C.K. Mahajan, J.
1. By way of the present petition the petitioner assails the order dated 28th May, 2001 passed by Shri G.P. Thareja, Additional Rent Control Tribunal, Delhi setting aside the judgment of the Additional Rent Controller and dismissing the eviction petition.
2. Briefly stated the facts of the case are that the petitioner is the owner and landlord of premises bearing Flat No. 302, Mansarover Building, 90, Nehru Place, New Delhi. The said premises was let out to the respondent vide lease deed dated 21st February, 1978 for a period of three years. Even after the expiry of the said period the respondent continued to retain the said premises. In April, 1986 the rate of rent of premises was Rs. 3,128/- per month. From August, 1989 the respondent without any notice from the petitioner under Section 6A of the Delhi Rent Control Act, 1958 as amended in the year 1988 started sending cheques for payment of rent of the said premises at the rate of Rs. 3,150/- per month. It is alleged that the increase of Rs. 22/- per month was made by the respondent with the object of defeating the legal right of the petitioner to demand increase in rent by 10%. The petitioner by a notice dated 25th November, 1991 under Sections 6A and 8 of the Act called upon the respondent to increase the rent by 10% i.e. at the rate of Rs. 3,465/- per month for the period commencing after the expiry of thirty days from the date of service of the said notice. The respondent was liable to pay rent at the rate of Rs. 3,465/- per month exclusive of other charges w.e.f. 30th December, 1991. It is stated that even if the increase of Rs. 22/- per month in rent from Rs. 3,128/- per month to Rs. 3,150/- per month is ignored or given up the respondent became liable to increase the rent from Rs. 3,128/- per month to Rs. 3,440/- per month w.e.f. 1st January, 1992. The respondent did not reply to the aforesaid legal notice. Thereafter also the respondent started sending cheques at the rate of Rs. 3,150/- towards payment of rent despite written request of the petitioner to not to send the rent at the old rate. Thus the respondent fell in arrears of rent for the period commencing from 30th December, 1991 or at least from 1st January, 1992 and ending with 31st March, 1992 and a sum of Rs. 24,252/- became due to the petitioner. The petitioner by notice dated 16th April, 1992 demanded the arrears of rent from the respondent.
3. An eviction petition was filed by the petitioner against the respondent under Section 14(1)(a) and (b) of the Delhi Rent Control Act.
4. The petition under Section 14(1)(b) was dismissed. However, the petition under Section 14(1)(a) was disposed by directing the respondent to deposit the balance rent i.e. difference between Rs. 3,440/- and Rs. 3,150/- from 1st January, 1992 till date within one month from the date of the order. The contention, that the petition was filed by HUF of the petitioner which could not be treated as juristic entity and hence the petition was not maintainable, was repelled by the learned Additional Rent Controller. The second contention, that the notice for enhancement served on the respondent was premature, was also rejected. Rent was increased in August, 1989 and the notice was sent on 25th November, 1991 whereas the three years period expired in August, 1992. Thus no notice could have been given for increase of rent. The Controller came to a finding that the increase of rent by Rs. 22/- was unilateral and could not take away the right of the landlord to increase the rent at 10% because the statutory right given to the landlord could not be sabotaged by the respondent claiming that Rs.22/- had been increased. There could not be any increase till three years period had elapsed. The Additional Rent Controller concluded that the respondent was liable to pay the increased rent @ 3,440 /-. On the date of filing of the petition after service of notice the respondent had not tendered the increased rent @ 3,440/- and thus the Controller held that it was a fit ground under Section 14(1)(a) but since it was the first default, the respondent in order to avail of protection of Section 14(2), was directed to pay rent @ 3,440/- that is the difference between the rent already paid/deposited as per the directions dated 3rd August, 1994 and the increased rent @ 3,440/-. The petition under Section 14(1)(a) was thus disposed of. The petition under Section 14(1)(b) was dismissed.
5. An appeal was filed against the order of the ARC. The Additional Rent Control Tribunal allowed the appeal and set aside the judgment of the ARC. The Tribunal reversed the finding of the Additional Rent Controller. It was held that once there was an offer and its acceptance by the landlord it would amount to an agreed rent between the parties i.e. a contract between the parties agreeing to accept/pay rent @ Rs. 3,150/-. The Tribunal further held that the agreed rent was Rs. 3,150/-, on which the enhancement was possible and prior to the increase in August, 1989 the agreed rent was Rs. 3,128/-, the landlord had a right to enhance the rent to the extent of 10% but it was not that it is mandatory. The Tribunal thus rejected the observations of the Additional Rent Controller that the enhancement of rent by increasing the rent from Rs. 3,128/- to Rs. 3,150/- cannot be accepted as rent as per the Act.
6. I have heard learned Counsel for the parties and perused the documents on record.
7. By way of amendment of the Delhi Rent Control Act, Section 6A as introduced on 1st December, 1988, which conferred a right to a landlord which did not exist before. The right can be exercised after 3 years of the amendment. Section 6A permits increase of rent by 10% every three years. Section 6A reads as under:
'6A. Revision of rent.--Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent, every three years.'
8. Section 8 of the Act further provided that landlord can give a notice of his intention to make the increase in rent to the tenant, which shall be recoverable from the date on which notice was given. Section 8 reads as under:
'8. Notice of increase of rent.--(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.
(2) Every notice under Sub-section (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882).'
The controversy revolves around interpretation of 6A and as to what was the agreed rent on the date of giving of the notice for enhancement.
9. A Division Bench of this Court in National Co-operative Consumer Federation of India ltd. v. Jawala Prasad Ashok Kumar Chopra and Ors., : AIR1998Delhi308 , held that Section 6A could not said to be retrospective and was permitted to increase the rent by 10% pursuant to the provision 6A immediately after coming into force of the said provision. The landlord could thus exercise his right to enhancement of rent under Section 6A without waiting for the 3 years period before he could exercise his right. Prior to the amendment of the Act, the admitted rent was Rs. 3,128/-.
10. In August, 1989, the tenant sent a cheque to the landlord for a sum of Rs. 3,150/-. The landlord accepted the cheque. It is the contention of the petitioner that the respondent had unilaterally sent a cheque for Rs. 3,150/-. Acceptance of the same did not create anew tenancy. The increase was not demanded by the petitioner nor was any notice issued in this regard. The petitioner also admitted that he did not ask the tenant company why rent at the rate of Rs. 3,150 /- was sent. He further stated that he did not understand as to why this amount had been sent to him.
11. Notice was issued on 21st November, 1991 for enhancement of rent to the tenant company by 10%. Notice was sent by Regd. A.D. Post. The rent after the increase comes to Rs. 3,465/- p.m. The respondent continued to pay the rent @ Rs. 3,150/-. The cheque was not encased and was returned. The respondent did not pay 10% increase that comes to Rs. 3,465/- and accordingly, the petitioner sent a demand notice.
12. Now the question that arises for consideration is what was the agreed rent on the date when the notice was given and whether 3 years had expired on the date on giving of the notice.
13. When the landlord seeks enhancement of rent in terms of Section 6A it necessarily means that he accepts the continuance of the original lease and only wants enhancement of the rent @ 10% as is provided in Section 6A. Payment of rent by the tenant at a unilateral rate would not warrant revision of any terms of the lease in the absence of any document to the contrary. The act of the tenant in sending a cheque for Rs. 3,150/- instead of Rs. 3,128/- cannot beheld to be revision of rent and nor had the parties intended that the payment should surrender landlord's rights under the old lease and be granted leasehold rights afresh under a new tenancy, nor can it be said that de hors the intention of the parties, a new tenancy had come into existence by operation of law.
14. To my mind the Tribunal was in error in reversing the order of the Additional Rent Controller and taking a view that by unilateral remittance of a sum of Rs. 3150/- a new tenancy had come into being and that the increase under Section 6A could only be claimed after three years from the date when the cheque was accepted by the landlord in August, 1989. The unilateral payment of the amount did not in any way extinguish the old lease under which payment was being made @ Rs. 3,128/- and bringing about a new tenancy so as to deprive the landlord of his rights under the Act. It was for the tenant to establish that a new tenancy was created by tendering a sum of Rs. 3,150/- and the acceptance of the same by the landlord. An agreement creating a fresh tenancy within the meaning of Section 116 of the Transfer of Property Act can be inferred from the conduct of the parties. The tenant must establish that the rent was accepted from him as a legal tenant and not a statutory tenant, protected by Rent Control Laws. The rent accepted was not the previously fixed rent under the Rent Control Laws. There should be an agreement to bring a new tenancy into existence and there must be a definite assent to the continuance of the agreement arrived at between the parties. Assent of the landlord cannot be assumed in cases of tenancies to which the Rent Act applies.
15. The increase in rent of Rs. 22/- cannot take away the right of the landlord to increase the rent at 10% because the statutory right given to the landlord cannot in any manner be scuttled by the tenant claiming that as the rent was increased by Rs. 22/- there could not be any increase under Section 6A. The stand of the tenant tantamounts to escaping his liability of increase of 10%. The agreed rent was Rs. 3,128/- and the increase could only be on the agreed rent @ 10%. Failure to pay the rent in terms of Section 6A would be a fit ground of eviction under Section 14(1)(a). Since it was the first default, the respondent in order to avail of the protection of Section 14(2) was directed to pay arrears of rent @ Rs. 3,440/- i.e. the difference between the agreed rent and the increased rent. The onus under the Evidence Act would be on the tenant to prove that the rent was increased by Rs. 22/- by remittance of a cheque unilaterally to the landlord. The tenant failed to discharge the onus. The presumption that the rent was increased by Rs. 22/- was thus on the tenant. He failed to discharge the onus. In judging whether a general or a particular onus has been discharged, the Court would not only consider the direct effect of the oral or documentary evidence led but also what may be indirectly inferred because certain facts have been proved or not proved through easily capable of proof if they existed at all which raise either a presumption of law or of fact. Section 114 of the Evidence Act covers a wide range of presumption of fact which can be used by the Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. The function of a presumption often is to 'fill a gap' in evidence. The presumption is always rebuttable. The parties against whom a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. It was for the tenant to establish that there was an increase in rent by Rs. 22/-. Having failed to discharge the onus the presumption must be drawn against the tenant. Solely because there was change in the quantum of payment of rent of some amount at the enhanced rate, it cannot be held that the parties had intended that the landlord should surrender his right under the old lease. More so when the right to increase the rent under Section 6A of the Act was available to the landlord. It does not stand to reason that the landlord would have agreed to the creation of a new tenancy @ Rs. 3,150/-. It appears that the figure of Rs. 3,128/- was rounded off to Rs. 3,150/- for the purpose of convenience of the tenant and the same does not in the absence of intention of the parties create a new tenancy by operation of law or agreement of parties. To my mind the acceptance of an amount which is unilaterally increased by the tenant from Rs. 3,128/- to Rs, 3,150/-and in the absence of any agreement between the parties, does not create a new tenancy as there is no consent of the landlord to the increase nor is there anything on record to suggest that the parties had agreed to change the terms of the lease. Mere acceptance of the amount which is other than the amount which was agreed upon between the parties a rent cannot be regarded as evidence of creation of a new agreement of tenancy. The animus of the tenant in tendering the rent is also material. The tenant has failed to establish that by tendering the rent @Rs. 3,150/- the landlord had accepted the same as the revision of rent thus creating a new tenancy.
16. Parties to my mind were not ad idem and there was no consensus between them for increase of rent from Rs. 3,128/- to Rs. 3,150/-. The Act was amended in the year 1988. The landlord was entitled to draw benefit of 10% increase in the rent in terms of Section 6A. It does not stand to reason that the landlord would accept Rs. 22/- as increase in rent in 1989 and thus deprive himself of the statutory increase under Section 6A. There is no inflexible principle that every variation at the rate of rent payable under a lease necessarily implies surrender of a lease and creation of a new tenancy or that whenever rate of rent is altered a new relationship between the parties get created. By mere increase or reduction of rent, surrender of the existing lease grant a new one, cannot be inferred in each case. The increase of a sum of Rs. 22/- in the agreed rent between the parties would not create a new tenancy nor can it be said to have resulted in creation of contract of tenancy.
17. Two more independent factors may be taken into account to fortify my conclusion. First, there was no vacating of the premises and handing over possession to the landlord so as to indicate the cesser of the old tenancy. There is no formal registered lease either. Second, it is contrary to human nature that a landlord would create a new tenancy @ Rs. 3,150/- p.m. knowing fully well that the market rate is many times more and that this figure of Rs. 3,150 /- would bring the tenancy in the ambit of Rent Control Act, but a rent of more than Rs. 3,500/- would not. The tenant's contention is in the face of it far fetched and false.
18. Counsel for the respondent before concluding raised a preliminary objection with regard to maintainability of the petition by the HUF. The Supreme Court in the case reported as Goya Din (D) through Lrs. and Ors. v. Hanuman Prasad (D) through Lrs. and Ors., 8 (2000) SLT 415=2001 SAR 61, held 'it is well settled principle of Hindu Law that the joint and undivided family is the normal condition of Hindu society but it is not a juristic person as such it cannot hold any property independent of the members'.
19. The agreement was executed between the petitioner and the respondent where the signatures at the end were made by the appellant as Karta on behalf of H.U.F. Admittedly the petitioner was receiving the rent from the respondent and he has signed the petition. Thus there is no merit in the submission of the respondent/tenant.
20. For the foregoing reasons the petition is allowed. The judgment of the Rent Control Tribunal is set aside and the order passed by the Additional Rent Controller is affirmed. Parties to bear their own costs.