scheme, Vikaspuri, Delhi, vide rent agreement dated 28.6.1993, the tenancy was never renewed. The rental of the premises is stated to be Rs. 3,650/- p.m. And the appellant-defendant is in arrears of rent from 1.4.1999 which amounts to Rs. 52,750/- up to 30.6.2000. The tenancy is stated to have been terminated vide notice dated 26.6.2000 and since the appellant-defendant did not vacate the premises, the respondent-plaintiff filed the suit on 1.8.2000.
The appellant-defendant filed written statement wherein it was stated that the suit is beyond the pecuniary jurisdiction of the court; the notice terminating the tenancy is illegal; the suit is liable to be rejected u/o Rule 11 CPC being without any cause of action.
It had further been stated that the respondent-plaintiff in her eviction petition Under Section 14D Delhi Rent control Act has stated the rental to be Rs. 3,500/- p.m. And as such the jurisdiction of the court is barred and further the present suit filed during the pendency of the eviction petition is bad in law.
The appellant-defendant further stated that the premises was let out initially at a monthly rent of Rs. 1,800/- in July, 1992 which was increased to Rs. 2,000/- in June 1993 and the rent could be enhanced by 10% every three years as per DRC Act and the rate of rent should have been Rs. 2,420/- p.m. Whereas the appellant- defendant is compelled to pay the rent @ Rs. 3,500/- p.m. Which is the prevalent rate of rent. The appellant-defendant, however, admitted that he is in arrears of rent w.e.f. 1.5.1999.
The respondent-plaintiff filed replication to the written statement of the appellant-defendant wherein the submissions of the appellant-defendant in the written statement have been denied and those in the plaint have been re- asserted and re-affirmed.
On the pleadings of the parties, the following issues were framed :
1. Whether the jurisdiction of this court is barred as alleged by defendant? OPD
2.Whether the plaintiff is liable to be rejected u/o 7 Rule 11 CPC as claimed by defendant? OPD.
3.Whether the present suit is premature as claimed in para 4 of Preliminary Objection of WS? OPD
4.Whether the tenancy of defendant has been validly terminated? OPD.
5.What is the agreed rate of rent between the parties? OPP/OPD.
6.Whether the plaintiff is entitled for the arrears of rent/mesne profits? If so, at what rate and for which period? OPD.
7.Whether the plaintiff is entitled for the relief of possession? OPP.
8.Relief.
3. The appellant seeks to raise the following questions which, according to him, are substantial questions of law.
A. Whether the rent of a tenanted premises covered under the Delhi Rent control Act could be enhanced except as provided under the provisions of Section 4, 6A and 8 of the Delhi Rent Control Act?
B. Whether the maintenance charges paid directly by the occupant to the Society could be treated to be a part of rent and the rate of rent could be deemed to be inclusive of the said maintenance charges?
C. Whether a contract entered into between a landlord and tenant under coercion and threat of eviction could be binding upon the tenant when there was no free consent of the tenant and when the landlady was in a position to dictate the will of the tenant under the circumstances?
D. Whether a notice of termination having been denied by the tenant and no cross-examination made on that aspect could be deemed to have been served?
E. Whether the onus to prove the rate of rent by way of leading positive evidence lay on the respondent-plaintiff and in the absence thereof could the suit be decreed on the basis of an erroneous admission made in another proceedings?
F. Whether an erroneous admission made bona fide defend to defend a case could be retracted by a party to a proceedings in another subsequent proceedings?
4. Counsel for the appellant submitted that the questions of law referred to above arise from the facts of this case which have not been adequately answered by the trial court and the first appellate court and, therefore, can be raised and argued under Section 100 CPC. Counsel for the respondent, on the other hand, contended that questions of law, as framed, do not arise from the facts of the case wherein two courts have concurrently come to the conclusion that the Delhi Rent Control Act is not applicable to the case in hand and that the contract between the parties binds them. He also submits that in the earlier eviction petition it was the stand of the appellant that rent of the premises in question is more than Rs. 3,500/- per month and consequently the Rent Controller had no jurisdiction to try the same. Surely, the appellant cannot now turn around and claim that this admission does not bind him. Nor can he contend that it was an erroneous admission made bona fide. 5. I have heard counsel for the parties and have carefully gone through the judgment under challenge as well as the written submissions filed by them. It appears that the learned Additional District Judge has taken great care while analysing the evidence and the material on record to return a finding that the order of the trial court suffers from no infirmity or illegality. The questions raised in this appeal are hardly questions of law when the very basis is erroneous. 6. It is borne out from the record that the respondent was serving as Additional Director Health Services, Ministry of Health and Family Welfare and was allotted Government accommodation. In anticipation of retirement, the respondent filed an eviction petition under the Delhi Rent Control Act under Section 14D thereof. The appellant herein in his written statement took up the plea that the rent in respect of the premises was Rs. 3,650/- per month, consequently the Rent Controller had no jurisdiction to entertain the petition and sought leave on this ground which was granted vide order dated 19.5.2000. The respondent, on the basis of the admission made by the appellant before the Rent Controller, filed a suit for possession and mesne profits before the Civil Court. Here, the appellant-tenant, took up the plea that rent of the premises in question was less than Rs. 3,500/- per month and that the Civil Court had no jurisdiction in view of the bar under Section 50 of the Delhi Rent control Act. The trial court decreed the suit, which was then taken up in appeal and the same dismissed by the impugned order. 7. The question that arose for consideration was whether the appellant could be allowed to raise and canvass that he had made an erroneous admission which he should be allowed to retract and if this admission is retracted, whether the rent could not be fixed at anything higher than the standard rent in view of the provisions of the Delhi Rent control Act. The other issue, namely, whether the maintenance charges form part of rent was also sought to be raised. 8. The aforesaid issues, as already stated, have been squarely dealt with by the two courts below. There is no gainsaying that the appellant is estopped from pleading that the Civil Court has no jurisdiction to try the case in view of the bar under Section 50 of the Delhi Rent control Act when in the earlier eviction petition before the Rent Controller, the appellant himself had claimed that the rent of premises was Rs. 3,650/- per month and that the Rent controller had no jurisdiction to proceed with the matter. The appellant, obviously, is trying to gain time by this frivolous argument advanced before this court. The contention that the Rent Control Act is applicable to this case is rejected. The next contention that the premises cannot be let out in violation of the Delhi Rent control Act is also rejected.
9. I need hardly emphasize that there is no bar to fix rate of rent at more than Rs. 3,500/- per month by contract and the rent so fixed would keep the premises beyond the pale of the Delhi Rent control Act. It is only where the rent has been fixed below Rs. 3,500/- per month would the Delhi Rent Control Act come into effect and that too subject to the period of ten years created under the Act by Section 3(d) thereof. The other pleas sought to be raised are not relevant as the court has come to the conclusion that the Delhi Rent Control Act is not applicable. This being the case, I find no question of law muchless substantial question of law raised.
10. Accordingly, R.S.A. 75 of 2005 and C.M. Appl. 4946 of 2005 are dismissed. The interim order granted stands vacated.