PAZHANAN Vs. VISWANATHA PATTAR PATTAMALY
LAWS(KER)-1964-5-4
HIGH COURT OF KERALA
Decided on May 22,1964

PAZHANAN Appellant
VERSUS
VISWANATHA PATTAR PATTAMALY Respondents

JUDGEMENT

- (1.) This Second Appeal arises in a suit by the respondent, for the balance of rent alleged to be due to him for the year 1133 from the appellant. The appellant contended, that he had already paid rent for the year 1129 at the contract rate, & for the years 1130 to 1132 at the rate of 316 parahs of paddy and Rs. 6/- per annum, being the fair rent fixed by the Rent Court under S.16 of the Malabar Tenancy Act as amended by Act VII of 1954, that subsequently, after the Malabar Tenancy (Amendment) Act, 1956 (Act XXII of 1956) was passed, the fair rent has been refixed at 266 parahs & 6 edangalies of paddy per annum, and that therefore the payments made for the years 1129 to 1132 have to be reopened and the excess paid reappropriated towards rent for the year 1133. The first court gave effect to this contention, but in appeal the District Judge held that the payments which were all made before Act XXII of 1956 came into force, could not be reopened and so decreed the claim of the respondent. The question in Second Appeal is whether this view of the District Judge is right and can be maintained.
(2.) Learned counsel for the appellant relied on S.7 of Act XXII of 1956 which is in the following terms:- "7 (1). Where before the commencement of this Act any court has passed a decree for rent against any tenant and a Rent Court has subsequently fixed fair rent under the provisions of the principal Act, any tenant may, within three months of the commencement of this Act, apply to the Court which passed the decree to amend the decree so as to give effect to the order of the Rent Court fixing fair rent and if as a consequence of such amendment, the decree is fully satisfied by giving credit to the payment already made, satisfaction of the decree, shall be entered and only such amounts as may be outstanding after the decree has been so amended shall be recoverable from the tenant. (2) Where before the commencement of this Act any Rent Court has fixed fair rent the Rent Court shall on application by the tenant within three months of such commencement amend the order fixing fair rent by giving effect to the provisions of the principal Act as amended by this Act and the principal Act as amended by this Act shall also apply to petitions, appeals and other proceedings pending at such commencement." It is plain, that sub-s.(i) covers a case where a decree for rent had been passed and remained unsatisfied on the date of the Act and a Rent Court had fixed fair rent, in which case the decree may be amended so as to give effect to the order of the Rent Court, and if in consequence, the liability under the decree is fully discharged, satisfaction may be entered accordingly. This has no application to the case of a decree which has been, satisfied by payment before the fixation of fair rent. Obviously, the provision does not purport to deal with a claim not covered by a decree and is at least suggestive, that the legislature would have made suitable provision, if it wanted past payments to be reopened and the rights of parties readjusted or settled. Under sub-s.(2), the right conferred is on a tenant and is to have the order of the Rent Court fixing fair rent amended or refixed in accordance with the provisions of Act XXII of 1956. It may be mentioned, that this Act has introduced by way of Explanation, a provision declaring, that "in ascertaining the normal produce" (for fixing fair rent) "the yield of the second crop shall be deemed to be half of that of the principal crop which shall be deemed to be the first crop". A rule on these lines had been framed under the Malabar Tenancy Act before this amendment, but had been struck down by the Madras High Court as ultra vires the Act. The fixation of fair rent at 266 parahs and 6 edangalies of paddy was said to have been made, having regard to this explanation. But before all this, the appellant had paid the rent for the years 1129 to 1132. So on the terms of Act XXII of 1956, there is no warrant for reopening the payments. It may be, that by permitting a decree for rent or an order fixing fair rent to be amended, some of the provisions of Act XXII of 1956 have been given a retrospective operation; but this is not to say, that payments which have been made in discharge of claims for rent would be necessarily affected or have to be reopened. It was said in argument, that under S.31 of the Malabar Tenancy Act, the liability of the tenant is to pay to the landlord only the fair rent as fixed and nothing more. This was all that the appellant paid at the material time to the respondent for the years 1130 to 1132.
(3.) It was contented, that the prior payments were made under a mistake of law, that whereas under law rent payable was only as fixed under Act XXII of 1956, rent paid was as fixed originally. At the time they were made, the payments corresponded to the fair rent as fixed and the parties were under no mistake about them. The right to amend that order has no bearing on the issue as to mistake. It may be, that where the original order fixing fair rent has to be enforced, the amendment may become material; but this is irrelevant. The Sales Tax Officer, Banaras v. Kanhaiva Lal Makund Lal Saraf AIR 1959 SC 135 and Sri Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi AIR 1949 PC 297 were relied on. In the former, the order of assessment of sales tax, in pursuance of which payment was made, was held to be ultra vires the statute and in the latter, the Privy Council upon a true construction of the lease held, that the dues paid to the lessor were not justly or legally due to him. These have nothing in comparison with the case now before me, where the appellant was bound at the time to make payment of fair rent as fixed by the original Act and he paid it. In agreement with the view of the District Judge, I hold that the payment made for the years 1130 to 1132 by the appellant, cannot be reopened. The balance of rent due for the year 1133 is therefore payable by him to the respondent. The decree under appeal is affirmed and this Second Appeal dismissed with costs. Leave to appeal was prayed for; leave granted.;


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