Hardip Singh and others vs Dr. Kewal Krishan

Pritpal Singh, J.—The Respondent-Dr. Kewal Krishan was tenant of one of the petititioners, namely, Kehar Singh. The latter transferred ownership of the tenancy-premises in favour of the Petitioners Hardip Singh, Pritam Singh and Upinder Singh.

Before this transfer Kehar Singh had received an excess amount of Rs. 471,50 towards rent. After the transfer Hardip Singh, Pritam Singh and Upinder Singh Petitioners, as the new landlords, filed ejectment petition against the tenant and demanded Rs. 540/- as house-tax paid by them in addition to the arrears of rent. The tenant tendered this amount of house-tax along with the arrears of rent on the first date of hearing before the Rent Controller.

Subsequently, the tenant-Dr. Kewal Krishan filed a suit against the Petitioners to recover the excess amount of rent paid by him as well as Rs. 540/- tendered by him as house-tax in the eviction proceedings. The suit was tried by the Small Causes Court, Ludhiana. The learned trial Court granted a decree of Rs. 471.50 against Kehar Singh Petitioner for having received excess rent. The suit in respect of the amount of house-tax of Rs. 540/- tendered by the tennnt to the new landlords was dismissed on the ground that the new landlords were entitled to recover the house-tax from tenant.

The decree of Rs. 471.50 Paise granted by the trial Court to the tenant against the previous landlord Kehar Singh Petitioner was not appealed against. The tenant-Dr. Kewal Krishan, however, filed an appeal against the dismissal of his suit regarding the recovery of Rs. 540/-. The Additional District Jude, Ludhiana, who heard the appeal, set aside the dismissal order of the trial Court and granted a decree for Rs. 540/- in favour of the tenant against the Petitioner holding that the Petitioners were not entitled to receive this amount from the tenant. This judgment and decree has been assailed by the Petitioners in the present civil revision.

The sole point for consideration in this case is whether the Petitioners were entitled to recover Rs. 540/-, statedly the amount of house-tax paid by them, from the tenant in the eviction proceedings. The Petitioners had claimed this amount in those proceedings as part of rent in view of Section 9 of the East Punjab Rent Restriction Act (hereinafter referred to as ''the Act''). This section reads as under:-

9(1) Notwithstanding anything contained in any other provision of this Act a landlord shall be entitled to increase the rent of a building or rented land if after the commencement of this Act a fresh rate, cess or tax is levied in respect of the building or rented land by any local authority or if there is an increase in the amount of such a rate, cess or tax being levied at the commencement of the Act:

Provided that the increase in rent shall not exceed the amount of any such rate, cess or tax or the amount of the increase in such rate, cess or tax, as the case may be.

(2) Notwithstanding anything contained in any law for the time being in force or any contract no landlord shall recover from his tenant the amonnt of any tax or any portion thereof in respect of any building or rented land occupied by such tenant by any increase in the amount of the rent payable or otherwise save as provided in Sub-section (1).

It is apparent from the language of Sub-section (1) of Section 9 of the Act that on the levy of house-tax a landlord is entitled to an increase in the rent to the extent of the amount of the house-tax. A

Division Bench of this Court in Puran Chand Hari Parshad v. Mangal Nanak Saini (1969) 71 P. L. R. 571, however, held that the operation of Section 9(1) of the Act is not automatic. It is merely an enabling provision and entitles the landlord to increase the rent, if a rate, cess or tax in respect of the tenancy premises is levied after the commencement of the Act. Section 9 docs not make the payment of the house-tax a liability of the tenant. It merely permits a lawful increase in the rent payable by a tenant if the laadlord wishes to effect the increase. It was clarified in this judgment that the rent can be increased either by mitual agreement or by serving a notice of increase on the tenant. In the present case none of these conditions stands satisfied. There was admittedly no mutual agreement of increase of rent to the extent of house-tax. The Petitioners never served any notice of such increase on the tenant. The tenant, therefore, could not be held liable to pay the amount of house- tax as the Petitioners never took any step to increase the rent by including the amount of the house-tax. The tenant had paid the amount of house-tax in the ejectment proceedings by way of abundant Caution as the Petitioners had demanded this amount along with the arrears of rent. He is certainly entitled to the refund of the same.

It is contended by the learned Petitioners'' counsel that since the tenant had tendered the amount or house-tax to the Petitioners in the ejectment proceedings, it should be assumed that he had agreed to increase the rent to the extent of the amount of the house-tax and in any case the payment of the house-tax amount was a step taken by the Petitioners to increase the rent evisaged u/s 9 of the Act. Such a contention was earlier repulsed by this Court in Smt. Kirpal Kaur v. Bhagwant Rai (1969) 71 P. L. R. 238. It was clearly held that a claim in an eviction application cannot be considered to be a step by a landlord to increase the rent by the amount of the house-tax paid by him. This is for obvious reasons, because the claim made in the ejectment proceedings is to state a ground for eviction and it cannot be deemed to be a notice of increase of the tenant. The tender of the house-tax amount by the tenant in the eviction proceedings also cannot be evidently considered to be an increase by mutual agreement. In Puran Chand Hari Parshad''s case (supra) too similar view was taken by the Division bench. It was urged in that case that the landlord''s claim in his application for eviction that the tenant was liable to pay the amount of house-tax should be deemed to be a claim for increase. This submission was rejected and it was held that no claim could be made for something for payment of which liability had not been incurred before the making of the claim. A claim for increased rent could only follow the effecting of the increase. In as much as the landlord had never exercised his statutory option to increase the rent by adding thereto the amount of house-tax levied on him, the rate at which the tenant was liable to pay the arrears of rent could not possibly include the amount of house-tax.

In this view of the matter no fault can be found with the finding of the lower appellate Court i.e. the Petitioners were not entitled to receive Rs. 540/- from the tenant as house-tax in the ejectment proceedings as the rent had never been increased to the extent of the amount of house-tax u/s 9 of the Act. There is no merit in this revision and is, therefore, dismissed with costs.