In Re: Smt. Sikha Dutta and Sri Prosanta Kumar Lahiri - Court Judgment

SooperKanoon Citationsooperkanoon.com/871746
SubjectTenancy
CourtKolkata High Court
Decided OnMay-31-1988
JudgeMonoj Kumar Mukherjee and ;S.S. Ganguly, JJ.
Reported in(1988)2CALLT115(HC)
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 4, 17(1), 17(2) and 17(2A)
AppellantIn Re: Smt. Sikha Dutta and Sri Prosanta Kumar Lahiri
Appellant AdvocateS.P. Roychowdhury and ;Animesh Kanti Ghoshal, Advs.
Respondent AdvocateSudhir Dasgupta and ;Sambuddha Chakraborty, Advs.
Cases ReferredK. Dayalji & Co. v. Mohammadbhai
Excerpt:
- monoj kumar mukherjee, j.1. these two revisional applications are directed against order no. 12, dated february 2, 1988 passed by the learned assistant district judge, 10th court, alipore in title suit no. 11 of 1987 disposing of an application filed under sections 17(2) and (2a) of the west bengal premises tenancy act, 1956 ('act' for short). by the impugned order the learned judge directed the tenant/defendant to pay arrear municipal taxes and arrear rents amounting to rs. 17,920 and rs. 4,380 respectively, together with interest thereon @ 81/2 %, in ten equal monthly instalments. one of these applications has been filed by the plaintiff/land-lord whose grievance is that the calculation of arrear rents is wrong while the grievance of the defendant, who is the petitioner in the other revisional application, is that the learned judge erred in directing her to pay arrear municipal taxes.2. it is not disputed that the tenancy is governed by a written agreement, dated september 25, 1980. the agreement provides inter alia, that the tenant shall pay a monthly sum of rs. 1,230 as rent and bear municipal taxes. another term of the agreement, which is relevant for our present purpores, is that 50% of the monthly rent payable, that is to say, rs. 650 is to be adjusted against the sum of rs. 35,000 which was advanced by the tenant to the land-lord.3. relying upon the provisions of the agreement mr. roy chowdhury, the learned advocate appearing in support of the application filed; by the tenant, submitted that she (the tenant) agreed to pay only rs. 1,230 as rent and consequently the learned judge could not have directed her to pay municipal tax, which was not part of agreed 'rent' while disposing of the application under sections 17(2) and (2a) of the act. according to mr. roy chowdhury the liability of the tenant to pay municipal tax under the agreement was not a rent liability and consequently she was not obligated to pay the same as a part of the rent. the other contention of mr. roy chowdhury was that since municipal tax was a variable, and not a fixed, sum it could not legally form part of rent. in support of his above contentions mr. roy chowdhury principally relied upon the judgment of the supreme court in the case of chhotelal v. kewal krishan reported in : [1971]3scr855 .4. in repelling the above contentions of mr. roy chowdhury, mr. dasgupta appearing for.' the land-lord, submitted that in absence of any definition of 'rent' in the act it must be given its ordinary dictionary meaning to mean and include whatever was payable by the tenant to the landlord as a consideration for occupation of the tenanted premises. consequently, when admittedly municipal tax was to be paid by the tenant to the land-lord it must be treated as a component of rent. mr. das gupta further submitted that municipal tax being an ascertainable sum could always be a part of rent. to bring home his contentions mr. dasgupta relied upon some english authorities and decisions, as also the decision of the supreme court in the case of karnani properties ltd. v. miss augustine, reported in : [1957]1scr20 and in the case of k. dayalji & co. v. mohammadbhai, reported in : [1970]1scr80 . before we proceed to consider the decisions cited at the bar we may refer' to the relevant provisions of the act.5. section 4 of the act provides, inter alia, that a tenant shall, subject to the provisions of the act, pay to the land-lord the rent agreed upon until fair rent is fixed. section 17(1) of the act enjoins that on a suit for eviction being instituted on any of the grounds referred to in section 13 the tenant shall, within a month of the service of the writ of summons or within a month of his appearance, deposit in court an amount calculated at the rate of rent at which it was last paid for the period he may have been in default together with interest @ 8-1/3% and shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate; and section 17(2) provides that in case there is any dispute as to the amount of rent payable, he may file an application in court for determination of the rent payable by him. under the act, the tenant is, therefore, under the obligation to pay the rent agreed upon and in case any eviction proceeding is initiated against him he has to deposit such rent in court.6. in view of the above provisions of the act and the rival contentions of the parties the first question which requires an answer in the instant case is what was the rent agreed to be paid by the tenant. as already noticed in the agreement it is specifically stated that the tenant shall pay a sum of rs. 1,230 per month as rent and another clause of the agreement provides that the municipal taxes would be borne by the tenant during the period of his occupation. it has, therefore, to be ascertained whether the municipal tax, which admittedly is to be paid by the tenant can be considered to be a part of the rent. in the case of karnani properties (supra) on which mr. dasgupta relied, the relevant clause of the tenancy agreement read as under :'that the tenant shall occupy the said flat paying therefor unto the bank a monthly rent of rs. 100 including hire of 2 a.c. fans and extra government duty on electric current without any reduction or abatement to be paid at the bank on or before the 7th of succeeding month for which the rent is due and that the said rent is inclusive of charges for current for fans, lights, radio and electric stove not exceeding 600 watts for heating meals and making tea only, use of life, hot and cold water, the owner and occupier's shares of municipal taxes.'7. relying upon the above clause and some english decisions the supreme court observed that if the stipulations between the land-lord and the tenant included payment of rent for not only what might properly be characterized as premises within the ordinary acceptance of the term but also payment in respect of lighting, cooking equipment, the furnishing and cleaning of hall and stair case and certain other similar amenities, the sum total of the payments in respect of the building or part of the building and other services and amenities constituted rent. according to the above decision, if the term 'rent' was not defined in the relevant act it must be taken to have been used in the ordinary dictionary meaning to mean and include all payments agreed by the tenant to be paid to his land-lord for use and occupation not only of the building and its appurtenances but also of furnishing, electrical installations and other amenities agreed between the parties to be provided by at the cost of the land-lord. the above judgment of the supreme court does not come to the assistance of mr. dasgupta for in the present case the question relating to amenities provided by the landlord does not arise. that apart, as the relevant clause of the agreement earlier quoted expressly indicates, the rent payable by tenant was inclusive of the charges for the amenities provided by the land-lord.8. we next come to the case of k. dayalji & co. (supra). in paragraph 4 of the judgment it has been observed that by the express terms of the tenancy the tenant had undertaken to pay the municipal taxes and electricity charges as part of the rent and therefore, the supreme court held that municipal taxes payable by the tenant were recoverable through a distress warrant. the above decision is, therefore, an authority for the proposition that if the agreement between the parties expressly lays down that municipal tax is part of the rent it has to be treated as rent liability.9. that brings us to the case of chotelal (supra) relied upon by mr. roy chowdhury. as the facts and circumstances of that case are to some extent similar to those of the instant case the same may be detailed. in that case the tenant was ordered to be evicted on the ground that he was in arrears of rent for more than three months and did not tender them even at the first hearing by the rent controller of the application of ejectment presented by the land-lord under section 13 of the east punjab urban rent restriction act iii of 1949. the rent of the premises was rs. 20 per month and was to be paid in advance each month. in addition electricity charges were to be paid separately. in dealing with the case the high court proceeded on the basis that on the date of the application the rent that was in arrears amounted to rs. 400 calculated @ rs. 20 per month. apart from the interest and the costs payable thereon, it was argued that a sum of rs. 50.28 p. was due as electricity charges and that being a part of rent, failure to deposit the same made the tenant liable for eviction. the high court accepted the argument and upheld the decree of eviction. in setting aside the decree the supreme court observed that in deciding the case neither the district judge nor the high court took care to examine the pleadings in the application for eviction putforward by the land-lord/respondent nor did they try to properly interpret the rent note containing the terms of the tenancy. the supreme court pointed out that in the application filed by the land-lord before the rent controller it was clearly stated that 'the respondent is a tenant of the petitioner at a monthly rent of rs. 20' and there was no mention at that stage that there was any other amount which formed part of the rent. the supreme court next pointed out that in his pleading all that was claimed by the land-lord was that he was entitled to receive electricity charges from the tenant and it was no where stated that those arrears of electricity charges formed part of the rent. the supreme court further pointed that it was for the first time in the appellate court that the question whether electricity charges formed part of the rent or not was raised. the supreme court, therefore, observed that there was no justification for accepting the new point when it was not pleaded in the original application. the supremt court also took note of the fact that the rent note first mentioned that the tenant was taking on rent the premises at a monthly rent of rs. 20 and thereafter a separate clause was incorporated whereby the tenant undertook to pay the electricity charges separately. for the above and other circumstances the supreme court held that the electricity charges were not part of the rent agreed upon.10. in the instant case, both in the plaint and the objection to the application under section 17(2) of the act filed by the tenant, the land-lord specifically stated that the tenant was liable to pay the municipal tax along with the rent. in other words, it was not averred therein that the municipal tax was a component of the rent. on the contrary, liability of the tenant to pay municipal tax has been treated as independent of her rent liability. even in computing court fees for the suit in accordance with section 7(xiii)(d) of the west bengal court fees act, 1970 the land-lord has treated the sum of rs. 1,230 as rent.11. having considered the facts and circumstances of the instant case in the light of the judgments of the supreme court discussed earlier we must hold that; as the municipal tax was not treated as a part of the 'rent' agreed to be paid by the tenant, the learned trial court was not justified in directing the petitioner to deposit the arrear municipal taxes. since we have rested our above finding on the decisions of the supreme court we need not detail or discuss the english authorities and decisions cited by mr. dasgupta ; nor do we need to consider and decide the question as to whether in law municipal tax can form part of the rent or not. in the result the order of the learned trial judge so far as it directed the tenant to pay the arrear municipal taxes is hereby set aside. needless to say, this order of ours will not debar the land-lord from initiating appropriate proceedings against the tenant for realisation of municipal taxes.12. that brings us to the revisional application filed by the land-lord. it appears that the learned trial judge, while arriving at the amount of arrear rents to be deposited by the tenant, did not take into consideration the fact that she was entitled to an adjustment of 50% of the monthly rent payable by her and not the whole. in such circumstances the matter has to be sent back to the learned judge to arrive at the actual amount of arrear rents to be paid by the tenant in terms of the agreement. the learned judge will also quantify the total of interest to be paid by the tenant and pass a composite order.13. the applications are thus disposed of. there will be no order as to costs.sudhanshu sekhar ganguly, j.14. i agree.
Judgment:

Monoj Kumar Mukherjee, J.

1. These two revisional applications are directed against Order No. 12, dated February 2, 1988 passed by the learned Assistant District Judge, 10th Court, Alipore in Title Suit No. 11 of 1987 disposing of an application filed under Sections 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 ('Act' for short). By the impugned order the learned Judge directed the tenant/defendant to pay arrear municipal taxes and arrear rents amounting to Rs. 17,920 and Rs. 4,380 respectively, together with interest thereon @ 81/2 %, in ten equal monthly instalments. One of these applications has been filed by the plaintiff/land-lord whose grievance is that the calculation of arrear rents is wrong while the grievance of the defendant, who is the petitioner in the other revisional application, is that the learned Judge erred in directing her to pay arrear municipal taxes.

2. It is not disputed that the tenancy is governed by a written agreement, dated September 25, 1980. The agreement provides inter alia, that the tenant shall pay a monthly sum of Rs. 1,230 as rent and bear municipal taxes. Another term of the agreement, which is relevant for our present purpores, is that 50% of the monthly rent payable, that is to say, Rs. 650 is to be adjusted against the sum of Rs. 35,000 which was advanced by the tenant to the land-lord.

3. Relying upon the provisions of the agreement Mr. Roy Chowdhury, the learned Advocate appearing in support of the application filed; by the tenant, submitted that she (the tenant) agreed to pay only Rs. 1,230 as rent and consequently the learned Judge could not have directed her to pay municipal tax, which was not part of agreed 'rent' while disposing of the application under Sections 17(2) and (2A) of the Act. According to Mr. Roy Chowdhury the liability of the tenant to pay municipal tax under the agreement was not a rent liability and consequently she was not obligated to pay the same as a part of the rent. The other contention Of Mr. Roy Chowdhury was that since municipal tax was a variable, and not a fixed, sum it could not legally form part of rent. In support of his above contentions Mr. Roy Chowdhury principally relied upon the judgment of the Supreme Court in the case of Chhotelal v. Kewal Krishan reported in : [1971]3SCR855 .

4. In repelling the above contentions of Mr. Roy Chowdhury, Mr. Dasgupta appearing for.' the land-lord, submitted that in absence of any definition of 'rent' in the Act it must be given its ordinary dictionary meaning to mean and include whatever was payable by the tenant to the landlord as a consideration for occupation of the tenanted premises. Consequently, when admittedly municipal tax was to be paid by the tenant to the land-lord it must be treated as a component of rent. Mr. Das Gupta further submitted that municipal tax being an ascertainable sum could always be a part of rent. To bring home his contentions Mr. Dasgupta relied upon some English authorities and decisions, as also the decision of the Supreme Court in the case of Karnani Properties Ltd. v. Miss Augustine, reported in : [1957]1SCR20 and in the case of K. Dayalji & Co. v. Mohammadbhai, reported in : [1970]1SCR80 . Before we proceed to consider the decisions cited at the Bar we may refer' to the relevant provisions of the Act.

5. Section 4 of the Act provides, inter alia, that a tenant shall, subject to the provisions of the Act, pay to the land-lord the rent agreed upon until fair rent is fixed. Section 17(1) of the Act enjoins that on a suit for eviction being instituted on any of the grounds referred to in Section 13 the tenant shall, within a month of the service of the writ of summons or within a month of his appearance, deposit in Court an amount calculated at the rate of rent at which it was last paid for the period he may have been in default together with interest @ 8-1/3% and shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate; and Section 17(2) provides that in case there is any dispute as to the amount of rent payable, he may file an application in Court for determination of the rent payable by him. Under the Act, the tenant is, therefore, under the obligation to pay the rent agreed upon and in case any eviction proceeding is initiated against him he has to deposit such rent in Court.

6. In view of the above provisions of the Act and the rival contentions of the parties the first question which requires an answer in the instant case is what was the rent agreed to be paid by the tenant. As already noticed in the agreement it is specifically stated that the tenant shall pay a sum of Rs. 1,230 per month as rent and another clause of the agreement provides that the municipal taxes would be borne by the tenant during the period of his occupation. It has, therefore, to be ascertained whether the municipal tax, which admittedly is to be paid by the tenant can be considered to be a part of the rent. In the case of Karnani Properties (supra) on which Mr. Dasgupta relied, the relevant clause of the tenancy agreement read as under :

'That the tenant shall occupy the said flat paying therefor unto the Bank a monthly rent of Rs. 100 including hire of 2 A.C. fans and extra Government duty on electric current without any reduction or abatement to be paid at the bank on or before the 7th of succeeding month for which the rent is due and that the said rent is inclusive of charges for current for fans, lights, radio and electric stove not exceeding 600 Watts for heating meals and making tea only, use of life, hot and cold water, the owner and occupier's shares of Municipal Taxes.'

7. Relying upon the above clause and some English decisions the Supreme Court observed that if the stipulations between the land-lord and the tenant included payment of rent for not only what might properly be characterized as premises within the ordinary acceptance of the term but also payment in respect of lighting, cooking equipment, the furnishing and cleaning of hall and stair case and certain other similar amenities, the sum total of the payments in respect of the building or part of the building and other services and amenities constituted rent. According to the above decision, if the term 'rent' was not defined in the relevant Act it must be taken to have been used in the ordinary dictionary meaning to mean and include all payments agreed by the tenant to be paid to his land-lord for use and occupation not only of the building and its appurtenances but also of furnishing, electrical installations and other amenities agreed between the parties to be provided by at the cost of the land-lord. The above judgment of the Supreme Court does not come to the assistance of Mr. Dasgupta for in the present case the question relating to amenities provided by the landlord does not arise. That apart, as the relevant clause of the agreement earlier quoted expressly indicates, the rent payable by tenant was inclusive of the charges for the amenities provided by the land-lord.

8. We next come to the case of K. Dayalji & Co. (supra). In paragraph 4 of the judgment it has been observed that by the express terms of the tenancy the tenant had undertaken to pay the municipal taxes and electricity charges as part of the rent and therefore, the Supreme Court held that municipal taxes payable by the tenant were recoverable through a distress warrant. The above decision is, therefore, an authority for the proposition that if the agreement between the parties expressly lays down that municipal tax is part of the rent it has to be treated as rent liability.

9. That brings us to the case of Chotelal (supra) relied upon by Mr. Roy Chowdhury. As the facts and circumstances of that case are to some extent similar to those of the instant case the same may be detailed. In that case the tenant was ordered to be evicted on the ground that he was in arrears of rent for more than three months and did not tender them even at the first hearing by the Rent Controller of the application of ejectment presented by the land-lord under Section 13 of the East Punjab Urban Rent Restriction Act III of 1949. The rent of the premises was Rs. 20 per month and was to be paid in advance each month. In addition electricity charges were to be paid separately. In dealing with the case the High Court proceeded on the basis that on the date of the application the rent that was in arrears amounted to Rs. 400 calculated @ Rs. 20 per month. Apart from the interest and the costs payable thereon, it was argued that a sum of Rs. 50.28 p. was due as electricity charges and that being a part of rent, failure to deposit the same made the tenant liable for eviction. The High Court accepted the argument and upheld the decree of eviction. In setting aside the decree the Supreme Court observed that in deciding the case neither the District Judge nor the High Court took care to examine the pleadings in the application for eviction putforward by the land-lord/respondent nor did they try to properly interpret the rent note containing the terms of the tenancy. The Supreme Court pointed out that in the application filed by the land-lord before the Rent Controller it was clearly stated that 'the respondent is a tenant of the petitioner at a monthly rent of Rs. 20' and there was no mention at that stage that there was any other amount which formed part of the rent. The Supreme Court next pointed out that in his pleading all that was claimed by the land-lord was that he was entitled to receive electricity charges from the tenant and it was no where stated that those arrears of electricity charges formed part of the rent. The Supreme Court further pointed that it was for the first time in the appellate Court that the question whether electricity charges formed part of the rent or not was raised. The Supreme Court, therefore, observed that there was no justification for accepting the new point when it was not pleaded in the original application. The Supremt Court also took note of the fact that the rent note first mentioned that the tenant was taking on rent the premises at a monthly rent of Rs. 20 and thereafter a separate clause was incorporated whereby the tenant undertook to pay the electricity charges separately. For the above and other circumstances the Supreme Court held that the electricity charges were not part of the rent agreed upon.

10. In the instant case, both in the plaint and the objection to the application under Section 17(2) of the Act filed by the tenant, the land-lord specifically stated that the tenant was liable to pay the municipal tax along with the rent. In other words, it was not averred therein that the municipal tax was a component of the rent. On the contrary, liability of the tenant to pay municipal tax has been treated as independent of her rent liability. Even in computing Court Fees for the suit in accordance with Section 7(xiii)(d) of the West Bengal Court Fees Act, 1970 the land-lord has treated the sum of Rs. 1,230 as rent.

11. Having considered the facts and circumstances of the instant case in the light of the judgments of the Supreme Court discussed earlier we must hold that; as the municipal tax was not treated as a part of the 'rent' agreed to be paid by the tenant, the learned trial Court was not justified in directing the petitioner to deposit the arrear municipal taxes. Since we have rested our above finding on the decisions of the Supreme Court we need not detail or discuss the English authorities and decisions cited by Mr. Dasgupta ; nor do we need to consider and decide the question as to whether in law municipal tax can form part of the rent or not. In the result the order of the learned trial Judge so far as it directed the tenant to pay the arrear municipal taxes is hereby set aside. Needless to say, this order of ours will not debar the land-lord from initiating appropriate proceedings against the tenant for realisation of municipal taxes.

12. That brings us to the revisional application filed by the land-lord. It appears that the learned trial Judge, while arriving at the amount of arrear rents to be deposited by the tenant, did not take into consideration the fact that she was entitled to an adjustment of 50% of the monthly rent payable by her and not the whole. In such circumstances the matter has to be sent back to the learned Judge to arrive at the actual amount of arrear rents to be paid by the tenant in terms of the agreement. The learned Judge will also quantify the total of interest to be paid by the tenant and pass a composite order.

13. The applications are thus disposed of. There will be no order as to costs.

Sudhanshu Sekhar Ganguly, J.

14. I agree.