A.K. Sikri, J.
1. The learned Additional District and Sessions Judge has dismissed the suit of the respondent so far as prayer for recovery of possession and mesne profits were concerned. It is because of the reason that the learned trial Court returned the finding to the effect that the monthly rent of the premises in question, which are let out by the respondent to the appellant was Rs. 3300/- and, thereforee, jurisdiction of Civil Court was barred in view of the provisions of Section 5 of the Delhi Rent Control Act. The decree for recovery of Rs. 6000/- only is passed with proportionate costs and this amount represents arrears of two months' rent. Though the suit for possession and mesne profits is dismissed against the appellant, still appellant has chosen to file this appeal. Reason is that the appellant is disputing that the monthly rent of the premises is Rs. 3,300/-. According to the appellant, the rent of the premises is only Rs. 2,200/- per month.
2. It may be pointed out at this stage itself that the respondent had let out the premises in question namely, group floor bearing No. 101-102, Sunder Nagar, New Delhi along with two garages and four servant quarters to the appellant vide Lease Agreement dated 26.04.1971 at a monthly rent of Rs. 2,200/- and Rs. 800/- per month, payable for use of goods, fittings and fixtures provided in the premises. According to the respondent the monthly rent was Rs. 3,000/- as Rs. 800/-, which is payable for use of goods, fittings and fixtures, is also a component of 'rent'. On the other hand, the appellant maintained that the rent was Rs. 2,200/- per month and Rs. 800/- paid for used of goods, fittings and fixtures could not be included as part of rent.
3. The trial Court has accepted the plea of the respondent in this behalf. This is the primary question which needs determination, viz., whether the trial Court is right in holding that the rent was Rs. 3000/- per month or the plea of the appellant needs to be accepted to the effect that rent is only Rs. 2,200/- per month.
4. Before we appreciate this controversy and decide the same, it would be necessary to bear in mind some relevant facts of this case.
5. As pointed out above, the suit premises were let out to the appellant vide Lease Agreement dated 26.04.1971. The sum of Rs. 3000/- per month was payable by the appellant to the respondent i.e., Rs. 2,200/- + Rs. 800/-. The tenancy month was to commence on 20th day of each calendar month and it was to expire on the 19th day of next month. Respondent had become the owner of the demised premises by virtue of a judgment/order passed by this Court on 08.04.1981 in Suit No. 1351/1979 titled Smt. Babli v. Smt. Munna Sunder Singh. Thereafter, the appellant had attorney in favor of the respondent and started paying rent to her.
6. Till 1988, Delhi Rent Control Act was applicable in respect of all the 'premises' within the Municipal limits of Delhi as specified in the said Act. As per the provisions of this Act, tenant could not be evicted expect on the grounds mentioned in Section 14 of the said Act, which provides certain grounds and on the fulfillment of one or more such ground eviction orders can be passed by the Rent Controller. The jurisdiction of the Civil Court is barred under Section 50 of the said Act and application can only be filed before the Rent Controller for eviction and that too, on the grounds specified under Section 14 thereof. Delhi Rent Control Act was amended vide Amendment Act of 1988. Apart from other Amendments, two Amendments, which came into force with which we are concerned, are the following:
a) All those tenancies where the rental is more than Rs. 3500/- are brought outside the purview of the Rent Control Act. The effect of this Amendment is that if rent payable in respect of a demised premises is more than Rs. 3500/- per month, there is no protection of the said statute and such a tenancy would be a contractual tenancy alone, governed by the common law and the principles contained in the Transfer of Property Act.
b) Section 6A was introduced which entitles the landlord to increase the monthly rent by 10% every three years. This would, naturally, be applicable in case of those tenancies which are governed by the Delhi Rent Control Act namely, where the rent is below Rs. 3500/-. However, before such an increase can be enforced, the provision mandates that the landlord gives a notice to the tenant demanding such an increase.
7. The respondent herein filed suit for recovery of possession and mesne profits against the appellant herein in March, 1997. It was alleged by the respondent that she served notice dated 20th March, 1989 on the appellant Company under Section 6A of the aforesaid Act and with this increase, the monthly rent became Rs. 3300/- per month. It was also stated that another notice dated 20th May, 1995 was served upon the appellant and further increase in the rent was demanded. With the service of the second notice, rent became Rs. 3630/- per month. The appellant repudiated both the demands and refused to increase the rent. The respondent in these circumstances, issued notice dated 19th February, 1997 and terminated the tenancy of the appellant. The appellant was asked to hand over the possession of the suit premises by the midnight of 19/20th March, 1997. The appellant refused to comply with the demand contained in that notice. On this refusal, the respondent filed the suit. It is clear that the suit was predicated on the premise that since the rent of the premises was Rs. 3,630/- per month, i.e. more than Rs. 3,500/- per month, the protection of Rent Control Act was not available to the appellant. Tenancy was month to month tenancy terminable by notice under Section 106 of the Transfer of Property Act. Such a notice dated 19.02.1997 terminating the tenancy was given and after the expiry of this notice period i.e. 19/20th March, 1997, the appellant became unauthorised occupant of the premises and was, thus, liable for ejectment. Not only that, after this date, the respondent was also entitled to mesne profits i.e. damages for use and occupation. The sum of Rs. 34,549/- was claimed as arrears of rent at the increased rates up to 19th March, 1997. Mesne profits were also claimed at the rate of Rs. 50,000/- per month for the period thereafter.
8. As already indicated above, in the written statement filed by the appellant, the appellant took the plea that rent was only Rs. 2200/- per month. The additional amount of Rs. 800/- per month payable as hire charges for use of furnitures and fixtures was not to be included as these items are not embedded in the demised premise. The demand contained in two notices dated 20th March, 1989 and 24th March, 1995 was repudiated on the ground that these notices did not contain any valid and legal demand, and, thereforee, it was no obligation on the part of the appellant to increase the rent. According to the appellant, thereforee, the rent remained at Rs. 2200/- per month. Thus, suit was not maintainable as protection of barring under Section 50 of the Rent Control Act since provision of the said Act was still applicable to the demised premises. It was further contended that suit was also barred under the provisions of Order 2 Rule 2 CPC and on the principle of constructive rest judicata.
9. Following issues were framed by the trail Court on the basis of pleadings:
1. Whether the tenancy of the defendant has been lawfully terminated vide notice dated 19.02.1997.
2. Whether the plaintiff is entitled to possession of the suit premises.
3. Whether the plaintiff is entitled for arrears/damages of rent amounting to Rs. 84,549/- as claimed by the plaintiff.
4. Whether the plaintiff is entitled to mesne profits/damages for pendente lite period and if so, at what rate and for what period.
5. Whether the suit is not maintainable being barred by DRC Act and this Court has no jurisdiction.
6. Whether the suit is barred by Order 2, Rule 2 CPC.
7. Relief.
10. Evidence was led by both the parties. Various documents were accepted and proved. The learned trial Court referred the impugned judgment and decree dated 17.09.2001 after hearing the arguments. The discussion on Issue No. 6 was taken up in the first instance and the Court held that the suit was not barred under Order 2 Rule 2 CPC and those provisions did not come into play. Thereafter, the Court discussed Issue No. 5. It held that the first notice demanding the increase of rent under Section 6(a) namely, notice dated 20th March, 1981 was not a valid notice as vide this notice, there was no proper demand for statutory increase in rent. Second notice namely 24th May, 1995 was, however, held to be valid. The learned trial Court also held that Rs. 800/- per month, which was payable for use of furniture, fittings and fixtures was a part of rent and, thereforee, the rent of the premises was Rs. 3000/- and not Rs. 2,200/-. With increase over this rent by 10% in view of second notice i.e. 24.05.1997, the rent of the premises would be Rs. 3300/- per month after the service of the said notice. However, still as the rent is less than Rs. 3500/-, the suit for possession and mesne profits has been dismissed as barred in view of the provisions of Section 50 of the Rent Control Act. Other issues were only consequential as a result whereof decree for a sum of Rs. 6000/- only has been passed.
11. During the arguments, the findings of the learned trial Court on Issue No. 6 were not challenged. thereforee, we proceed on the basis that suit filed was not barred under Order 2 Rule 2 CPC and it is not necessary to discuss the factual matrix on the basis of which such issue is decided. We are primarily concerned with the findings given by the learned trial Court on Issue No. 5 and the Lease between the parties over this issue which has already been delineated in the beginning of the judgment. We proceed to discuss this issue now. 11. The learned trial Court found that there were two agreements executed on the same date i.e. 26th April, 1971 while letting out the premises to the appellant herein. One was described as 'Lease Deed' (exhibit PW1/1) wherein it was mentioned that rent of the demised premises was Rs. 2200/- per month. Other document was described as 'Agreement' (exhibit PW1/2) as per which appellant was obliged to pay Rs. 800/- per month for use of furniture items mentioned in the Schedule. While holding that rent of the premises would be treated as Rs. 3000/- and Rs. 800/- were to be added to Rs. 2200/- and the two agreements, for this purpose, were to be read as one, the learned trial Court justified this finding in the following words:
On perusal of Ex. PW1/1 and PW1/2, it will be seen that both agreements were executed on the same date. The term of both agreements was three years with two (one year) renewal options. Both agreements provided that the amount would be payable by the 19th of each English calendar month. Under both agreements, the defendant paid advance for six months. The Clause 7 of the agreement Ex. PW1/2 provided as follows:
7. That the party of the second part cannot terminate agreement during the first three years agreed upon or thereafter during the course of the period of renewals.The simultaneous execution of the two agreements, the identical tenure, advance payment for the same period of six months under both agreements and payment of the consolidated amount of Rs. 3000/- every month by means of a single cheque up to the institution of the suit, go to show beyond doubt that both agreements were intended to constitute one integral whole. The items mentioned in the schedule of agreement Ex. PW ' included three gysers, 18 ceiling fans and six cupboards. These items could not have been utilised without the premises which were let out under agreement Ex. PW1/1. As a matter of fact, cupboards must have been embedded in the premises. Then Clause 7 of agreement Ex. PW1/2 clinches the issue. It leaves no doubt that the agreement Ex. PW1/2 in respect of fittings and fixtures could not have been terminated so long as the lease of the premises was continuing. thereforee, I have no doubt that Ex. PW1/1 and PW1/2 constituted one single contract and the agreed rent at the inception of tenancy was Rs. 3000/- per month.
12. The argument of the appellant that the respondent who appeared as PW1 had admitted that the appellant had served a notice upon her and conveyed that fittings and fixtures were no longer required and had also stopped paying Rs. 800/- per month w.e.f. 01.08.1997, was brushed aside. In the process, learned trial Court observed as follows:
To my mind, any party could not have altered the nature of the agreement by its unilateral act. The intention of the parties has to be gathered from the terms of the two agreements and their conduct over the years DW1 Atul Jain admits that cheques for the consolidated amount of Rs. 3000/- were being given to the landlady every month. It was only after the institution of the suit that the defendant bifurcated the amount and started sending separate cheques for Rs. 2200/- and Rs. 800/-. It was also during the pendency of the suit that the defendant served notice on the plaintiff requiring her to remove the fittings and fixtures. These unilateral acts of the defendant can have no bearing on the nature of the contract.
There is hardly any dispute in so far as facts are concerned. Questioning the approach of learned trail Court, learned Counsel for the appellant submitted that Section 2(i) of the Delhi Rent Control Act defines 'premises' and the rent has to be in respect of the premises. thereforee, the charges payable for furniture and fixtures cannot be added to the 'rent'. He also referred to four judgments of this Court and one of the Supreme Court in support of his plea to the effect that even when the furniture is supplied by the landlord but the same is not embedded, the charges paid for such furniture cannot be included in the rent. The judgments referred to are as follows:
: [1957]1SCR20 : Karnani Properties Ltd. v. Ms. Augustine and Ors. : 65(1997)DLT22 : Surjit Singh v. H.N. Pahilaj (Deceased) Through LRs : AIR2000Delhi69 : Sewa International Fashions v. Smt. Suman Kathpalia and Ors. : 95(2002)DLT312 : Annick Chaymotty @ Devayani v. Prem Mohini Mehra : 77(1999)DLT266 : S. Kumar v. G.R. Kathpalia and Anr.
13. Clause 2 of sub-Section (i) of Section 2 depressingly includes any furniture supplied by the landlord for use in such building or part to the building. It would be appropriate to reproduce Sub-section (i) of Section 2 to get a favor of how the 'premises' are defined. It reads as under:
(i) 'premises' means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes.
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;
(ii) any furniture supplied by the landlord for use in such building or par of the building; but does not include a room in a hotel or lodging house;
14. thereforee, in given case, furniture and fixtures can be part of the premises and charges paid for the same can be treated as component of rent. Whether the same has to be treated as part of rent or not, depends on the facts of each case and the intention of the parties.
15. Karnani Properties Ltd. v. Ms. Augustine and Ors. (Supra) was a case relating to West Bengal Premises Rent Control (Temp. Prov.) Act. The Court noted that in the said Act, term 'rent' had not been defined (the position is same in Delhi Rent Control Act as well). The Court was of the opinion that in the absence of definition, it was to be taken that the term 'rent' is used in its ordinary dictionary meaning and made following observations in defining this expression:
The term 'rent' has not been defined in the Act. Hence, it must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, 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 not only of the building and 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, the conclusion is irresistible that all that is included in the term 'rent' is within the purview of the Act and the Rent Controller and other authorities had the power to control the same.
16. In that case, the Lease Deed provided that the tenant was to pay a monthly rent of Rs. 100/- including hire of 2 A.C. fans and extra Government duty on electric current without any reduction or abatement to be paid at the bank on or before the 7th of succeeding month for which the rent became due and that the said rent was inclusive of charges for current for fans, lights, radio and electric stove not exceeding 600 Watts for heating meals and making tea only, use of lift, hot and cold water, the owner and occupier's shares of Municipal Taxes.
17. Issue in the said case was fixation of standard rent and the question arose as to whether while fixing the standard rent, the Rent Controller could take into consideration the increase in the rates for electrical current and Government Duty. It was argued that the definition of 'premises' did not include tenements with the special facilities and conveniences agreed by the landlord to be supplied to the tenants and thereforee, increase in the rates of electric current and the Government duty could not be included as rent of the premises and these could not be taken into consideration while fixation of the standard rent. The Court negatived this contention after adopting the dictionary meaning of the 'rent' as per which it was held that the term 'rent' is comprehensive enough to include all payments aggrieved to by the tenant to be paid for the use of the premises not only of the building, but also of furniture, electrical installation.
18. In Surjit Singh v. H.N. Pahilaj (Deceased) Through LRs (Supra) this Court opined that fittings and fixtures would form part of the premises let out and rent to be used separately and the rent of the premises and that of fittings and fixtures will be rent for use and occupation of the premises as part of letting. In that case, Rs. 3000/- per month was fixed as 'rent' and Rs. 1000/- was payable for fixation and fittings. The Court held that the rent of the premises was Rs. 4000/- and not Rs. 3000/-. The Court relied upon the judgment of Karnani Properties Ltd. v. Ms. Augustine and Ors. (Supra), while coming to this conclusion.
19. The aforesaid judgment was followed by another Single Judge of this Court in Annick Chaymotty @ Devayani v. Prem Mohini Mehra (supra). Many other judgments on which the reference was made can be seen from the perusal of para 14 of this case which is to the following effect:
This view finds support from large number of decisions of the Supreme Court and various High Courts on this subject. Fittings and fixtures form part of the premises let out and rent of the premises and fittings and fixtures will be rent Surjit Singh v. H.N. Pahilaj : 65(1997)DLT22 and S. Kumar v. G.R. Kathpalia and Anr. : 77(1999)DLT266 . Term 'premises' as defined in Section 2 of Rent Control Act was made enough to cover tenancies with their special incidents and the consolidated monthly rent for the amenities provided by the landlord came within comprehensive sense in which the word 'rent' was used by the Act Karani Properties Limited v. Augustine and Ors. AIR 1957 SC 20. Rent was more than Rs. 3500/- per month inclusive of property tax. Civil Court has jurisdiction eventhough the rent exclusive of property tax is falling below Rs. 3500/- per month Roger Enterprises Pvt. Ltd. v. Renu Vaish 1998 (1) RCR 539. Word 'rent' included not only what is originally described as rent in the agreement but those payment which are made for amenities provided by the landlord under agreement and rent includes all payments agreed to be paid by the tenant to his landlord for use and occupation not only of the building but also furnishing, electric installation and other amenities P.L. Kureel Talib Mankab v. Beni Prasad : AIR1976All362 . The payment made towards maintenance charges of the premises rented out and also for providing amenities to the tenant is rent Sewa International Fashions v. Suman Kathpalia and Ors. : AIR2000Delhi69 .
20. In Sewa International Fashions v. Smt. Suman Kathpalia and Ors. (Supra), which is a decision of another Single Judge of this Court, the Court relied upon the provisions of Section 105 of Transfer of Properties Act, wherein the word 'rent' is defined. It states that money, share, services or other thing to be so rendered is called the 'rent'. On this premise and following the judgment of Supreme Court in Karnani Properties Ltd. v. Ms. Augustine and Ors. (Supra) and other judgments, as mentioned above, the Court held as follows:
The appeal is accordingly allowed in part as indicated above. But in view of the directions of this Court at the time of granting the special leave, even though the appellant is successful in this Court, he must pay the costs of the respondents, one set of hearing fee to be equally divided amongst the three respondents.
21. To the same effect is the judgment of Division Bench of this Court in S. Kumar v. G.R. Kathpalia and Anr. (Supra). All these judgments thus favor the respondent and not the appellant.
22. The reading of the law as laid down in the aforesaid judgment and applying the same on the facts of this case would persuade us to hold that the learned trial Court has rightly held that rent of the premises was Rs. 3000/- per month as charges of Rs. 800/- for furniture and fixtures were to be added to Rs. 2200/-. We agree with the reasoning given by the learned trial Court on the analysis of the evidence.
23. There was half hearted attempt on the part of the appellant to base the submission by pointing out that the respondent landlady while getting the property assessed for the House Tax disclosed the rent as Rs. 2,200/-. Though there was no evidence to this effect produced before the trial Court, the appellant has filed CM 13748/2006 under Order 41 Rule 27, enclosing therewith the House Tax assessment and seeking permission to place on record the said document as additional evidence. There is hardly any justifiable reason given for adducing the additional evidence at the appellate stage. The reason given is that appellant, upon being advised, inspected the records of the Municipal Corporation and came to know of the aforesaid fact. The appellant could have taken such a step even when the matter was pending before the learned trial Court. If the appellant was not diligent, as it could conceive of such a record but did not deem it proper to summon the records at the trial stage, we do not find any reason to allow the appellant to lead the additional evidence as requisites of the provisions of Order 41 Rule 27 CPC are not met. Be that as it may, even if the documents sought to be produced by the appellant are taken into consideration, it would not advance the case of the appellant as the yardstick for fixation of the House Tax as laid down under the provisions of Delhi Municipal Corporation Act and the rules, is entirely different. Value of the fixtures/furniture was not be added while making assessment. Only in the amended bylaws introduced in the year 1999, value of fixtures was specifically provided. thereforee, if, for the purpose of House Tax, the respondent landlady mentioned that the rent was Rs. 2200/- per month, excluding the component of rent qua furniture/fixtures supplied, the appellant cannot take any mileage there from.
24. Last attempt of the counsel for the appellant was to challenge the validity of notice dated 24th May, 1995. It was submitted that 30 days' notice as per the requirement of Section 8 of the Delhi Rent Control Act, was not given and, thereforee, notice was not valid in law. To appreciate this contention, we may take note of Section 8 of the Act. From the plain reading of this Section, it is manifest that there is no requirement to given 30 days' notice. Section 8 only requires that landlord has to give a notice to the tenant of his intention to make the increase. Period of notice is not mentioned. What is stipulated is that when such notice is given, the rent at increased rate becomes payable after the expiry of 30 days from the date of which the notice is given. thereforee, notice need not contain any specific period.
25. No other argument was advanced. The discussion leads us to the conclusion that impugned judgment of the learned trial Court is in conformity with the legal position. There is no reason to interfere with the same.
26. This appeal is, accordingly, dismissed with costs.