RAJPATI SUDAMA PANDAY Vs. TAJ MOHAMED RUSTOM KHAN

JUDGEMENT

(1.) HIS Lordship after stating the facts, proceeded. The learned Judges then addressed themselves to the question as to whether the notice was valid. They construed Sections 10 and 12 of the Kent Act to mean, relying on a judgment of their own Court that before a notice is given under Section 12 by a landlord for termination of tenancy on the ground of arrears of rent and permitted increases, under Section 10, the landlord must terminate the agreement regarding the contractual rent and demand the increases and it is only thereafter that he can issue a notice under Section 12. As there was no prior notice in the present case, they held that the claim was excessive. They also observed that the increase in municipal taxes was on. the rateable value while the landlords had claimed the increases on the full amount of rent. They, therefore, held that the notice was bad in law. They allowed the appeal and dismissed the suit of the plaintiffs. It is this judgment that is sought to be revised in the present petition.

(2.) IN our view, Mr. Advani is right in his contention that the learned Judges were not justified in holding that the notice was bad on the ground that the percentage of increase in the municipal taxes was on the rateable value while the landlords had asked the amount of increase on the full rent. He contends -and rightly -that no such question was raised in the defences and there is not one word suggested either in the defences of the defendant or in his evidence from which an inference can be drawn that the rateable value for which the premises were charged was any different from the standard rent which was recovered for the premises. Very often the rateable value differs from the rent chargeable under the Rent Act and is often higher. Unless proper evidence is led to enable the Court to hold in favour of the defendant, it was an error on two part of the appellate Court to raise such a point merely on the arguments at the bar. It is pertinent to note that Section 10 permits the transfer of the increase to the tenant and unless it is shown that the burden sought to be transferred to the tenant is in excess of the amount paid by the landlord it cannot be held that the demand was excessive and for which there is no proof.

(3.) SOME attempt was made to rely on the words in Section 10B of the Act which relates to the recovery by the landlord of the amount of the riot tax from his tenant when imposed. The reason for the difference in the language is not far to seek. In the one case there is a continuing increased payment every month as and when it becomes due for the whole period during which the taxes have been increased, while in the other it relates to the recovery of a single sum of money on a single occasion when imposed. It is for this reason that the Legislature has used the words 'shall be entitled to recover' and more so because it has further provided the recovery by instalments. Merely because there is difference in the language in these two sections, we cannot import into Sections 10 and 12 something which is not there.