Kishori Lal vs Hari Chand

Jai Singh Sekhon, J.—The tenant has preferred this revision petition against the order dated 17th April, 1986 of the Rent Controller, Narwana, accepting the application of the landlord for fixing the fair rent of the premises in dispute.

In brief, the facts are that Kishori Lal is the tenant of the premises in dispute belonging to Hari Chand landlord, since 1st September, 1972, on a monthly rent of Rs. 70/-. The fair rent of the shop in dispute was fixed by the Rent Controller vide its order dated 10th October, 1978 at Rs. 94-54 paise per month. The tenant then went up in appeal against the said order of the Rent Controller where both the parties entered into a compromise and the rate of rent was fixed at Rs. 82/- per month. The landlord then filed the present application on 10th April. 1985; contending that due to the rise in whole-sale price index and the prices of essential commodities, he is entitled to the reasonable increase in the rent of the disputed premises to the extent of Rs. 800/-per month. He further maintained that the tenant had failed to pay this rent despite repeated requests, which resulted in the filing of the application for fixing the fair rent, before the Rent Controller u/s 4 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act). The tenant resisted this application contending that it is barred by principles of res judicata because an earlier petition filed by the landlord for increasing the rent of the shop in dispute was dismissed on 29th November, 1983. The description of the property was also challenged besides maintaining that the fair rent of the shop had already been fixed by the trial Court.

The learned Rent Controller accepted the application of the landlord by treating Rs. 82/- as the basic rent and taking into consideration the average price index, the rent was enhanced to Rs. 157-50 Paise per month.

Due to some misconception of law the tenant then went in appeal before the Appellate Authority, which was dismissed as withdrawn on 24th November, 1987. During the pendency of that appeal, the tenant filed copy of the order, Exhibit R.1, dated 29th November, 1983 of the Rent Controller dismissing the application of the landlord for fixing the fair rent.

Mr. Bhoop Singh, learned counsel for the petitioner, has assailed the findings of the Rent Controller on two grounds, the first being that in view of the provisions of section 5 of the Act, the application for fixing fair rent is not maintainable as a period of five years has not expired since 29th November, 1983, when the previous such application of the landlord was dismissed. He further maintained that the fair rent should have been fixed by taking into consideration 25% rise in the general price-index on the basis of basic rent already fixed Mr. Arun Nehra, learned counsel for the respondent, on the other hand, maintained that as the earlier application of the landlord for fixing of fair rent was dismissed by the Rent Controller on 29th November, 1983 by treating agreed rent of Rs. 82/- per month by the parties in the year 1977 as fair rent, it cannot be said that the fair rent was fixed vide that order by the Rent Controller. Thus, he maintained that the present application was filed much after the expiry of a period ''of five years of the application. He further maintained that no such specific objection was taken by the landlord in his written reply filed before the Rent Controller. He, however, agrees with the contention regarding the fixing of fair rent on the basis of the basic rent in the earlier application.

The provisions of Section 5 of the Act run as under:-

Revision in fair rent in certain cases.-(1) When the fair rent of a building or rented land has been fixed u/s 4, no further increase or decrease in such fair rent shall be permissible for a period of five years:

Provided that an increase may be allowed in cases where any addition, improvement or alteration has been carried out at the expense of the landlord, and in the building or rented land which is in occupation of the tenant then at the request of the tenant:

Provided further that the decrease may be allowed in the cases where there in an increase of diminution in the accommodation or amenities provided.

Any dispute between the landlord and tenant in regard to any increase or decrease under this section shall be decided by to the Controller.

A bare perusal of the above referred provisions leaves no doubt that an application for fixing fair rent u/s 4 of the Act cannot be filed before the expiry of a period of five years to the fixing up of fair rent in an earlier application. The fixing up of fair rent does not necessarily implies that it should be enhanced than the prevalent one of demised premises, especially when u/s 4 of the Act, there is option for the tenant also to get a fair rent of the rented premises fixed where according to him the landlord is charging exorbitant rent The perusal of the certified copy, Exhibit R. 1 of the order of the Rent Controller, dated 29th November, 1983, on the application filed by the landlord for fixing up fair rent clearly shows that rent of Rs. 82/- per month agreed to by the parties in year 1977 before the Appellate Authority was considered as fair rent of the premises in dispute. Under these circumstances, there is no force in the contention of Mr. Nehra that the fair rent was not fixed vide this order by the Rent Controller Consequently, the present application u/s 4 of the Act having been filed on 10th April, 1985, i.e. before the expiry of a period of five years from 29th November, 1983, was certainly not maintainable being barred by the provisions of section 5 of the Act. The mere factum that the tenant had not taken any specific objection in his regard in his written statement is of no consequence as there is no estoppal against the provisions of the Statute.

Admittedly, the method of calculating the fair rent adopted by the Rent Controller is wrong, as he had not made an increase of 25% of the price index on the basis of the basic rent, but simply on the basis of average increase in the price index of 302. The findings of this Court in Vijay Kumar and another v. Ram Lal 1987 H.R.R. 349 can safely be referred in this regard.

For the foregoing reasons, the impugned order of the Rent Controller is hereby set aside by accepting this revision petition. There is, however, no order as to costs in view of the peculiar circumstances of this case.