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Janeshwar Lal Vs. Bishamber Nath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 210 of 1952
Judge
Reported inAIR1953P& H197
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 8; East Punjab Urban Rent Restriction Act, 1947
AppellantJaneshwar Lal
RespondentBishamber Nath
Appellant Advocate Tek Chand and; H.L. Sarin, Advs.
Respondent Advocate I.D. Dua and; R.S. Bhasin, Advs.
DispositionAppeal dismissed
Cases ReferredMessrs George Oakes Ltd. v. The Chief Judge
Excerpt:
.....exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - he then referred to section 6 which is as follows :6 landlord not to claim anything in excess of fair rent--(1) save as provided in section 5, when the controller has fixed the fair rent of a building or rented land under section 4--(a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent;.....and that he had to pay another sum of rs. 982/8/-under protest as the landlord had applied to the rent controller for the plaintiff's eviction. the claim was made up as follows:excess amount paid re. 810/-excess charges of rs. 63/4/-water-rateinterest rs. 23/12/-____________total rs. 897/-. 6. the defendant admitted the correctness of the payments but denied that anything in excess of fair rent had been paid. he also pleaded that the amount as rent for the year 1949 was not affected by the order of the rent controller dated 14-9-1950. two issues were framed. '(1) whether the excess rent paid for the period in question (1949-50) cannot legally be recovered on the basis of the order of the rent controller, dated 14-9-1950? (2) whether the said order of the rent controller is against law.....
Judgment:

Kapur, J.

1. This judgment will dispose of two matters, Regular First Appeal No. 210 of 1952 and Civil Revn. No. 462 of 1951. Both have been brought by the landlord, Janeshwar Lal, and are directed, the former against a judgment and decree of Mr. Harish Chandar Mital dated 12-7-1951 decreeing the plaintiff's claim to the extent of Rs. 830/4- and the latter against the tenant's claim for Rs. 43471/- and decided on 12-7-1951.

2. Janeshwar Lal who is the landlord applied on 22-5-1947 under Act 6 of 1947 for fixation of rent which was fixed at Rs. 2,860/- as follows : For the shop Rs. 2,100/- per annum For the flat Rs. 760/- per annum.

3. This fixation was with the consent of both the parties. Rent was continued to be paid. On 10-10-1949 the tenant paia to the landlord a sum of Rs. 2,000/- towards the annual rent for the year 1849-50 and on 26-5-1950 he paid Rs. 982/8/-towards this rent.

4. On 25-3-1949 Act 3 of 1949 came into force in the Punjab and on 14-4-1949 this Act was varied in regard to Simla. On 28-2-1950 the tenant applied for fixation of rent under Section 4 of the new Act which is Ex. P. 1 and the rent was fixed on 14-9-1950 at Rs. 2,050/-.

5. On 26-10-1950 the tenant Bishamber Nath brought a suit for recovery of Rs. 897/- claiming it as refund under Section 8 of the Act of 1949. He alleged that he had paid Rs. 2,000/- previously and that he had to pay another sum of Rs. 982/8/-under protest as the landlord had applied to the Rent Controller for the plaintiff's eviction. The claim was made up as follows:

Excess amount paid Re. 810/-Excess charges of Rs. 63/4/-Water-rateInterest Rs. 23/12/-____________Total Rs. 897/-.

6. The defendant admitted the correctness of the payments but denied that anything in excess of fair rent had been paid. He also pleaded that the amount as rent for the year 1949 was not affected by the order of the Rent Controller dated 14-9-1950. Two issues were framed. '(1) Whether the excess rent paid for the period in question (1949-50) cannot legally be recovered on the basis of the order of the Rent Controller, dated 14-9-1950? (2) Whether the said order of the Rent Controller is against law and 'ultra vires' or without jurisdiction?

7. The learned judge held that the amount paid in excess of fair rent could be claimed and gave a decree for Rs. 830/4/-. The defendant went up in appeal to the District Judge, but the case was transferred to this Court by an order of my learned brother on 3-11-1952 and was ordered to be heard with the Civil Revision which will be discussed later.

8. Mr. Tek Chand has referred to Section 4 of Act 3 of 1949 which provides for determination of fair rent. He then referred to Section 6 which is as follows :

'6 Landlord not to claim anything in excess of fair rent--(1) Save as provided in Section 5, when the Controller has fixed the fair rent of a building or rented land under Section 4--(a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent;(b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void.

(2) Nothing in this section shall apply to the recovery of any rent which became due before 1-1-1939.' then he drew our attention to Section 8 of the Act which provides-

'8. Rent which should not have been paid may be recovered--(1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable, such sum shall, at any time within a period of six months after the date of the payment or in the case of a payment made before the commencement of this Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord.'

9. His first submission was that as under the Act of 1947 a fair rent had been fixed and the amount was paid in accordance with that rent it could not be said to be an excess which could be recovered under the provisions of Section 8 of the Act, but this is covered by the provisions of the Act of 1949 which apply to any sum which is paid before or after the commencement of the Act and which by the provisions of the new Act has become irrecoverable, and in my opinion this contention is without any force and I would therefore repel it.

10. Counsel then relied on the following words in Section 8 -- 'which sum is by reason of the provisions of this Act irrecoverable', and submitted that by virtue of Section 6 a landlord cannot claim or receive any premium from the time 'when the Controller has fixed the fair rent of a building and therefore the sum irrecoverable is that which is in excess of the fair rent fixed by the Controller and from the date the Con-troller decides the question of fair rent. I am unable to agree with this contention also. The words 'when the Controller has fixed the fair rent' do not connote time but they refer to a case where the Controller had fixed the fair rent.A reference to Shorter Oxford English Dictionary shows that 'when' means 'in what case or circumstance' and read in this manner would make Ss. 6 and 8 consistent and reconcilable with each other, because if it is not so read then the words of Section 6 cannot be reconciled with the intention of the Act as contained in Section 8 which gives to the tenant the power to recover any sum which has been paid, in excess of the fair rent, even before the commencement of the Act. In all cases fixation of the rent will necessarily be after the commencement of the Act, and the provisions with regard to recovery of the portion paid before the commencement of the Act will, if the interpretation contended for by Mr. Tek Chand is accepted, become unenforceable and the words in the section 'whether before' will become redundant. It is one of the principles of interpretation of statutes that the sections should be read in such a mariner that they are reconcilable with each other and not contradictory.

11. It was then submitted that Rs. 2,000/-which had been paid on 10-10-1949 should, be taken to have been paid towards the rent of eight months and would be beyond the period of six months allowed under Section 8 of the Act. But the pleadings of the parties show a different state of affairs. In paras 5, 6 and 7 of the plaint it is made quite clear as to how and for what period the money was paid and it is stated that on 26-5-1950 the plaintiff paid Rs. 982/8/-, on account of the landlord's alleged claim for arrears of rent etc., and this was admitted by the defendant. Therefore this argument is again without any substance.

12. The claim for excess in the plaint was in regard to the payment made on 26-5-1950 and the suit was brought on 26-10-1950. In this sum was included the excess which was claimable under Section 8 and therefore the plaintiff's suit cannot be said to be beyond the period of six months allowed by Section 8. Mr. Tek Chand relied on two judgments of the Madras High Court -- 'Hari Rowli v. The Malabar District Board',. AIR 1951 Mad 493 (A), and -- 'Messrs George Oakes Ltd. v. The Chief Judge, Small Causes Court Madras', AIR 1951 Mad 222 (B). But neither of these two cases has any application to the facts of the present case. In the former it was held that the jurisdiction of the Bent Controller is only to declare the fair rent in respect of a particular building and the landlord can, therefore, claim fair rent on the basis of that order from the date of his filing the application and in the latter which was relied upon in the former it was held that where the fair rent fixed is in excess of the rent which was being paid before such date the landlord cannot claim the difference from any date anterior to the date of the filing of the application under Section 4 of that Act. Neither of these cases, in my opinion, applies to the facts of this case.

13. In my opinion, therefore, the learned Judge rightly decreed the plaintiff's suit for refund of the excess over the fair rent and I would, therefore, dismiss this appeal with costs.

14. Coming now to the revision which is in regard to the rent paid from 1-5-1950 to 13-9-1950, the landlord applied on 3-10-1950 for eviction of tenant for non-payment of rent. On 25-10-1950 the rent claimed was paid under protest and the suit was brought for recovery on the following day, i.e. 26-10-1950.

15. One of the questions raised is the same that is the interpretation of Section 8 as read with Section 6 and I have already decided that matter in an earlier portion of this judgment and that will apply to this revision also.

16.The other point which was raised by Mr. Tek Chand was the applicability of Order 2 Rule 2, Civil P. C. His submission was that the cause of action in regard to both the claims, i.e. the claim of Rs. 897/- and of Rs. 460/1/- was one and it could not lie split up into two suits (1) for the first period and (2) for the second period, and he relied upon the illustrations given in the rule (Order 2 Rule 2) and on two judgments. It may be remarked at once that the payment on the basis of which the suit out of which Regular First Appeal arises was brought was made on 26-5-1950 and in the suit out of which the revision has been brought was made on 25-10-1950. Prom this alone it is clear that the causes of action are not the same. In view of this it is not necessary to discuss any of the cases which were cited by Mr. Tek Chand. I would, therefore, dismiss this petition for revision and discharge the rule. The opposite party will have his costs in this Court and in the Court below.

Harnam Singh, J.

17. I agree in the proposed order.


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