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Frank L.J. Lobo Vs. Piad Pinto Bai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1601 of 1969
Judge
Reported inAIR1972Kant133; AIR1972Mys133; (1971)2MysLJ530
ActsTenancy Law; Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956 - Sections 2, 3, 3(1), 6, 9, 9(1) and 9(2); Mysore Small Cause Courts Act, 1964 - Sections 18
AppellantFrank L.J. Lobo
RespondentPiad Pinto Bai
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateA.M. D'Sa, Adv.
DispositionPetition allowed
Excerpt:
- code of civil procedure, 1908. order 21: [n.k. partil, j] execution proceedings application filed by the petitioner under section 114 read with section 151 to review the order passed by the execution court - petitioners repeated applications one after another only to trouble the respondent rejection of - held, it is the case of the respondents before the execution court that petitioner is not the legal representative of puttamadamma or nanjamma and hence, he has no locus standi to intervene in the above proceedings and by a considered order, the execution court has rejected the affidavit filed by petitioner and no revision or review has was taken up against the said order and therefore, the execution court has observed that, petitioner cannot re-agitate against the said order once..........under section 9, it is not open to the parties to re-open the question of the correctness of the fairrent determined for a period of five years except in the circumstances mentioned in the proviso to section 6.'it was further stated by the court that the intention of the legislature in enacting the act is that with effect from the 1st day of october 1956 there shall always be a fair rent which is the standard rent attached to a cultivating tenant coming within the purview of the act with respect to his holding, though no one knows what it is until an application is made to the rent court and the rent court or the rent tribunal finally determines it. it cannot be said of this figure that it does not exist in present with effect from the 1st day of october 1956, its existence is there.....
Judgment:
ORDER

H.B. Datar, J.

1. Plaintiff is the petitioner in this revision petition. He filed Small Cause Suit No. 119 of 1967 in the Court of the II Additional Civil Judge at Mangalore for recovering a sum of Rs. 707.20 being the balance of the amount due to him from the defendant towards the payment of the arrears of rent for the years 1961-62. 1962-63 and 1963-64.

2. The defendant resisted the suit on several grounds. It was stated that the claim was barred by limitation, that on account of the deposit of rentals in the Fair Rent Petition 7 of 1965, the claim of the plaintiff was unsustainable and that the plaintiff had no cause of action at all and finally the suit was barred by estoppel.

3. The learned II Additional Civil Judge took the view that the suit was in time, but held that as the plaintiff has accepted the payment of rent in Fair Rent Petition 7 of 1965, the suit was not maintainable and that the plaintiff had no cause of action to maintain the suit. In that view, he dismissed the suit.

4. It is the correctness of this judgment that is challenged in this revision petition, filed under Section 18 of the Mysore Small Cause Courts Act, 1964.

5. The relevant provisions Of the Madras Cultivating Tenants (Payment of Fair Rent). Act. 1956, are given below :

'Section 2 (c) 'Fair Rent' means the rent payable under this Act.'

'Section 3 (1). * * * * * with effect from the 1st day of October 1956, every cultivating tenant (sic) shall be entitled to collect from the cultivating tenant fair rent payable under this Act :

Provided that the provisions in respect of fair rent shall apply also in respect of crops which are normally due for harvest during the month of September in the year 1956.' 'Section 6. Alteration or revision of fair rent. Where in respect of any land fair rent has been determined under this Act, it shall continue in force for five years.' (Proviso is not necessary for consideration in this case.)

'Section 9(1). Notwithstanding any agreement between a land owner and the cultivating tenant or any decree or order of a court, either party may apply to the Rent Court for fixation of fair rent or for deciding any dispute arising under this Act.

'Section 9(2) From every decision of a Rent Court, an appeal shall, within such time as may be prescribed, lie to the Rent Tribunal whose decision shall be final, subject to revision, if any. under Section 11.'

As to what is the fair rent has been, apart from defining it in Section 2(c). elaborately set out in Section 4 of the Act for the purposes of making computation. These are the only provisions of the Act which have been brought out to my notice by the learned Advocate for the parties. These provisions were considered by a Division Bench of this court in the ease reported in (1963) 1 Mys LJ 136. Moorje Gopala Prabhu v. Moorje Vaikunta Prabhu. After considering these provisions and the earlier judgments of this Court, the Court held that 'the rent court or the Rent Tribunal in proceedings under Section 9 of the Act has no jurisdiction to fix the date with effect from which the fair rent, as determined by the Rent Court or Rent Tribunal, shall be operative.' It is necessary to note that the judgment of this court reported in 1962-40 Mys LJ 562, Rama Naika v. Ammu Moolya was distinguished on the ground that, that was a case which arose under the Tenants Protection Act in eviction proceedings and that the learned Judge was not required to decide nor did he decide the question whether the Rent Court or the Rent Tribunal, has the jurisdiction to direct the date with effect from which the fair rent determined shall be operative. After considering all the relevant provisions, the Bench of this court stated as under:--

'The jurisdiction of the Rent Court or the Tribunal is merely to quantify the figure of the fair rent payable under Section 3. The figure so fixed binds the parties for a period of five years. The correct interpretation to be placed on Section 6 of Fair Rent Act is that once the fair rent is quantified under Section 9, it is not open to the parties to re-open the question of the correctness of the fairrent determined for a period of five years except in the circumstances mentioned in the proviso to Section 6.'

It was further stated by the court that the intention of the Legislature in enacting the Act is that with effect from the 1st day of October 1956 there shall always be a fair rent which is the standard rent attached to a cultivating tenant coming within the purview of the Act with respect to his holding, though no one knows what it is until an application is made to the Rent Court and the Rent court or the Rent Tribunal finally determines it. It cannot be said of this figure that it does not exist in present with effect from the 1st day of October 1956, Its existence is there and yet, no one can say with certainty what exact arithmetical form it possesses. When the Rent Court pronounces the order and declares the figure of the fair rent the court does not create a new right but merely determines the right accrued to the cultivating tenant with effect from 1st day of October 1956. There is a manifest distinction between an investigation in respect of an accrued right and an investigation which he has to decide whether some right should or should not be given. The investigation by the Rent Court belongs to the former category. It merely quantified the fair rent in existence with effect from the 1st day of October 1956.'

The effect of the decision is that any determination made in a Fair Rent Petition becomes effective from 1st day of October 1956 as the exact determination must be deemed to be from that date. Further, such a determination operates for a period of five years. Thereafter, for the further periods a fresh determination has to be made if any determination is subsequently made, then such determination has to operate from the date on which the previous determination ended. In the present case, the Fair Rent Petition was filed being fair rent petition 14 of 1957. Though that application might have been decided in the year 1969. as held by this court in (1963) 1 Mys LJ 136, Moorje Gopala Prabhu's case, it would be operative from the 1st day of October 1956 with the result that from 1956 to 1961 the Fair Rent is payable by the tenant in accordance with the determination, subject of course, to the provisions of Section 6 of the Act for enhancement in special case. A subsequent fair rent petition has been filed being Fair Rent Petition 7 of 1965 and it has been finally determined in C. M. A. 6/65. Even though this determination may be after 1966, it has to relate back to the year 1961, because for the period from 1961 the earlier determination having come to an end, there being no agreement between theparties in existence, the only rent that the tenant was liable to pay and the landlord is entitled to recover is the fair rent determined subsequently. Earlier it was thought that the determination is prospective. But. in view, of the decision given by the Division Bench of this court (1963) 1 Mys LJ 136, the position is that the tenant is liable to pay and the landlord is entitled to recover only the fair rent and whatever may be the time it might have been fixed, it shall come into operation from 1st of October 1956. In that view when the first determination was made that determination lasted till the year 1961 and the second determination has to operate for the period sub-sequent to 1961.

6. In view of the judgment of the Division Bench of this Court in (1963) 1 Mys LJ 136 Moorje Gopala Prabhu's case wherein the court has made a reference to the earlier decisions it is not necessary. or proper for me to take the earlier decisions as they have been considered and explained in the Division Bench Judgment. Further in my view, the judgment of this court in (1967) 1 Mys LJ 235, Naranappa Hathwara v. Yeera. does not deal with regard to the question which I am determining in the present case. In that case the court laid down that 'where no application for fair rent has been made the only rent that can be recovered by the landlord from the tenant is the agreed rent.' In the present case that difficulty does not arise. The Fair Rent Petitions have been made and they have been determined. Therefore, it is that determination that has to prevail and the landlord is entitled to recover the amount that has been determined in the Fair Rent Petition.

7. The learned trial Judge has stated that as the Fair Rent Proceedings were pending, the tenant deposited the amount in such Fair Rent Proceeding in accordance with the determination made in the earlier Fair Rent application the suit claiming the balance was untenable. The learned trial Judge also stated that the plaintiff is not entitled to any higher rent as he is estopped and he has no cause of action to file the suit for recovery of the higher rent. I am unable to appreciate the view taken by the learned trial Judge or the submission made to the same effect by the learned counsel appearing for the respondent. If under the law, the only rent which the landlord can recover is the fair rent and the fair rent operates for the periods that is fixed by the statute, it is not open to the tenant to state that the plaintiff (sic) has deposited a lesser rent which was fixed on the earlier occasion, and therefore, the higher fair rent fixed subsequently cannot be recovered because be has deposited theamount in the court. This argument has no legal basis. The provisions of the Act nor any principle of law has been shown to me which prevents the landlord from recovering the enhanced rent.

8. It is not disputed that after taking into account the amount paid by the tenant the landlord is entitled to recover the sum of Rs. 707-20 being the excess to which he is entitled to recover having regard to the determination by the Fair Rent Tribunal.

9. In the result, the judgment and decree passed by the learned II Additional Civil Judge. Mangalore are erroneous and are liable to be set aside. They are accordingly set aside- In its place the decree is passed in favour of the plaintiff for recovery of the claim made by him with costs both in the trial court and in this court. Petition allowed.


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