MUNAGALA VENKATESWARA RAO Vs. MOHAMMAD MOHIBULLA SAHEB
HIGH COURT OF MADRAS
Munagala Venkateswara Rao
Mohammad Mohibulla Saheb
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Govinda Menon, J. -
(1.) THE suit out of which this revision petition arises was for a sum of money said to be the excess rent which the petitioner had agreed to pay to the respondent in accordance with a rent chit executed by him. The agreement was that the petitioner should pay Rs. 9 per month as rent for the premises from 1 -7 -1947 till 30 -6 -1949 and vacate the premises thereafter. If, on the other hand, he continued to remain on the premises, a higher rent at the rate of Rs. 14 per mensem was to be paid. The present suit is for recovery of the difference in rent from 1 -7 -1949 to 12 -1 -1951 at the rate of Rs. 5 per mensem. The defendant contested the suit On the ground that the agreement was null and void and was against the provisions of the Madras Buildings (Lease and Rent Control) Act, 1945, and therefore the agreement could not be enforced. There is a further contention that since the plaintiff had received without protest the rent at the rate of Rs. 9 per mensem even after 1 -7 -1949, he had waived the claim for the increased rent. The lower Court rejected both these contentions and decreed the suit. The question for consideration is whether the agreement pleaded can be enforced or not.
(2.) IN - - 'Moses Pillal v. Govindan', : AIR 1948 Mad 346', Govindarajachari J. in construing Clause 7 (a), Madras House Rent Control Order, which was one of the predecessors of the present Act, held that the language of Clause 7 (a) of that order is peremptory and permits an Increase in rent only where some addition, improvement or alteration such as is described in that clause has been carried out at the landlord's expense after the fixation of the rent. In that case also there was an agreement dated 4 -2 -1942 which provided that the tenancy shall be for a period of one year from that date and during the period the rent was fixed at Rs. 40 per month. After the expiry of the period the tenant was to deliver possession of the house to the landlord but if he failed to deliver possession then the tenant agreed to pay a rent at the rate of Rs. 45 per mensem till possession was delivered over to the landlord. The landlord filed a suit to recover the higher rate of rent and it was contended that the stipulation for the payment of increased rent was not enforceable. Accepting that contention the learned Judge held that the provisions of Clause 7 (a) of the Order would apply even though the parties had contracted to the contrary. The result was that the landlord was held entitled only to the lower rate of rent as agreed to. It is contended for the petitioner that this decision would apply even under the present Act, because under Section 6 a landlord is not entitled to claim anything in excess of the fair rent. Section 6 runs as follows:
"6. When the Controller has determined the fair rent of a building -
(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 as advance an amount not exceeding one month's rent;
(b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent except in cases falling under Section 5(a) Clause of this section shall be null and void in respect of such addition or excess and shall be construed as if it were an agreement for payment of the fair rent;........"
Learned counsel for the respondent wants to escape from the effects of this section by saying that such an agreement can be declared null and void only where the fair rent of the building has been fixed under Section 4 of the Act, and an increase in such fair rent has been allowed under S. 5 of the Act. Section 4 deals with the determination of fair rent on an application by the tenant or the landlord; and how the same has to be arrived at is set forth in detail in that section. Section 5 lays down that when the fair rent of a building has been fixed under Section 4, no further increase in such fair rent shall be permissible except in cases where some addition, improvement or alteration has been carried out at the landlord's expense and if the building is then in the occupation of the tenant, at his request. From this it is argued that unless the lair rent of a building has been fixed under Section 4, it is open to a landlord, to increase the rent whenever he pleases. His argument is that if there is a tenancy and rent has been fixed by agreement of parties, even alter the coming into operation of Madras Act 15 of 1946 it is open to the landlord to increase the rent if there has been no fixation of the same by the Controller. It is relevant to quote Section 5 of the Act which says:
"When the fair rent of a building has been fixed under Section 4, no further increase in such fair rent shall be permissible except in cases where some addition, improvement or alteration has been carried out at the landlord's expense and if the building is then in the occupation of a tenant at his request".
What is contended on behalf of the respondent is that the decision in - -, A. I. R. 1948 Mad. 346 (A)', was given under the provisions of the Madras House Rent Control Order, 1941, and not en the interpretation of Act 15 of 1946, and that these two enactments are not in 'pari materia' but differ in important particulars. On a comparison of the various sections of the Act with the clauses of the Madras House Rent Control Order, I am not able to find any material difference which would justify my holding that the circumstances under which -, AIR 1948 Mad. 346 (A)', came to be decided were different. Clause 6 of the Madras House Rent Control Order is in the following terms:
"When the Controller has determined the fair rent of a house
(a) the landlord shall not claim or receive any premium, advance or other like sum in addition to rent or any rent in excess of such fair 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 in respect of such excess and shall be construed as if it was an agreement for payment of the said fair rent;............"
(3.) CLAUSE 6 of the Madras House Rent Control Order corresponds to Section 6 of Madras Act 15 of 1946. Whereas Clause 6 opens by saying "When the Controller has determined the fair rent of a house", Section 6 of Act 15 of 1946 also opens with the words "When the Controller has determined the fair rent of a building", I am not able to find any distinction in essence between the two openings; and if Clause 6 of the Madras House Rent Control Order is compared to, and contrasted with; Section 6 of the Act, there can be no material difference discernible. Likewise, there cannot be much difference between Clause 7 of the House Rent Control Order and Section 5 of Act 15 of 1946. Clause 7 says that after the commencement of this order an increase in the rent fixed under Clause 5 shall be permissible only in cases where some addition, improvement or alteration not included in necessary repairs or repairs which are usually made to house in that area has been carried out at the landlord's expense. Section 5 says that when the fair rent of a building has been fixed, an increase in rent cannot be permitted. Sub -clause (b) of Clause 6 of the Madras House Rent Control Order when compared with Clause (b) of Section 6 of the Act leaves one with the impression that there was no material change. In these circumstances, I am unable to find any distinction between the present case and that decided in - -, AIR 1948 Mad. 346 (A), The order of the lower Court is therefore not sustainable and is set aside. The civil revision petition is allowed with costs throughout.;
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