Sewa International Fashions v. Smt. Suman Kathpalia & Ors..

Dr. M.K Sharma, J.— This revision petition is directed against the order dated 16.1.1999 passed by the Additional District Judge, Delhi in Suit No. 104/1998. The aforesaid suit was instituted by the respondents as Plaintiffs on 6.3.1988 seeking a decree of ejectment and for payment of damages/mesne profits against the petitioner.

2. The respondents/Plaintiffs stated in paragraph 4 of the plaint that the rent and the maintenance charges of the suit premises were increased from time to time and that finally with effect from October, 1977, aggregate monthly rent of the said premises became Rs. 3,684/- made up of Rs. 3,146/- and Rs. 538/- being paid by the defendant towards the maintenance charges in respect of the said premises.

3. The Petitioner/defendant contested the suit on various ground including the ground that the suit is barred under the provisions of Section 50 of the Delhi Rent Control Act contending, inter alia, that the rent paid to the respondents/plaintiffs was inclusive of all taxes rates and charges, but, exclusive of maintenance charges and, therefore, the rent of the premises should be computed as Rs. 3,146/- per month which was payable by the petitioner to the respondents and that so computed the Civil Court shall have no jurisdiction to entertain the said suit in view of the provisions of the Delhi Rent Control Act. In the light of the aforesaid pleadings of the parties, a preliminary issue was framed by the Additional District Judge as to whether the suit is barred by the provisions of Section 50 of the Delhi Rent Control Act. The Additional District Judge after hearing the parties by her order dated 16.1.1999 awarded the aforesaid preliminary issue No. 1 in favour of the respondents/plaintiffs and held that the suit is not barred under the provisions of Section 50 of the Delhi Rent Control Act. Being aggrieved by the aforesaid order of the Additional District Judge, the present revision petition has been preferred by the petitioner.

4. It was submitted by Mr. S.K Taneja, counsel appearing for the petitioner that the unregistered lease deed dated 22.10.1979 entered into between the parties hereto clearly recites that the rate of rent for the premises was Rs. 1,775.40 inclusive of all taxes, rates and charges but, exclusive of maintenance charges and with the increase the present rate of rent was Rs. 3,146/- per month and, therefore, the suit filed in the Civil Court was clearly barred under the provisions of Section 50 of the Delhi Rent Control Act. In support of his contention, the learned counsel drew my attention to the recitals of the lease deed particularly, to clause (1) and clause (2) thereof. Clause (1) of the said lease deed recites that the monthly rent is inclusive of all taxes, rates and charges but exclusive of the maintenance charges. Clause (2) on the other hand recites that the Lessee shall pay each month actual maintenance charges to the Maintenance Society or any other body, association or to the Lessor as the case may be according to the bills received directly to the Lessee. Relying on the aforesaid clauses, the earned counsel submitted that the contract between the parties specifically stipulates that the maintenance charges as agreed to be paid by the petitioner to the respondents was exclusive of the rent which was fixed at Rs. 1,775,40 which was subsequently increased to Rs. 3,146/- only which is inclusive of ail taxes, rates and charges. He also submitted that the maintenance charges cannot be computed as rent and, therefore, payment made outwards maintenance charges cannot be said to be payment towards rent. In support of his submission, the learned counsel relied upon the decisions in Secretary of State v. Babu Rajendra Prasad and others; reported in A.I.R 1937 Patna 391, Banwarilal Sharma v. Ram Swaroop; reported in A.I.R 1974 Raj 178 and also the decision of this Court in Inder Vijay Singh v. NDMC; reported in 1995 RLR 254.

5. Mr. Abhinav Vashisht, counsel appearing for the respondents, however submitted that the maintenance charges were payable by the petitioner to the respondents as per stipulation in the lease deed and such payment would also be included within the expression of ‘rent’. He submitted that the term ‘rent’ is comprehensive enough to include all payment agreed by the tenant to be paid to the landlord for the use and occupation not only of the building an its appurtenances but also includes other amenities agreed between the parties to be provided by and at the cost of the landlord. In support of his contention, the learned counsel relied upon the decision in Karnani Properties Ltd., v. Miss Augustine; reported in A.I.R 1957 SC 309, Puspa Sen Gupta v. Susma Ghose; reported in (1990) 2 Supreme Court Cases 651 P.L Kureel Talib Mankab, Vidhan Parishad v. Beni Prasad and another; reported in AIR 1976 Allahabad 362 and also the Division Bench decision of this Court in Inder Vijay Singh (supra). Reference was also made to several other decisions namely Pranab Ganguly v. Shambhazar Land and Estate Pvt. Ltd.,; reported in 1982 (1) All India Rent Control Journal page 482 and the decision in Usha Ranjan Bhattacharya v. Mahalakshmi Thacker; reported in 79 C.W.N page 227.

6. In order to appreciate the contention of the learned counsel appearing for the parties, it is necessary to ascertain as to what constitutes rent, the expression ‘rent’ is not defined under the Delhi Rent Control Act. However, as to what constitutes rent could be found out from the provisions of Section 105 of the Transfer of Property Act wherein the word ‘rent’ is defined. It states that money, share, services or other thing to be so rendered is called the ‘rent’. Thus, apart from the money which is paid as rent, if any service is rendered and any payment is made in respect of the same, the same is also to be included within the definition of ‘rent’. In Karnani Properties Ltd. (supra), the Supreme Court held that the term ‘rent’ is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation of its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. Similar is the decision of the Supreme Court in Pushpa Sen Gupta (supra). The aforesaid decisions of the Supreme Court have been referred to and relied upon in the decision in P.L Kureel Talib Mankab, Vidhan Parishad, Usha Ranjan Bhattacharya, Pranab Ganguly and in Inder Vijay Singh (supra), which is a Division Bench decision of this Court.

7. The question, therefore, which arises for my consideration at this stage is whether payment agreed to be paid by the petitioner to the respondents toward maintenance charges could be included within the ambit of the expression, ‘rent’, Counsel for the petitioner states that the same cannot be included as under the lease deed what would constitute rent was specified which excluded the maintenance charges. I, however, cannot agree with the learned counsel appearing for the petitioner for the simple reason that under clause (1) of the said lease deed, the parties agreed to pay a particular sum towards the use and occupation of the building which is inclusive of all taxes, rates and charges, but exclusive of the maintenance charges which were also required to be paid by the petitioner to the respondents in accordance with the stipulations in the lease deed. As it is disclosed from the record, the petitioner was paying a sum of Rs. 538/- to the respondents towards the maintenance charges in respect of the aforesaid premises. Those maintenance charges were payable for the use and occupation of the premises and for the amenities provided by the landlord.

8. It is an established proposition of law that rent includes not only what is originally described as rent in agreement between a landlord and tenant but also those payment which is made for the amenities provided by the landlord under the agreement between him and the tenant. The payment made towards the maintenance charges of the premises rented out and also for providing amenities to the tenant would also come within the expression ‘rent’ as rent includes all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building but also of furnishing, electric installations and other amenities.

9. The Division Bench decision of this court in Inder Vijay Singh (supra) has also held following the decision of the Supreme Court in Karnani Properties Ltd. (supra) that the term ‘rent’ is comprehensive enough to include all amenities agreed between the parties to be provided by and at the cost of the landlord.

10. Thus construing, the only irresistible conclusion that could be arrived at on consideration of the facts of this case is that the charges payable by the petitioner to the respondents as maintenance charges would also come within the ambit of the expression ‘rent’ and so computed, the actual rent payable by the petitioner to the respondents was above Rs. 3,500/- per month and, therefore, the provisions of Delhi Rent Control Act are not applicable to the facts and circumstances of the present case. The Additional District Judge rightly decided the aforesaid preliminary issue No. 1 in favour of the respondents and against the petitioner holding that the suit is not barred under Section 50 of the Delhi Rent Control Act. There is no error in the order passed by the learned Additional District Judge. The petition accordingly has no merit and is dismissed.