JUDGMENT
Mr. N.G. Nandi, J.
1. In this suit, the plaintiff-lesser has been seeking a decree for recovery of possession against the defendants in respect of the premises No. 41, Community Centre, Vasant Lok, Basant Vihar, New Delhi and also a decree against the defendant for the recovery of mesne profits/damages at the rate of Rs. 1,34,368/- for the period 1.3.1991 to 11.11.1991 i.e. Rs. 11,97,033.30 and also at the same rate from the date of the suit till recovery of possession, also requiring the defendant to pay directly the amount as may be ascertained by the DDA and a decree for permanent injunction restraining the defendant from using or allowing to be used the third floor of property No. 41, Community Centre, Basant Lok, Vasant Vihar, New Delhi and the costs of the suit.
2. Case set out in the plaint, shortly stated is, that plaintiff No. 1 is the registered partnership firm engaged in the business of estate management and consultancy. That plaintiffs Nos. 2 to 4 are the owners plot No. 41, Community Centre, Basant Lok, Vasant Vihar, New Delhi admeasuring 145.67 sq.mtrs. which was taken by them on perpetual lease from the Delhi Development Authority w.e.f. 28.9.1973. Subsequently, a perpetual lease deed was executed and registered by DDA in favor of plaintiffs Nos. 2 to 4. That the construction of the premises was completed in the year 1978. Thereafter, plaintiffs Nos. 2 to 4 engaged the services of plaintiff No. 1 for searching suitable tenant/tenants for the premises in question, as also to negotiate the terms of letting out the premises on their behalf. This is how the property came to be let out by plaintiff No. 1 to the defendants. The defendant No. 2 has been arrayed in the present proceedings because defendant No. 1 is the part and parcel of defendant No. 2. That tenancy was initially created by way of exchange of letters and correspondence. Accordingly, the entire building having total commercial area of 7904 sq.ft. on all its floors, was leased out to defendant No. I on 17.7.1978. The agreed rent at that time was Rs. 2.50 paise per sq.ft per month for the total area of 7904 sq.ft. Accordingly, a rent of Rs. 19,760/- per month was settled. That at the time of letting out the premises, the premises were fully seen and inspected by the defendant and their officials and the user of the various portions of the building, as authorised by the DDA, was also duly intimated to the defendants and it was thereafter, that the premises were taken by them on rent. That barring the third floor, all other areas were and should have been used for commercial purpose, As regards the third floor is concerned, the user was by the very nature of construction, confirmed to residential use only. That after the expiry of one year, the lease on the request of defendants was extended on the same terms and conditions for a further period of one year, vide plaintiffs’ letter dated 23.7.1979. The extended period expired on 6.7.1980. In spite of repeated reminders, the property was not vacated by the defendants and they continued to be in occupation of the demised premises.
It is also averred in the plaint that thereafter eviction proceedings were initiated against the defendant under Section 14(1)(c) and Section 14(1)(k) of the Delhi Rent Control Act; that the said eviction proceedings are pending; that in the mean time, Section 3 of the said Act came to be amended and by virtue of Section 3(c) of the said Act (Amended), the premises, getting rent more than Rs. 3,500/- per month, were taken out of the purview of the provisions of the Delhi Rent Control Act, 1958. Accordingly, w.e.f. 1.12.1988, defendants ceased to enjoy the Special protection enjoyed by them earlier. On 1.12.1988, the relationship between the parties was to be, therefore, governed in accordance with the provisions of the Transport of Property Act. That the tenancy of defendant is duly terminated by legal notice time and again and the plaintiffs served notice of termination of tenancy w.e.f. 1.1.1991. Thus, according to the plaintiff, the defendants no longer enjoy the protection under the Delhi Rent Control Act and the defendant would be governed under the provisions of Transfer of Property Act.
It is also averred that the defendants have changed the user of the premises than the one authorised by DDA. On these averments, the plaintiffs pray for the relief, aforestated.
3. Defendant filed written statement to the suit and refuted the claim of the plaintiff, inter-alia contending that the suit is based on totally wrong premise that the provisions of Delhi Rent Control Act, 1958 are not applicable to the facts and circumstances of the case. The provisions of the Act prior to its amendment and also after its amendment, are applicable to the facts of the case especially since the standard rent of the premises in dispute is less than Rs. 3,500/- per month. That the plaintiff instituted eviction proceedings in the Court of Additional Rent Controller, Delhi, who initially dismissed the petition. Thereafter, the plaintiff filed an appeal before the Rent Control Tribunal against the order of the Additional Rent Controller. That the said appeal is still pending. It is submitted that the plaintiff is estopped from contending that the provisions of the Act are not applicable to this case. The defendants have denied that the defendants have been using the premises for the purpose, other than the purpose authorised by the DDA. It is denied that the defendant is liable for any mesne profit, as alleged and also the charges to DDA for the change of user. That the plaintiff was fully aware that defendant No. 1 is an authority under the Union of India and wanted to take on rent the building only for its offices. 11 was the duty of the plaintiff to know the bye-laws of the DDA and that it should have acted in accordance with the said bye-laws at the time of letting out the premises. The onus of obtaining “No Objection Certificate” from DDA is that of the plaintiff and not of the defendants. Plaintiffs are estopped from alleging that the tenancy of defendants for commercial purpose is in violation of the bye-laws of DDA. It is not denied that the plaintiff sent a legal notice dated 12.3.1983. That the plaintiffs have made no efforts to have the pending eviction petition disposed of. That the amendment in Section 3 of the Act has no effect to the present case. The relationship between the parties is governed by the Delhi Rent Control Act and not by the Transfer of Property Act. That the legal notices after 1st of March are after thought and without any basis. That it i s the responsibility of the plaintiff to ensure that his premises are properly used. The defendants status is only that of a tenant and they had accepted the offer sent by the plaintiffs for letting out the premises. In substance, the defendants dispute the plaintiffs’ claim as put forth in the plaint and pray for the dismissal of the suit with costs.
4. From the pleadings following issues have been framed :
1. Whether the plaintiff cannot rely on the amendment to the Delhi Rent Control Act, 1958 by Act No. 57 of 1988 to maintain the present suit? OPD
2. Whether the word Rent as used in the amendment to the Delhi Rent Control Act, 1958 by Act No. 57 of 1988 means standard Rent? OPD
3. If answer to Issue No. 2 is in the affirmative whether the standard rent of premises in question is less than Rs. 3500/- p.m.? OPD
4. Whether the D.D.A. is a necessary and proper party to the proceedings? OPD
5. Whether the tenancy was not validity terminated? OPD
6. To what amount is the plaintiff entitled on account of damages/menses profits? OPP
7. Relief.
5. My findings on the issues, are as under :–
1.
Issue No. 1
Negative
2.
Issue No. 2
Negative
3.
Issue No. 3
Does not
survive.
4.
Issue No. 4
Negative
5.
Issue No. 5
Negative
6.
Issue No. 6
Enquiry
under Order 20 Rule 12 C.P.C. ordered for damages/menses profits
7.
Issue No. 7
As per
final order.
6. It has been submitted by Mr. Navin Goel, Counsel appearing for the plaintiff, that Issues Nos. 1, 2 and 3 are covered by the judgment rendered in the case of D.C. Bhatia and Ors. v. Union of India and Anr. . It has been held therein by the Supreme Court that “impugned Section 3(c) of the Rent Act does not violate Article 14 of the Constitution in any manner. The classification made on the basis of rent payable on the premises is valid. The Court can not act as a super legislature and decide whether cut off point for the classification on the monthly rent should be Rs. 3500/-, Rs. 4000/- or Rs. 5000/-. It is for the legislature to decide whether or not any Section of the people should be protected in any way by law. The Court will not question its validity on the ground of lack of legislative wisdom. This is a case of express repeal of the old Rent Control Act. Whether the old statute ceases to be operative the tenant cannot claim to continue to have the old statutory protection. The tenants had not acquired any vested right but had a right to take advantage of the provisions of the repealed Act so long as that law remained in force. Section 3(c) talks of monthly rent and the legislature has not used the expression ‘standard rent’ in Section 3(c).”.
7. In view of the above principle laid down by the Supreme Court, Issues No. 1 & 2 stand fully covered and, therefore, Issues No. 1 & 2 are answered in the negative. Since Issue No. 2 is answered in negative, Issue No. 3 does not survive.
8. It has been the say of the plaintiff that time and again the tenancy of defendants has been terminated by serving the legal notices. It is pertinent to note that the defendant has not, in so many words, contended that the tenancy of the defendant is not validly terminated. In this regard, a reference may be made to the averments in plaint para 17, wherein it is averred that “although the defendant’s tenancy had expired due to efflux of time on 10.10.1990 and also before that due to the serving of legal notice on them, yet, without prejudice to their rights, the plaintiffs were advised (with a view to get over any possible technical objections) to sent another notice on the defendants, accordingly, a legal notice dated 29.1.1991 was delivered to the defendants in terms of which the tenancy of the defendants was again terminated w.e.f. 1.1.1991. …… the notice was received by the defendants on 30.1.1991.” The defendants, in written statement, have contended that “the plaintiff in fact is not interested in getting the premises vacated. The legal notices after first of March are an after thought and without any basis. Moreover, as the present case is already pending before the Rent Controller, the defendants did not give a reply to the legal notice.” It will be seen that there is no pleading as such to the effect that the defendants’ tenancy had not expired due to efflux of time on 10.10.1990 and also before that due to the serving of the legal notices on the defendants and that a legal notice dated 29.1.1991 was not delivered to the defendants in terms of which the tenancy of the defendants was again allegedly terminated w.e.f. 1.1.1991. Thus, there is no denial with regard to the termination of the tenancy earlier and also with regard to the receipt of notice dated 29.1.1991 again terminating the tenancy of the defendants w.e.f. 1.1.1991. It is not suggested by the defendants as to how the notice terminating the tenancy is in any way invalid or illegal. Under Section 106 of the Transfer of Property Act, if it is a monthly lease, a 15 days’ notice is required expiring with the end of the month of tenancy. In the instant case, the lease is alleged to be a monthly lease, which is not denied by the defendants. There is no question of the lease being a lease for manufacturing purpose of agricultural purpose and for this reason, it is to be found that the tenancy of the defendants was duly terminated by the plaintiff and, therefore, Issue No. 5 is required to be answered in the negative looking to the form of issue.
9. The plaintiff has been claiming damages/menses profits to the tune of Rs. 1,34,368/- and Rs. 11,97,033.30 paise and also at the same rate from the date of the suit till recovery of the possession, on the allegations that defendant has put the premises to the user not authorised by the DDA.
The question involved is the rate, at which damages/menses profits can be granted or ought to be granted in favor of the plaintiff. It is true that the rents of the immovable properties in Delhi have been increasing and there is phenomenal rise in the rents of the immovable properties.
In the instant case, in view of the findings on Issue Nos. 1 to 3 and 5, decree for possession in favor of the plaintiffs and against the defendants is a must. Rule 12 of Order 20 CPC deals with the decree for possession and mesne profits. Clause (b) of Sub-rule (1) provides that Court may pass a decree for the rents, which have accrued on the property during the period, prior to the institution of the suit or directing an enquiry as to such rent. Clause (ba) provides that the Courts may pass a decree for the mesne profits or directing an enquiry as to such mesne profits and that enquiry as to rent or meanse profits under Clause (c) has to be from the date of institution of the suit until the delivery of possession. In my opinion, it would be a fit case, where a decree should be passed directing an enquiry under Clause (b) and (ba) from the institution of the suit till delivery of the possession of the property to the plaintiff.
It is suggested from the record that the defendants have been using the premises for the purpose other than the purpose for which it is let and authorised by the DDA. It is suggested that the defendant has put the property to the user other than the one agreed by the plaintiffs-landlords and authorised by the DDA. It need hardly be said that if the landlord is saddled with any liability or payment to the statutory authority on account of the charges for breach of the lease, committed by the lessee, the lessee is liable to make the same good to the Lesser. In order to keep the property intact, it is necessary for the land-lord/plaintiff to have the breaches regularised and pay the necessary charges, Therefore, the liability for all such lawful charges, which are recoverable by the Land & Development Officer, have to be borne by the defendants. I accordingly hold that the defendants are liable to pay the charges, levied by the Land & Development Officer on account of the mis-user of the premises in question. A decree is passed in favor of the plaintiff and against the defendants for payment of the exact amount, which is found lawfully payable to the Land & Development Officer on this account. The plaintiff will be liable to pay the requisite Court fee on the decree for such amount.
In view of the above, Issue No. 6 is answered accordingly. In other words, enquiry ordered under Order 20 Rule 12 C.P.C. for damages/menses profits.
10. One of the issues deals with the joinder of DDA as a party to the suit. In my opinion DDA would be neither a necessary nor a proper party for the reason that the issue involved in the suit can be finally and effectively adjudicated upon without affecting the interests of DDA. There is no issue involved in this suit which would adversely affect the interests of DDA, if decided in absence of DDA as a party to the suit. DDA being neither a necessary or proper party in the present proceeding, issue No. 4 deserves to be answered in the negative.
11. In the result, a decree is passed in favor of the plaintiffs and against the defendants for possession of immovable property bearing No. 41, Community Centre, Basant Lok, Vasant Vihar, New Delhi and the defendants do hand over vacant peaceful possession of the suit premises to the plaintiffs. The defendants are further restrained by perpetual injunction from using or allowing to be used the third floor portion of the property bearing No. 41, Community Centre, Basant Lok, Vasant Vihar, New Delhi for any other purpose, except the residential purpose. A decree is also passed in favor of the plaintiffs and against the defendants for the payment of the exact amount which is found lawfully payable to the Land & Development Officer, Delhi on account of the damages/ mesne profits for the mis-user of the property by the defendants. An enquiry under Order 20 Rule 12(1)(b) and (ba) C.P.C. is directed for the rents which have accrued on the property during the period prior to the institution of the suit and also for damages/menses profits after the institution of the suit till the delivery of possession to the plaintiff. Defendants shall bear their own costs and also pay that of the suit to the plaintiffs.