Shabbir Ali Hussain vs Janaba Sartaj Jaha Begum

Jaganmohan Reddy, J.—In this revision the only point for Consideration is whether the lower Court wing come to the conclusion that the Rent controller had fixed a rent of Rs. 25 instead Rs. 75 should have accepted the plea of adjustment based on Cl. (c) of Section 6 of the Rent Control Order which provides that where any (SIC)mounts have been paid towards rent regarding a dwelling house in excess of fair rent nether It was paid before or after the coming (SIC)te force of the said order, the sum will be said back the lessee or adjusted In accordance with the directions. The house was taken on lease on 3-2-1950. It appears that a sum of Rs. 600 was paid by the revision-Petitioner to the Respondent towards rent till 2-10-1950 at the rate of Rs. 75 per month. Rent was due from, 3-10-1950 to 2-4-1951 which the Respondent demanded, but the Petitioner moved the Rent Controller on 15-3-1951 for fixing fair rent; which was fixed by him at Rs. 25 per month, After debiting the rent account at the rate of Rs. 25 per month upto 2-4-1951, there is still due to the Petitioner fa sum of Rs. 250. The Respondent had tiled a suit on 25-4-1951 for the recovery of rent at the rate of Rs. 25 for six months from 3-10-1931 to 2-4-1951. The Petitioner in his written statement filed on 5-7-1951 has stated that he had adjusted the rent upto 2-7-1951 and that Rs. 175 has still to be adjusted. The Small Clause Court held that there was no separate suit for refund of the sum of Rs. 175 and as such rejected the Petitioner''s contention and decreed the Respondent''s suit.

As far as the claim for refund of Rs. 175 was concerned the judgment of the Small Cause Court is in order but in decreeing the suit it did not act according to the Rent Control Law. The plea of the Petitioner for adjustment of the amount is in accordance with CI. (c) of Section 6 of the Rent Control Order and if he wants that the suit amount should be adjusted from the amount duel to him under the aforesaid provision of the Rent Control Order, he is entitled to have the same adjusted. Once that amount is adjusted, the Respondent will have no claim for rent against the Petitioner for the period claimed. The Respondents advocate contends that the Petitioner should have requested him to adjust the rent and unless he did so he cannot take that plea. From the facts set out above it is clear that after the Petitioner applied to the Rent Controller for fixing fair rent on 15-3-1951, the Respondent filed a suit on 25-4-1951 presumably to counter that application and it cannot be said that Petitioner had admitted the suit claim based upon rent of Rs. 75 per month. On the other hand in his written statement he. has categorically claimed an adjustment of the rent up to the date of the filing of the written statement and asked for a refund of Rs. 175. In these circumstances he intended and did in fact invoke the provisions of CI. (c) of Section 6 of the Rent Control Order. No doubt in - ''In re Navaneethammal 1950 Mad LJ 579, Rajamannar C.J. and Balakrishna Iyer J. held under CI (c) of Section 6, Madras Rent Control Act of 1946 which corresponds to CI. (c) of Section 6, Hyderabad Rent Control Order that the mere fact that the landlord has with him a credit of certain sum of money towards rent does not necessarily mean that the tenant has not committed default But where however (as in this case) the whole proceeding show that the Petitioner is CON(SIC) the night of the Respondent to demand rent at the rate of Rs. 75 per month and has applied to the Rent Controller for fixing a fair rent, it cannot be presumed that his Intention was not to have the same adjusted. The Petitioner in fact asked for such adjustment.

In this view of the matter the revision petition is allowed and the decree of the tower Court set aside.