Tirath Dass vs Raj Rani and Another

J.V. Gupta, C.J.—This petition is directed against the order of the Appellate Authority dated 30.10.1986 whereby fair rent of the shop in dispute situated in Kaithal was fixed at the rate of Rs. 400/- per month

The shop located in the Maudi Zargaran, Kaithal was let out by Smt Raj Rani to her tenants Tirath Dass and Lakhmi Dass at an annual rent of Rs. 900/ vide rent note dated 1.7.1969 Ex. A. 6 The rent note was only for a period of 11 months. After the expiry of the said period the tenants continued therein as statutory tenants. The landlady filed the present application for fixation of fair rent on 6-9-1980 and claimed that the prevalent rate of rent was Rs. 4,800/-- per annum in the locality where the building was situated and with the passage of time since the tenancy was only an annual one, therefore, the rent of Rs. 90/- could not be treated to be the agreed rate of rent and since the building was constructed in the year 1968, therefore, she was entitled to the fixation of fair rent at the rate of Rs. 4,800/- per annum.

The tenant contested the application and denied all the averments made in the application and did not take up any specific plea After framing the issues and allowing the parties to lead the evidence, the Rent Controller, on the basis of rent note Ex. A. 5 dated 23-6-1980 came to the conclusion that the shop was constructed in the year 1968 and the prevalent rate of rent in the locality was Rs. 2,400/- per annum and, therefore, fixed the basic rent and fair rent accordingly, relying upon the contents of rent note Ex. A. 5. Aggrieved with the same the landlady filed an appeal. The Appellate Authority affirmed the findings of the Rent Controller that the shop was constructed in the year 1968. However, relying upon the contents of rent note Ex A. 5 it was found that the rent fixed therein at the rate of Rs. 2,400/ was for six months only and not per annum. Consequently, the fair rent was fixed at the rate of Rs. 4,800/- per annum i.e. Rs. 400/- par month Dissatisfied with the same, the tenants have filed this petition in this Court.

Learned counsel for the petitioner submitted that the fair rent was to be fixed under cluase (b) of sub-section (2) of Section 4 of the Haryan Urban (Control of Rent and Eviction) Act, 1973 and according to the said provisions the rent agreed upon between the landlord and the tenant preceding the date of the application was to be taken to be the basic root. According the to learned counsel the rent agreed upon between the parties was Rs. 900/- per annum and, there- fore, that should have been taken to be the basic rent. In support of his contention he referred to Registered Firm M/s Bhagwan Singh and Co. v. The Central Bank of India Branch at Kaithal through its Manager, 1988 H.R.R. 137 and Sarwan Singh v. Smt. Kastoori 1988 H. R. R. 284

On the other hand learned counsel for the respondent land- lady submitted that no such plea was taken by the tenants in the written statement that Rs. 990/- was the agreed rent between the parties preceding the date of the application. In any case argued the learned counsel Rs. 900/-was the agreed rent vide rent note dated 1 -7-1969 and that was for 11 months Lateron no rent as such was agreed upon between the parties and the tenants were occupying the premises as statutory tenants. Thus argued the learned counsel that no rent has been agreed upon as contemplated under clause (b) of Sub-section (2) of Section 4 and fair rent at the rate of Rs. 400/-per month has been rightly fixed by the Appellate Authority.

After hearing the learned counsel for the parties and going through the case law cited at the bar I find that in the present case no such plea was taken by the tenants in the two courts below. In para No. 6 of the application the landlady specifically pleaded that there was no agreed rent between the parties about the tenanted premises preceding the date of application. The reply to the said para was that para No. 6 is denied. It is, therefore, evident that the tenants never took up any plea that Rs. 900/- was the agreed rent between the parties as such. If that would have been the plea, then the question of summoning the evidence of premises in the neighbourhood could not arise. Thus, on the facts and circumstances of this case the tenants could not be allowed to urge for the first time in this petiton that there was agreed rent to the tune of Rs. 900/- per annum between the parties because the rent note Ex A. 5 which was executed 11 years prior to the presenting of the application for fixation on of fair rent, Consequently this petition fails and is dismissed with no order as to casts.