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Nandu Ram Vs. Jagannath Parshotam Das and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 7 and 8 of 1952
Judge
Reported inAIR1953HP55
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 6 and 13(2)
AppellantNandu Ram
RespondentJagannath Parshotam Das and anr.
Appellant Advocate Tekchand, Adv.
Respondent Advocate R.N. Malhotra, Adv.
DispositionRevision dismissed
Cases ReferredNathirmal v. Sualal
Excerpt:
- .....air 1952 him p & b 28, the question of the date from which the order of the controller fixing fair rent became operative could only be determined in a suit in respect of rent.(3) there are certain facts with regard to which there is no difference between the parties. both the tenancies were on an annual basis, the rent payable by the former being rs. 306/- and that by the latter rs. 150/-. rs. 200/- were paid by the one and rs. 93/2/- by the other as rents in advance. applications for eviction were filed in both the cases on 26-6-1951. prior to that, however, i.e., on 25-9-1950, the controller had fixed rs. 120/- per annum in one case and rs. 42/- per annum in the other as fair rents on foot of applications filed on 29-10-1949 by the respective tenants under section 4 of the act......
Judgment:

Chowdhry, J.C.

(1) These are applications in revision under Article 227 of the Constitution arising out of proceedings in two cases instituted by the applicant Nandu Ram as landlord under Section 13 (2) (i) of the East Punjab Urban Rent Restriction Act (III of 1949), one against Jagannath Parshotam Das, & the other against Hansraj Manoharlal, for their eviction from the shops occupied by them on the ground of non-payment of rents respectively due by them. Both the applications can conveniently be disposed of by one judgment.

(2) The landlord's application was dismissed by the Controller, and so was his appeal by the District Judge as appellate authority under Section 15 of the Act in both the cases. The District Judge agreed with the Controller that there was 'no non-payment of rent' as contemplated by Section 13 of the Act. In the course of his judgment, he also observed that in view of certain observations of this Court in -- Lalla Ram v. Naresh Chand', AIR 1952 Him P & B 28, the question of the date from which the order of the Controller fixing fair rent became operative could only be determined in a suit in respect of rent.

(3) There are certain facts with regard to which there is no difference between the parties. Both the tenancies were on an annual basis, the rent payable by the former being Rs. 306/- and that by the latter Rs. 150/-. Rs. 200/- were paid by the one and Rs. 93/2/- by the other as rents in advance. Applications for eviction were filed in both the cases on 26-6-1951. Prior to that, however, i.e., on 25-9-1950, the Controller had fixed Rs. 120/- per annum in one case and Rs. 42/- per annum in the other as fair rents on foot of applications filed on 29-10-1949 by the respective tenants under Section 4 of the Act. After the disposal of these fixation-of-fair-rent cases, but before the institution of the two applications for eviction, each of the two tenants remitted to the landlord by money-orders on 25-11-1960 sums which had been fixed as fair rents in their respective cases, i.e., Rs. 120/- and Rs. 42/-, but the landlord refused to accept the payments. It has been argued by the learned counsel for the petitioner that rents at fair rates were calculable only from the date of the tenant's applications under Section 4 of the Act, that before that the tenants were liable for rent at the contract rates, and that on this basis of calculation both the tenants were in arrears and therefore liable to eviction. On the other hand, it was argued by the learned counsel for the respondents, the tenants, that rents were calculable throughout at the fair rates, since once fair rents had been fixed under Section 4 the landlord was debarred from claiming it at a higher rate.

(4) The learned counsel for the respondents took the preliminary objection that, in view of the concurrent findings of fact of both the Courts below that there was no non-payment of rent on the part of the tenants, these are not fit cases in which this Court should exercise its power of superintendence under Article 227 of the Constitution. The learned counsel for the petitioner, however, argued on the basis of: -- 'Bawa Singh v. Kundal Lal', 54 Pun L R 358, -- 'Brij Raj Krishna v. S. K. Shaw and Brothers', AIR 1951 S C 115, -- 'Narendra Nath v. Binode Behari', AIR 1951 Cal 138 and --'Pushpa Devi v. Kanshi Ram Nand Kishore', AIR 1951 Him P 72, that this was a fit case for the exercise of the said power because the District Judge had refused to exercise a jurisdiction which did vest in him by erroneously holding that the question as to the date from which fair rent fixed by the Controller became operative could not be determined in the proceedings before him but only by a separate suit.

(5) Now, there is no doubt that the learned District Judge has made the aforesaid observation, and a view somewhat to the same effect appears also to have been expressed by the Controller. But the basis of decision of both the Courts is the concurrent finding of fact that there has been no non-payment of rent. That being so, the present revision petitions can be dismissed on that short ground. But it is not merely the question of correctness or otherwise of the decisions that is involved here. Despite the views expressed by the Court in -- 'Lalla Ram v. Naresh Chand', AIR 1952 Him. P and B. 28, there appears still to exist in the subordinate Courts in this State a misconception as regards the effect of fixation of fair rent under Section 4 of the Act. For instance, in these two cases the Courts below have erroneously held that the question of the date from which fair rent becomes operative could not be determined in proceedings under Section 13. I would therefore take this opportunity of examining the relevant provisions and of expressing my views thereon for the guidance of the Courts, for, as held in -- 'Dalmia Jain Airways Ltd. v. Sukumar Mukherjee', A. I. R. 1951 Cal 193 (SB), the High Court's power of superintendence under Article 227 of the Constitution is a power, inter alia, 'to see that they (the Subordinate Courts) do what their duty requires'. True, the not doing by the Courts of what their duty required has had no effect in these cases, but there is a danger of the very purpose of the said power of superintendence being negatived if this Court were to postpone its exercise until there arises a case where not only the duty has been transgressed but the transgression has also affected the case.

(6) The Act in question is a short one, and its purpose is to protect the interests of tenants in urban areas in two ways, by fixation of fair rent and imposing restrictions on its increase, and by barring their eviction except on certain specified grounds. Fair rent is determined by the Controller on application by the tenant or the landlord on certain data under Section 4 of the Act, subject to increase in cases of addition, improvement or alteration under Section 5 and of fresh levy of or increase in rate, cess or tax under Section 9. The controller has merely to fix the fair rent but not from any particular date.

Certain consequences of fixation of fair rent, however, ensue under the Act, namely, (1) that the landlord shall not claim or receive anything in addition to or in excess of fair rent, vide Sections 6, 7 and 9 (2), and (2) that if he has, the tenant can, subject to certain restrictions as to period of limitation, recover the excess by deduction from rent payable by him or otherwise.

Now, when a landlord seeks to evict a tenant under Section 13 (2) (i), he must necessarily allege and prove that the tenant, has not paid or tendered the rent due by him. And if the fair rent has already been fixed, the rent the nonpayment of which the landlord alleges cannot, in view of the provisions of Section 6, be rent in excess of the fair rent. It may be that the rent for the non-payment of which eviction of the tenant is sought relates to periods both before and after the date of fixation of fair rent, but that makes no difference. Once fair rent has been fixed, the landlord in proceedings of eviction on the said ground cannot, in view of the bar of Section 6, allege or prove non-payment at a rate higher than the fair rent. It follows therefore that he cannot do so for any period. No question of giving a retrospective or a prospective effect to the order of fixation of rent thus arises. As already stated, in fixing fair rent the Controller does not state the date from which his order is to operate, and this for the simple reason that the Act does not require him to do so. But certain results follow from the fixation of fair rent, and the question of whether the order will have a retrospective or a prospective effect will depend upon the facts and circumstances of the case in which the question arises. For instance, in the present case since the orders fixing the fair rents had already been passed before the filing of the applications for eviction, the landlord was debarred from alleging and proving non-payment at rates higher than the fair rents. And this applied to the entire period for which non-payments were pleaded, which in the present cases happened to cover periods both before and after the date of the order of fixation of fair rent.

(7) To the same effect was the said view expressed by me in -- 'Lalla Ram's case', in AIR 1952 Him P & B 28, which was as follows: 'There is no doubt that it is not within the province of the Controller to give effect to his order from any particular date, retrospective or prospective, for all that he is required to do under Section 4 of the 1949 or the 1947 Act is to determine the fair rent after taking into consideration certain facts mentioned in the section. Once the Controller has determined the fair rent the question of whether that rent is applicable to any particular period of time can only arise for determination in a suit in respect of rent between the landlord and the tenant, and the question will then be decided on a correct application of Sections 6 and 8 to the facts of the case,' 'In a suit in respect of rent' meant any suit in which the question of rent might arise. Both the Courts below were clearly wrong in thinking that the landlord had to file a separate suit for determination of the date from which the order of fixation of fair rent was to operate. The effect of the order of fixation of rent should have been ascertained in these cases according to the principles laid down above.

(8) The learned counsel for the petitioner argued that the order of fixation of fair rent is operative from the date of the application for its fixation under Section 4 of the Act. In support of his argument he cited -- 'Rajammal v. Chief Judge, Court of Small Causes. Madras', AIR 1950 Mad 185, 'Hari Rowji v. Malabar District Board', AIR 1951 Madras, 493 and -- 'Nathirmal v. Sualal', AIR 1950 Ajmer 36 (1). The last-named case should not have been cited for it related to the Delhi and Ajmer-Merwara Rent Control Act, 1947, in which, unlike the Act under consideration, there is a specific provision in Section 7 (5) whereunder the date from which the standard rent is to have effect has to be fixed. As regards the Madras cases, the corresponding provisions of the Madras Act are no doubt in effect the same as those of the Punjab Act under consideration, but in both the cases the fair rents fixed were in excess of the prior agreed rates. In claiming rent at the enhanced rate therefore the landlord did not contravene any provision of the Act but, on the contrary, really acted in compliance with the same. And it was in that, circumstance that it was held that the landlord cannot claim rent at the enhanced rate by giving the Act a retrospective effect. None of the rulings has therefore any application in the present cases.

(9) The learned counsel for the petitioner also referred to the provisions of Section 8 of the Act and argued that only by a suit can the tenant recover any amount paid by him in excess of fair rent, and therefore he cannot raise that plea by way of defence in proceedings for eviction instituted by the landlord under Section 13. This argument has no force since, as already shown, the landlord is himself debarred from claiming any sum in excess of fair rent when fair rent has once been determined. If therefore he acts in contravention of that, the tenant can certainly plead the bar in defence.

(10) There is nothing further to say in this case. So far as actual calculation is concerned, both the Courts have rightly done it at the fair rates of rent fixed under Section 4. The basis of calculation being correct, and there being the concurrent finding of both the Courts that, taking into account the sums paid and the sums tendered, there was no non-payment of rent rendering the tenants liable to eviction, this Court will not enter into the correctness or otherwise of that finding in exercise of its power of superintendence under Article 227 of the Constitution.

(11) Both the revisions are dismissed aridthe petitioner will pay Rs. 50/- as costs to therespondents in each case.


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