STATE OF ANDHRA PRADESH Vs. POGAKU SUBBANAA

JUDGEMENT

(1.) This appeal and Gross Objections are preferred by the defendants and plaintiff respectively in O.S. 45/62 on the file of the Subordinate Judge, Chittoor, against the decree and Judgment passed therein. The suit was filed for recovery of Rs. 19,586/- towards arrears of rent together with interest thereon in the following circumstances. A building belonging to the plaintiff and situate at Madanapalli was taken on lease by the then Director of Public Instruction, Madras for a period of 3 years commencing from 1940 for the purpose of housing the Government Seconday Training School for women. The rent agreed upon under this lease was Rs. 85/- per mensem. This lean was renewed for a further term of 3 years under the original of Ex. A 7 in November 1943. The fair rent for the building was fixed at Rs. 105/- per mensem in 1958, by the Rent Controller to whom the plaintiff made an application for the purpose. The plaintiff claims to have provided additional accommodation at a cost of Rs. 10.000/- in the year 1952 at the request of the Inspector of Girls' school at Bellary and on the definite assurance that he would be paid rent at an enhanced rate. As this promise was not implemented despite repeated requests, the plaintiff moved the Rent Con. troller, Madanapalli in H.R.G. No. 6/58 for fixation of the fair rent payable him with effect from 1-10-52. Daring the pendency of this petition, a joint memo date 22-4-59 was filed by the parties before theRent Controller on 25-4-59 requesting, him to drop further action and permit the plaintiff to withdraw the petition on the ground that they agreed to abide by a decision to be made by the Executive Engineer, Madanapalli in the matter. A short while after H.R.C. 6/58 was disposed of in the manner requested by the parties, the Executive Engineer admittedly fixed the rent payable to the plaintiff at Rs, 250/- per mensem. The plaintiff was however not paid rent at this rat in spite of protracted correspondence and notices under Section bO of the Code of Civil Procedure and hence the suit for the recovery of arrears of rent calculated at Rs. 250/- per mensem from 1-10-52 to 28-2-62 after giving credit for the amount that was already received by him under protest together with interest at 6 per cent per annum. The 2nd defendant filed written statement, which is adopted by the 1st defendant also, contending inter alia that the plaintiff is not entitled to claim arrears of rent at the rate of Rs. 250/- per mensem right. from 1-10-52 for the simple reason that the Executive Engineer; to whom the parties referred the matter, fixed the rent at R. 250/- per mensem as he would be entitled to lay claim for rent at the enahnced rate only with effect from 25-4-59 the date on which the parties filed a joint memo before the Rent Controller, that he is in any view estopped from claiming rent at the enhanced rate from 1-10-52 having regard to the fact that he restricted his claim for period commencing from 1-3-56 alone in the notices issued by him and that his claim in so far as it relates to period that is beyond the 3 years prior to the date of the institution of the suit is also barred by time and that his claim for interest in any view is untenable. The learned Subordinate Judge held in favour of the plaintiff on all the issues arising in the suit accept the one relating to hii right to recover interest for any period prior to the, institution of the suit. He accordingly granted in his (Plaintiff's) favour a decree for Rs 11,845-40 ps after giving credit for the several sums paid to him by the defendants both before and after the institution of the suit. He also awarded proportionate costs and subsequent interest at 6 percent perannum on the sum decreed to the plaintiff and disallowed his claim for interest for period prior to the date of the institution of the suit. Hence the appeal and cross objections by the defendants and plaintiff respectively. It is contended for the appellants that the joint memo, Ex.A-1 filed before the Rent Controller embodied only an agreement for payment of rent at the rate to be fixed by the Executive Engineer and not to pay at that rate for any period anterior to 25-4-59 the date on which that memo was filed before the Controller and that the Court below therefore went wrong in awarding a decree for rent to the plaintiff at the enhanced rate of Rs. 250/- per mensem not only from 25-4-59 but right from 1-10-52 for the simple reason that he ask ed in H.R.C. 6/58 for fixation of fair rent with effect from 1-10-52. The question as to whether the parties agreed to abide by the decision of the Executive, Engineer on the question of rate of rent alone or also the period for which rent had to be paid at that rate would, as rightly observed by the learned Subordinate Judge, depend upon the construction of the joint memo, Ex.A-1. This memo reads asunder:

(2.) It is true that there is no specific mention in this memo of any undertaking by the tenant to pay rent at the rate to be determined by the Executive Engineer to the landlord from 1-10-52 But there is likewise nothing in it to justify the contention of the appellants either that rent at the rate to be fixed by the Executive Engineer was agreed to be paid with effect from 25-4-59 only. The question as to whether the parties agreed to abide by the decision of the Executive Engineer regarding the rate of rent alone or also the period should therefore be determined taking into account the surrounding circumstances and probabilities obtaining in the case. It is an undisputed, fact that the plaintiff asked the Rent Controller for fixation of fair rent with effect from 1-10-32 even though he filed the application H R.C. 6/58 for the purpose only on 28-3-58. Having regard to the admitted fact that this application was resisted by the defendants it would be but reasonable to infer that not only the rate at which rent is sought to be recovered by the plaintiff but also the period with effect from which that fixation was asked for as contested by the defendants. So the words "fixation of the rent" employed by the parties in their joint memo, Ex.A-1 would certainly indicate that what they intended to be determined by the Executive Engineer was the rate of the rent as well as the period from which rent has to be paid at the rate to be fixed by him. If really they wanted the Executive Engineer simply to determine the rate at which rent has to be paid, they would have certainly used the words "fixation of fair rent" which words are capable of taking in not only the rate but also the period having regard to the points on which the parties should have joined issue in H. R. C. 6/58. It is therefore not correct to give the restricted interpretation of rate of rent alone to the words "fixation of the rent" occurring in Ex.A-1.

(3.) The conduct of the plaintiff in requesting the Rent Controller to drop all further proceedings and permit him to withdraw his petition H.R.C. 6/58 in Ex.A-1 would amply probablise the stand taken by him that all the points in issue between the parties in H.R C. 6/58 and not merely the rate of rent were referred to the Executive Engineer for decision It is indeed unnatural that he should withdraw the petition filed before the Rent Controller in toto if what all the parties intended the Executive Engineer to determine was the rate of rent and nothing more when it is an admitted fact that rightly or wrongly he asked the Rent Controller in H R.C. 6/58 to fix the fair rent payable to him with effiectfrom 1-10-52 itself.