BHARGAVA, J - (1.) THE above two appeals and the revision application have been filed on behalf of the landlord against the tenant and raise a common question of law. Hence they are disposed of by one judgment.
(2.) THE two appeals and the revision application arise out of suits filed by the landlord for arrears of rent. In appeal No. 118 of 1956, there was also a prayer in the suit for ejectment of the tenant but I am informed that the tenant has already vacated the shop and that question need not be decided now. So the only dispute between the parties is with regard to the arrears of rent. THE claim for arrears of rent in second appeal No. 98 of 1956 is for the period commencing from 13th June, 1947 to 5th March, 1952. In Second appeal No. 188 of 1956, the arrears of rent are claimed for the period from 4th May, 1952 to 31st March, 1953. In the revision application arrears are, claimed from 1st April, 1953 to 5th April, 1956. The suits were instituted by Surajmal on whose death during the pendency of these appeals his legal representative Gyanchand was brought on record. Plaintiff's case was that on 13th June 1947, he purchased the shop from one Ram Pratap Gandhi. At that time the respondent was occupying this shop as the tenant of Ram Pratap Gandhi. Under the law which the prevailed, plaintiff was required to obtain a certificate from the Rent Controller for filing a suit for eviction of the tenant. He, therefore applied to the Rent Controller for such certificate on 22nd June, 1948 and obtained an ex-parte order. The defendant applied for setting aside this ex parte order and in the meantime, parties came to a compromise. The defendant executed an agreement in favour of the plaintiff on 30th September, 1949 agreeing to pay rent in future at the rate of Rs. 35/- p.m. and the plaintiff agreed to carry out some repairs in the shop. The arrears of rent were to be paid at the rate of Rs. 4/8/- p.m. After this agreement, the defendant did not pay rent although the plaintiff carried out the repairs. In the first suit he claimed Rs. 119/- at the rate of Rs. 4/8/- p.m. from 13th June, 1947 to 29th August, 1949, Rs. 980/- from 30th August, 1949 to 29th December, 1949 at the rate of Rs. 35/- p. m. and Rs. 130/- as damages from 30th December, 1951, to 5th March, 1952 @ Rs. 2/- per day, -/8/- for the expenses of the notice and Rs. 25/- as damages for deterioration of shop. The respondent contested the suit, admitted the execution of the agreement but stated that it was not binding upon him because it was executed under undue influence because of the fear from being ejected from the shop. It was also stated that the plaintiff failed to carry out the repairs as under-taken by him in the agreement and on that ground also the agreement was unenforceable. The trial court framed issues with regard to the pleas raised by the defendant but found both the issues against him. Plaintiff's claim for Rs. 119/- was held to be barred by limitation. His suit for three years' rent was decreed at the rate of Rs. 10/12/-p.m. The plaintiff preferred an appeal in the court of the Senior Civil Judge, Jaipur City and it was urged in that court that the trial court was not entitled to determine fair rent contrary to the agreement entered into between the parties. In so far as the pleas raised by the defendant were concerned, the learned Senior Civil Judge agreed with the finding of the trial court and held that the agreement was enforceable, as the plaintiff had carried out adequate repairs. On the question whether fair rent could be determined in the suit on the plea raised by the defendant, the appellate court relying upon a decision of this Court in Panna Lal Vs. Bhonery Lal (1) held that it could be done. The learned Judge therefore, raised the basic rent of Rs. 4/8/- by 2-1/2 times according to the provisions of sec. (6)(2)(b) of the Raj-asthan Premises (Control of Rent and Eviction), Act, 1950 (hereinafter called the Act) and adding Rs. 6/4/- for additional repairs costing Rs. 1000/- fixed the amount of rent at Rs. 17/8/- and gave a decree to the plaintiff on that basis. Plaintiff was allowed a decree for Rs. 507/8 from 4th October, 1949 to 3rd March, 1952 at the rate of Rs. 17/8/-p.m. For the preceding seven months, he was allowed Rs. 31/8/- at the rate of Rs. 4/8/- p.m. Thus a decree for a total sum of Rs. 539/- was passed in favour of the plaintiff. Plaintiff has now come in second appeal, and the sole contention raised in this Court is that the courts below had no jurisdiction to fix the standard rent of the premises in this suit when the defendant had not taken steps to get it fixed under sec. 6 of the Act. It is contended that the tenant was bound to pay the agreed rent according to sec. 5 of the Act. On behalf of the respondent it is urged that though the defendant did not get the standard rent of the premises determined u/sec. 6 of the Act, yet the Senior Civil Judge had jurisdiction to determine it when the question was raised before him in the suit filed by the landlord for recovery of arrears of rent. It is urged that under sec. 8(2) of the Act any agreement for the payment of rent as such in excess of the standard rent shall be null and void and shall be construed as if it were an agreement for payment of the standard rent only. In view of this provision, it is urged that no court is competent to pass a decree in favour of the landlord in excess of the standard rent. It is urged that the standard rent can be determined by the court in a suit for arrears of rent according to the principles laid down in sec, 6 of the Act. Learned counsel in the course of the arguments strongly relied upon a judgment of this Court in Gaya Parshad vs. Basdeo and others (2), and in Banarsi Lal Talwar vs. B.L. Verma (3) and W. & T. Avery Ltd. vs. Kessoram Poddar (4). In Gaya Prasad's case (2), the provisions of the Jaipur Rent Control Order, 1947 governed the case and though the suit was filed after the repeal of that Order when the Act had come into force, it was held that : "The defendant had acquired the right to pay the reduced rent every month under the provisions of the Jaipur Rent Control Order and this right of the defendant could not be lost by the subsequent repeal of the law under which he had acquired that right." It was also held that : "Both under sec. 6 of the Jaipur General Clauses Act and also under the general law the right of the defendant to treat the agreement for the payment of rent contained in the rent note in excess of the standard rent as void upto the time when the Jaipur Rent Control Order was not repealed remained unaffected by the repeal of the Jaipur Rent Control Order." In that case it was also urged that under the Jaipur Rent Control Order it was the Controller appointed by the Government who would determine the standard rent and the court had no jurisdiction to determine the rent. This argument was repelled on the ground that clause 3(2) of the of Jaipur Rent Control Order (hereafter called the Order) had reference to both definitions of the standard rent and whichever definition was applicable if the agreement for payment of rent was in excess of the standard rent the agreement was rendered null and void and was to be construed as if it was for the payment of the standard rent only. The learned Judge observed that : "The agreement in excess of the standard rent is null and void from its inception. It is not as if it is to be declared null and void at a later date when the standard rent has been determined by the Controller. Further that agreement is to be treated as an agreement for the payment of standard rent from the date it is executed. It is not after the determination of the standard rent under clause 6 of the Jaipur Rent Control Order that it has to be construed for payment of standard rent only. Clause 3(2) does not prescribe that some steps must be taken before it could have effect as contemplated in that clause. The forum for the determination of the standard rent under clause 6 could be utilised by the parties, but that did not stop the operation of clause 3(2). Viewed in this light, I do not think that the right of the defendants, not to pay anything in excess of the standard rent is contingent on the determination of the standard rent by the Controller under clause 6. The defendants can very, well urge before the civil courts when faced with a suit by the landlord for the recovery of rent in excess of the standard rent that they are not liable to pay it and that any agreement between the parties for payment of rent in excess of the standard rent was null and void. It has been urged that under the Jaipur Rent Control Order the Controller had the exclusive jurisdiction to determine the standard rent and that the civil courts had no jurisdiction to determine it as it was impliedly barred. But the jurisdiction of the civil courts to entertain a suit for the arrears of rent had not been taken away. Even under that order suits for the arrears of rent were to be entertained by the civil courts. During the course of trial of such a suit it may be necessary to determine the rate of rent which will be payable by the tenant to the landlord. It cannot be said that because of Jaipur Rent Control Order, the right of the civil court to determine that question is taken away by implication. This contention of the learned counsel has, therefore, no force." In view of the definition of the standard rent and the provisions of clause 3(2) of the Order, the learned Judge came to the conclusion that the civil courts had jurisdiction to examine the validity of the agreement and strike off the agreed rent so far as it was in excess of the standard rent. The decree in that case was passed in favour of the plaintiff in terms of the standard rent fixed by the court upto 27th November, 1950 the date upto which the Jaipur Rent Control Order remained it force. The suit for arrears of rent was decreed for the amount agreed upon between the parties for the subsequent period because the Act did not apply to the town where the premises were situated. Learned counsel for the appellant agrees that the above decision lays down the correct law so far as the present suit is governed by the provisions of the Order but thereafter it is contended that the principle laid down in this decision does not apply to this case. It is urged that provisions of the act are different from the provisions of the Order. It is therefore, necessary to examine the relevant provisions of the order and of the Act. Under sec. 2(d) of the order, 'standard rent' means : "the standard rent of such premises as determined in accordance with the provisions of the second schedule, or (ii) where the standard rent has been fixed by the controller under clause 6, the rent as so fixed." Under the second schedule of clause (3) it was provided that: "where the permises in respect of which rent is payable are let for any purpose other than those mentioned in paragraph 2, the standard rent of the premises shall be double the amount of the basic rent thereof." Clause 3 of the order is as under : "(1) Except where rent is liable to periodical increment by virtue of an agreement entered into before the 1st day of September, 1939, or where rent is payable under a lease entered into before the 1st day of September, 1939, which has not expired before the first day of the period for which the rent is claimed, no tenant shall notwithstanding anything contained in any contract, be liable to pay to his landlord for occupation of any premises any sum in excess of the standard rent of those premises, unless such sum may lawfully be added to the standard rent in accordance with the provisions of this Order. (2) Any agreement for the payment of rent in excess of the standard rent shall be null and void and shall be construed as if it was an agreement for payment of the standard rent only. Clause 6 contained the following provisions for the determination of the standard rent. "(1) If any dispute arises regarding the standard rent payable in respect of any premises it shall be determined by the Controller. (2) Where for any reason it is not possible to determine the standard rent of any premises on the principles set forth in the second schedule, the Controller may, on the application of any person interested or on his own motion, determine the standard rent, and in so doing shall have regard to the pre war rent prevailing rent standard rent of similar premises in the same locality various amenities e.g., electricity etc. special reasons and other relevant considerations. (3) Where the standard rent of any premises has been determined on the basis of a lease for a period of one year or more and Controller has to determine the standard rent of the same premises on a lease for a period of less than one year or vice versa, the standard rent shall be calculated in accordance with the third schedule. (4) Where the Controller determines the standard rent of any premises under this clause the Controller shall determine the standard rent of the premises in unfurnished state, but may determine an additional charge to be payable on account of fittings or furnishings included in the lease and it shall be lawful for the landlord to recover such additional charge from the tenant, (5) In every case in which the Controller determines the standard rent of any premises under this clause it shall appoint a date from which the standard rent so determined shall be deemed to have effect." In the Act, 'standard rent' defined as the rent of the premises determined in accordance with the provisions of this Act. Sec. 5 lays down that : "The rent payable for any premises situated within the areas to which this extendi for the time being shall, subject to the other provisions thereof, be ordinarily such, as may be agreed upon between the landlord and the tenant." There was no provision corresponding to sec. 5 in the Order. Sec. 6 provides the procedure for fixation of standard rent and lays down that where for any reason the rent agreed upon is claimed to be excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. Clause 2 lays down the principles according to which the Court shall determine the standard rent of the premises. Clause 2(b) which is relevant in this case says that: "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 sec. 30 of this Act and the amount of such fair rent or standard rent is the same as would be determined as standard rent by the court under the section, the fair rent or standard rent previously determined or redetermined shall not be disturbed. Sub-clause (5) of sec. 6 lays down that : "In every case in which the court determines the standard rent of any premises under this section it shall appoint a date from which the standard rent so determined shall be deemed to have effect. Provided that such date shall, in the case of a tenant who institutes a suit under this section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the court may in the circumstances of the case deem reasonable." Sec. 8 corresponds to sec. 3 of the Order with a slight variation in clause (1). Sec. 8(2) exactly corresponds to clause 3(2) of the Order. It would be seen that the definition of standard rent under the Order and the Act is not the same. Under the Order the standard rent according to clause 2(d)(i) is fixed as a matter of course and no further investigation is necessary because under the Second Schedule, the standard rent in all cases shall be double the amount of the basic rent thereof. It shall be neither more nor less than double the amount of the basic rent., Under the Act a maximum limit has been fixed under sec. 6(2)(b) and the court according to the circumstances of each case is given powers to raise the basic rent provided it does not exceed 2-1/2 time the basic rent though it may be less than that amount. Under the Act the standard rent is required to be determined in accordance with the provisions of the said Act and unless that is done, there can be no standard rent of the premises. For having the standard rent determined where it is claimed excessive by the tenant, the law provides the institution of a suit by the tenant. It is true that both under the Jaipur Rent Control Order and the Act there are similar provisions to the effect that any agreement for payment of rent in excess of the standard rent shall be null and void and shall be construed as if it was an agreement for payment of the standard rent only and the civil courts are not debarred from examining the validity of the agreement from that point of view. But it is one thing to examine the validity of the agreement and quite another to determine the standard rent. Under the order according to clause 2(b)(i) read with clause (3) of Second Schedule, the standard rent is fixed as if it was attached with the property from the date the Order came into force, and the court is not required to make any investigation and on the face of the agreement, can say that it is in excess of the standard rent. But this cannot be said in cases governed by the Act. There is no standard rent under the Act unless it is determined according to the provisions of this Act i. e., sec. 6 of the Act. In my opinion the principle laid down in Gaya Prasad's case will not be applicable to cases which are governed by the Act because the provisions of the Act and the Order are not similar. Under the Act the standard rent is required to be determined first before agreement can come within the mischief of sec. 8(2). There is yet another difficulty in applying that principle to the cases governed by the Act and that is that the proviso to sub-sec. 5 of Sec. 6 lays down that - "In the case of a tenant who instituted a suit under this section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the court may in the circumstances of the case deem reasonable." Even if the court in a suit for arrears of rent is competent to determine the standard rent of the premises on the objections raised, it would be of no avail in the circumstances to him in view of the above provisions when the question comes before the court after the expiration of six months from the commencement of the tenancy. The earliest date for fixation of the standard rent would in that case be the date of the written statement and obviously that would be a date subsequent to the period for which the suit for arrears is instituted. Besides sec. 5 of the Act unmistakably lays down that the rent payable for any premises, subject to the other provisions of the Act, be ordinarily such, as may be agreed upon between the landlord and the tenant. Under the general law also a tenant is bound to pay rent as agreed upon between him and the landlord. The Act provides a remedy to a tenant for getting the standard rent fixed in case he claims it to be excessive by filing a suit. If the tenant does not avail of the remedy provided under the law, he cannot be heard to say in a suit filed by the landlord for recovery of arrears of rent on the basis of the agreement that it is in excess of the standard rent because till then no standard rent has been determined and the court cannot therefore, say that the agreement is for the payment of rent in excess of standard rent and thus null and void. The essential difference between the provisions of the Order and the Act is that under the former standard rent is fixed as a matter of course while under the latter it has to be determined by the court according to the principles laid down in sec. 6. Another distinction is the absence of a provision in the Order similar to the proviso to sub-sec. 5 of sec. 6 of the Act. I am therefore, of the view that the decision in Gaya Prasad's case(2) will govern this case only upto 27th November, 1950 when the Order was in force and thereafter the tenant i. e., the respondent will be liable to pay rent at the rate of Rs. 35/- p. m. according to the agreement and the courts below had no jurisdiction to make the standard rent payable from the date of the agreement. Banarsilal Talwar's case(3) is also distinguishable on the ground that under Delhi and Ajmer Rent Control Act (XXXVIII of 1952), the expression standard rent in relation to any premises meant : - "i. Where the standard rent has been fixed by the court under sec, 8, the rent so fixed ;or ii. Where the rent has not been fixed under sec. 8, the standard rent of the premises as determined in accordance with the provisions of the second schedule." Rule 2 of the Schedule declared that where the premises in respect of which rent is payable were let for purpose on or after the 2nd day of June, 1944 the standard rent of the premises shall be, so long as the standard rent is not fixed by the Court, the rent at which the premises were first let. The definition of the standard rent in this Act is almost similar to the one under the Order. In W. & T. Avery's case (4) also the standard rent according to the Calcutta Rent Act (B.C. 3 of 1920) was to be taken to be the rent at which the premises were let on the 1st of November, 1918 with the addition of ten per cent, as provided by sub-sec.(1). It was observed by the learned Chief Justice that: "Prima facie the standard rent mentioned in sub-sec.(i) of Cl. (f) of sec. 2 shall be the standard rent and in the absence of any application by the landlord to fix it at a higher rate, under sec. 15 the 'standard rent, should be taken to be the rent at which the premises were let on the 1st of November, 1918 with the addition of ten percent, as provided by sub-sec. (i)." Buckland, J. in that case after noticing the rival contentions observed that: "The contention of the plaintiff, stated, briefly, is that unless the standard rent has been fixed by the Controller the tenant is not entitled to take advantage of the provisions of the Act; for, in fact no rent has been fixed by the Controller as standard rent of the premises in suit. For the defendant Company, on the other hand, it has been argued that, though not necessarily in all cases but probably in the majority of cases, and certainly in this case, there is a standard rent which, so to speak, attached to property from the moment that the Calcutta Rent Act came in to force irrespective of any application made to or order passed by the Rent Controller under the Act, and that, subject to what I shall have to say presently, that is the amount which the tenant must pay or deposit." In my opinion, the contention of learned counsel for the appellant Company is the correct one, and where the conditions contemplated by sub-sec. 2(f) i) exist, the standard rent follows as a matter of course, subject, however, to this that it is always open to a landlord or a tenant to make an application to the Rent Controller under sec. 15(3) if he can bring the matter with in its several provisions" The above observations, if I may say so respectfully clearly explain the position as under the Calcutta Rent Act also the standard rent of the premises was fixed by the Act itself. The decision in Pannalal's case (1), relied upon by the learned Senior Civil Judge has also no application in this, case, because under the Matsya (Rent Control Ordinance) there was no remedy for the tenant in that case to apply for fixation of fair rent by the Rent Controller. I may however, in this connection refer to Gulab Chand Vs. Radhey Shiam(5) where it was held that : "Under sec. 5 of the Act, the rent payable for any premises situated without areas to which the Act extends for the time being shall, subject to the other provisions thereof, be ordinarily such, as may be agreed upon between the landlord and the tenant. If any party wanted variation in the agreed rent, the only course open to him is to file a suit for fixation of standard rent u/sec. 6 and the Court before whom such suit is filed can determine such rent in accordance with the principles laid down in the said section. The other method which is applicable to a landlord when he wants the rent to be increased, is to proceed in the manner provided by sec. 11 of the Act. Thus a landlord which term includes the ex-landlord can realize only agreed rent from the tenant wherein is included also the term ex-tenant. It is not open to a landlord to realise increased rent by bringing a suit against his tenant for damages for use and occupation after giving him a notice determining the tenancy." and Mahesh Chand Vs. Brij mohan, (6). In that case there was a provision in the U.P. (Temporary) Control of Rent and Eviction Act similar to section 5 of the Act providing that: "Except as hereinafter provided in this section, the rent payable for any accommodation, to which this Act applies, shall be such as may be agreed upon between the landlord and the tenant." And there was another provision under U.P. Act that if the tenant felt that the agreed rent is in excess of the annual reasonable rent, he may institute a suit for fixation of rent in the court of the Munsif or the Civil Judge according to the valuation of the claim. It was held in that case that : "It was open to the opposite party to avail of this provision of law and to institute a suit in appropriate court to get the agreed rent, which was much in excess of annual reasonable rent, reduced. After the rent had been reduced by court, the rent fixed by the court would have been the rent payable by the tenant to the landlord under sec. 5(5) of the Act. But so long as that step was not taken, the agreed rent was the rent payable by the tenant. The mere circumstance that the annual reasonable rent had been assessed by the District Magistrate at a figure lower than the agreed rent was not by itself sufficient to entitle the defendant to pay the annual reasonable rent in place of the agreed rent." These cases support the view which I have taken. Therefore, the result is that second appeal No. 98 of 1956 is partly allowed. The appellant will get rent of the premises from 4th October, 1949 upto 27th November, 1950, the date the Order remained in force, at the rate of Rs.9/- plus Rs.6 4/- i.e., Rs. 15/4/- p.m. because under the Jaipur law, the standard rent was to be double of the basic rent and the court will treat the agreement in excess of that rent as null and void. The first appellate court has allowed rent to the plaintiff for the above period at the rate of Rs. 1 7/8/-. This amount would be reduced by Rs. 31/- at the rate of Rs. 2/4/- p.m. For the subsequent period i.e., 28th November, 1950 to 4th March, 1952, the plaintiff will get the rent of Rs. 35/- p.m. and not at the rate of Rs. 17/8/-. The amount allowed by the first appellate court for this period will be increased by Rs. 265/-. The plaintiff will therefore, get a decree for Rs. 773/- instead of Rs. 539/- in this appeal. In view of the circumstances of the case parties are left to bear their own costs throughout. Learned counsel for the respondent prays for leave to appeal to a larger Bench. The leave is allowed since the appeal involves an important question of law. Second appeal No. 118 of 1956, as a result of the findings in second appeal No. 98 of 1956, this appeal is partly allowed.. The plaintiff will get rent at the rate of Rs. 35/- p.m. from 5th March, 1952 to 31st March, 1953 and the suit is decreed for a sum of Rs. 381/9/6. The suit was filed for ejectment of the defendant also, but in view of the fact that the learned counsel for the respondent states that the shop has already been vacated by the defendant, learned counsel for the plaintiff does not press that part of the relief. Parties will bear their own costs throughout. Leave to appeal to a larger Bench is granted to the respondent. In Civil Revision No. 230 of 1960, in view of the judgment in civil second appeal No. 98 of 1956, the plaintiff will be entitled to get rent from 1st April, 1953 to 4th February, 1954 at the rate of Rs. 35/- p.m. A sum of Rs. 177/5/3 will be added to the amount decreed in his favour by the trial court and a decree for a sum of Rs. 327/12/9 will be passed in his favour. As regards the amount alleged to have been paid by the defendant, the trial court has said in its judgment that the plaintiff admitted before him that he had received Rs. 481/13/6. It is not alleged in the grounds of revision that no such admission was made before the trial court. It is therefore not necessary to go into that question. This revision is therefore, partly allowed, a decree for a sum of Rs. 327/12/9 is granted to plaintiff against the defendant. It may be noted that the opposite party defendant had filed a suit for fixation of standard rent and it appears that the court fixed the standard rent at Rs. 17/8/-. That is why in the suit the plaintiff claimed arrears from 5th February, 1954 to 5th April, 1954 at that rate. Parties to bear their own costs throughout. Leave to appeal is refused. ;