S.S. Dhavan, J. - (1.) THIS is a landlords appeal from the decree of the Second Additional Civil Judge, Dehradun declaring the rent of premises known as the Empire Cinema to be payable at the rate of Rs. 375/ - per month from 2nd February, 1955 and dismissing his suit for the recovery of Rs. 27,375/ - as arrears of rent at the rate of Rs. 1,000' -per month with pendente lite and future interest, or in the alternative, for Rs. 26,741/67 as damages or compensation for use and occupation. The relevant fact3 are these. The Plaintiff -Appellant Lala Krishan Chand Jain is the owner and landlord of a building No. 13A Rajpur Road, Dehradun a portion of which is a cinema house and another portion a skating rink. The dispute relates to the portion used as a cinema which is on the ground floor. The building was constructed before the Second World War, about the year 1935, though the exact year is not known. The present tenant of the Cinema house (here inafter called the Cinema or the Empire Cinema) is the Defendant Respondent Ganga Dhar Juyal. The circumstances in which he became the tenant are somewhat peculiar. Previously the Cinema was let out to one Nitya Nand Khanna on Rs. 550/ -per month exclusive of certain taxes. He defaulted in payment of rent and the landlord (the Appellant before us) obtained a decree for his ejectment. However, there was a compromise in the execution proceedings under which Nitya Nand Khanna was permitted to occupy the Cinema for five years provided he paid Rs. 850/ - every month as mesne profits for use and occupation plus certain taxes; and also satisfied the decree for arrears of rent before 15th March, 1950. The decree for ejectment was to remain pending but in abeyance during the period of occupation by Nitya Nand Khanna. This agreement was accepted by the court. The agreement lasted till 1954 when Nitya Nand Khanna found himself unable to make the payment under the compromise agreement. At this stage the Defendant Respondent Ganga Dhar Juyal entered the scene. He made an offer to Nitya Nand Khanna to run the Cinema on terms which were accepted by Khanna and incorporated in a deed of agreement dated 31st March 1954 (Ex 50). The consent of the landlord to this agreement that he was still the decree holder was obtained by the Defendant Ganga Dhar Juyal. Very briefly, the Defendant agreed to pay Rs. 877/8/ - per month as "rent" to the owner of the building "on behalf of Khanna", a further sum of Rs. 550/ -every month as hire of the machinery equipment out of which Rs. 400/ - was to be paid to the landlord towards the payment of the decree for rent against Khanna and the balance of Rs. 150/ -direct to Khanna. The Defendant paid the rent for three months and then defaulted. Consequently, there was a default in the payment of the decretal amount due to the landlord who became entitled to enforce the decree for ejectment under the compromise agreement. It was argued in this appeal that Juyal deliberately defaulted to bring about the ejectment of Khanna so that the accommodation became vacant and he could obtain an allotment order in his own name, and then repudiate his obligation to pay the agreed rent. The landlord (Appellant before us) applied for ejectment and obtained possession on 16th November, 1954. After this, two applications were filed before the Rent Control and Eviction Officer (hereinafter called the RG and EO) one by the landlord for the release of the building in his favour and the other by the Defendant Juyal for its allotment to him. The District Magistrate without deciding the landlord's application passed on allotment order in favour of Juyal while the landlords' application under Rule 6 was still pending before the RC and EO. This order was quashed by this Court on a petition by the landlord under Article 226 of the Constitution. On remand, however, the RC and EO rejected the landlords' prayer for release under Rule 6 and the Cinema was again allotted to the Respondent by an order dated 14thJanuary 1958 which was to take effect from 2nd February 1955 the date on which the Defendant Juyal had obtained possession with police aid by virtue of the first allotment order.
(2.) FROM this stage the dispute between the landlord and the tenant over the rate of rent commenced. The first shot was fired by the Respondent Juyal on 31.1 1958 when he sent the Appellant an account of the "rent payable from 11th November, 1955 till 31st January 1958 at the rate of Rs. 375/37 n.p. per month plus 25 per cent, making a total of Rs. 8,186/28 n. p; but he deducted a sum of Rs. 7,662/56 n. p. which he claimed as due to him as costs of repairs, furnitures, electric fittings, fire fighting equipment and other items and sent the Appellant a cheque for Rs. 523/72 n. p. as balance due to you". Juyal offered rent from the date of the second allotment order, 11th November 1955 but none for the period between 2nd February and 11th November 1955 when he occupied the Cinema under the first allotment order. He did not even mention this period in his letter. The Appellant sent a reply on the 11th March 1958, rejecting the rate of Rs. 375.37 n. p. per month based on the Municipal Assessment of 1942, as most inadequate, and returned the cheque for Rs. 523.72. He pointed out that he had already applied for the determination of the annual reasonable rent and gave the Defendant notice that after this determination he would take necessary action against him in accordance with law for recovery of proper and fair arrears of rent. He denied that the Respondent had spent any amount on repairs and other items or has right to adjust this amount against rent. The Appellant having already moved the RC and EO under Section 3A of the UP Control of Rent and Eviction Act (hereinafter called the Act) for determining the reasonable annual rent of the Cinema house, that officer, by his order dated March 14, 1958 (Ex A 3), fixed the reasonable annual rent of the Cinema at Rs. 375/ -per month cr Rs. 4500/ - per annum. The Appellants next step was to serve notice on the Respondent (Ex 98, dated 8.5.1958) that the rent fixed by the RC and EO was most inadequate "and he intended to file a suit under Section 5(4) of the Act for the fixation of rent but meanwhile, without prejudice to his rights", he fixed the rent at Rs. 375/ -per month from the date of the tenancy. A week later he sent another notice (Ex 99, dated 16.5.58) in which, without prejudice to his own right to file a suit for fixation of rent Under Section 5(4), he gave the Respondent the choice of two alternatives either to pay a sum of Rs. 14,625/ - as rent from 2nd February 1955 till 1st May 1958 at the rate of Rs. 375/ - per month, or, if the Respondent wanted the tenancy to commence from the date of the allotment order (4.1.58) to pay mesne profits at the rate of Rs. 1000/ - per month for use and occupation for the earlier period of 3 years and rent for the rest of the period at the rate of Rs. 375/ - per month making a total of Rs. 39,230/ -. Obviously the Appellant did not seriously expect the Respondent to pay him Rs. 39,230/ - and must have written the letter to force the issue of the date of the commencement of tenancy and compel the Respondent to declare his stand on this question. The Respondent sent him a reply on 17th June 1958 (Ex 10) enclosing a cheque for Rs. 14,625/ - as rent upto date at the rate of Rs. 375/ - per month under protest, and intimated that he intended to take legal steps for the reduction of the rent - In his letter he again made a counterclaim for certain expenses for repairs, costs of electric fittings, and other items. The Appellant countered this reply with a notice dated 23rd Tune 1958 (Ex 100), calling upon the Respondent to agree within a week to pay Rs. 1000/ - per month as rent with effect from 2nd February 1955 and intimated that if the Respondent failed to agree, a suit for fixation of rent and allied reliefs would be filed against him. As the Respondent sent no reply, the Appellant filed the present suit on 11th July 1958. He had already accepted without prejudice the sum of Rs. 14,625/ -which was tendered by the Respondent under protest and also without prejudice to his right to get the rent reduced. The tender and acceptance being without prejudice they do not affect any rights of the parties in this suit and no argument was based on this payment.
(3.) IN his plaint, the Appellant narrated the facts which resulted in the allotment of the Cinema house to the Respondent and stated that to avoid further litigation he accepted the Defendant as tenant with retrospective effect and the Defendant also agreed to be a tenant with retrospective effect but no rate of rent could be agreed upon and the Appellant moved the RC and EO to declare the annual reasonable rent as defined Under Section 2(f) of the Act. He stated that that officer fixed it at Rs. 375/ - per month which, the Appellant submitted, was grossly inadequate. He claimed that the fair rent of the Cinema should not be less than Rs. 1000/ - per mensem, taking into consideration its previous rent, the prevailing rent on the date of the suit for similar accommodation in the locality, and the good situation and the quality of the building. The other material circumstances alleged by the Appellant were (1) that the Cinema was let furnished -a privilege not enjoyed by the tenant of any other Cinema in Dehradun; (2) that the Defendant himself had rented this very Cinema at a rent of Rs. 877/8/ - under the agreement of 31st March 1954 with Khanna; and (3) the Defendant was using and occupying two boxes, each with 10 seats, which were not included in the tenancy of the previous tenants.;