Jagat Narayan, J. - (1.) THESE are connected civil revision applications arising out of a suit for enhancement of rent brought by Mukanchand against Bhabhootmal. Hastimal and others are the legal representatives of Mukanchand.
(2.) THE relevant facts necessary for the disposal of these revision applications are these. THE plaintiff is the owner of a shop situated in Moti Katra at Pali. THE defendant has been his tenant since 12. 12. 42. THE shop was first let out to the defendant on 12. 12. 42 on a rent of Rs. 350/- per year. On 27. 5. 48 there was a mutual agreement between the parties under which the rent was enhanced to Rs. 500/- per year. THE defendant executed a fresh rent-note on 27. 5. 48 in pursuance of this agreement. THE present suit for enhancement of rent was instituted on 19. 8. 54 on the allegation that there was a general rise in the rates of rent of shops at Pali and that the rent of similar shops was not less than Rs. 1,000/- per year. It was however stated that as the shop was first let on 1st day of January, 1943 on a rent of Rs. 350/- per year its basic rent was Rs. 350/- per year and it was not permissible under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (which was applied to Pali on 23rd December, 1950) to increase the rent beyond two and a half times the basic rent. It was accordingly prayed that the rent be enhanced to two and a half times the basic rent namely Rs. 875/-per year. The suit was contested by the defendant on various grounds. The trial court fixed the standard rent of the shop in suit at Rs. 600/- per year after taking into consideration the prevailing rents of similar shops in the locality and other factors. Against this determination both parties filed appeals. The appellate court confirmed the decision of the trial court and dismissed the appeals. Against the decision of the appellate court both parties have preferred revision applications. S. B. Civil Revision Application No. 486/59 has been filed by the defendant and S. B. Civil Revision 535/59 has been filed by the plaintiff. Two contentions have been raised on behalf of the defendant. The first contention is that under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 there can be no increase in rent which has been agreed upon after 1st January, 1946. The second contention is that the finding of fact arrived at by the appellate court fining the standard rent of the shop at Rs. 600/- is vitiated by its failure to apply its mind to the evidence on record properly and that enhancement of rent is not justified. The contentions on behalf of the plaintiff are that rent agreed upon after 1st day of January, 1946 can be increased under the provisions of the Act and that on the basis of the evidence on record the plaintiff is entitled to enhancement of rent to Rs. 875/- per year. Taking the first contention put forward on behalf of the defendant first, the argument is two-fold. Firstly it is argued that the rent agreed upon between the parties on 27. 5. 48 became basic rent of the shop under sec. 6 (2) (b) and under the first proviso to it the standard rent cannot exceed the basic rent. In order to understand this argument it is necessary to set forth the relevant provision of sec. 6 - "the court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent, of such premises and shall in doing so, act according to the following principles, namely - (a ). . . . . . . . . . . . . . . . . . (b) Where the premises are let for any other purpose, the standard rent shall not exceed two and a half times the basic rent thereof. Provided that where the premises have been first let out after the first day of January, 1946, the standard rent shall not exceed the basic rent thereof; Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any authority under any law or order repealed by section 30 of this Act and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the court under this section, the fair rent or standard rent previously determined or redetermined shall not be disturbed. Explanation - For the purposes of this subsection, the basic rent of any premises shall mean the rent at which the premises were let out on the first day, the rent at which they were first let out after that day. (3) Where for any reason it is not possible to determine the standard rent of any premises 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, the various amenities (such as electricity, water connection, sanitary fitting, and the like) attached to the premises, cost of construction, maintenance and repairs, thereof, the special reasons, if any, proved by the plaintiff and other relevant considerations. " It is contended that rent being one of the essential terms of a lease a fresh tenancy was created with effect from 27. 5. 48 in favour of the defendant as there was a fresh agreement about rent on that date. Further it is contended that this amounts to first letting out of the shop to the defendant after the first day of January, 1946 within the meaning of first proviso to sec. 6 (2) (b ). I am unable to accept this contention. The premises can be said to have been first let out after 1st January 1946 only when the premises were not let out to any other tenant before that date. Buildings which were in existence before 1st January, 1946 can only be said to have been first let out after first day of January, 1946 if before being so let out they were in the possession of the owner and not in the possession of any other tenant ever before. The shop in suit was in the possession of the defendant himself as a tenant before 1st January, 1946. it cannot therefore be said to have been first let out on 27. 5. 48 even if it is assumed mat a fresh tenancy in favour of the defendant commenced on that date. It is not necessary tor the purpose of the present case to decide whether or not a fresh tenancy was created on 27. 5. 48. The basic rent of the shop was therefore the rent at which it was let out on 1st January, 1943 and not rent at which it was let out on 27. 5. 48 even if the tenancy from 27. 5. 48 deemed to be a fresh tenancy. The second argument put forward on behalf of the defendant is based on some observations made by a Division Bench of this court in Shambhuram Vs. Kanhyalal (1 ). By that judgment five revision applications were disposed of. The facts of those revision applications are given in paras 12 to 16 of the report. The tacts of civil revisions No. 132/52 and No. 133/53 were similar to the facts of the present cases. In para 4 of the judgment it was observed : - "a very important provision made in this section sec. (6) is that the standard rent shall not exceed the basic rent by 50% where the premises are let for residential purposes or for public and charitable purposes specified in the section; but where the premises are let for any other purposes (e. g. , commercial purposes) the standard rent shall not exceed two and a half times of the basic rent thereof. A proviso to the section states that where the premises have been let after the 1st January, 1946, the standard rent shall not exceed the basic rent. In an explanation to this section, as amended by the Rajasthan Premises (Control of Rent and Eviction) Amendment Act (No. IX) of) 1952, the basic rent is defined as the rent at which the premises were let on the 1st January, 1943, and if not let on that day, the rent at which they were first let after that day. " Now in the Act as it stood at that time the proviso stated that where the premises have been first let after the 1st January, 1946, the standard rent shall not exceed the basic rent. The word "first" was inserted between the words "have been" and "let" under sec. 3 of the Rajasthan Premises (Control of Rent and Eviction) Amendment Act (Mo. IX) of 1952. Their Lordships were fully aware of this amendment and what they meant by saying that "the proviso to the section states that, where the premises have been let after the 1st January, 1946 the standard rent shall not exceed the basic rent was that "the proviso states that where premises have been first let after the 1st January, 1946, the standard rent shall not exceed the basic rent". Their Lordships divided tenancies into two classes. One class consists of tenancies of premises which were first let out before 1st January, 1946 and the second class consists of tenancies of those premises which were first let out after 1st January 1946. The former class of tenancies was referred to in the judgment as tenancies dating before 1st January, 1946 or tenancies arising before 1946 and the latter class was referred to as tenancies dating from after 1st January, 1946 or arising after 1st January, 1946. It is in the light of this classification of tenancies that the judgment has to be read. In para 6 it was observed - "we may make it clear in this connection that the intention of the Act clearly appears to us to be that no variation in the rents of tenancies dating from after 1st January, 1946. is as a rule contemplated by the legislature. " Their Lordships were clearly referring to tenancies of the second class namely tenancies of premises which were first let out after 1st January 1946. In para 7 it was observed: - "the legislature has set its face generally against an increase in rents of tenancies commencing after the 1st January 1946, except in exceptional cases. " Here again their Lordships used the expression "tenancies commencing alter 1st January 1946" in the sense referred to above namely tenancies of premises which were first let out after 1st January 1946. As has already been mentioned above in some of the cases with which their Lordships were dealing rents had been enhanced by agreement after 1. 1. 46. The landlords had brought suits for the enhancement of the rent agreed upon after 1. 1. 46. These suits had been dismissed by the courts below on the ground that no suit for increase in rent was maintainable apart from sec. 10 of the Act. Their Lordships set aside these orders and remanded the cases for re-decision in accordance with law. If their Lordships had been of the view which is sought to be attributed to them on behalf of the defendant, they would have dismissed these suits and would not have remanded them for re-decision.
(3.) I accordingly hold that what was held in Shambhu Ram's case was that where the premises were first let out after the first day of January 1946 the agreed rent could not be enhanced. Where however they were first let out before 1st January 1946 the agreed rent can be enhanced to the limits laid down in sec. 6 (2) (a) and (b) on grounds contained in sec. 6 (3 ). I therefore find that the rent agreed upon between the plaintiff and the defendant on 27. 5. 48 can be enhanced if a case for enhancement is made out on the basis of considerations mentioned in sec. 6 (3) of the Act, even if it is assumed that a new tenancy was created in favour of the defendant on that date. As has already been mentioned above the suits out of which Civil Revisions No. 132 and 133 arose were remanded to the court of Munsif Jodhpur for re-decision in the light of the decision given by the Division Bench. On remand it was held by the learned Munsif that the plaintiffs in suit No. 463/51 which gave rise to civil revision No. 133/53 were entitled to enhancement of rent from Rs. 8/- per month to Rs. 10/8/- per month. The standard rent was accordingly fixed at Rs. 10/8/ -. This order was not challenged in appeal and became final. The tenants in that case were in occupation of the shop in question from before 1942 on an agreed rent of Rs. 7/- which was enhanced by mutual agreement on 4. 4. 46 to Rs. 8/ -. A suit for enhancement of rent was then brought in 1951. In the other suit (No. 464/51) (civil revision No. 132/52) after remand the learned Munsif came to the finding that a case for enhancement of rent had not been made out on merits. That suit was accordingly dismissed. I was taken through the evidence on record by the learned counsel for the parties. On behalf of the defendant it was argued that upon a proper appreciation of the evidence on record the court should have come to a finding that no enhancement in rent was justified. On the other hand on behalf of the plaintiff it was argued on the basis of the same evidence that the standard rent should have been fixed at Rs. 875/- per year. The findings of fact cannot be interfered with in revision unless they are found to be perverse. That is not the case here. The plaintiff tried to prove the prevailing rent of three shops and to establish with the help of these instances that he is entitled to get the rent of the shop in suit enhanced. One of these shops is owned by Mohanlal son of Kaluram (P. W. 1 ). The rent of this shop was Rs. 800/-per year. It was reduced by mutual agreement from Rs. 800/- to Rs. 650/- in 1952. Mohanlal who is the landlord of the shop stated that the rent was reduced because the tenant paid rent for 6 years in advance and the deduction was on account of interest on the sum. This allegation was believed by the appellate court. Dhanraj (D. W. 6) made a different allegation which was not believed by the court. The second shop is owned by Sireymal (P. W. 2 ). He stated that his shop fetched a rent of Rs. 50/- per month in 1946 and was let out at Rs. 58/5/3 per month from 28/6/50. This comes to Rs. 700/- per year. The third shop about the rent of which evidence was produced on behalf of the plaintiff is owned by Mohanlal son of Kundanmal (P. W. 3 ). He stated that he was a tenant of another shop belonging to the plaintiff on Rs. 700/- per year. This shop was demolished and was re-constructed at a cost of Rs. 10,000/- and he took it on rent at Rs. 800/- per year. He left this shop and took another one a rent of Rs. 800/- per year in another market. It was on a comparison of the rents of these shops that the appellate court came to the conclusion that the standard rent of Rs. 600/-per year for the shop in suit determined by the trial court was proper. This finding cannot be considered to be perverse. ;