Ramratna Singh, J.:— This appeal has been preferred by the defendant against the decision of a learned Single Judge of this Court reversing the judgment and decree of the trial Court dismissing the plaintiff's suit for recovery of Rs. 7,000/-, consisting of Rs. 5,550/- as house rent and Rs. 1,455/- as Municipal taxes in respect of a house situate within the Dhanbad Municipality let out to the defendant as a tenant from September, 1949 to September, 1952. The total comes to Rs. 7,005/-, but Rs. 5/- was shown in the plaint as remitted.
2. According to the plaintiff, the monthly rent was fixed at Rs. 150/-, besides municipal taxes, while, according to the defendant, he was allowed to occupy the House by one S.K Neogi, a nephew of the plaintiff's husband, on the assurance that fair rent would be settled later on. It was further asserted by the defendant that, inasmuch as no fair rent had been settled, the contract of tenancy was unlawful, and that he never agreed to pay Municipal taxes in addition to the rent. In oral evidence, however, the case of the defendant was that the rent fixed was only Rs. 100/- per month. He also claimed a set off of Rs. 234/- from the rent due, as he had spent the same in whitewashing and other necessary repairs of the house on the assurance of the said S.K Neogi that the same would be adjusted at the time of payment of the rent. The learned Sub-ordinate Judge found, on the basis of the admission of the defendant, that he agreed rental was Rs. 100/- per month without any kind of municipal taxes. He was, however, unable to grant a decree to the plaintiff, as the contract of tenancy was unlawful, inasmuch as no fair rent had been fixed, as required by the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947). In respect of the claim of the defendant for cost of repairs, the learned Sub-ordinate Judge found that, though repairs had been made, the amount of cost incurred for the same had not been proved. The suit was dismissed on the 26th September, 1953, and the plaintiff preferred an appeal to this Court on the 10th February, 1954. The plaintiff made an application to House Controller under Bihar Act III of 1947 (hereinafter to be referred to as ‘the parent Act’) on the 15th November, 1954 for determination of the fair rent, and the Controller fixed Rs. 150/- per month as the fair rent “exclusive of municipal taxes with effect from the occupation of the building” by the defendant. An appeal by the defendant to the appellate authority under the parent Act against this order was dismissed on the 3rd November, 1955; and an application in revision against the said order was dismissed by the Commissioner on the 17th January, 1957. The hearing of the first appeal was taken up by the learned Single Judge on the 15th December, 1958, and on that date certified copies of the orders of the House Controller, the Appellate Authority and the Commissioner were admitted as additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure on behalf of the appellant. The learned Single judge decreed the plaintiff's suit for cent and Municipal taxes, as claimed, in accordance with the order of the House Controller, as confirmed by the higher tribunals. It appears from the judgment of the learned Single Judge that the question regarding the amount of the contractual sent or the question regarding repairs was not considered.
3. The first point pressed by learned Counsel for the defendant-appellant in this appeal was that the suit could not be decreed for any amount, because fair rent had not been determined before the defendant was inducted as a tenant. It is admitted by the plaintiff's husband, R.K Neogi (P.W 1), as also in paragraphs 2 and 3 of the plaint, that one Ishwar Das Kapoor was the Erst tenant of the house and he vacated the house at the end of July, 1949. The defendant was the second tenant to be inducted into the house in September, 1949, Sections 5 and 6 of the parent Act provided for determination of fair rent of a building. The true construction of these sections was explained by a Full Bench of this Court in Gouri Shankar Prasad v. Commr. of Tirhut Division, ILR 37 Pat 1433 : (AIR 1959 Pat 133). It was held, inter alia, that, if during the continuation of the previous tenancy no fair rent has been fixed under Section 5 and the tenant vacates the house, the landlord must get the fair rent of the house determined under section 6(1) before he would be legally entitled to let it out to another tenant. In view of this interpretation, the tenancy created in September, 1949 with the defendant as a tenant of the house is certainly hit by sub-section (2) of section 6 of the Parent Act and the contract of tenancy must be held to be unlawful. This sub-section was, of course, omitted from the Parent Act by an Amending Act of 1955 (Bihar Act XVI of 1955); but even then the contracts entered into before this amendment continued to be unlawful, and, therefore, the contracted rate of rent of a building let out before the amendment could not be recovered. Hence, a validating Act was passed in 1959 and it came into force on the 10th August, 1959 (Bihar Act XXII of 1959). By section 2 of this validity Act, all such contracts were validated; and these contracts were deemed to be lawful in suits or appeals pending at that time (See H.P Tewari v. Moti Lall Jalan, 1962 BLJR 49). Hence, the contention of the defendant based on sub-section (2) of section 6 must be rejected.
4. It was then contended that the controller could not fix the fair rent of the house in question retrospectively beyond the period of three months prior to the date of the application for fixation of rent, as laid down in the proviso to sub-section (3) of section 8, as amended in 1955. Before this amendment, however, sub-section (3) of section 8 provided that in every case in which the Controller determines the fair rent of a building, he shall appoint a date with effect from which the fair rent so determined shall take effect. In other words, this sub-section empowered the Controller to fix the fair rent with any retrospective date, including the date of the commencement of the tenancy (See Ram Krishna Shukla v. Thakur Sri Ramjanki, 1956 BLJR 636: ((S) AIR 1957 Pat 168) and 1958 BLJR 832 : ILR 37 Pat 1433 : (AIR 1959 Pat 133) referred to above). Learned Advocate for the appellant submitted that the amendment of 1955 would apply to the present case, because the proceedings for determination of the fair rent ended on the 17th January, 1957. In this connection, it is necessary to refer to the saving clause of the Amending Act of 1955, which reads thus:
“Any application, appeal or proceedings under the said Act pending before the Controller or any appellate authority or Commissioner on the date of the commencement of this Act and all proceedings arising therefrom shall be disposed of as if this Act had not been passed.
Provided that any application under the said Act, other than an application for the eviction of a tenant, pending before the Controller on the date of the commencement of this Act and all appeals and proceedings arising therefrom shall be disposed of under the said Act as amended by this Act.”
5. From the substantive provision of this clause it is obvious that any application, appeal or proceedings pending under the parent Act before the Controller or other authorities on the date of the commencement of the Amending Act of 1955 had to be disposed of, as if the Amending Act had not been passed; and, therefore, sub-section (3) of section 8, as it stood before 1955, would apply to the present case. But the learned advocate for the appellant relied on the proviso to the saving clause and submitted that sub-section (3) of section 8, as amended in 1955, would apply to appeals and other proceedings arising from any application for fixation of fair rent filed before the commencement of the Amending Act of 1955. He argued that in the proviso the words “other than an application for the eviction of a tenant” must be read with the words “pending before the Controller”, and the words “all appeals and proceedings arising therefrom” refer to appeals and proceedings arising from any application, other than an application for eviction of a tenant. But this interpretation is not justified by the language of the proviso, read with the substantive portion of the saving clause. The true construction of the proviso is that all applications made under the Parent Act (other than an application for the eviction of a tenant) pending before the Controller on the date of the commencement, of the Amending Act of 1955, as also all appeals and proceedings arising from, such applications, shall be disposed of under the Parent Act, as amended by the Act of 1955. This construction is supported by a Bench decision of the Court in Lady Dorothy Lort (sic) Williams v. Uditandu Prakash Mullick, AIR 1958 Pat 240. In the present case, the Controller had disposed of the application for determination of fair rent before the commencement of the Amending Act of 1955, and, therefore, the proviso to the saving clause could not apply to the appeal and revision arising therefrom and they would be governed by the substantive provision of the saying clause. Hence, it must be held that the order of the Controller, as confirmed by the higher authorities, fixing the rent with effect from September, 1949 was quite legal and, therefore, the plaintiff was entitled to recover rent at Rs. 150 per month.
6. Then, the question arises whether the plaintiff is entitled to recover the municipal taxes in addition to the rent of Rs. 150/- per month. The fact that the defendant-appellant agreed to pay municipal taxes for the house in question is proved by a letter, dated the 14th October, 1949 (Ext. 2(b)), written by him to S.K Neogi, proprietor of Messrs Loyals and Co., Dhanbad. In that letter, the defendant said that the monthly rent settled was Rs. 150/- “Inclusive of municipal taxes etc.” In other words, the defendant agreed to pay municipal taxes also as a part of the rent. As no provision of the Act applies to a contract for payment of Municipal taxes by a tenant to a landlord, it must be held that the defendant is liable to pay the municipal taxes to the plaintiff in addition to the rent fixed by the Controller.
7. Learned Advocate for the appellant then submitted that the learned Single Judge was not legally justified in admitting additional evidence regarding fixation of rent under Order XLI, Rule 27, of the Code of Civil Procedure. In support of this submission, he relied on a decision of the Privy Council in Parsotim v. Lal Mohar, 58 Ind App 254 : (AIR 1931 PC 143) in which their Lordships followed their earlier decision in Kessowji Issur v. G.I.P Rly., Co., 34 Ind App 115 (PC). Their Lordships observed that the legitimate occasion for the exercise of the discretion vested in a. Court under Rule 27 of Order XLI is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent. This view of the Privy Council was accepted by their Lordships of the Supreme Court in Arjan Singh v. Kartar Singh, 1951 SCR 258 : (AIR 1951 SC 193). In all these cases, the additional evidence sought to be adduced were in existence before the commencement of the suit. In the present case, however, the additional evidence regarding the fixation of rent came into existence some time after the disposal of the suit. Further, but for this additional evidence, there was some inherent lacuna and defect in the evidence available before the trial Court. Neither party could produce satisfactory evidence regarding the contractual rate of rent. The trial Court disbelieved the evidence adduced on behalf of the plaintiff that the monthly rental was Rs. 150/- besides municipal taxes. The defendant said in the written statement that no rent had been fixed; and there was no satisfactory evidence in support of his evidence in Court that Rs. 100/- per month, inclusive of municipal taxes, was the rent fixed. In fact, in his letter, dated the 14th October, 1949 (Ext. 2(b)), the defendant said that the monthly rent was Rs. 150/- “inclusive of municipal taxes etc.”, while in his letter, dated the 12th July, 1950, addressed to R.K Neogi, he said that the monthly rent was Rs. 100/-. In view of the unsatisfactory nature of the evidence adduced on behalf of the parties, the learned Sub-ordinate Judge held, on the admission of the defendant, that Rs. 100/- per month was the rent, without municipal taxes. In the circumstances, the learned Single Judge was absolutely justified in admitting the additional evidence; and this submission of the learned Advocate must also fail.
8. The only question now to be considered is whether the appellant is entitled to set of any amount as cost of repairs. The learned Advocate for the plaintiff-respondent submitted that the appellant could not raise this plea at this stage, because he had not filed a cross-objection in the first appeal preferred to this Court. In this connection, it is necessary to refer to Order XIJ, Rule 22, of the Code of Civil Procedure, the relevant portion of which reads thus;
“(1). Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
(2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
xxxx”.
9. It is plain from the language of sub-rule (1) that a cross-objection may be filed by a respondent in respect of only such matters against which he could prefer an appeal; and this interpretation is supported by two decisions of this Court in Sahdeo Narain Deo v. Kusum Kumari, ILR 1 Pat 258 : (AIR 1922 Pat 483 (2)) and Ramparikha Pandey v. Mt. Ramjhari Kuer, AIR 1933 Pat 690 and a Bench decision of the Bombay High Court in R.S Rammohanrai, Jaswantrai v. Somabhai Nathabhai, AIR 1950 Bom 161. It may be recalled that the suit had been dismissed completely by the learned, Sub-ordinate Judge; therefore, the defendant-appellant could not have preferred any appeal — and consequently any cross-objection — against the decision of the Sub-ordinate Judge disallowing his claim for cost of repair. The objection of the learned Advocate for the plaintiff-respondent to the raising of this question by the appellant in the present appeal must, therefore, be rejected.
10. Now, coming to the merits regarding the cost of repairs, it will be recalled that the learned Sub-ordinate Judge held that there was no satisfactory evidence to show what amount was actually spent in the repairs made by the defendant. The amount is, however, admitted on pleadings and evidence. The defendant pleaded specifically in the written statement that he had spent a sum of Rs. 234/- (sic) and odd in white-washing and other necessary repairs on the assurance of S.K Neogi that credit of this amount would be given at the time of payment of the rent; but the plaintiff did not examine this nephew of her husband, and even her husband, R.K Neogi (P.W 1), did not deny this fact in his evidence. R.K Neogi admitted that his nephew, S.K Neogi, has got a business in the name of Loyal and Company, Dhanbad and during his absence he (S.K Neogi) ased to look after the house in question. The plaintiff has produced a letter, dated the 14th October, 1949 (Ext. 2(b)) addressed to Messrs Loyals and Co., Dhanbad, in which the defendant stated that he was always ready to pay the tent as mentioned by him after deducting the charges incurred by him in white-washing and repairing of the building and also of the electric lines “as agreed between us”. The defendant wrote another letter to R.K Neogi himself, who was then at Bhagalpur, on the 12th July, 1950 (Ext. 2(a)), in which he said that from the rent due from him, the amount to be deducted was Rs. 234/6/- which he had incurred in connection with the repairing and white-washing of the house and for repairing of the electric lines etc., as agreed ‘between us when I occupied the house”. Thus, the defendant made the assertion regarding the amount spent by him over the repairs with the consent of the plaintiff's representatives about three years before the institution of the suit and repeated it in the written statement and the plaintiff or her relations never denied this. It must be held, therefore, that Rs. 234/6/- was spent by the defendant over the repairs, and, as agreed between the parties, this amount must be deducted from the amount of rent payable by the defendant. In the result, the plaintiff is entitled to a decree for the amount claimed in the suit, minus Rs. 234/6/-. The parties will bear their own costs of the suit, because the fair rent was determined after the disposal of the suit by the trial Court. The plaintiff-respondent will, however, get proportionate costs of the first appeal on the amount decreed. Subject to the modification regarding Rs. 234/6/-, the appeal is dismissed. Parties will bear their own costs of this appeal.
Kanhaiya Singh, J.:— I agree.
AG/RTG/R.G.D
11. Appeal dismissed.
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