Valmiki J Mehta, J.@mdashThe challenge by means of the present first appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 27.2.1999 whereby the suit of the Respondent No. 1/co-owner has been decreed for arrears of rent being the difference between Rs. 12,500/- (rate at which rent was paid) and Rs. 14,000/- (the rate at which rent was actually due) from 1.6.1982 to 30.11.1987, the latter date being the date when the Appellant/tenant vacated the suit premises.
2. The facts of the case are that there were disputes and difference between the co-owners of the property bearing No. 126, Sundar Nagar, New Delhi, being one Smt. Laxmi Devi (who is now represented by the Respondent No. 2 Smt. Prabjhot Singh Kochhar) and Gurmukh Singh (the predecessor-in-interest of Respondents 1(a) and 1(b)). During the pendency of a suit for partition in this Court between the co-owners a receiver of the property was appointed and which receiver let out the property originally in the year 1975 to the Appellant bank u/s 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the ''said Act''). The Appellant bank pursuant to various extensions continued to stay in the property and the last of such extensions which was granted u/s 21 of the said Act is dated 17.11.1983. It is not disputed that this order which was passed on 17.11.1983 u/s 21 of the said Act was a consent order to which the Appellant bank was a party. In fact, this order of granting of lease u/s 21 was pursuant to the order dated 29.10.1982 of this Court in the partition suit whereby the property was permitted to be let out at Rs. 14,000/- per month.
3. The Respondent No. 1 filed the subject suit for recovery against the Appellant/Defendant/bank/tenant on account of the Appellant having paid rent only @ Rs. 12,500/- per month instead of Rs. 14,000/- per month, the latter rate being the rate which was directed to be paid by this Court in the order dated 29.10.1982 passed in the partition suit. Admittedly it is pursuant to this order that the Appellant bank accepted the tenancy u/s 21 of the said Act vide order dated 17.11.1983. The Respondent No. 1 in the suit as per the plaint claimed an amount of Rs. 84,000/- on account of the balance rent not paid and Rs. 42,000/- on account of non-payment of three months of rent which the Appellant bank had deducted @ one month rent per year for three years towards alleged maintenance/repairs. Respondent No. 1/Plaintiff had claimed 50% of the total dues as stated above (and also detailed in para 9 of the plaint) because the Respondent No. 1/Plaintiff was a co-owner to the extent of 50% of the tenanted premises. The trial Court by the impugned judgment has decreed the suit for a sum of Rs. 57,143/- with interest @ 15 % per annum. The trial Court granted the decree for three years rent prior to the filing of the suit on 29.3.1989 holding that the claim for the period before the period of three years was barred by time.
4. Before this Court, learned Counsel for the Appellant has argued two main points. The first argument is that the learned trial Court fell into an error in granting rent for three years prior to 29.3.1989 because the premises were in fact vacated in November, 1987. It was, therefore, urged that the arrears could only be granted upto November, 1987 and not till the date of filing of the suit. The second argument urged by the learned Counsel for the Appellant was that in terms of the original lease deed of the year 1975 u/s 21 of the said Act, the Appellant was entitled to deduct one month rent each year towards repairs/maintenance of the tenanted premises and therefore this was validly done by the Appellant bank.
5. It has been argued for the Respondent No. 1/co-landlord that the claim in the trial Court was not a claim for the rent for the period of three years back from 29.3.1989. What was pleaded was that the Respondent No. 1/landlord adjusted all amounts received @ Rs. 12,500/- per month towards total due of Rs. 14,000/- per month, the agreed figure of rent and the amount claimed is the rent due for the months for which rent will then remain due. As a result of the adjustment, there were arrears due being approximately seven months rent in November, 1987 when the Appellant/tenant/bank vacated the suit premises. As already stated the Respondent No. 1 claimed instead of Rs. 1500/- per month the sum calculated at Rs. 750/- per month because he was only a 50% owner of the suit premises.
When a sum of Rs. 14,000/- is multiplied for a period of 66 months i.e. from 1.6.1982 to 30.11.1987 the dues towards the rent would be Rs. 9,24,000/-. The payment, however, was made @ Rs. 12,500/- totaling to Rs. 8,25,000/-. The difference of Rs. 9,24,000/- and Rs. 8,25,000/- is Rs. 99,000/- and which would be the arrears of rent taking the rent @ Rs. 14,000/- per month for approximately seven months plus a sum of Rs. 1,000/-.
6. The counsel for the Respondent No. 1 has argued before this Court that leaving aside the technicalities and hair splitting it is really 50% of this amount of Rs. 99,000/- and 50% of rent of three months deducted which was to be decreed and should be so granted by this Court as per Order 7 Rule 7 CPC.
7. In my opinion, the contentions as raised by the counsel for the Appellant are misconceived and liable to be rejected. The trial Court has clearly fallen into an error no doubt in granting arrears of last three years taken back from the date of filing of the suit on 29.3.1989 inasmuch as the premises were vacated in November,1987 however, that does not detract from the fact that a sum of Rs. 99,000/- was in fact due to the Respondent No. 1/landlord after making all adjustments of payments made @ Rs. 12,500/- per month and the actual dues calculated @ Rs. 14,000/- per month. Thus, it is this arrears of Rs. 99,000/- which would become due and payable and which is seven months arrears of monthly rent from 1.5.1987 till November 1987. The suit has been filed on 29.3.1989 i.e. within three years of the arrears becoming due from 1.5.1987 and consequently, the suit for arrears of rent being the difference of Rs. 14,000/- and Rs. 12,500/- is surely within limitation.
8. The second argument of the learned Counsel for the Appellant that the Appellant was entitled to deduct one month''s rent for three years is also misconceived. Simply because at the time of the first letting in the year 1975 u/s 21 of the said Act, there was such an entitlement does not automatically entitle subsequent deducting because each grant of lease u/s 21 is a fresh lease and has to be governed by the terms and conditions of that very lease only. The order dated 17.11.1983 (Ex.PX) does not permit any adjustment of one month''s rent every year to the Appellant/tenant/bank. Thus, the Appellant bank was not justified in claiming deduction of one month''s rent.
9. I may note that under Order 41 Rule 33 of the CPC read with Order 7 Rule 7 CPC, this Court sitting as an Appellate Court is entitled to modify the decree in such a manner so that the correct position in facts and law prevails and also the decree is in accord with the equities and justice of the situation. The equity and justice of the situation requires and demands that the Appellant/bank/tenant who is surely not a poor person should actually pay the rent which was due and payable and it ought not to have forced the Respondent No. 1/landlord to file litigation and which has continued now for over 21 years.
10. Accordingly the appeal is dismissed. I hold that the Respondent No. 1/landlord will be entitled to 50% of the amount of rent payable for the months from 1.5.1987 to 30.11.1987 plus 50% of three months'' rent plus a sum of Rs. 500/- being 50% of the balance amount of Rs. 1000/-. The suit therefore will be decreed in favour of Respondent No. 1 for Rs. 49,000/- plus Rs. 21,000/- plus Rs. 500/-. The Respondent No. 1 will also be entitled to pendente lite and future interest @ 15% per annum simple, the rate granted by the trial court, on this amount of Rs. 70,500/- from 30.11.1987 till actual realization. A decree sheet be accordingly prepared in favour of Respondent No. 1 and against the Appellant/Defendant whereby the money decree is passed in favour of Respondent No. 1 and against the Appellant for a sum of Rs. 70,500/- with interest thereon at 15% per annum simple from 1.12.1987 till actual realization/payment.
I may note that this is a commercial litigation. The Appellant bank surely does not fall in the category of a tenant who is an underprivileged tenant. It is in fact a gigantic bank which has forced the Respondent No. 1 into this unfair litigation from 1989 till date viz a period of approximately 21 years. The Supreme Court in the judgment of
