Bulaki Das Vs. Bansidhar Parwal and ors. - Court Judgment

Excerpt:
- - 2. in view of the reasons stated in the application for condonation of delay, we are satisfied that the appellant was prevented by sufficient cause from filing this appeal within limitation and, therefore, we condone the delay of 26 days.mohammad rafiq, j.1. this appeal, which has been filed against the order of the learned single judge dated 11.10.2006, is barred by limitation.2. in view of the reasons stated in the application for condonation of delay, we are satisfied that the appellant was prevented by sufficient cause from filing this appeal within limitation and, therefore, we condone the delay of 26 days.3. the, matter was heard on merits.4. learned counsel for the appellant-tenant in the writ petition has challenged the order dated 11.7.2005 passed by the rent tribunal, jaipur city, jaipur under section 6 of the rajasthan rent control act, 2001 (for short, the 'act of 2001') whereby, the rent payable by the appellant-tenant to the respondent-landlord was revised and , enhanced to rs. 1235/- per month. the appellant has further challenged the order passed by the appellate rent tribunal vide order dated 1.3.2006 whereby, it dismissed the appeal upholding the above referred to order passed by the rent tribunal. the writ petition filed thereagainst was thereafter dismissed by the learned single judge by the judgment which is impugned in the present appeal.5. mr. satish bijarnia, learned counsel for the appellant- tenant has argued that the courts below as also the learned single judge have not correctly interpreted and applied the provisions of section 6(l)(b) of the act of 2001 which inter-alia provides that 'where premises have been let out on or after 1st january, 1950, the rent payable at the time of commencement of tenancy shall be liable to be increased at the rate of 5% per annum and the amount of increase of rent shall be merged in such rent after ten years.' by applying such formula for the increase of rent, the amount of rs. 1235/- was arrived at by the rent tribunal to be paid to the respondent-landlord with effect from the date of the enforcement of the act of 2001 i.e. 1st april 20q3. it was argued that the tenanted premises was originally let' out by the firm m/s. bansidhar satya narain to the appellant- tenant in the year 1973 @ rs. 275/- per month. at that time, there were three partners in the said firm. one of the partners namely; gopiram retired thus leaving behind only two partners of the firm namely; bansidhar and satya narain. the firm thereafter filed a suit for eviction against the appellant-tenant. however, during the pendency of the suit, the firm was dissolved and the shop in question came to the share of respondent no. 1 bansidhar parwal vide retirement deed dated 15.5.1993 who got himself impleaded in the eviction suit as plaintiff on 24.4.1996. learned counsel argued that respondent no. 1 thus became landlord of the appellant-tenant only on 24.4.1996 and, therefore, for the first time, the agreement of tenancy between the appellant-tenant and the respondent no. 1-landlord came into existence on 24th april, 1996. the provisions of section 6(1)(b) of the act of 2001 inter-alia provides revision of rent from the date of commencement of the tenancy therefore, the formula for enhancement of rent @ 5% of the agreed rent should be applied from 24th april, 1996 because it is this date on which fresh tenancy commenced for the shop in dispute. the learned courts below have however erred in law in calculating the revised rent taking the tenancy to have commenced from 1st december, 1974 on which date the agreed monthly rate of rent between the parties was rs. 275/- and on that basis, wrongly arrived at the amount of rs. 1235/- payable from the date of the commencement of the act i.e. 1st april 2003. learned counsel in support of his arguments, cited the judgment of this court in govind narain v. mohan singh 1992(1) wlc (raj.) 504 and judgment of the calcutta high court in mohammad ibrahim v. bani madhab mullick and ors. : air1952cal196 .6. we have given our anxious consideration to the arguments made by the learned counsel and perused the impugned-orders.7. provisions of section 6 appears to have been engrafted in the act of 2001 by the legislature with a view to ensuring increase in the premises jet out to the tenant for a long period of time. while clause (a) of sub-section (1) of section 6 of the act of 2001 provides for increase of rent @ 5% per annum for the premises let out prior to 1st january, 1950 by providing that such premises shall be deemed to have been let out on rent payable on 1st january, 1950 which shall form the basis for increase of rent. in the cases where premises were let out on or after 1st january, 1950, covered under clause (b) of sub-section (1) of section 6 of the act of 2001, however, the rent would be similarly increased @ 5% per annum from the date of commencement of tenancy. amount so increased shall be merged in such rent at the end of every ten years. section 6 starts with a non-obstante clause and provides that 'notwithstanding anything contained in any agreement, where the premises have been let out before the commencement of this act, the rent thereof shall be liable to be revised according to the formula indicated' in clause (a) & (b) of section 6(1) supra. it is in this context that provisions of section 6 are required to be interpreted keeping in view the fact that the legislature has given over-riding effect to section 6 over any agreement which may be to the contrary and has emphasized on the point of time when the premises were let out initially. for the premises let out prior to 1st january, 1950, that date has been taken as the due date of commencement of the tenancy and the formula of increase @ 5% per annum shall have to be applied on the basis of rent payable on that date. however, for the premises which have been let out on any date subsequent thereto, that date has to be taken as the date of commencement of the tenancy and the rent payable on that date is required to be increased @ 5% per annum. the amount thus increased upto the date of commencement of the act is further required to be increased @ 5% per annum in the similar fashion.8. we have to therefore give a contextual as also purposive interpretation to the provisions of section 6 keeping in view the legislative intendment and the mischief which the legislature sought to suppress and remedy.9. judgment of the calcutta high court in mohammad ibrahim supra turned out on its own facts where one of the partners of the firm which was tenant, retired from the partnership firm towards the end of the year 1942 and on 6th january, 1943, other two partners wrote to the landlords informing them that he had retired from the partnership and, therefore, the landlords should issue rent bills in the name of remaining two partners. it was thereafter that on 30.4.1945, a fresh contract of tenancy was entered into between the landlords and the tenants which was quite different in its scope and character from the lease executed in 1934. it was in the context of these facts that the court held that if a lessee accepts a new contract of tenancy, it operates as a surrender of the old tenancy as contemplated by section 111(f) of the transfer of property act, 1882, for a new lease cannot be granted unless the old is surrendered. besides the above facts, that was a case in which there was change in the composition of the firm which was a tenant, whereas the present case involves change in the status of the landlord. besides, there are no such facts in the present case that any new lease deed was executed between the parties nor is any such intention discernible on the part of the appellant-tenant from the facts herein as may tantamount to implied surrender of tenancy by him.10. judgment of this court in govind narain supra, also cannot be applied to the facts of the present case because in that case too, the first rent note that was executed on 24.5.1968 was superseded by another rent note executed on 3rd august, 1979 and in those facts the court held that since the terms of the tenancy of premises has changed and new tenancy agreement was entered into by the parties, the existing tenancy will be deemed to have been surrendered and the fact that tenant continued to remain in possession, will be of no consequence. at the same time, however, the court further held that mere increase or reduction in rent by itself is not sufficient to imply surrender of existing lease and grant of new tenancy and even if the mode and time of payment is changed, the supersession of existing tenancy cannot be inferred therefrom. no such case has been set up by the appellant in the present matter. and it is also not the case of the appellant that possession of the premise let out to him was at any point of time surrendered by him or thereafter pursuant to another fresh lease agreement it was restored back to him.11. in fact, the learned appellate rent tribunal has in its order also relied on a judgment of this court which is worth noticing. that judgment was rendered in sardar singh v. prakash singh rlr 1987 (ii) 890 : 1987 rlw 701 wherein, this court categorically held that from the fact of enhancement of the rent alone, it can not be said that new tenancy came into existence. it was further held that in order to make out a case of new tenancy, delivery of actual physical possession of demised shop to landlord in pursuance of surrender of old tenancy and then taking the possession back pursuant to new agreement is necessary.12. there is another factor which needs mention, which is that the landlord as per the scheme of the act of 2001 need not always be owner or title holder of the premises let out. the definition of landlord as contained in 2(c) of the act of 2001, which is in para materia with the definition of 'landlord' as contained in section 3(iii) of the repealed rajasthan premises (control of rent & eviction) act, 1950, provides that' 'landlord' means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant.'13. it would thus be evident from the definition of the landlord that the landlord need not necessarily be owner or title holder of the premises let out to the tenant. apart from the fact that the point of time since when the tenant has been continuing in possession of the let out premises is material for deciding the question from where the tenancy commenced, the change in the composition of the firm and eventually, allocation of the shop to the share of respondent no. 1 pursuant to retirement deed dated 1st may, 1993 would not make any difference in so far as the status of the appellant as tenant is concerned who has been continuing as tenant in the let out premises from the date of commencement of tenancy i.e. from 1st december, 1974. he was always and has always been under a legal obligation to make payment of the rent to the landlord, whether the firm having three partners or thereafter, two partners, and finally thereafter, only one of them individually, who stood retired from the firm, as landlord.14. in view of what we have discussed above, the learned courts below have not committed any error of law in passing the orders under section 6 of the act while calculating the rent from 1.12.1974, the date on which the premises in question were initially let out to the appellant and for the same reason, we do not find any infirmity in the judgment of the learned single judge of this court.this appeal, which lacks merit, is therefore dismissed.