The question that falls for determination in this case is as to whether a compromise between the parties arrived in a civil court would serve as estoppel from getting the fair rent fixed by the controller under section 8 of the J&K Houses and Shops Rent Control Act (here after called the Act)

2. The facts in berief are that respondent. Madan Lal. is the tenant of a shop owned by the petitioners. During an earlier civil proceeding in a suit for dissolution of partnership and rendition of accounts, the parties entered into a compromise and an amount of Rs.2400/- was agreed to be paid as monthly rent. The respondent approached the Rent Controller for fixation of the fair rent in accordance with sec.8 of the Act- The Rent Controller (C.J.M) Jammu dismissed the application on the grounds that the agreement executed between the parties before the civil court on 13-12-1989 estops the respondent from challenging the rent. The Rent Controller dismissed the application on 30-04-1994. Against this order an appeal was preferred before the District Judge, Jammu, who vide his order dated 15-04-1995, allowed the same and set aside the order of the controller, directing him to fix fair rent under sec. 8 of the Act. It is this order which has been called in question in the present revision petition.

3. The controller, as well as the District Judge, both have relied upon a case title Avtar Singh V/s Sham Lal, decided by a Full Bench of this Court and reported in AIR 1970 J&K 26. The proposition of law laid down by the Full Bench is the last word on the point involved. There lordships have authoritatively held that there is no provision of law which either impliedly or expressly prohibits the parties from fixing a fair rent by agreement nor does the Act lay any bar for the Controller from giving effect to such agreements. It was in this behalf that the plea of application of doctrine of estopple against the statute was rejected. Learned District Judge has caught hold of the nub of the matter by identifying the area of distinction between the present case and Avtar Singhs case. In Avtar Singhs case, decided by the Full Bench, parties were very much before the rent controller. It was during the pendency of a motion for fixation of fair rent in terms of their agreement. Thus the parties dissuaded the court from following the procedure laid down in Sec.8. The parties did not choose to lead evidence but, on the other hand, they asked the court to pass the orders in terms of their agreed stand. Their Lordships thus held that such a conduct of the parties would operate in an estoppel.

4. In the present case what the controller has held to serve as estopple for the respondent was an agreement arrived at by the parties in a civil proceedings, independent of the Act. That makes the whole difference.

5. It is interesting to note that the agreement arrived at before the civil court describes an amount of Rs.2400/- to be fair rent. Besides this parties have also entered into a written rent deed on 13-09-1989, wherein the amount was agreed to have been fixed voluntarily as fair rent. Mr. Kohli, appearing for the petitioner, has vehemently argued that once the rent was admitted to be fair rent the prayer for alteration of the same would be barred by rule of estopple This, according to him, would be so irrespective of the consideration as to whether or not fair rent was determined by the Rent Controller under Sec. 8 of the Act.

6. I have heard the matter in extense.

For the purpose of disposal of this petition, a cummulative reading of sections 2(2), 3 & 8 of the Act becomes imperative. Sec 2(2) defines fair rent as one determined in accordance with the provision of schedule A or rent fixed under section 8. Under section 2(2} (b) fair rent also includes the rent which would have been fixed in case an application in terms of sec.8 would have been made. Sec.2 (2) (b) by all its implications holds only that rent to be fair rent which was either determined or which shou

Click Here to Read the rest of this document