1. This is a revision petition against the order of the Additional District Judge, Civil Station, Bangalore, in H.R.C. Appeal No. 331 of 51-52 confirming the order of the House Rent, Controller, Civil Station, Bangalore in R.C. 720/FR/51.
2. The tenant who is the respondent in this Court was the petitioner before the House Rent Controller. He filed a petition saying that originally he agreed to pay a rent of Rs. 125/-for the premises let out to him including a garage and a room. He went on paying this rent till 1-4-51, but later the landlord disputed that the amount paid was fixed only for the house and did not include the rent for the garage and the room. Thereon he consented to pay Rs. 130/- per month. He went on paying at the rate of Rs. 130/- till the end of December 1950. The rent was again enhanced to Rs. 140/- in January 1951 and an application was thereupon filed by him for fixation of fair rent on the 30th March 1951. The House Rent Controller has fixed the rent at Rs. 122-8-0 arid this has been confirmed in appeal. The point for consideration is whether the orders of the Courts below are correct. Section 4 of the Mysore House Rent Control Order, 1948 was applicable to the case and so far as the wording of the main section is concerned there is no difference between the present House Rent Control Order and the previous one. According to Section 4:
'The Controller may, in any case, and shall, on the application of the tenant or landlord of a house, fix the fair rent for such house after holding such enquiry as the Controller thinks fit.'
It will be noticed that a distinction is made between cases where the Controller has discretion to fix a fair rent after holding an enquiry and cases where he is bound to do so as is clear by the use of the words 'may' and 'shall' in the Section.
3. When an application, which is tenable, is filed before a House Rent Controller, he is bound to fix the fair rent after holding an enquiry. Such applications in cases of enhancement of rent have to be filed within a period of three months from the date of the increase of rent. In other words if an application for fixation of fair rent when any enhancement of rent is made, is filed more than three months from the date the increased rent is demanded or paid, such an application is barred by time. Under the present Act it is enacted that whether there is enhancement of rent or not an application for fixation of fair rent must be preferred within a period of three months from the date of enhancement of rent if there is any enhancement and in other cases within three months from the date of commencement of the tenancy. The result is that when an application is filed for fixation of fair rent either on the ground that the rent is excessive or on the ground that it has been enhanced, and it is filed within time, the Court is bound to hold an enquiry and fix the fair rent. In other cases the Rent Controller is not bound to hold an enquiry and fix fair rent but he has the discretion to do so The discretion has to be used judicially and it cannot be said that the discretion is used judicially, if he arbitrarily proceeds to fix the fair rent when no application is filed within time allowed by law. If he does so he will be defeating the very purpose for which the Act has fixed a period of limitation for obtaining such a relief.
4. According to the section, as it stood in the House Rent Control Order, 1948, no period of limitation was fixed for filing an applicationfor fixation of fair rent but the moment there was enhancement of rent, the tenant was bound to the an application for fixation of fair rent within three months from the date the increase of rent was demanded or paid. In this case though the original rent fixed by the parties was Rs. 125/-, the tenant had agreed to pay Rs. 130/-and went on paying rent at that rate for about nine months. Assuming that this did not amount to enhancement of rent, but that this was a case in which increased rent was paid in view of additional accommodation, it may be taken that as the Act at that lime stood, he could have filed an application for fixation of fair rent at any time he liked, unless there was in the meanwhile an enhancement of rent. But in this case, as stated by the tenant, the rent was further enhanced to Rs. 140/- in January 1951. The moment this was done he could only file an application for fixation of fair rent within three months from the date the enhanced rent was demanded or paid. The application for fixation of fair rent which was filed within three months from the date this increased rent is demanded or paid must be regarded to have been filed within time to the extent that the reduction is in respect of the increase above Rs. 130/-.
5. If, however, it is held that the rent was increased from Rs. 125/- to Rs. 130/- in April 1950, the application for fixation of fair rent below Rs. 130/- must be regarded as being barred by time since it was filed more than three months after April 1950. The case of the tenant himself is that the rent of Rs. 125/- was fixed for the entire premises including the garage, but on the pretext that the garage was not included the rent was enhanced to Rs. 130/-. If the tenant had agreed to pay Rs. 5/- more on account of increased accommodation as contended by the landlord he can have no grievance. Otherwise, taking the case of the tenant himself, there was enhancement of rent in April 1950 from Rs. 125/- to Rs. 130/- and so his application for reduction of rent on the ground that the rent was excessive is barred by time to the extent the reduction is claimed below Rs. 130/-. His application however in so far as the enhancement from Rs. 130/- to Rs. 140 is concerned, is in time and the order of the House Rent Controller as confirmed by the learned Additional District Judge is right to the extent of reduction of rent to Rs. 130/-.
6. It is no doubt true that the House Rent Controller has powers of discretion to reduce the rent agreed upon even where no application is filed within time; but the discretion must be used judicially, and it must only be in extraordinary cases of injustice and when failure to file application in time is shown to be due to unavoidable reasons as in case in which delay is condoned under the Limitation Act, that the House Rent Controller might use his discretion in interfering with the agreement arrived at between the parties. No such case is made out. The revision petition is allowed to the extent that the order of reduction is not limited to Rs. 10/- only. The rent is fixed at Rs. 130/- per month. Parties will bear their own costs throughout.
7. Petition partly allowed.