1. The circumstances giving rise to this revision petition are as follows. The respondent Madan Lal Jain was a tenant of the petitioner Manohar Lal Jain in certain premises at a monthly rent of Rs. 75/-. The latter instituted al suit for the ejectment of the tenant on the ground that he had not paid the rent for the months of March and April 1953 amounting to Rs. 150/-. He did not, however, add any claim for the recovery of the sum due as arrears.
At an early stage before filing his written statement, though not actually on his first appearance in the suit, the defendant deposited in Court the sum of Rs. 150/- together with costs. In his written statement he contended that the rent of the premises was excessive and asked the Court to fix the standard rent and also claimed that he was entitled to be credited for a sum of Rs. 50/- which he had spent on repairs.
2. The trial Court framed the issues :
1. Whether the defendant has deposited the arrears of rent and costs due within the time allowed by the Court? If so, how does it affect the suit?
2. Whether the defendant is liable to ejectment on the ground of non-payment of rent?
3. What is the standard rent?
4. Whether the defendant has done repairs? If so, what, and whether he is entitled to charge the same from the plaintiff without payment of court-fee?
3. At a subsequent stage the plaintiff challenged the framing of issues 3 and 4 and applied for them to be deleted. The trial Court took the view that since the suit was one simply for ejectment and the tenant had saved himself from liability to a decree for ejectment by depositing the arrears of rent due together with costs within the time allowed, all that was necessary was to dismiss the plaintiff's suit and that the issues relating to standard rent and money spent on repairs should be considered as deleted. The plaintiff's suit was accordingly dismissed, but he was allowed his costs out of the amount deposited for this purpose in the Court.
4. The plaintiff accepted this decision and did not file any appeal, but an appeal was filed by the tenant who claimed that the issues regarding standard rent and set-off on account of repairs should not have been deleted by the trial Court, and that he was entitled to a decision thereon. A preliminary objection raised by the plaintiff regarding court-fee paid by the defendant on his appeal was dealt with by the learned Senior Sub-Judge by his order of 12-1-1955 by which he allowed the deficiency in court-fee to be made good, and, then by his order dated the 14th of January, he accepted the defendant's appeal and remanded the case for decision by the trial Court on the deleted issue subject to the payment of court-fee by the defendant on the amount claimed by was of set-off.
5. In filing a revision petition against this order, the landlord also applied that in case it is found that the order of the learned Senior Sub-Judge was an original order, the petition should be treated as an appeal from that order. I do not, however, think that this point arises since it seems to me that the order of the learned Senior Sub-Judge is clearly revisable under the provisions of Section 35(1) of the Delhi and Ajmer Rent Control Act, 1952.
6. Although the order of the learned Senior Sub-Judge, dated 12-1-1955, holding that the court-fee paid by the defendant in tots appeal was insufficient and allowing him time to make good the deficiency has been challenged In the grounds, the petitioner's objections in this respect have not been pressed and his main grievance is concerned With the order of the lower appellate Court directing the trial Court to enquire into the matter and fix the standard rent of the premises.
7. Section 8 of the Delhi and Ajmer Rent Control Act of 1952 fixes the cases in which the standard rent may be fixed by the Court. It is not in dispute that the premises are fairly recently constructed and were let for the first time after 2-6-1944. The relevant portion of Section 8 reads:
"8. Cases in which standard rent may be fixed by Court.
(1) In any of the following cases, namely:--
* * * *
(b) where, at any time on or after 2-6-1944 any premises are first let and the rent at which they are let is, in the opinion of the Court, unreasonable; the Court may, on an application made to it for the purpose or in any suit or proceedings, fix the standard rent at such an amount as, having regard to the provisions of this Act and the circumstances of the case, the Court deems just.
(4) In fixing the standard rent of any premises under Clause (b) of Sub-section (1), the Court shall fix an amount which appears to it to be reasonable and no standard rent so fixed shall exceed seven and one-half per cent of the reasonable cost of construction of such premises.
7. In every case in which the Court determines the standard rent of any premises under this section, it shall specify a date from which the standard rent so determined shall be deemed to have effect:
Provided that in no case the date so specified shall be earlier than six months prior to the date of filing of the application for the determination of the standard rent or, as the case may be, of the institution of the suit or proceeding in which the standard rent is determined".
8. Section 11 of the Act deals with limitation for applications for fixation of standard rent. It runs "Any landlord or tenant may file an application to the Court for fixing the standard rent of the premises or for determining the lawful increase of such rent.
(a) in the case of any premises which were let or in which the cause of action for lawful increase of rent arose, before the commencement of this Act, within six months from such commencement;
The premises in this case were let before the Act commenced and therefore it is clear that the tenant could only have moved the Court for fixation of the standard rent by an application filed simply for this purpose within six months of the commencement of the Act, this period having expired some time before he raised the plea in the present suit that the rent charged was excessive and that 4he standard rent should be fixed.
9. The question is what exactly is meant or implied by the words in Section 8(1) "on an application made to it for the purpose or in any suit or proceedings"? The contention of the landlord is that it would be unfair and contrary to the spirit of the Act to allow any tenant to raise question of fixing the standard rent long after he had lost his right to file an application for the purpose by reason of the provisions of section 11, and that there-fore the raising of a plea for fixation of the standard rent in a suit must be governed by the law of limitation contained in Section 11.
10. The question whether the period of limitation fixed by Section 11 applied when question of fixing the standard rent was raised in a suit was considered by my Lord the Chief Justice in Bharat Roomal Factory v. Brij Lal Civil Revision No. 218-D of 1954, D/- 18-10-1954 (Punj) (A), and he gave effect to the apparent plain meaning of the words in Section 8(1) and held that the period of limitation fixed by Section 11 only applied to the applications filed by a landlord or tenant simply for the purpose of determining the standard rent and did not apply when the matter was raised in the course of any suit or proceedings.
11. I cannot see any reason for differing from this conclusion. The words in Section 8(1) prima facie mean that the question can be raised either by an application made to the court for the purpose or in any suit or proceeding, and it is hard to believe that these last words had been forgotten when the provisions of section 11 were drafted.
The construction which the learned counsel for the landlord contends should be adopted would imply considerable additions to the opening words in Section 11. In fact to support his interpretation these words would have to read something like
"Any landlord or tenant may file an application to the Court for fixing the standard rent of the premises or for determining the lawful increase of such rent or may apply to have the standard rent of the premises fixed in any suit or proceeding to which he is a party."
These words involve a substantial addition to the words of the section, and I cannot believe that If it had been the intention of the Legislature to apply the limitation contained in Section 11 to the raising of the question in a suit or other proceedings, this intention would not have been expressed in Section 11 somewhat on the above lines.
12. It may be somewhat anomalous that a tenant who has paid the rent at the contracted rate to his landlord for years should be allowed to raise the question of fixing a reasonable standard rent at any time when his landlord brings a suit against him, but this appears to be the effect of the relevant portions of the statute as they stand, and if this effect was not intended, then the law must be amended so as to make this clear.
13. It is contended on behalf of the landlord that I should interfere in this case and stop the trial Court from determining the standard rent on the ground that the respondent has ceased to occupy the premises in dispute some time ago and therefore has little more than an academic interest in the result, whereas once the standard rent is fixed the decision would be a judgment in rem and will affect the landlord's dealings with future tenants.
14. The reply to this seems to be that in the first place if the standard rent were determined to be substantially less than the rent previously paid by the tenant, he might get the benefit of a reduction for a period extending up to six months before the institution of the suit, which means that his actual pecuniary interest in the result cannot be regarded as negligible.
In the second place whether the tenant has since been ejected or not, he either has the right or has not the right to have the standard rent fixed for the period during which he remained in occupation of the premises, and the determination of this matter cannot be affected by any arguments regarding the balance of convenience arising out of the particular facts of the case.
15. The case of the landlord is somewhat stronger regarding the question of set-off, though admittedly this is only a minor grievance. The opening words of Order 8 Rule 6, Civil P.C., are "Where in a suit for the recovery of money", and there are a number of authorities summarised at page 1867 of Volume 2 of Chitaley's Civil Procedure Code to the effect that these words must be strictly construed and that a set-off can only be claimed in a suit for the recovery of money, whereas in the present suit the plaintiff only sued for the ejectment of the tenant.
The mere fact that the tenant was able to evade the passing of a decree for ejectment against him by depositing in Court the arrears of rent whose existence formed the basis of the claim for ejectment cannot make any difference to the fact that the suit was not for the recovery of money, and therefore no set-off could be claimed even on payment of court-fee.
16. The question of costs of the trial Court was already raised. Since the tenant only removed the basis of the claim for his ejectment by depositing the sum due together with costs after the institution of the suit, the plaintiff was clearly entitled to recover his costs for having to institute the ejectment suit. It will therefore be necessary in the remanded proceedings, when the question of standard rent has been determined, to take this fact into account.
17. The result is that I accept this revision petition to the limited extent of directing that the trial Court shall not decide the question of set-off and shall take into account in any decree which may be passed the fact that the plaintiff was entitled to his costs so far as the suit for ejectment was concerned. The parties will bear their own costs in this Court and have been directed to appear in the trial Court on 13-2-1956.