Judgment

GROVER J. : This is an appeal against a judgment of a Division Bench of the Calcutta High Court reversing in appeal a decision of the trial Judge by whom the suit had been dismissed.

2. In 1943 the 2nd and 3rd floor of premises No. 46/7, Lower Chitpur Road, Calcutta, were taken on rent by the Government, the agreement of tenancy having been entered into by the then Governor-General-in-Council. The rate at which the rent was payable was Rs. 2225.50np per month apart from the occupier s share of taxes. The respondents are the trustees under a deed of settlement executed by R. K. Modi who had originally leased out the premises. On the Rent Controller being moved for fixation of the standard rent it was fixed at Rs. 3427-4-3 per month with effect from December 1, 1948. The tenancy in favour of the Governor-General-in-Council devolved upon the Union of India which is the appellant before us. The tenant continued to pay rent at the above rate along with the occupier s share of taxes upto the end of May, 1960 but stopped paying any rent after June, 1960.

3. On March 21, 1961 the respondents filed a suit for recovery of Rs. 2399O.89 np as arrears of rent of the aforesaid premises for the period July 1, 1960 to December 31, 1960 at the rate of Rs. 3427.27 per month. In addition a sum of Rs. 716.00 was claimed on account of occupier s share of taxes as also the interest at the rate of 12 p. c. from November 1, 1960 a notice having been given under the Interest Act of 1839. The substantial defence of the appellant was that under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 hereinafter called the "Act" the standard rent came to the following amounts for the periods mentioned below:

1. April 1, 1950 to October 30, 1951 Rs. 2448.05 p. m.

2. December 1, 1951 onwards Rs. 2815.26 p. m.

It was alleged that by mistake the appellant had continued to pay to the respondents the standard rent fixed under the Act of 1948 at the rate of Rupees 3427.27 np per month upto the end of May, 1960. This was discovered for the first time in June, 1960. Consequently a sum of Rs. 82,009.42 np had been paid in excess to the respondents. There was thus no liability to pay the rent claimed until the said excess payment had been adjusted or appropriated.

4. Amongst the issues framed by the trial court the following two issues alone need be reproduced:

"4 (a). Did the defendant pay rent at the rate of Rs. 3427.27 np per month upto the end of May, 1960 by mistake ?

4 (b). If so, is the defendant entitled to set off and/or adjust the payment made in excess against the plaintiff s claim for rent ?"

5. It was held by the trial Judge that from April 1, 1950 the appellant was not liable to pay more than Rs. 2815.26 per month as rent and, therefore, the total excess payment made came to Rs. 82,009.42. He, therefore, held that the excess payment had been made through mistake. The appellant was found entitled to ask for adjustment or set off in respect of the amount that had been so paid. The suit was dismissed. The appeal court referred to Ss. 7 to 11 and 17 of the Act of 1950 and expressed the view that the legislature intended to define and alter, if necessary, the rights of the landlords and tenants immediately after the Act came into force. If a tenant was under the impression that the rate at which he was paying rent was higher than what would be the standard rent under the Act he could at once apply for fixation of standard rent. Conversely if a landlord thought that the rent was lower than that which would be fixed as the standard rent he could similarly apply to the Controller for fixation of the standard rent. So long, however, as the standard rent was not fixed the landlord was precluded by reason of S. 11 from claiming rent at a rate higher than that of which he was in receipt. If the tenant had paid or deposited any amount in excess of the standard rent he could within six months from the date of payment or deposit appl