Darshan Lal and Another vs Kirni Devi and Another

J.V. Gupta, Act. C.J.—This is tenants'' revision petition arising out of the fixation of fair rent application filed by the landlord.

The landlord filed the application u/s 4 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. It was pleaded that the shop, in dispute, was constructed in the year 1968, after it had been purchased by the landlord vide sale deed, Exhibit A. 1. It was let out to the tenants at an annual rent of Rs. 400/- for a period of one year from July 1, 1969 to June 30, 1970, vide rent note, Exhibit A. 5. The application for fixation of fair rent was filed on September 12, 1980, alleging therein that the construction of the tenanted premises was completed some time during the year 1968 i. e. much after December 31, 1961. In paragraph 6, it was specifically pleaded that there was no agreed rent between the parties about the tenanted premises preceding the date of application. In the reply filed on behalf of the tenants, though the averments made in paragraph 5 were denied, yet in reply to paragraph 6 of the application, it was stated that the said paragraph was not denied. The learned Rent Controller after framing the issues and allowing the parties to lead evidence came to the conclusion that the plea taken by the tenant that the construction was prior to the year 1961, was not tenable and since there was no agreed rent between the parties preceding the date of the application, the fair rent of the demised premises was fixed at Rs. 400/- per mensem. In appeal, the appellate authority affirmed the said findings of the Rent Controller with the observations,--

"I am of the considered view that the prevalent rate of rent has rightly been determined by the Rent Controller to be Rs. 400/- per annum The Rent Controller could have even awarded over and above that rent according to the price index but he considered the same to be the actual fair rent."

The learned counsel for the tenants-petitioners submitted that the view taken by the authorities below was wrong as it was a case where the agreed rent between the parties was Rs. 400/- per annum. The learned counsel also submitted that even after the expiry of the lease period the tenants continued to pay the same rent and, therefore, the same will be deemed to be the agreed rent between the parties. In support of the contention, the learned counsel relied upon Firm Bhagwan Singh & Co. v. The Central Bank of India,1988 93 P.L.R. 290.

On the other hand, the learned counsel for the landlord-respondent submitted that it was never the plea taken up by the tenants; rather in the pleadings, it was admitted by them that there was no agreed rent between the parties. Thus, argued the learned counsel, the petitioners could not be allowed to make out a new case for the first time. The learned counsel also submitted that in case this plea would have been taken earlier, the landlord could prove that this was not the agreed rent. The rent fixed in the rent note was ten years prior to the filing of the application for fixation of fair rent and, therefore, that could not be said to be the agreed rent between the parties.

After hearing the learned counsel for the parties and going through the above-said Division Bench judgment. I find that in the present case no such plea was taken by tenants in the two Courts below Rather, in the written statement filed by the tenants, it was never denied when it was pleaded by the landlord that there was no agreed rent, between the parties. If that would have been the plea, then the question of summoning the evidence of the premises in the neighbourhood could not arise. Thus, on the facts and circumstances of this case and on the admission of the tenants themselves in the written statement, they could not be allowed to urge for the first time in this petition that there was agreed rent to the tune of Rs. 400/- per annum between the parties because of the rent note, Exhibit A. 5. which was executed ten years prior to the presenting of the application for fixation of fair rent. Therefore, on the facts pleaded, no other point was urged on half of the petitioners. Consequently, this revision petition fails and is dismissed with no order as to costs.