Modi, J. - (1.) THIS is a defendant's second appeal in a suit for recovery of arrears of rent and electricity and water charges and ejectment, which has been decreed by both courts below.
(2.) THE appeal raises on interesting question as to whether electricity or water charges are part and parcel of the rent payable by a tenant or not. If this question is answered in favour of the plaintiff, then the defendant's eviction must be held to have been rightly decreed. But, if on the other hand, such charges cannot be included within the meaning of the expression "rent", then it is equally true that the decree for eviction passed by the courts below against the defendant could not be sustained. THEre is one other point raised in the appeal as regards the proper quantum of water-charges payable by the defendant to the plaintiff and that question will also have to be decided. Now before I address myself to the consideration of the main question arising in this case, a few facts may be stated which must be accepted as having been correctly found for the purposes of this second appeal. It has been held that the defendant was a monthly tenant of the plaintiff since January, 1952, and that there was a fresh agreement between the parties commencing from June, 1958, according to which the rent payable by the defendant was settled at Rs. 25/- per mensem and that in addition the defendant was under a further liability to pay electricity charges according to the current consumed by him. So far, there is no trouble. As for water-charges it has been found that the defendant had made himself liable to pay a fixed charge of Rs. 3/-per mensem and this finding is being challenged before me as being illegal. On these findings, the trial court decreed the plaintiff's suit for arrears of rent at the rate of Rs. 25/- per mensem from the 1st August, 1958, and for a sum of Rs. 87/8/- as electricity charges and for a further sum of Rs. 3/-per mensem as water charges. That court also decreed the suit for ejectment. This decree was upheld by the Civil Judge, Bikaner, on appeal by his judgment and decree dated the 12th August, 1961, which is now being challenged in this Court by a second appeal. It may be stated at once that there is no dispute at this date so far as the decree for the arrears of rent is concerned; nor is there any dispute about the decree passed for electricity charges. The only other fact which it is relevant to mention at this stage is that, according to the courts below, after the fresh agreement had been entered into between the parties in June, 1958, the defendant had paid the rent as also water and electricity charges for the months of June and July, 1958, (See the receipt Ex. A-l in this connection) and that for the month of August, 1958, he had remitted a money-order for Rs. 25/- being the house rent plus a further sum of Rs. 6. 50 np. on account of electric charges, but this money-order was refused. The defendant's case further was that he was unable to send the water charges for the month of August because he was required to pay the same according to the bill received from the plaintiff, and the latter had not sent it to him. It is well established in this Court that if the defendant makes a valid tender of the rent payable by him for a particular month and the plaintiff refuses to accept the same, then it is not for him to go on remitting rent for the further months, and in such a case the defendant cannot be held to be a defaulter. See Babu Ram Vs. Narayan Das (l ). The ratio behind this view is that it is not the intention of the law that the tenant should be compelled to make useless offers to send money to the landlord by money-orders, which was bound to be refused. Both courts below have, however, held that this was not a valid tender, inasmuch as the tenant had failed to send the water-charges along with the rent of Rs. 25/- due from him per month, their view being that the said charges were included in the term 'rent' payable by the tenant to his landlord. In coming to the conclusion to which they did, the courts below seem to have mainly relied on the definition of the word "premises" as given in sub-clause (b) of clause (v) of sec. 3 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950, hereinafter called the Act of 1950 ). The material part of this definition reads as follows : - "premises" means any building or part of a building which is or is intended to be let separately for use as a residence or for commercial use or for any other purpose and includes : - (i ). . . . . (ii ). . . (iii) any fittings affixed to and amenities provided in such building or part for the more beneficial enjoyment thereof. " The view of the courts below, put in a nut-shell, seems to be that the supply of Water or electricity is a part of the 'premises' within the meaning of the aforesaid definition and that rent by a tenant to his landlord is payable for the premises which have been let out to him or of which he is in enjoyment and consequently water or electricity charges should be held to form part and parcel of the rent payable by a tenant to his landlord. The question is whether this view is correct. Having given my careful and anxious consideration to this question, I have come to the conclusion that it is not. Unfortunately, the expression "rent" has not been defined in the Act of 1950. But in order to see what is the precise connotation of this term, it may be profitable to look at the various provisions contained in the Act. Sec. 5 lays down that rent payable for any premises situate within the areas which are governed by the Act shall be ordinarily such as may be agreed upon between the landlord and the tenant. Sec. 6 then provides that where no rent has been so agreed upon or where for any reason it is contended that the rent agreed upon is excessive, the landlord or the tenant may institute a suit for fixation of standard rent in the lowest court of competent jurisdiction. Sub-sec. (3) of this section then provides that in fixing the standard rent in certain contingencies, that is, where it may not be possible to determine it on the principles set out in sub-sec. (2), the court shall determine such rent, having due regard to the pre-war rent, the prevailing rent or standard rent of similar premises in the same locality and also having regard to the various amenities such as electricity and water connection, sanitary fittings and the like attached to the premises. I would pause here for a moment to point out that the reference to electricity and water connection etc. as amenities has been made to emphasize the fact that the particular premises are equipped with the requisite apparatus for these facilities and cannot possibly have reference to the actual amount of electricity or water consumed or the charges payable therefor, for this is bound to depend upon the requirements of the tenant which may vary from time to time. The same idea has perhaps been brought out in the next following sub-section which lays down that in fixing the standard rent for any premises under sec. 6, the court may determine "additional charges" to be payable on account of fitting and furnishing in addition to the rent in respect of the premises in an unfurnished state, and it has been laid down that it shall be lawful for the landlord to recover such additional charges from the tenant. Clearly, this additional charge is something over and above the rent payable by the tenant. Then sab-sec. (3) of sec. 8 also points in the same direction. It enacts that nothing in sec. 8 which, broadly speaking, places a ban on a landlord recovering anything from his tenant in excess of the standard rent shall preclude the landlord from recovering from his tenant over and above the standard rent an additional charge, if any, determined under sec. 6 such as the amount of any charge for electricity or water consumed in the premises or of any charge or tax levied by the Government or a local authority in respect of any service rendered to the premises, if the landlord is liable to pay and pays such charge or tax. Learned counsel for the plaintiff respondent invited my attention to the expression, to wit, "so long as he is ready and willing to pay rent to the full extent allowable by this Act" occurring in sub-sec. (1) of sec. 13 of the Act of 1950 which governs the eviction of tenants, and wanted to suggest that the term "rent" in this context included the electricity and water charges. I regret, I am unable to accede to this view, for the qualifying phrase "to the full extent allowable by this Act" occurring after the term "rent" can only apply to what would be, properly speaking "rent" under the Act, and not to an additional charge or charges which may be payable by a tenant to the landlord but would nevertheless not fall within the proper scope of the term "rent". It was also suggested that if this view were not adopted, the landlord would be without any remedy under the Act where the tenant may, with impunity, refuse to pay charges for water and electricity consumed by him and for which he has got to pay himself to the quarters concerned. The answer to this difficulty is furnished by sec. 12 of the Act which permits a landlord to deprive a tenant of the peaceful enjoyment of the benefits arising from electricity and water connections and other amenities attached to the premises where the charges in respect thereof are not duly paid by the tenant, that is, if and as they fall due. The only exception that seems to have been provided for under this section is where the electricity and water charges happen to be included in the amount of the standard rent fixed under sec. 6 of the Act and for that the reason seems to be obvious that the rent which has been fixed is an inclusive one and not exclusive of the services in question. From the, foregoing survey of the various provisions of the Act referred to above, I feel strongly persuaded to hold that apart from those cases where an inclusive standard of rent has been fixed between the parties concerned under sec. 6 so as to cover charges for electricity and water consumed or any other similar charges or where an inclusive rent has been agreed to be paid and received by the parties by private agreement, the charges payable by a tenant for the electricity and water consumed by him do not and cannot properly fall within the meaning of the term "rent" payable by him to his landlord. As I have discussed above, the Act of 1950 speaks of these dues as additional charges and it need not have done so if the intention of the Legislature was to include them within the meaning of the term "rent". I should also like to point out that there is a certain amount of fixity of rent apart from the security of tenure which is aimed at by a Rent Restriction Act. But what fixity of rent could there be in the case of recurring charges like electricity and water which may vary from time to time depending upon the particular requirements of the tenant at a particular time ? It may as well be pointed out that the immediate remedy of a landlord in the case of default in the payment of these extra or additional charges is to cut off these facilities and to file a suit for the recovery of the arrears, if any, of such charges payable by the tenant: but the failure to pay them would not entitle him to treat the tenant as a defaulter in the payment of rent and to evict him on that footing because these charges cannot ordinarily be equated with the rent payable for the premises. But this rule would for obvious reasons not be applicable to cases where an inclusive rent has been fixed for the premises either by the court or by agreement between the parties themselves, and it seems that in this type of case, failure to pay the rent inclusive of the water or electricity charges would amount to default in the payment of rent and may entitle a landlord to evict the tenant from premises to which a Rent Control Act applies provided of course the other requirements of such an Act are satisfied. Having regard to these considerations, I feel strongly disposed to hold that the view taken by the courts below that water charges or electricity charges are part and parcel of the rent payable by a tenant for the premises occupied by him to his landlord is based on an imperfect appreciation of the provisions of the Act of 1950 which I have fully discussed above, and the correct view is that such charges do fall outside the true import of the word "rent" payable under the Act except where an inclusive rent might have been agreed to between the parties covering these and similar other charges or such rent has been fixed by the Court under sec. 6 of the Act of 1950. I hold accordingly. On this view of the whole case, it must follow as a corollary that the tender made by the defendant to the plaintiff with respect to the rent payable for the month of August, 1958, was a valid one and the landlord having refused it, the tenant was under no duty to continue to send rent to him for the period subsequent thereto, and, therefore, he could not be held to be a defaulter even though it is correct that the plaintiff had failed to receive rent from the defendant from the 1st August, 1958, upto the 15th July, 1959. He is, therefore, entitled to protection under the Act of 1950, and the decree passed by the courts below ordering his eviction must be set aside. The next question which remains to consider is whether the courts below were justified in decreeing that the defendant shall pay water charges to the plaintiff at the rate of Rs. 3/- per mensem. In support of his submission, learned counsel for the defendant appellant has invited my attention to paragraph 3 of the plaint wherein for the period extending from the 1st May, 1958, upto the 15th July, 1959, the plaintiff had claimed a sum of Rs. 9/4/- only for water charges. There is no gainsaying the position that if the plaintiff's case was that the defendant had agreed to pay water-charges to the former at the rate of Rs. 3/-per mensem, he could not have possibly claimed the paltry figure of Rs. 9/4/- as the entire charges payable to him on that account for a period extending over fourteen months. The courts below seem to have based their finding in this connection on a stray sentence in the statement made by the defendant at the trial that he had agreed to pay Rs. 3/- per mensem as water-charges. It is difficult to understand how the defendant happened to say what he did. I have no hesitation in saying that he must have been in a state of confusion when he said so having regard to the stand taken by him in the written statement as well as in the rest of his deposition at the trial. Having given my careful consideration to this aspect of the case, it seems to me that it would be rank injustice if a decree were to be passed in favour of the plaintiff beyond what he himself had asked in his plaint; and that being so, I am unable to uphold the decree of the courts below in this respect. The correct conclusion to come to is that the plaintiff is entitled to a sum of Rs. 9/4/- as water charges from the 1st May, 1958, upto the 15th July, 1959. And, so far as the period onwards is concerned, it is impossible to pass any decree on the record as it stands, the real agreement between the parties being that the defendant would pay for such quantity of water as was consumed by him. In the result, I partly allow this appeal, modify the judgments and decrees of the courts below and hold that apart from the arrears of rent which have been decreed by those courts in favour of the plaintiff, he would be entitled to recover a sum of Rs. 9/4/- with respect to water-charges upto the date of suit. The decree passed by the courts below for electricity charges shall also stand in tact, but the decree for eviction is set aside. As the parties have partly won and partly failed, there will be no order as to costs in all the courts. . ;