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Jagdish Prasad Vs. Kapoor Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 254 of 1971
Judge
Reported inAIR1978Raj61; 1977WLN(UC)307
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 6(1), 6(2) and 22(2); Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantJagdish Prasad
RespondentKapoor Chand and ors.
Appellant Advocate B.P. Agarwal and; O.P. Sharma, Advs.
Respondent Advocate C.L. Agarwal, Adv.
DispositionRevision allowed
Cases ReferredPasupuleti Venkateswarlu v. Motor and General Traders
Excerpt:
.....1908.;(b) rajasthan premises (control of rent & eviction) act, 1950 - section 6(1) and (2)--'basic rent'--premises allotted at rs. 80/- p.m. on 2-4-1961--held, standard rent cannot be below rs. 80/- p.m.;by reason of the kirayanama dated april 2, 1961, executed by the plaintiffs, the basic rent of the premises in question cannot but be rs. 80/- per mensem as that was the rent being paid on the first day of january 1962. the plaintiff's suit must therefore fail because the standard rent cannot be less than the basic rent of rs. 80/- per mensem.;where the premises have been let on or after first day of january 1965, the standard rent shall not exceed the basic rent thereof. the explanation defines what the basic rent is, i.e. the agreed rent as on first day of january 1962.;(c)..........fixation of standard rent (1) where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be low or excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. (2) the court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent for such premises and shall, in doing so, act according to the following principles, namely- (a) where the premises are let for residential purposes or for any of the purposes of the public hospital, aushadhalaya or dawakhana, a recognised educational institution, a public library or reading room or any orphanage the standard. rent shall not exceed the basic rent increased by.....
Judgment:
ORDER

A.P. Sen, J.

1. This is a defendant's revision under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred to as 'the Act') directed against the judgment and decree of Additional Civil Judge No. 2, Bharatpur, Camp Gangapur, dated Oct. 3, 1970, reversing the judgment and decree of the Munsif, Hindaun, dated May 18, 1966. and decreeing the plaintiff's suit under Section 6 of the Act, whereby the learned Additional Civil Judge has decreed the plaintiff's claim reducing the rent of two shops in Hindaitn from Rs. 80/- per mensem to Rs. 20/- per mensem.

2. This litigation has had a chequered career. The parties are closely related and also stand in the relation of landlord and tenant. The demised premises comprise of two shops in the heart of business locality of Hindaun. Joharilal's daughter was married to Ram Sahai, father of Kapoor Chand. while Jagdish Prasad who is another daughter's son of Johari Lal, was taken in adoption by him. Kapoor Chand's father Ram Sahai being in indigent circumstances. Johari-lal brought the family to Hindaun and set them up in business. The demised premises were given to Ram Sahai in Svt. year 1987 for starting a business, and Johari Lal helped him with money to set up the business. It appears that the rent charged for the two shops was Rs. 8/- per mensem.

3. In Svt. year 2007, Johari Lal took the defendant Jagdish Prasad in adoption and made a gift of substantial property comprising of one house and eight shops to the other daughter's son, viz., Kapoor Chand. In 1960, Joharilal made substantial changes in the premises by adding one Verandah and provided electricity and the facility of one iron safe; and. the parties by mutual agreement settled the rent of the premises of Rs. 50/-per mensem. On April 2, 1961, the plaintiffs, who are the sons and daughters of Ram Sahai, executed a Kiraya-nama in favour of the defendant JagdishPrasad stipulating payment of Rs. 80/-per mensem as rent.

4. The plaintiffs, however, instituted a suit on Sept. 19, 1961, for fixation of standard rent under Section 6 of the Act. The Munsif, Hindaun, by his judgment and decree dated May 18, 1966 dismissed the plaintiffs' suit holding that the shops were not let out at Rs. 8/- per mensem in Svt. 1987 by Joharilal to Ram Sahai but were given to him out of natural love and affection with a view to set him up in business at Hindaun; that the shops were let out by Johari Lal to the plaintiffs Ram Sahai and others in St. 2010 on a rent of Rs. 50/- per mensem after he had spent a considerable amount in reconstruction of the shops by adding a verandah and giving to them an attractive look and also providing electricity and the facility of an iron safe; and that the 'kiryanama' dated April 2, 1961 was executed by the plaintiffs agreeing to pay a rent of Rs. 80/- per mensem; and that, that should be taken to be the basic rent for purposes of Explanation to Sub-section (2) of Section 6 of the Act and accordingly the rent of Rs. 80/- per mensem had to be taken to be the standard rent. While dismissing the plaintiffs' suit, the learned Munsif disbelieved their witnesses holding them to be rank liars and also that the documents filed by them were forged and fabricated.

5. On appeal, the Senior Civil Judge No. 2, Gangapur City, by his order dated October 26, 1967 remanded the suit under Order 41, Rule 25 of the Civil P. C., 1908, by remitting the following issue, with a direction to record additional evidence, and for sending his finding thereon :--

'Whether rent of the suit shops at the rate of Rs. 80/- per month as agreed upon between the parties in the year 1961 is excessive and the defendants could not increase the rent to this extent in view of the provisions contained in the Ra.ias-than Premises (Control of Rent and Eviction) Act. 1950, and if so, what is its effect on the suit?'

6. On the additional issue remitted, the learned Munsif recorded his finding dated December 23, 1967, holding that the rent of Rs. 80/- per mensem as agreed upon between the parties in 1961 was not excessive, and the defendant could have increased the rent to Rs. 80/-per mensem under the provisions of the Act, having regard to the fact that the shops in question were situate in the heart of the business locality of Hindaun and in view of the prevailing rents forsimilar shops in that locality. He held that the rent of Rs. 50/- per mensem paid in 1950, was but a concessional rent and could not be treated to be the basic rent for purposes of the proviso to Section 6 (2) (b) of the Act. He remitted the finding along with the evidence adduced by the parties to the Court of Senior Civil Judge No. 2, Gangapur City.

7. In appeal, the Additional City Judge No. 2, Gangapur City has reversed the decree of the learned Munsif and held relying upon certain recitals in the mortgage deed executed by Joharilal and Ram Sahai in favour of one Kali Charan and the entries in the account books showing payment of rent, that the rent for the two shops was Rs. 8/- per mensum and therefore that would be the basic rent for purposes of Explanation, and accordingly, determined the standard rent under Section 6 (2) (b) of the Act at Rs. 20/- per mensem, being 2 1/2 times the basic rent. The learned Civil Judge has completely overlooked the finding of the learned Munsif that the plaintiffs' documents are forged and fabricated and the books relied upon are not account books within the meaning of Section 34 of the Evidence Act.

8. The decision of the revision turns upon a proper construction of Section 6 (2) (b) of the Act, particularly the Explanation thereto. It reads :--

'6. Fixation of standard rent (1) Where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be low or excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises.

(2) The court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent for such premises and shall, in doing so, act according to the following principles, namely-

(a) Where the premises are let for residential purposes or for any of the purposes of the public hospital, aushadhalaya or dawakhana, a recognised educational institution, a public library or reading room or any orphanage the standard. rent shall not exceed the basic rent increased by fifty per cent thereof; and

(b) Where the premises are let for any other purpose the standard rent shall not exceed two and a half time the basic rent thereof;

Provided that where the premises have been first let after the first day of Jan.,1965, the standard rent shall not exceed the basic rent thereof :

Explanation :-- For the purposes of this sub-section the basic rent of any premises shall mean the rent at which the premises were let on the first day of Jan. 1962 and, if not let on that day, the rent at which they were first let after that day.'

The terms of the Explanation are plain and unambiguous, As a matter of construction, the Explanation is nothing more than a definition of what 'basic rent' is for purposes of Sub-section (2) of Section 6 of the Act.

9. During the pendency of the revision, Section 6 of the Act was substantially amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975, published in Rajasthan Gazette, Extraordinary, Part IV-B dated Sept. 29, 1975, which has now been replaced by the Amending Act No. 14 of 1976. The words 'or low' in Sub-section (1) have been inserted. The figure '1962' has been substituted for the original figure '1943' in the Explanation, and the figure '1965' has been substituted for the figure '1946' in the first proviso to Section 6 (2) (b) of the Act. As a result of these amendments, the following consequences ensue :

(1) for purposes of Sub-section (2) of Section 6, the basic rent of any premises shall be the rent at which the premises were let out on the first day of Jan. 1962, and, if not let out on that day, the rent at which they were first let out after that day, and

(2) where the premises have been let out after first day of Jan. 1965, the standard rent shall not exceed the basic rent thereof.

10. The Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 makes these vital changes to bring the Act in conformity with the changing situation. The Amendment Act is a piece of socio-economic legislation. The figure '1962' was substituted for the original figure '1946' in the Explanation obviously with a view to mitigate the hardship of the landlords due to freezing of rents. Similarly, in the matter of eviction of tenants, several important changes have been brought about, such as prevention of eviction of tenants on the ground of default, balancing of mutual hardship in the case of bona fide need, etc.

11. When the Act provides for a revision under the proviso to Sub-section (2) ofS. 6 of the Act, it is urged that the revision must be taken as a continuation of the suit i. e., the suit must be regarded as still pending for purposes of Section 6 ofthe Act. The Court is, therefore, bound to take into consideration the amendedprovisions of the Explanation for purposes of the determination of the basic rent. The basic rent for purposes of determination of standard rent, must be the rent agreed upon between the parties on the first day of Jan. 1962.

12. There was a very long and learned debate as to the nature of the revisional jurisdiction, i. e. whether a revision could be regarded as a continuation of the suit. On behalf of the plaintiffs, it was urged that by Section 22 (2) read with the proviso, the pre-existins right of revision by the High Court was preserved and therefore the Court has to look to Section 115 of the Civil P. C., 1908. There can be no doubt that the proviso to Section 22 (2), as worded. does not affect the powers of the High Court in revision. That is to say, the revision lies not under Section 22 (2) of the Act, but under Section 115 of the Civil P. cj The question still is whether the High Court in its revisional jurisdiction can give effect to a subsequent change in the law. It is urged bv the learned counsel for the plaintiffs that sitting in revision, the High Court is only concerned with the correctness of the order of the learned Additional Civil Judge No. 2. when it was passed, and the subsequent amendment of law cannot be taken into consideration for determination of that question. Reliance is placed on Pappathi Ammal v. Sivagannam Pillai, AIR 1954 Trav Co 526 (FB). I am afraid, that is too narrow a construction of the powers of the High Court under Section 115 of the Civil P. C., 1908, and the correctness of the decision in Pappathi Animal's case (Supra) is open to question.

13. The law on the subject has been succinctly stated in Mulla's Civil P. C., Volume I, at page 519 which thus reads :

'Change of law pending revision-- It has been held in some cases that a Court of revision cannot take into account any change in the law made during the pendency of the revision, as its function is only to see whether Courts below have acted within jurisdiction and the order was right when it was passed. In support of this position, recourse has been had to the rule of construction that a change in substantive law has no retrospective operation. But when an Ordinance was issued during the pendencyof the revision avowedly for being applied to pending matters, the Court of revision must take into account. It is the practice of the Madras High Court to take note of subsequent events in disposing of revision petitions and to grant relief in accordance with altered circumstances.'

The learned counsel for the plaintiffs however strenuously urged that the authorities cited by the learned author, do not support the proposition, and therefore, the aforesaid statement cannot be said to be the law.

14. The learned counsel for the defendant, however, brings to my notice a classical judgment of Subramania Ayyar, J. in Chappan v. Moidin Kutti, (1899) ILR 22 Mad 68 (FB) holding that the revisional jurisdiction of the High Court under Section 622 of the Civil P. C., 1882 was but a part of its appellate jurisdiction. True, their Lordships were interpreting unamended Clause 15 of the Letters Patent and a question arose whether an appeal lay from an order of a Single Judge in revision. The words 'not being an order made in the exercise of revisional jurisdiction' were not there in Section 15 of the Letters Patent. Subramania Ayyar J., in delivering the judgment of the majority, observed :--

'An appellate 'jurisdiction' as pointed out bv Story in the passage immediately following that alreadv quoted, 'may be exercised in a variety of forms and indeed in any form which the Legislature may choose to prescribe'. Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by a party as a matter of right or only subject to his obtaining the leave of the Court which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of facts also. Clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiction is allowed to be exercised.'

'Nor are the conditions, prescribed by Section 622 for the exercise of the power of revision conferred by it, different in essence from the kind of limitations just above referred to and more commonly imposed by Legislatures on the exercise of appellate functions. But none of such limitations, however much it may circumscribe the exercise of the power, touches, as already re-marked, the intrinsic quality of the power itself. Now, as Section 622 in question gives in terms to this court the power to revise decisions of Courts subordinate to it, it follows that the essential criterion of appellate jurisdiction, enunciated in the above quotation, is present in the case of proceedings held by this Court under that section and that the power exercised in such proceedings is therefore a part of the Court's appellate jurisdiction'.

Thus it is clear that the power of revision exercised by the High Court was a part of the appellate court's jurisdiction. Clause 15 of the Letters Patent was amended in 191'9 and the words 'not being an order made in the exercise of revisional jurisdiction' were added into this clause and therefore the Full Bench decision in Chappan v. Moidin Kutti (Supra) of the Madras High Court is no longer good law as regards the maintainability of an appeal against an order of a Single Judge in revision. Nevertheless the weighty observations of Subramania Ayyar J. as regards the revisional jurisdiction are still entitled to great weight,

15. The question with reference to Section 115 of the Civil P. C., 1908 was again considered by a Full Bench of the Madras High Court in P. P. P. Chidambara Nadar v. C. P. A. Rama Nadar, ILR (1937) Mad 616 : (AIR 1937 Mad 385) (FB). Venkatasubba Rao J. following the dictum of Subramania Ayyar J. in Chap-pan v. Moidin Kutti ((1899) ILR 22 Mad 68) (FB) (Supra) held that there was no essential difference between proceedings by way of appeal and by way of revision, except in regard to the conditions for the exercise of the powers. A similar question arose in State of Madras v. Asher Textiles Ltd., ILR (1960) Mad 130 : (AIR 1960 Mad 180) and it was observed that (at p. 183 of AIR),--

'It is needless to point out that it has been an almost invariable practice of this court to take note of subsequent events, while disposing of civil revision petitions under Section 115, Civil p. C. and grant reliefs to the parties in accordance With the altered circumstances. The nature of the jurisdiction is appellate and all the powers inherent in an appellate court would be available to the court of revision, subject to the limitation that it could interfere only under those conditions prescribed by the statute. If those conditions are satisfied, its powers are as wide as the Court of first instance or the appellate court.'

16. In one sense the jurisdiction under Section 115, C. P. C. is wider than even the jurisdiction of an appellate court

It follows therefore that a court of revision would have all the powers of appellate court except that the conditions of interference would have to be in accordance with the relevant statutory provisions i. e. Section 115 of the Civil P. C., 1908.

17. Now, it is well settled that the court is bound to give effect to a statute parsed during the pendency of an appeal. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 Vardachariar J. held that an appeal being in the nature of rehearing, it would be open to the court to mould its reliefs to be granted after taking in account even the facts and events which have come into existence after the decree appealed against i. e., the powers of an ap--pellate court by virtue of Order 41, Rule 33, C. P. C. are co-extensive with those of the original Court. In this connection, reference may be made to the decision in Quilter v. Mapleson, (1882) 9 QBD 672. In this case, it was held that though a judgment of the subordinate court was correct according to law as it stood on the date thereof, the court of appeal could grant relief to the appellant according to law as it stood at the date of hearing of the appeal. There is no reason why the High Court, while exercising its revisional powers, cannot take note of a subsequent change in the law and grant relief to the parties on the basis of such law. The decision in Ahser Textiles Ltd. (AIR 1960 Mad 180) (Supra) is a clear authority on the point. I am inclined to take the same view. Recently, their Lordships of the Supreme Court in Pasupuleti Venkateswarlu v. Motor and General Traders, AIR 1975 SC 1409 have reiterated the same view. Thus the court is bound to take notice of a change in law. Explanation, which is in the nature of a definition clause, having been amended, the rights of the parties must necessarily be governed by the amended Explanation.

18. In view of the amended explanation, I have no hesitation in holding that by reason of the kirayanama dated April 2, 1961, executed by the plaintiffs, the basic rent of the premises in question cannot but be Rs. 80/- per mensem, as that was the rent being paid on the first day of Jan. 1962. The plaintiffs' suit must therefore fail because the standardrent cannot be less than the basic rent of Rs. 80/- per mensem.

19. The decision of the learned Additional Civil Judge cannot be upheld for another reason. Under the scheme of the Act, the Court has no power to fix a standard rent unless it is found that the rent agreed upon is low or excessive. There is no such finding arrived at by the learned Additional Civil Judge that the rent agreed upon for the premises in question was excessive. This is a jurisdictional fact upon the deterrrnna-tion of which the court is invested with the power of fixation of standard rent.

20. That apart, the learned Additional Civil Judge could not go behind the additional issue framed by his predecessor-in-office who had given a finding that there could be no fixation of standard rent uniess it was found that the vent agreed upon in Kirayanama dated April 2, 1961, was excessive. When the suit was remanded under Order 41, Rule 25 of the Civil P. C., 1908. after framing an issue specifically on the question, the proceedings in the suit had to be regulated accordingly. The powers of the court were circumscribed by the terms of the remand order.

21. The contention that mere claim by the landlord or the tenant that the rent of a premise is low or excessive invests the Court with jurisdiction based on a literal meaning of Sub-section (1) of Section 6, cannot be accepted. Such a construction would defeat the very scheme of the Act. The object of the Act is to control eviction and regulate the relation of landlord and tenant by determining fair rent and providing payments thereof. Section 5 of the Act provides that the rent for any premises situate within the area to which this Act extends for the time being shall, subject to the other provisions thereof, be ordinarily such, as may be agreed upon between the landlord and the tenant. There is no bar for increasing of prevailing agreed rent where no standard rent has been fixed, if the agreed rent is too low. Similarly, there can be scaling down of the agreed rent if it is found that the rent agreed upon is too high. Then comes Sub-section (1) and Sub-section (2) of Section 6. the material portion of which is quoted above.

22. Clause (a) provides for an increase of the basic rent by 50 per cent thereof, where the premises are let for residential purposes or for any otherpublic purposes such as hospitals, educational institutions etc. or where the premises are let for any other purpose, the standard rent shall not exceed the basic rent increased by 50 per cent. Clause (b) provides for the premises let for any other purposes i. e. the commercial purposes, the standard rent shall not exceed 2 1/2 times the basic rent thereof, Where the premises have been let on or after first day of Jan. 1965, the standard rent shall not exceed the basic rent thereof. The explanation defines what the basic rent is, i. e., the agreed rent as on first day of Jan. 1962.

23. On a plain reading of these provisions, it is cleat- that the Court is not invested wiih jurisdiction on the mere claim by the landlord or the tenant that the rent agreed upon was too low or too excessive. Despite the language of Sub-section(1) of Section 6, it is implicit in the very nature of things, that the Court must come to a definite finding that the agreed rent was too low or too excessive. That is the only reasonable construction possible on the court's power in the matter of fixation of standard rent. The court, therefore, can (cannot) be invested with jurisdiction to fix the standard rent of a premises unless it finds, as a fact, that the agreed rent was too low or too high. In the present case, there is no such finding reached by the learned Additional Civil Judge. In fact, there is no averment in the plaint that the rent, as agreed upon, was excessive.

24. In view of the above discussion, the revision succeeds and is allowed. The judgment and decree of Additional Civil Judge No. 2, Bharatpur Camp are set aside, and those of the Munsif Hindaun, dismissing the plaintiff's suit are restored with costs throughout.


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