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1956 Supreme(Raj) 162
Rajasthan High Court
Modi, J.
Somraj - Appellant
Versus
Jethmal - Respondents
S.B. Civil Regular Second Appeal No. 93 of 1952
Decided On : August 28, 1956
Prakash Chandra, for appellants; Hastimal, for respondent
Headnote:(a) Rent Control—Marwar House Rent Control Act, sec. 10(1) (d)—Rent paid in excess of fair rent fixed.(b) Rent Control—Rajsthan Premises (Control of Rent and Eviction) Act, sec, 8(2)—Rent paid in excess of standard or fair rent—Adjustment.(c) Civil P.C., O. 8, R. 1—Set off—Claim of adjustment under Marwar House Rent Control Act, sec. 10(l)(d) or Rajasthan Premises (Control of Rent and Eviction) Act, sec. 3(2)—Not set off.(d) Court Fees Act, schdl. 1, Art. 1—Set off—Claim of adjustment under Marwar House Rent Control Act, sec. 10(1) d) and Rajasthan Premises (Control of Rent and Eviction) Act, sec 8(2).
HELD : Where the Controller does not himself specify the date from which his order is to take effect his order fixing the fair rent must receive effect not only from the date of the order but also for an earlier period of residence provided such residence relates to a period after the commencement of the Act. That is why it is further provided that any excess received by the landlord over the fair rent fixed by the Contraller shall be refunded to the person who paid it or would be otherwise adjustable at his option. The provision is absolutely clear that where fair rent has been fixed and any payment in excess thereof has been made in respect of residence after the commencement of the Act, then no matter that such payment has been made even before the Act was passed, it "shall" be refunded to the person by whom it was paid or where such person wants it to be adjusted otherwise, it should be so adjusted.
Sec. 8(2) of the Rajasthan Act read with sec. 65 of the Contract Act leads to the same result as sec. 10(1)(d) of the Marwar Act, and it would be open under the Rajasthan Act also to give effect to a plan of adjustment or refund as the case may be) raised by a tenant in respect of any rent already paid by him in excess of fair rent fixed by competent authority against any so, called arrears of rent claimed by the landlord against the former. Such a plea if raised by the defendants is not in the nature of a set off (whether legal or equitable) or a counter-claim, but is a plea of an adjustment as distinct from the plea of set off and no court-fee is payable on the same. The matter will stand on a different footing if the defendants also ask for a refund of the excess rent said to have been paid by them to the plaintiff. (Paras 6, 7,9 and 10)
2. The plaintiff Jethmals case was that the defendants Somraj and another had taken the suit shop on rent from the plaintiff on Migsar Vadi 1 Smt. 2004 (corresponding to 29th November, 1947) at a rent of Rs. 45/- p.m. and that they had paid rent up to Smt. 2006, Baisakh Sudi 15 (corresponding to the 2nd May, 1940) but thereafter had failed to pay rent for a period of five months and a half up to Smt. 2007, Asoj Vadi 30 (corresponding to 11th October 1950). The plaintiff, therefore, instituted his present suit for a sum of Rs. 247/8/- as rent for the said period and for eviction on the 17th October, 1950.
3. It is unnecessary to state any facts in so far as they bear on the question of eviction as that question is no longer in dispute between the parties.
4. The defendants resisted the suit. Their main contention was that on their complaint under the Marwar House Rent Control Act (No. XXV) of 1949 (hereinafter referred to as the Marwar Act), the Rent Controller had fixed a fair rent for the suit shop at the rate of Rs. 18—p.m. by his order dated the 10th July, 1950, and that as they had paid rent for a considerable period at the rate of Rs. 45/—p.m. up to Smt. 2006, Baisakh Sudi 15 (2-5.1950) they had paid excess rent to the tune of Rs. 948/-(it is not necessary for the purpose of this appeal to go into the details of these payments) and that accordingly on the 7th August, 1950, they had given a notice to the plaintiff to adjust the aforesaid amount against the rent due by them for the suit period and in future, and, consequently, no rent was due to the plaintiff. The defendants further ontended that in fact they were entitled to refund of the excess rent paid and that they would file a separate suit for that purpose. The defendants lastly pleaded that the plaintiff was in no case entitled to charge rent except at the rate of Rs. 18/- p. m. which had been fixed as fair rent by the Rent Controller for the shop in question. It may be pointed out at once that a good deal of difficulty has arisen in this case because the Rent Controller did not specify in his order any particular date from which his order was to have effect.
5. The trial court dismissed the plaintiffs suit. Its main finding relevant for our present purposes was that the Rent Controller should be deemed to have fixed the fair rent from the date of the agreement of tenancy, that is, Smt. 2002 Maha Sudi 15 (corresponding to 16th February, 1946), although he passed his order fixing the fair rent on the 10th July, 1950. On this view the trial court was obviously of the opinion (although it did not say that in so many words) that the plaintiffs claim for arrears of rent made in the present suit was untenable as the defendants were certainly entitled to have the excess rent already paid by them adjusted against the arrears due and that this worked out to much more than the suit amount. The plaintiff then went in appeal to the District Judge, Jodhpur. The appeal was decided by the Civil Judge (to whom it had been transferred by the District Judge) by his judgment, dated the 16th February, 1952. The learned Civil Judge held the opinion that the order of the Controller should be given effect to from the date thereof, that is, the 10th July, 1950, and that the Munsiff was wrong in holding that the fair rent should be operative from the date of tenancy, that, is the 16th February, 1946. The learned Judge, therefore, set aside the judgment and decree of the trial court and decreed the plaintiffs suit for rent from Jeth Vadi 1, Smt. 2006 (equal to 3.5.1950) up to the date of the Controllers order, that is, the 10th July. 1950, at the rate of Rs. 45/- p. m. and from the latter date to the date of the suit at the rate of Rs. 18/- p. m., and thus awarded a decree for Rs. 139/12/-as arrears of rent due to the plaintiff from the defendants. The defendant Somraj has appealed from the abov
