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Smt. Radhey Piari Vs. S. Kalyan Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Case No. 390-D of 1955
Judge
Reported inAIR1959P& H508
ActsDelhi and Ajmer Rent Control Act, 1952 - Sections 8(1), 11 and 13(1); Limitation Act, 1908 - Sections 3; Transfer of Property Act, 1882 - Sections 105 and 108
AppellantSmt. Radhey Piari
RespondentS. Kalyan Singh
Appellant Advocate Gurbachan Singh and; Bipon Behari lal, Advs.
Respondent Advocate R.S. Narula, Adv.
DispositionPetition dismissed
Cases Referred(Vide Ram Sarup v. Ram Chancier
Excerpt:
.....the plaintiff had failed to prove that the tenant had sublet any part of the shop and fixing the standard rent at rs. (b) *(c) *provided that the court may* entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from filing the application in time. the tenants would file applications for the purpose of getting standard rent fixed after the expiry of six months with considerable hesitation in spite of the proviso to section 11. it is well known that in most cases the tenants are not willing to enter into litigation with their landlords because then the landlords can put them to considerable inconvenience even if such an application does not serve as an excuse for starting eviction proceedings...........is this. the premises were let before the act came into force on 9th june 1952. section 11 of the rent control act, 1952 fixes six months' limitation for an application for fixation of standard rent from the commencement of the act on 9th of june 1952. the present application was made long after the expiry of this period. it was urged that section 11 applied even if such an application is contained in a written statement because in substance it is an application for fixation of standard rent though it is contained in a written statement.5. now there can be no doubt that the rent control act modifies the general law as applicable to landlords and tenants and creates new rights and liabilities between them. the scope of these rights and liabililics can be determined only under the.....
Judgment:
ORDER

Bishan Narain, J.

1. This is a revision petition under section 35 of the Delhi and Ajmer Rent Control Act, 1952.

2. The facts relevant for the decision of this petition are these. Shop No. 2870 situated at Ajmal Khan Road, Karol Bagh, New Delhi belongs to Radhey Piari. It was constructed some time in 1946 and therefore was first let after 2nd of June, 1944. Kalyan Singh took this shop on lease on 30th of October, 1948 at Rs. 112/8/- per mensem. On 12th of October, 1953, the landlady filed the present suit for eviction of the tenant on the grounds of (1) non-payment of arrears of rent in spite of demand and (2) subletting part of the premises to a watch repairer. According to the plaintiff Rs. 866/4/- were due from the tenant as arrears of rent but no decree for recovery of this amount was sought. The tenant deposited Rs. 2,000/- towards the arrears of rent and costs etc. on or before the first day of hearing ofthe suit and denied having sublet, assigned or otherwise parted with the possession of any part of the premises. In the written statement the tenant also sought for fixation of standard rent claiming that the agreed rent exceeded it. The trial Court held that the plaintiff had failed to prove that the tenant had sublet any part of the shop and fixing the standard rent at Rs. 37/8/- dismissed the suit. Mst. Radhey Piari appealed and the Senior Sub-Judge affirmed the trial Court's finding that the' tenant had not sublet the premises. He, however, increased the standard rent from Rs. 37/8/- to Rs. 50/- per mensem. The plaintiff is dissatisfied with (his decision and has filed this petition for revision.

3. Shri Gurbachan Singh the learned counsel for Mst. Radhey Piari has argued that (1) the tenant's application for fixation of standard rent was barred by time and should have been rejected on that ground and (2) that the tenant had sublet the premises to a watch-repairer. The learned counsel, however, frankly conceded that if application for fixation of standard rent is held to be within time then the amount cannot be challenged in these proceedings.

4. On the question of limitation the contention of the learned counsel is this. The premises were let before the Act came into force on 9th June 1952. Section 11 of the Rent Control Act, 1952 fixes six months' limitation for an application for fixation of standard rent from the commencement of the Act on 9th of June 1952. The present application was made long after the expiry of this period. It was urged that section 11 applied even if such an application is contained in A written statement because in substance it is an application for fixation of standard rent though it is contained in a written statement.

5. Now there can be no doubt that the Rent Control Act modifies the general law as applicable to landlords and tenants and creates new rights and liabilities between them. The scope of these rights and liabililics can be determined only under the provisions of this enactment (vide Hem Chand v. Smt. Sham Devi, 1955 Pun LR 441). Under the Contract Act the rent fixed by agreement of the parties is binding on them unless the agreement can be avoided on certain grounds specified in that Act. Therefore, the landlord is bound to receive and the tenant is bound to pay the rent fixed by agreement. in view of shortage of available accommodation the legislature has stepped in and has enacted the Delhi and Ajmer Rent Control Act 1952 to control rents and evictions to certain kinds of premises. Chapter II consisting of sections 4 to 12 relates to control of rents while Chapter III relates to control of evictions. In the present case we arc concerned only with Chapter II of the Act. It follows from the provisions contained in this Chapter that the controlled rent or in other words standard rent can be determined only by the provisions contained therein. Now the provisions relevant for the present case are these. Notwithstanding any agreement no landlord can claim or recover or receive any rent in excess of the standard rent (Sections 4 and 5), Section 8 lays down the cases in which standard rent may be fixed and also provides the principles on which it is to be fixed and section II provides limitation for applications for fixation of standard rent. Section 12 enables the tenant to obtain refund of the rent which he had paid but was not recoverable under the Act provided such an application is made within six months from the date of payment.

6. It is under Section 8 that the standard rent can be got fixed in spite of the fact that the parties have agreed on the amount of rent payable for the premises leased out. Its relevant portion r.eads :

'8. Cases in which standard rent may be fixed by Court. -- (1) In any of the following cases, namely:

(a) * * * (b) Where at any time on or after the 2nd day of June, 1944, any premises are first let and the rent at which they are let is, in the opinion of the court, unreasonable;

the court may, on an application made to it for the purpose or in any suit or proceeding, fix the standard rent at such an amount as having regard to the provisions of this Act and the circumstances of the case, the court deems just.'

Sub-clause (2) relates to increase of standard rent. The other sub-clauses relate to the principles on which standard rent should be fixed. The relevant portion of Section 11 reads :

11. Limitation for applications -for fixation of standard rent: -- Any landlord or tenant may file an application to the court for fixing the standard rent of the premises or for determining the lawful increase of- such rent-

(a) in the case of any premises which were let or in which the cause of action for lawful increase of rent arose, before the commencement of this Act, within six months from such commencement;

(b) * (c) ***** Provided that the Court may* entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from filing the application in time.'

It is clear from Section 8(1) that the court can fix the standard rent (a) on an application made to it for the purpose, (b) on an application in any suit (c) or in any proceeding. Section 11 lays down limitation for filing an application for fixing the standard rent of the premises concerned. It does not deal with such an application when made in a suit or other proceeding. It appears to me as contended on behalf of the tenant that the limitation provided in Section 11 relates only to those cases where proceedings are initiated by an application made for the purposes of fixation of standard rent This section 11 has no application to cases where an application for this purpose is made in a pending suit or proceeding.

7. In my opinion this construction is in consonance with the object and purpose of the Act. The policy of the Act is to control the rents and it could not have been the intention of the legislature that this control should remain effective only for six months and not thereafter. If the petitioner's counsel is correct then after 9-12-1952 the rents of premises let before 9-6-1952 could not be controlled. It is true that the proviso to Section 11 enables the Court to extend time if the applicant satisfies the Court that the applicant was prevented by sufficient cause from filing the application in time. This proviso, however, considering the nature of the problem that the legislature had set out to solve, would not be effective in allowing the control of rents to continue after the expiry of six months. The tenants would file applications for the purpose of getting standard rent fixed after the expiry of six months with considerable hesitation in spite of the proviso to Section 11. It is well known that in most cases the tenants are not willing to enter into litigation with their landlords because then the landlords can put them to considerable inconvenience even if such an application does not serve as an excuse for starting eviction proceedings.

My experience is that most of the applicationsfor fixation of standard rent are made in suits filed by the landlords to evict the tenants. I am, therefore, of the opinion that the limitation prescribed in Section 11 does not apply to an application for fixation of standard rent when it is made in a suit. In the present case the tenant has made this application in a suit and therefore the limitation prescribed in Section 11 does not apply to the application.

8. The same conclusion is reached if the problem is looked at from another angle. The Rent Control Act is a special law which in Section 11 prescribes a period of limitation different from the period prescribed in the Indian Limitation Act of 1908. In these circumstances Section 29 of the Indian Limitation Act lays down that the provisions of Section 3 shall apply, as it such period were prescribed in the Limitation Act. In other words Section 11 may be read as part of the Indian Limitation Act. This Section 3 lays down inter alia that any application made after the prescribed period of limitation shall be dismissed.

Therefore Section 3 of the Limitation Act applies to Section 11 of the Rent Control Act. If that were not so then there was no provision in Section 11 of the Rent Control Act laying down that an application made after the prescribed time must be dismissed. That being so an application filed alter the prescribed time can be dismissed only under Section 3 of the Limitation Act. It is well established that Section 3 only bars the remedy but does not destroy or extinguish the right to which the remedy relates. This right remains in existence except in cases where Section 28 of the Indian Limitation Act applies. Such a right may be enforced in other ways open to the right-holder e. g., by setting up the right in defence (Vide Ram Sarup v. Ram Chancier, AIR 1949 EP 29 at p. 32).

It follows that the person desirous to get the standard rent fixed by an application after the expiry of six months may set up this right in defence to an action brought by the opposite side. Such a defence is not barred by any provision in the Rent Control Act nor by any provision in the Indian Limitation Act. For these reasons, I am in respectful agreement with the decision of Hon'ble the Chief Justice in Civil Revision No. 218-D of 1954.

9. The result is that the application for fixation of standard rent included in the written statement in this case is not affected by the provisions of Section 11 of the Rent Control Act. The learned Senior Sub-Judge has fixed Rs. 50/- per mensem as standard rent in the present case and the correctness of this amount has not been challenged before me. It follows that the standard rent of the premises in question is Rs. 50/- per mensem.

10. This brings me to the second question raised in this case. It is argued that the tenant is liable to be evicted under Section 13(1)(c)(i) for subletting part of the rented shop to one Sardar Singh, a watch repairer. The learned Senior Sub-Judge after discussing the entire evidence has found:

'The only conclusion that these photos lead to is that, in fact, the watch repairing business is carried on by Shri Sardar Singh on the 'takht' and not on any part of the shop and that the show case is kept for safety inside the shop. That is exactly what has been stated by Messrs. Kanshi Ram, D. W. 1, Ganga Ram, D.W. 2, Gian Chand D.W. 3, Sardar Singh D.W. 4, Ram Parkash D.W. 5 and Kalyan Singh D.W. 6. That being the position the only matter to be considered is as to whether the keeping of the show case inside the shop by Shri Sardar Singh is in the nature of parting with possession of the part of the shop to him as a sub-tenant, as alleged in para 2(a) of the plaint.'

Admittedly the 'Takhat' in question is placed on Municipal land and not on any portion of the leased shop. The owner has no interest in the land in front of the shop and can have no. grievance if it is in possession of a person other than the tenant of the shop. The permission to keep the show case of Sardar Singh for safety during she night cannot amount to subletting or uarting with the possession of the demised shop or any part thereof. The possession throughout remains with the tenant. This position was not seriously contested but it was argued that this conclusion trawls beyond the defendant's pleadings. I have carefully gone through the written statement and the defendant's statement before issues & in my opinion the conclusion of the lower Court is in accordance with the defendants' pleadings in the suit. This contention, therefore, also fails.

11. The result is that this petition fails and isdismissed with costs.


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