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Someshwar Dayal Seth Vs. Shri Dwarkadhish Ji Maharaj - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtAllahabad
Decided On
Case NumberCivil Revn. No. 870 of 1948
Judge
Reported inAIR1950All61
ActsU.P. (Temporary) Control of Rent and Eviction Act, 1947 - Sections 4 and 5(2)
AppellantSomeshwar Dayal Seth
RespondentShri Dwarkadhish Ji Maharaj
Appellant AdvocateBrij Lal Gupta, Adv.
Respondent AdvocateS.N. Katju, Adv.
DispositionRevision allowed
Excerpt:
.....working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 'other contentions of the parties fail. ' these pleas have been repeated before me in this application in revision, and, in my opinion, they are well-founded......merely by the notice the rent would be automatically enhanced to the extent of reasonable annual rent. the notice was, therefore, invalid, and the defendant did not become liable to pay rent at any rate higher than the rate at which he was liable to pay before the notice dated 7th november 1946 was served upom him.7. the second contention put forward by the learned counsel for the applicant was that inasmuch as the agreement voluntarily entered into between the parties no longer exists, the plaintiff was not entitled to claim anything over and above the rent. he further contended that section 4 of the act prohibits the landlord from claiming any payment, in addition to the rent fixed between the parties, whether by way of premium or otherwise.8. the first part of this contention doss.....
Judgment:
ORDER

Seth, J.

1. This is a defendant's application in revision against a decree of a Court of Small Causes in a suit for arrears of rent. Previous to the Local Act III [3] of 1947 the defendant was paying a rent at the rate of Rs. 60 per month. In addition to that amount, by virtue of an agreement between the parties, the defendant was also liable for the payment of municipal taxes, that is, the house tax and the water tax, assessed upon the premises. The plaintiff gave a notice to the defendant enhancing the rent to Rs. 81 per month on 7th November 1946. The defendant did not accept the enhancement, with the result that in January 1948 the suit giving rise to this application in revision was instituted claiming a sum of Rs. 653-7-0 from the defendant. The plaintiff claimed ES. 1053 on account of rent for thirteen months at Rs. 81 per month together with Rs. 268-2-0 on account of municipal taxes. From the total figure of RS. 1321-2-0. arrived at by adding these two figures, the plaintiff gave credit for a sum of Rs. 667-11-0 realised from the defendant. The sum of Rs. 653-7-0, claimed by the plaintiff, is the difference between the sum of Rs. 1321-2-0 aforesaid, and the sum of Rs. 667-11-0 realised by the plaintiff from the defendant.

2. The Court below gave to the plaintiff a decree for Rs. 400. It allowed rent at the rate of Rs. 75 per month instead of at the rate of Rs. 81 per month, and gave a further credit of Rs. 175-7-0 to the defendant on account of the cost of repairs done at the expense of the defendant, which should have been done at the plaintiff's expense.

3. The judgment of the Court below is not very satisfactory because it does not mention the crucial pleas raised by the defendant, and disposes of all those pleas in one short sentence which reads as: 'Other contentions of the parties fail.' These pleas have been repeated before me in this application in revision, and, in my opinion, they are well-founded.

4. The first contention put forward by the learned counsel for the applicant is that the rent was really not enhanced, because the notice enhancing the rent was defective. Section 5(2), Local Control of Rent and Eviction Act provides that:

' Where the rent for any such accommodation has not been agreed upon or whore in the case of tenancies continuing from 1st October 1496, the landlord wishes to enhance the rent agreed upon, he may, by notice in writing, fix the annual rent at, or enhance it, to an amount not exceeding the reasonable annual rent.'

Under this statute, the landlord is not under any necessity to seek the assistance of a Court for the enhancement of rent. The power to enhance the rent has been conferred upon the landlord himself, provided that it is exercised in the manner laid down by the statute. Where such a power is conferred upon a private individual, in my opinion, it should be productive of legal consequences only when it is exercised strictly in accordance with the requirements of the statute. Where the rent has not been agreed upon, the statute gives the power to the land-lord to fix the rent. Where the rent has already been agreed upon, the statute enables the landlord to enhance it by means of a notice. The requirements of such a notice are that it should be in writing and that by means of it, the rent should not be enhanced beyond the reasonable annual rent. 'Reasonable annual rent' has been defined to be rent calculated at the rate of 25 per cent, over and above the municipal assessment in the year 1942. It is undisputed that the municipal assessment of the premises in question was Rs. 60 per month in the year 1942. It was, therefore, necessary for the validity of the notice that the landlord should not have claimed enhancement beyond Rs. 75 per month.

5. The learned counsel for the opposite party contends that the mere claim at the rate of Es. 81 per month does not invalidate the notice, and that the notice should be deemed to be a valid notice to the extent to which it was permissible for the plaintiff to enhance the rent.

6. I am unable to accept this contention. The landlord was not obliged to enhance the rent to the full extent to which the enhancement was permissible under the section. For example, in this case it was open to the landlord to enhance the rent to Rs. 74 a month or to Rs. 72 a month, or to any figure not exceeding Rs. 75 a month. It follows, therefore, that it is for the landlord to fix the extent to which the rent is to be advanced within certain limits and it is not one of those cases where merely by the notice the rent would be automatically enhanced to the extent of reasonable annual rent. The notice was, therefore, invalid, and the defendant did not become liable to pay rent at any rate higher than the rate at which he was liable to pay before the notice dated 7th November 1946 was served upom him.

7. The second contention put forward by the learned counsel for the applicant was that inasmuch as the agreement voluntarily entered into between the parties no longer exists, the plaintiff was not entitled to claim anything over and above the rent. He further contended that Section 4 of the Act prohibits the landlord from claiming any payment, in addition to the rent fixed between the parties, whether by way of premium or otherwise.

8. The first part of this contention doss not require any adjudication, because I have already held that the rent has not been enhanced, and that, therefore, the original agreement between the parties stands. There seems to be no force in the second part of this contention, because the Municipal taxes agreed to be paid by the tenant were but a part of the rent to be paid by the tenant to the landlord. The payment of the municipal taxes was, therefore, not in the nature of the payment of any' premium nr any other additional amount.

9. Other items taken into account by the learned Judge of the Court below have not been disputed by the parties.

10. The result of what has been stated above is, that the decree granted by the Court below should be reduced by a sum of Rs. 195, being the difference in the rent calculated at the rate of Rs. 75 per month and Rs. 60 per month.

11. This application in revision is accordingly allowed, the decree of the Court below is-modified in so far that a decree for a sum of Rs. 205 is granted to the plaintiff against the defendant instead of a decree for Rs. 400 granted by the Court below. In the; circumstances of the case, having regard to the fact that the plaintiff has succeeded to the extent of Rs. 205 only, whereas he had claimed Rs. 653-7. I direct the parties to bear their own costs in all the Courts.


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