Janeshwar Das v. Bishambar Nath .

Kapur, J.:— This judgment will dispose of two matters, Regular First Appeal No. 210 of 1952 and Civil Revision No. 462 of 1951. Both have been brought by the landlord, Janeshwar Lal, and are directed, the former against a judgment and decree of Mr. Harish Chandar Mital dated the 12th July, 1951 decreeing the plaintiff's claim to the extent of Rs. 830/4/- and the latter against the tenant's claim for Rs. 434/1/- and decided on the 12th July, 1951.

2. Janeshwar Lal who is the landlord applied on the 22nd May, 1947 under Act VI of 1947 for fixation of rent which was fixed at Rs. 2860 as follows:—

For the shop Rs. 2,100 per annum

For the flat Rs. 760 per annum.

3. This fixation was with the consent of both the parties. Rent was continued to be paid. On the 10th of October, 1949 the tenant paid to the landlord a sura of Rs. 2,000 towards the annual rent for the year 1949–1950 and on the 26th May, 1950 he paid Rs. 982/8/- towards this rent. On the 25th of March 1949 Act III of 1949 came into force in the Punjab and on the 14th April, 1949 this Act was varied in regard to Simla. On the 28th of February 1950 the tenant applied for fixation of rent under section 4 of the new Act which is Exhibit P. 1, and the rent was fixed on the 14th September, 1950 at Rs. 2,050.

4. On the 25th of October 1950 the tenant Bishambar Nath brought a suit for recovery of Rs. 897 claiming it as refund under section 8 of the Act of 1949. He alleged that he had paid Rs. 2,000 previously and that he had to pay another sum of Rs. 982/8/- under protest as the landlord had applied to the Rent Controller for the plaintiff's eviction. The claim was made up as follows:—

Excess amount paid … Rs. 810 Excess charge of Water rate. … Rs. 63/4/- Interest. … Rs. 23/12/- Total … Rs. 897

5. The defendant admitted the correctness of the payments but denied that anything in excess of fair rent had been paid. He also pleaded that the amount as rent for the year 1949 was not affected by the order of the Rent Controller dated the 14th September, 1950. Two issues were framed:

(1) Whether the excess rent paid for the period in question (1949–1950) cannot legally be recovered on the basis of the order of the Rent Controller, dated 14th September, 1951?

(2) Whether the said order of the Rent Controller is against law and ultra vires or without jurisdiction?

6. The learned judge held that, the amount paid in excess of fair rent could be claimed and gave a decree for Rs. 830/4/-. The defendant went up in appeal to the District Judge, but the case was transferred to this court by an order of my learned brother on the 3rd of November, 1952 and was ordered to be heard with the Civil Revision which will be discussed later.

7. Mr. Tek Chand has referred to section 4 of Act III of 1949 which provides for determination of fair rent. He then referred to section 6 which is as follows:—

“6. Landlord not to claim anything in excess of fair rent.—(1) Save as provided in section 5, when the Controller has fixed the fair rent of a building or rented land under section 4—

(a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceeding one month's rent;

(b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void.

(2) Nothing in this section shall apply to the recovery of any rent which became due before the 1st day of January, 1939”. Then he drew our attention to section 8 of the Act which provides—

“8. Rent which should not have been paid may be recovered.—(1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable such sum shall, at any time within a period of six months after the date of the payment or in the case of a payment made before the commencement of the Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord.”

8. His first sub-mission was that as under the Act of 1947 a fair rent bad been fixed and the amount was paid in accordance with that rent it could not be said to be an excess which could be recovered under the provisions of section 8 of the Act, but this is covered by the provisions of the Act of 1949 which apply to any sum which is paid before or after the commencement of the Act and which by the provisions of the new Act has become irrecoverable, and in my opinion this contention is with out any force and I would therefore repel it.

9. Counsel then relied on the following words in section 8 “which sum is by reason of the provisions of this Act irrecoverable”, and submitted that by virtue of section 6 a landlord cannot claim or receives any premium from the time “when the Controller has fixed the fair rent of a building” and therefore the sum irrecoverable is that which is in excess of the fair rent fixed by the Controller and form the date the Controller decides the question of fair rent. I am unable to agree with this contention also. The words “when the Controller has fixed the fair rent” do not connote time but they refer to a case where the Controller has fixed the fair rent. A reference to Shorter Oxford English Dictionary shows that ‘when’ means ‘in what case or circumstance’ and read in this manner would make sections 6 and 8 consistent and reconcilable with cash other, because if it is not so read then the words of section 6 cannot, be reconciled, with the intention of the Act as contained in section 8 which gives to the tenant the power to recover any suns which has been paid, in excess of the fair rent, even before the commencement of the Act. In all cases fixation of rent will necessarily be after the commencement of the Act, and the provisions with regard to recovery of the portion paid before the commencement of the Act will, if the interpretation contended for by Mr. Tek Chand is accepted, become unenforceable and the words the section “whether before” will become redundant. It is one of the principles of interpretation of statutes that the sections should be read in such a manner that they are reconcilable with each other and not contradictory.

10. It was then submitted that Rs. 2,000 which had been paid on the 10th of October, 1949 should be taken to have been paid towards the rent of eight months and would be beyond the period of six months allowed under section 8 of the Act. But the pleadings of the parties show a different state of affairs. In paragraphs 5, 6 and 7 of the plaint it is made quite clear as to how and for what period the money was paid and it is stated that on the 26th of May 1950 the plaintiff paid Rs. 982/8/-, on account of the landlord's alleged claim for arrears of rent etc., and this was admitted by the defendant. Therefore this argument is again without any substance.

11. The claim for excess in the plaint was in regard to the payment made on the 26th of May 1950 and the suit was brought on the 25th October, 1950. In this sum was included the excess which was claimable under section 8 and therefore the plaintiff's suit cannot be said to be beyond the period of six months allowed by section 8. Mr. Tek Chand relied on two judgments of the Madras High Court Hari Rowji Gore Sastri v. The Malabar District Board . A.I.R 1951 Mad. 493., and George Cakes Ltd. v. The Chief Judge, Small Causes Court, Madras . A.I.R 1951 Mad. 222.. But neither of these two cases has any application to the facts of the present case. In the former it was held that the jurisdiction of the Rent Controller is only to declare the fair rent in respect of a particular building and the landlord can therefore claim fair rent on the basis of that order from the date of his filing the application and in the latter which was relied upon in the former it was held that where the fair rent fixed is in excess of the rent which was being paid before such date the landlord cannot claim the difference from any date anterior to the date of the filing of the application under section 4 of that Act. Neither of these cases, in my opinion, applies to the facts of this case.

12. In my opinion therefore the learned Judge rightly decreed the plaintiff's suit for refund of the excess over the fair rent and I would therefore dismiss the appeal with costs.

13. Coming now to the revision which is in regard to the rent paid from the 1st of March 1950 to the 13th of September 1950, the landlord applied on the 3rd of October 1950 for eviction of the tenant for non-payment of rent. On the 25th October, 1950 the rent claimed was paid under protest and the suit was brought for recovery on the following day, i.e, 26th October, 1950.

14. One of the questions raised is the same that is the interpretation of section 8 as read with section 6 and I have already decided that matter in an earlier portion of this judgment and that will apply to this revision also. The other point which was raised by Mr. Tek Chand was the applicability of Order II rule 2 of the Code of Civil Procedure. His sub-mission was that the cause of action in regard to both the claims, i.e, of Rs. 897 and of Rs. 460/1/- was one and it could not be split up into two suits (1) for the first period and (2) for the second period, and he relied upon the illustrations given in the rule (0. 2, R. 2) and on two judgments. It may be remarked at once that the payment on the basis of which the suit out of which Regular First Appeal arises was brought was made on the 26th May, 1950 and in the suit out of which the revision has been brought was made on the 25th of October 1950. From this alone it is clear that the causes of action are not the same. In view of this it is not necessary to discuss any of the cases which are cited by Mr. Tek Chand. I would therefore dismiss this petition for revision and discharge the rule. The opposite party will have his costs in this court and in the court below.

15. Harnam Singh, J.:— I agree in the proposed order.

16. Appeal dismissed.