MITTADODDI RAMA RAO Vs. DUWURU VENKATA RAJESWARA SASTRY

JUDGEMENT

(1.) These two Civil Revition Petitionsare preferred against the decree in two cross suits as between landlord and tenant instituted in the Court of Small Causes. In Civil Revision Petition No. 845 of 1953 the petitioner is the defendant landlord in S.C. No. 382 of 1952. In Civil Revision Petition No. 940 of 1953 the petitioner is the plaintiff landlord in S.C. No. 543 of 1952. Civil Revision Petition No. 845 of 1953 will first be dealt with. There the landlord objects to a decree passed in favour of the tenant for recovery of excess rent alleged to have been paid by him before the fair rent was fixed under Madras Act XXV of 1949. The tenant was occupying a portion of the landlord's building on a monthly rent of Rs. 15.

(2.) The rent was enhanced to Rs. 20 per month on nth November, 1946 and the tenant was paying the rent regularly. On 2oth August, 1948, the tenant shifted to another house but did not deliver vacant possession to the landlord of the portion of the house occupied by him. There were some disputes between the landlord and tenant which culminated in the tenant filing an application on 23rd August, 1948, before the Rent Controller for the fixation of a fair rent for the portion of the house occupied by him. The Rent Controller dismissed the application on 14th November, 1948. The tenant preferred an appeal C.M.A. No. 56 of 1948 to the Principal Subordinate Judge, Nellore, who fixed the fair rent at Rs. 4 per month by his order Exhibit B-4 dated 2Oth December, 1948. In addition to fixing the fair rent the Subordinate Judge observed that the rent paid by the tenant in excess should be worked out on the basis of Rs. 4 per month beins; the fair rent from 1st October, 1946 and that the tenant should recover the excess rent from the landlord. These observations of the Subordinate Judge were unnecessary and unwarranted by law. On an application under section 4 of the Act the Rent Controller as well as the Appellate Authority are empowered to fix the fair rent but not to pass any further or consequential orders. What rights accrue to the landlord and tenant as a result of the fixation of the fair rent is not within the province of the Rent Controller or the Appellate Authority to determine on an application under section 4 of the Act. Taking advantage of the observations of the Subordinate Judge the tenant applied in LA. No. 276 of 1949 requiring the Court to implement its order by determining the amount refundable by the landlord. Overruling the objection of the landlord, the Subordinate Judge passed an order on 18th April, 1949, in LA. No. 276 of 1949 determining the amount refundable by the landlord to the tenant to be Rs. 317-14-0. Exhibit A-2 is a certified copy of that order. The tenant filed E.P. No. 113 of 1949 in the Court of the Subordinate Judge for realisation of the amount determined to be refundable to him by the landlord. As a result of an attachment the amount was deposited by'the landlord into Court and withdrawn by the tenant. The landlord filed C.M.A. No. 445 of 1949 to the High Court of Madras against the order of the Subordinate Judge in E.P. No. 113 of 1949 in C.M.A. No. 56 of 1948. Basheer Ahmed Sayeed, J., allowed C.M.A. No. 445 of 1949 and dismissed E.P. No. 113 of 1949 by his order dated 3rd January, 1952. The tenant who had withdrawn the money deposited by the landlord pursuant to the order of the Subordinate Judge in E.P. No. 113 of 1949 had to refund it to the landlord as a result of the judgment of the High Court. Thereafter he brought the present suit against the landlord for recovery of the sum refundable to him as a result of the appellate order of the Subordinate Judge fixing the fair rent at Rs. 4 per mensem. The suit was decreed by the Court below. Hence the Civil Revision Petition No. 845 of 1953 preferred by the landlord.

(3.) The first contention of the petitioner is that the result of the order of Basheer Ahmed Sayeed, J., in C.M.A. No. 445 of 1949 was to vacate the order of the Subordinate Judge in C.M.A. No. 56 of 1948 and that there was no order in existence either of the Rent Controller or of the Appellate Court fixing the fair rent so as to entitle the tenant under section 6 (1) to a refund of the excess amount alleged to have been paid by him. In the judgment of the learned Judge the following observations occur :-