1. This is a plaintiff's application in revision under Section 28, Provincial Small Cause Courts Act, against the decree of the learned Judge of the Court of Small Causes at Allahabad, by which his suit was decreed in part and dismissed in part.
2. The suit was brought to recover arrears of rent and the dispute before me is confined to a claim for as 50 only. This sum of Rs. 50 represents the difference between the rent that had become due to the plaintiff according to the agreement between the parties, and the rent which the plain, tiff claimed at an enhanced rate. The plaintiff served two notices upon the defendant, enhancing the rent, the former of the two was sent on 14th September 1946, and the latter on 12th October 1946. The agreed rent was a sum of Rs. 22-8-0 per month. According to the notice dated 12th October 1946, the plaintiff informed the defendant that he had enhanced the rent by Rs. 5-10-0 per month, namely, that he had enhanced the same to Rs. 28-2-0 per month.
3. The defendant is occupying as tenant a portion of block no. 86/2, and the other portion is being occupied by other tenants. The whole block is assessed to municipal taxes on a rental value calculated at Rupees 36 per month. The agreed rent payable by the defendant was Rs. 22.8-0, and I am informed by the learned counsel for the applicant that the agreed rent payable by the other tenants was Rs. 24 per month. The position, therefore, comes to be this, that while the building is assessed on a rental value of Rs. 35 per month, it actually fetches a rent of Rs. 46-8-0 per month.
4. The Court below dismissed the claim for the enhanced rent holding that inasmuch as the portion in the occupation of the defendant was not separately assessed to municipal taxes, the plaintiff was not entitled to enhance the rent himself by giving a notice but that the proper procedure to be followed by him was to resort to a suit under Section 5 (4), U. P. (Temporary) Control of Rent and Eviction Act (III  of 1947). It is contended on behalf of the applicant that this view of the learned Judge is erroneous and that even where the accommodation in occupation of a tenant is not separately assessed, a landlord has been given a right to enhance the rent under Section 5 (2) of the Act.
5. In my opinion this contention is well founded and should be accepted. Section 5 (2) of the Act reads as follows :
'Where the rent for any such accommodation has not been agreed upon or where in the case of tenancies continuing from 1st October 1946, 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.'
6. So far as this provision of law is concerned, it does not make any distinction between the case where a tenant is occupying the whole of a building which has been treated as a unit for the purpose of assess me at and the case of a tenant who is occupying only a part of such building. The learned Judge of the Court below appears to have been influenced in his conclusion by the fact that he thought that in such a case it would not be possible to deter-mine the reasonable annual rent payable by the tenant. Reasonable annual rent has been defined in Section 3 (f) of the Act as follows :
' 'Reasonable annual rent' in the case of accommodation constructed before 1st July 1946, means :
(1) if it is separately assessed to municipal assessment its municipal assessment plus 25 per cent. thereon ;
(2) if it is a part only of the accommodation so assessed, the proportionate amount of the municipal assessment of such accommodation plus 25 per cent. thereon '
7. It is thus manifest that in a case where a portion only of a building, assessed to municipal taxes as a unit, constitutes the accommodation for which the reasonable annual rent has to be determined, the amount of municipal assessment has to be apportioned and a sum of 25 per cent. added to the proportionate amount of the municipal assessment in respect of the accommodation for which the reasonable annual rent has to be determined.
8. I have, therefore, come to the conclusion that the Court below should have decided whether the amount claimed by the plaintiff by way of enhancement could be claimed by him or not and whether the notice for enhancement was a valid notice or not.
9. As already indicated above, the entire block was assessed as a unit on a rental value of Rs. 85 per month, whereas the rent which it fetched was, Rs. 46-8-0 per month. For the purposes of this case the block may be divided into two portions, the portion occupied by the defendant fetching a rent of Rs. 22-8-0 per month and the rest of the block fetching a rent of Rs. 24 per month. In order to apportion the municipal assessment on these two blocks the sum of Rs. 35 has, therefore, to be apportioned in the ratio of Rs. 22-8-0 to Rs. 24 and so apportioning the proportionate assessment on the accommodation in the occupation of the defendant would be something in the neighbourhood of Rs. 17 and, therefore, the rent could be enhanced by the landlord to the extent of 25 per cent. of this amount only, which would be in the neighbourhood of Rs. 4-4-0.
10. It is contended by the learned counsel for by the applicant that the municipal assessment should not be apportioned in the ratio of the rents realised from the various portions of the building, but according to the areas of the various accommodations into which the building is divided. I do not think that there is any force in this contention, for the section requires an apportionment of the municipal assessment, and it is common knowledge that municipal assessments are not made in accordance with the area, but are made according to the rental value.
11. As already indicated, the notice demand-ed an enhanced rent at a rate higher than that which the plaintiff was entitled to claim. The notice was, therefore, invalid and did not have the effect of enhancing the rent; vide my decision in Someshwar Dayal v. Shri Dwarkadhis Ji Maharaj, 1949 A. L. J. 451 : (A. I. R. (37) 1960 ALL. 61).
12. The result of what I have stated above is that the plaintiff landlord was not obliged to bring a suit under Section 5 (4) of the Act for the enhancement of the rent and that although the notices already given did not have the effect of enhancing the rent, it is still open to the landlord to enhance it for the future, by proper notice, if the rent being paid for it is below the reasonable rent. The decision of the Court below disallowing the enhanced rent to the applicant is, however, correct, for, as I have found above, the notice enhancing the rent was an invalid notice.
13. In this view of the matter, this application in revision fails and is dismissed. I make no order for costs, because the decision of the learned Small Cause Court Judge to the effect that the remedy of the plaintiff was by a suit under Section 5 of the Act was sufficient justification for him to come up in revision to this Court.