Ramaswami Gounder, J.-This revision is filed by the plaintiff in S.C.S. No. 638 of 1952 on the file of the Principal Small Cause Court, Madurai, to recover from two defendants, the respondents to this revision petition, a sum of Rs. 480 claimed as refund of the excess rent paid by the plaintiff at Rs. 5 per month over and above the fair rent determined by the Rent Controller. The house-property in question belong d to the defendants and the plaintiff became a tenant under the second defendant with effect from 14th January, 1943, on a monthly rent of Rs. 35. The plaintiff was paying rent at that rate to defendant 2 till October, 1948, when a partition took place between the second defendant and her son, defendant 1, in which the property in question was allotted to the share of defendant 1; and thereafter the plaintiff was paying the rent only to defendant 1 at the said rate. Then, in 1950, the plaintiff filed an application M.B.P. 195 of 1950 for fixation of fair rent; and on that application, the Rent Controller fixed the fair rent at Rs. 30 a month’ that is, by reducing the agreed rate of rent by Rs. 5 a month. The plaintiff gave a notice on 14th February, 1951, to the first defendant, claiming refund in pursuance of Madras Act XXV of 1949 (Buildings Lease and Rent Control Act). In the meantime, the plaintiff preferred an appeal against the order of the Rent Controller, praying for further reduction of the rent as fixed by the Rent Controller. The appeal was not eventually pressed, and accordingly, it was dismissed on 2nd November, 1951. Thereafter, the plaintiff commenced this action and claimed a sum of Rs. 480, being the excess rent paid by him at the rate of Rs. 5 a month from the date of the tenancy, namely, 14th January, 1943, to the date of the fixation of the fair rent, namely, 16th January, 1951, for a period of 96 months.

On the date of the fixation of the fair rent, namely, 16th January, 1951, the Act that was in force was Act XXV of 1949, which provided by section 6 that when the Controller had determined the fair rent of a building, any sum paid in excess of the fair rent, whether before or after 1st October, 1946, in respect of the use of the building after that date, shall be refunded to the person by whom it was paid, or at the option of such person, otherwise adjusted. Under that provision then in force, it was open to the plaintiff to claim a refund of any sum paid in excess of the fair rent from 1st October, 1946. Of course, his claim as from the date of the tenancy, namely, 14th January, 1943, was clearly untenable. But it must be remembered that the plaintiff preferred an appeal against the order of the Rent Control-ler fixing the fair rent and that appeal was dismissed on 2nd November. 951. By that time the amending Act (Madras Act VIII of 1951), had been passed, and it

came into force on 1st May, 1951. The Amendment Act provided that where the the Controller had determined the fair rent of a building, any rent paid in addition to or in excess of such fair rent, whether before or after the commencement of that Act, shall be refunded by the landlord to the person by whom it was paid, or, at the option of such person, shall be otherwise adjusted by the landlord. That amendment embodies a Proviso to the effect that where before the determination of the fair rent the rent had been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for a period of one year immediately before such determination. Relying on that Proviso the learned trial Judge held that the refund can be claimed by the plaintiff only in respect of the amount paid in excess of the fair rent for a period of one year. He fixed that period of one year prior to 2nd November, 1951, the date of dismissal of the plaintiff’s appeal against the order fixing the fair rent. The learned Judge thought that though the order fixing the fair rent was passed under the provisions of the earlier Act of 1949 and therefore

Click Here to Read the rest of this document