Mahipatram Dolatram vs Bal Anjwali Sabur

Baxi, J.—As these Revision Applications raise the name question of law, they are disposed, of by a common judgment. The Petitioner in

both the Revisions is the landlord and he filed separate small Cause suits against the opponents for recovery of arrears of rent.

In Civil Revision Application No. 13 of 1955 the suit was for recovery of Rs. 63/- representing arrears of rent for 7 months from Magsa.r Sud

1 Smt. 2010 to Jeth Vad Amas Smt. 201.0 at the contract rate of Rs. 9/- per month plus 8-4-0 for electric charges, the total claim being Rs. 71-

4-0. The defence was that in previous suit'', Nos. 519 of 1953 and 588 of 1953 the standard rent of the premises was fixed at Rs. 8-4-0 and the

opponent had paid rent at the rate of Rs. 11-12-0 per month for 12 months from Maha Sud 1 Smt. 2007 to Posh Vad Amas Smt. 2008 and at

the rate of Rs. 9/- per month for the next 23 months commencing from Maha Sud 1 St. 2008 to Kartugjtmd Amas 2010 including the Adhik Mas.

He haff thus paid Rs. C9-4-0 in excess of the standard rent for these 35 months. He admitted that the plaintiff was entitled to Rs. 57-12-0 as

standard rent for the period under suit and Rs. 8-4-0 for electric charges making a total of Rs. 66/- but from this amount he claimed to deduct u/s

20, Saurashtra Rent Control Act, Rs. 59-4-0 which he had paid by way of excess rent in the past.

The amount due to the Petitioner after allowing the deduction claimed would be Rs. 842-0 which the opponent deposited in Court with the written

statement. The Petitioner contended that u/s 20 the opponent''s right to deduct rent could not be exercised beyond six months from the date of

payment and as the deduction was claimed in respect of payments beyond six Months. It should not be allowed.

The learned Small Cause Judge rejected this contention and held that Section 20 gave the opponent the right to deduct excess over standard rent

paid by him regardless of time limit and passed a decree for Rs. 6-12-0 with costs of the suit against the opponents and ordered that the amount

deposited by the opponent in Court should be adjusted towards the decree.

Section 20 provides as follows:

Recover of amounts paid not in accordance With Act.: Any amount paid on account of rent after the fate of the coming into operation of this act

shall except in so far as payment there of is in accordance with the provision of this Act, be recoverable by the tenant from the landlord to whom it

was paid or on whose behalf it was received, or from his legal representative at any time within a period of six months from the date of payment

and may, without prejudice to any remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord.

The section gives two remedies to the tenant for recovery of excess amounts paid by him to the landlord over the standard rent. He can recover it

either by an action or by deduction from any rent payable by him to the landlord. In Munlbai Kachara v. Parekh Harjivan, 7 Sau LR 53 (A)

learned Chief Justice sitting as a single Judge held that the tenant''s right to recover the excess amounts paid by him by action should be enforced

within six months from the date of the last payment, but this limitation did not apply to right to recover such amounts by deduction and he could

recover there by deduction regardless of time limit.

In coming to this conclusion the learned Chief Justice compared the provisions of the corresponding Section 20 of the Bombay Rents, Hotel and

Lodging House Rates (Control) Act No. 57 of 1947 (which have been reproduced by Section 20 of the Saurashtra Rent Control Act) And the

provisions of the Bombay Rent Restriction Act, No. 16 of 1939 and the provisions of Section 24 of the Bombay is it, Hotel and Lodging House

Rates (Control) Act 7 of 1944. In the Act of 1939 the material words were:

Be deducted by such tenant from any rent payable within such six months (i.e. 6 months from'' the date of payment) by him to such landed in the

Act of 1944 the words were:

Be deducted from any rent payable by him within the said period by the tenant to the landlord.

The Act of 1947 which was a consolidating Act did not contain the words limiting the time within cache deduction should be claimed and the

learned chief Justice therefore held that the omission Of Poise words implied that the Legislature did not intend to limit the remedy of deduction to

six months rent.

The same question came up for decision in the Bombay High Court in Karamsey Kanji v. velii nirji, 53 Bom LR 619 (B) where the learned chief

justice held that on a plain natural constitution of the section itself, if a tenant could not recover any excess paid by him beyond six from the date of

the payment and if such amounts become irrecoverable. It was difficult to understand how a tenant could deduct what he could not recover and

what was irrecoverable on law. He followed Bayley v. Walker (1925) 1 KB 447 (C) in which a similar interpretation was put in England on a

similar provision of a parallel piece of legislation.

As regards the omission of the word pretty ribbing time limit in the Act of 1947, the learned Chief Justice expressed the view that it was not right to

assume that when the Legislature changes the language used in the earlier Acts in a consolidating Act, the change was intended to mark a change of

policy. Very often the Legislature used a language which was more in consonance with appropriate drafting and the change might not indicate any

change of policy at all.

The saurashtra Rent Control Act in based on the Bombay Act and we think II ml, the citation put on Section 20 by the Bombay High Count

should therefore be adopted. Besides the construction placed by the learned Chief Justice is more in consonance with justice and equity. We hold

therefore that the opponent is not entitled to deduct excess paid by him beyond six months from the date of the last payment. In this case the

deduction which the opponent claims is in respect of payments made beyond six months and cannot be allowed.

In the result the Revision succeeds. The decree of the learned Civil Judge is set aside and a decree is passed against the opponent and he is

ordered to pay the Petitioner Rs. GO/- with interest at the rate of Rs. per annum from the; date of the decree till realisation and costs throughout.

In Civil Revision ''No. 34 of 1955 the plaintiff claimed Rs. 101-8-0 for 7 months from Magsar Sud 1 Smt. 2010 to Jeth Vad Amas Smt. 2010

at the contractual rate of Rs. 14-8-0 per month and Rs. 9-6-0 for electric charges. The opponent contended that the standard rent of the premises

fixed at Rs. 12-8-0 per month in 2 previous suite Nos. 583/53 and 589/53. He contended that the Petitioner had recovered from him rent for 21

months from Chitra Sud 1 Smt, 2008 to Kartlk Vad Amas 2010 including Adhihmas at the rate of Rs. 14-8-0 per month. He admitted that the

standard rent due to the Petitioner for the period under suit amounted to Rs. 90-0-0'' and Rs. 9-6-0 for electric charges but from this amount he

claimed to deduct Rs. 42-0-0 representing the excess paid by him and deposited in Court the balance of Rs. 57-6-0.

The learned Judge below allowed the opponent''s claim for deduction and passed a decree against the opponent for Rs. 57-6-0 and costs and

ordered the amount deposited in Court to be adjusted towards the decree. This decree cannot be sustained for reasons stated above. The

deduction claimed, by the opponent is in respect of payments made beyond six months and cannot be allowed.

The lower Court''s decree is therefore set aside and a decree is passed against the opponent ordering him to pay the Petitioner Rs. 99-6-0 with

interest at the rate of 6% per annum from the date of the decree till payment and costs throughout.

Shah, C.J.

On a further consideration of the question I think the better view to take is that the time limit set by Section 20 applies also in the case of

deduction by the tenant of the excess payment made to the landlord, and that the view-taken by me in 7 Sau LR 83 (A) is. not correct,

Accordingly I proposed by 1 my learned brother. The ruling in Sau LR 83 (A) will be treated, as overruled.