Rameshwar Dayal vs Sri Kishan and Another

Kapur, J.—This order will dispose of two cross-revns 466 of 1949 and 197 of 1950. The Petitioner in Civil Revn No. 466 of 1949 was the tenant of the opposite party. On 28-3-1947, the landlord gave a notice u/s 8, Delhi and Ajmer-Merwara Rent Restriction Act, hereinafter called the Act, indicating his intention to increase the rent of the premises in possession of the tenant. It was stated in this that the basic rent was Rs. 49/- and that the standard rent from 1-4-1947, would be Rs. 70/7/-. He also called upon the tenant to supply him the list of sub-tenants from whom the tenant was charging rent with a view to further increase the rent. On 21-4-1947, by Ex. P. 14, the tenant replied that the basic rent was Rs. 32/- and therefore the landlord would be entitled to get Rs. 52/4/- as from 1-6-1947. He also supplied to him the list of his sub-tenants as required. On 24-4-1947, the landlord gave the tenant another notice claiming that the basic rent was Rs. 56/- and the standard rent from 1-6-1947, would be Rs. 34/- and if the tenant did not agree to pay this sum he must vacate the premises by 31-5-1947. On 10-5-1947, the tenant replied by a letter, Ex. P. 18, that the basic rent was Rs. 38/14/-, that increases as allowed by the law should be calculated on that amount and that he would be prepared to pay such increased rent as from 1-6-1947. On 19-11-1947, the landlord gave another notice, this time for ejectment, saying that the basic rent was Rs. 56/- and the standard rent was therefore 88/8/- including enhancement allowed under the law and that Rs. 442/8/- was due from the tenant as from 1-6-1947, to 31-10-1947, out of which Rs. 173/12/- had been paid and Rs. 268/12/- were therefore due. It was also said in this notice that the tenant should pay this amount by 31-12-1947, failing which he must vacate the premises or a suit for ejectment would be brought. As this sum was not paid a suit for ejectment and for recovery of rent was brought on 19-1-1948.

The case was fixed for hearing on 16-3-1948, when the deft appeared and put in his pleas and it was adjourned for evidence to some date in May 1948. On the same day an Appellant was filed by the deft saying that he had brought Rs. 444/1/- to pay the amount of rent due plus costs and that he should be allowed to deposit that sum. On the permission being given the money was actually decreased on the 17th of March. The case was cried by Mr. Biuaos who dismissed the prayer for ejectment and held the standard rent to be Rs. 70/7/- p.m. taking the basic rent to be Rs. 49/- p.m. He also passed a decree for Rs. 346/2/-, as arrears of rent. Against this decree the Pltf went up in appeal to the Senior Subordinate Judge who allowed the appeal holding that the standard rent was Rs. 78/14/-p.m. - basic rent being Rs. 56/1 and as the whole of the rent due was not deposited a required by proviso to Section 9(1)(a), he decreed the prayer for ejectment also and enhanced the amount due as arrears of rent to Rs. 374/3/-. Against this decree a revn has been brought, in this Court by the tenant and another by the landlord claiming the standard rent to be Rs. 88/8/- p.m.

It was submitted by the tenant that no order of ejectment could be made because on the first day of appearance as required by Section 9(1)(a) of the Act the requisite amount of money was paid and that the standard rent was not Rs. 78/14/- but should be calculated takings the basic rent to be Rs. 38/14/-. In order to determine this, it is necessary to refer to certain sections of the Act. Section 2(c) defines the standard rent and it runs as under:

2(c) ''Standard rent'', in relation to any premises means:

(i) standard rent of the premises as determined in accordance with the provisions of Schedule 2, or

(ii) where the standard rent has been fixed by the Ct u/s 7, the rent as fixed by the Court; or

(iii) ....

Section 4 of the Act provides for lawful increase or additions to standard rent in cases where alterations are made or where subletting is done by the tenant. Section 7 provides for determination of disputes regarding rent Section 7(2) says:

7(2) Where for any reason it is not possible to determine the standard rent of any premises on the principles set forth in Schedule the Ct may on the Appln of any person interested or of its own motion, determine the standard rent and in so doing shall have regard to the standard rents of similar premises in the same locality and other relevant considerations.

Where the standard rent of any premises has been settled on the basis of a lease for a period of one year or more and the Ct has to determine the standard rent of the same premises on a lease for a period of less than one year or ''vice versa'', the standard rent shall be calculated in accordance with Schedule 3.

Where the Court determines the standard rent of any premises under this section, the Ct shall determine the standard, rent of the premises in an unfurnished state, but may also determine an additional charge to be payable on account of fittings or furnishings included, in the lease and it shall be lawful for the land lord to recover such additional charge from the tenant.

In every case in which the Ct determined the standard rent of any premises under this section it shall appoint a date from which the standard rent so determined shall be deemad to have effect.

Section 8 deals with notice of increase of rent and is as follows:

8(1) Where the landlord wishes to increase the rent of any premises he shall give the tenant notice of his intention to make the increase, and in so far as such increase is permissible under this Act, it shall be due and recoverable only in respect of the period of tenancy after the end of the month in which the notice (sic) given.

(2) ....

(3) ....

Section 9 relates to eviction of tenants and is as follows:

9(1) Notwithstanding anything contained in any contract, no Ct shall pass any decree in favour of a landlord, or make any order, in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancy has terminated, unless it is satisfied either.

(a) that the tenant has neither paid nor tendered the whole of any arrears of rent due, within one month of the service on him in the manner provided in Section 106, T.P. Act, 1882, of a notice of demand by the landlord;

Provided that no eviction shall be ordered under this clause if the tenant pays in Ct on the 1st day of hearing such arrears of rent together with the cost of the suit; or....

Where there is no doubt with regard to the standard rent the determination of the rights of landlords to evict tenants becomes quite simple, but in the present case there is also a dispute as to what is the standard rent. In the present case the landlord in the first instance claimed the basic rent to be Rs. 49/- and in the second notice he claimed it to be Rs. 56/-. The question for determination in the present case, in order to decide whether the tenant has made himself liable to ejectment or not, is to find out what is the meaning of the word ''rent'' as used in Section 5. Under that section the Ct cannot pass any decree for ejectment unless it is satisfied that the tenant has neither paid nor tendered the whole of the "arrears of rent due within one month of the service of a notice of demand by the landlord. Is the word ''rent'' to mean the contractual rent, the basic rent or the standard rent claimed by the landlord or determined by the Ct? In the section itself the words used are ''arrears of rent'' and therefore in cases where there is also a dispute between the landlord and the tenant as to what is the basic rent the question of rent assumes some degree of importance. In my opinion the rent here must mean the contractual rent or where the tenant has accepted at a previous stage his liability to pay increased rent, then contractual rent plus such increases as are allowable under the Schedule 2 of the Act, and my reasons are as follows: (1) The object of the Act is to give relief to the tenants and to prevent their becoming victims of the avarice or greed of landlords. (2) In the present case a dispute had already arisen between the landlord and the tenant as to what was the standard rent. The landlord in the first place was claiming the standard rent to be phased on Rs. 49/- as the basic rent and subsequently Rs. 56/- as the basic rent and both these items were disputed by the tenant. Section 7 expressly provides for the determination of this question, and it cannot be said that before that question is determined the landlord can assume that the standard rent is what he is claiming it to be. This would perhaps, be an appropriate stage to deal with the argument of the Advocate for the landlord that once he has given notice of his intention to increase the rent u/s 8 that amount of rent is to be taken to be the rent for the purposes of Section 9. To the extent the increase is allowed under Schedule 2 it becomes due and recoverable for a particular period, but the question still remains on what basis is the increase to be calculated. The landlord himself has been variously describing the basic rent for the purposes of calculation to be Rs. 49/- and Rs. 56/-, which I have said before was being disputed by the tenant, and, therefore, it cannot be said in spite of Section 7 that the amount claimed by the landlord would be the rent as contemplated by Section 9. No doubt Section 8 contemplates a permissible increase to be due and recoverable but as I have said before it is subject to Section 7(3) If I were to interpret the word ''rent'' in Section 9 to be that which is claimed u/s 8, then I would be letting in a great deal of hardship for the tenants. A tenant may not know what the basic rent as contemplated in the Schedule was in 1939 or the landlord may wrongly claim an absurd basic rent which may be beyond the power of a tenant to pay, and if arrears were to be calculated on that basis the tenant may not be able to get the relief which the law contemplates he should get. (4) In ''Property Holding Co. Ltd. v. Clark'' (1948) 1 All ER 165 at p. 173, Evershed, L.J. refers to Sir William Holds worth''s History of English Law and gives the modern conception of rent to be a contractual obligation to pay for the use of the property let. At p. 174 the learned Lord Justice observed:

''Prima facie'' the rent is the monetary compensation payable by the tenant in consideration for the grant, however it be described or allocated.

Taking the basic rent to be Rs. 49/- which was the contractual rent and also taking into consideration the Deft''s letter, P. 18 of 19-5-1947, as also his previous letter p. 14 of 21-4-1947, in. which the tenant expressed his readiness and willingness to pay the increased rent in accordance with law from 1-6-1947, I must hold that the rent for the purposes of Section 9 was Rs. 74/5/9, i.e., contractual rate plus the increase allowed by law and accepted by the tenant. This will include the increase at the rate of 31 1/2 percent and increase of 25 percent for subletting. On any other basis the result would be that the Cts will not be carrying out the intention of the Legislature.

On the first date of hearing the Deft paid into Ct Rs. 444/1/-. and calculating at the rate of Rs. 74/5/9 as the monthly rent due u/s 9 the arrears of rent for five months would be Rs. 371/12/9. As Rs. 173/12/- had already been paid the arrears would be Rs. 198/-/9. To this has to be added the costs of the suit which were payable u/s 9(1)(a) of the Act. The calculated costs come to Rs. 195/14/-. The Deft therefore need only have deposited Rs. 393/14/9. He deposited more and therefore he must be given relief from ejectment for non-payment of rent. It was submitted by the resp that the actual money was deposited on 17-3-1948. But merely because, according to the procedure followed by Cts, a person who actually tenders money in Ct cannot actually deposit it in the treasury for one day due to peculiar rules will not make that person liable for penalty imposed by law.

It was then submitted by the resp that the arrears for the purposes of Section 9(1)(a) due on the date that the suit was brought were for seven months and not for live months. This submission again, in my opinion, is without force. In the proviso the words used are "such arrears of rent" and when reference is made to Clause (a) Of Section 9(1). It is quite clear that arrears to be paid are arrears due before the notice of demand by the landlord and not subsequent to the notice up to the date of the suit. In Civ Revn No. 547 of 1949 Weston, C.J., has interpreted Section 9 both with regard to the amount of rent as well as to the period for which arrears become due in the manner that I have done above and I most respectfully agree with the observations that the learned Chief Justice has made there.

The next question to be decided is what is the standard rent in the present case. It has been proved by Pltf''s evidence that the basic rent was Rs. 56/- which was being paid on 1-11-1939. u/s 7, therefore, the standard rent would be Rs. 56/- plus increase at 371/2 percent, which would be Rs. 77/- plus 25 percent on the rent for 5 stables which comes to Rs. 11/8/- so the total would be Rs. 88/8/-. That in my opinion would be the correct standard rent under the Act and u/s 7(6) the date from which this rent is to take effect must be 1-6-1947, the date from which the deft agreed to pay the increased rent.

The result therefore is that I set aside the order of ejectment passed by the learned Senior Subordinate Judge and increase the standard rent from Rs. 78/14/- to Rs. 88/8/-. The revisions are allowed to the extent indicate above. The amount due will be calculated for 7 months after giving deduction for what has already been paid. A decree for rent should be drawn up according to what has been said above. As neither of the parties have succeeded wholly the parties will bear their own costs throughout.