The excess rent paid by the tenant could be recovered under Section 8 of the Act of 1949, and the cause of action in regard to the claim for excess rent paid in two different periods was not the same.

Kapur, J.

1. This judgment will dispose of two matters, Regular First Appeal No. 210 of 1952 and Civil Revn. No. 462 of 1951. Both have been brought by the landlord, Janeshwar Lal, and are directed, the former against a judgment and decree of Mr. Harish Chandar Mital dated 12-7-1951 decreeing the plaintiffs claim to the extent of Rs. 830/4- and the latter against the tenants claim for Rs. 43471/- and decided on 12-7-1951.

2. Janeshwar Lal who is the landlord applied on 22-5-1947 under Act 6 of 1947 for fixation of rent which was fixed at Rs. 2,860/- as follows : For the shop Rs. 2,100/- per annum For the flat Rs. 760/- per annum.

3. This fixation was with the consent of both the parties. Rent was continued to be paid. On 10-10-1949 the tenant paia to the landlord a sum of Rs. 2,000/- towards the annual rent for the year 1849-50 and on 26-5-1950 he paid Rs. 982/8/-towards this rent.

4. On 25-3-1949 Act 3 of 1949 came into force in the Punjab and on 14-4-1949 this Act was varied in regard to Simla. On 28-2-1950 the tenant applied for fixation of rent under Section 4 of the new Act which is Ex. P. 1 and the rent was fixed on 14-9-1950 at Rs. 2,050/-.

5. On 26-10-1950 the tenant Bishamber Nath brought a suit for recovery of Rs. 897/- claiming it as refund under Section 8 of the Act of 1949. He alleged that he had paid Rs. 2,000/- previously and that he had to pay another sum of Rs. 982/8/-under protest as the landlord had applied to the Rent Controller for the plaintiffs eviction. The claim was made up as follows:

Excess amount paid

Rs.

810/-

Excess charges of

Rs.

63/4/-

Water-rate Interest

Rs.

23/12/-

____________

Total

Rs.

897/-

6. The defendant admitted the correctness of the payments but denied that anything in excess of fair rent had been paid. He also pleaded that the amount as rent for the year 1949 was not affected by the order of the Rent Controller dated 14-9-1950. Two issues were framed. "(1) Whether the excess rent paid for the period in question (1949-50) cannot legally be recovered on the basis of the order of the Rent Controller, dated 14-9-1950? (2) Whether the said order of the Rent Controller is against law and ultra vires or without jurisdiction?

7. The learned judge held that the amount paid in excess of fair rent could be claimed and gave a decree for Rs. 830/4/-. The defendant went up in appeal to the District Judge, but the case was transferred to this Court by an order of my learned brother on 3-11-1952 and was ordered to be heard with the Civil Revision which will be discussed later.

8. Mr. Tek Chand has referred to Section 4 of Act 3 of 1949 which provides for determination of fair rent. He then referred to Section 6 which is as follows :

"6 Landlord not to claim anything in excess of fair rent-- (1) Save as provided in Section 5, when the Controller has fixed the fair rent of a building or rented land under Section 4-- (a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceeding one months rent; (b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void.

(2) Nothing in this section shall apply to the recovery of any rent which became due before 1-1-1939." then he drew our attention to Section 8 of the Act which provides- "8. Rent which should not have been paid may be recovered-- (1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable, such sum shall, at any time within a period of six months after the date of the payment or in the case of a payment made before the commencement of this Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal re