G ESHWARAIAH Vs. MOHARUDRAPPA KHENI

JUDGEMENT

(1.) The second appeal and the two revision petitions raise common questions of law. They can therefore be disposed of by a common judgment. The second appeal arises out of O. S No, 53 of 1960. The respondent- plaintiff instituted the suit for recovery of Rs. 2, 391/- for an ears of rent from 31-8-1958 to 31-3-1960 in regard to House No. B-11-439, Risala Abdulla, Hyderabad at the rare of Rs. 140/- per month. It was contended in the suit that the defendant executed a rental agreement in favour of the plaintiff on 5-6-1957 agreeing to pay a monthly rent of Rs. 140/-. The tenant was a regular defaulter. A suit for recovery of arrears of rent was filed against him in the Court of Small Causes for the period ending 31-8-1958. The suit was de. creed. Even subsequent to that period, the tenant committed default in payment of the rents. A notice therefore was served upon him. As he failed to pay, the suit was laid for the recovery of rent. C. R. P. No. 85 of 1963 arises out of an eviction proceeding instituted by the land lord against the tenant. The Additional Rent Controller, Hyderabad by his order dated 22-9-1961 dismissed the eviction petition. In appeal, the Chief Judge, City Small Causes Court allowed the appeal and directed the eviction of the tenant. C.R.P. No: 1540 of 1962 arises out of an application filed by the tenant for fixation of fair rent. The Additional Rent Controller, Hyderabad by his order dated 7-8-1961 fixed fair rent of Rs 61-75 Np. per. month. Both the tenant as well as the landlord preferred appeals before the Chief Judge,City Small Causes Court, Hyderabad. By his order dated 24-2-1962, the learned Judge allowed the appeal of the landlord and modified the order of the Rent Controller and fixed the fair rent at Rg. 75/- per month. The appeal of the tenant was dismissed.

(2.) The second appeal and the two revision petitions came before one of us (Venkateswara Rao, J,). Having regard to the conflicting views expressed in Fatima bi v. State Of Madras and Balaiah v. Ahmad Khan the case has been referred to a Bench and that is how the matter has come before us: The short but important question is whether a tenancy created in contravention of the provisions of section 3of the Hyderabad Houses (Rent, Eviction and Lease) Control Act (XX of 1954), hereinafter called "the Act." is void and unenforceable under section 23 of the Indian CONTRACT ACT, 1872 as being one that is forbidded by law and opposed to public policy. Before we consider this question, it is necessary to mention that the house fell vacant. The landlord without giving any intimation as required under section 3 of the Act let out the house on rent to the tenant under the suit agreement.

(3.) The tenant became a defaulter. Consequently, a small cause suit was filed for arrears of rent. The tenant raised the contention that the agreement of tenancy is void as it is in contravention of the provisions of the Act. This contention was negatived. The Small Cause Court ultimately after an enquiry decreed the plaintiffs suit. The judgment has become final. It is Exhibit A-3. The tenant fell again in arrears of rent. That was why the present suit, out of which the second appeal arises, was instituted against him. In this suit, one of the defences was that the rent agreement being inconsistent with section 3 of the Act is void and no suit on the basis of such an agreement can lie. The trial Court followed Balaih v. Ahmed Khan and held that the contract is not void. The learned Third Assistant Judge also considered the question as to whether the plaintiff is entitled to compensation for use and occupation under section 65 of the CONTRACT ACT, 1872 and held that the landlord can demand mesne profits for use and occupation of the house. Consequently, a decree for the suit amount deducting some amount was passed in favour of the plaintiff. The defendant carried the matter in appeal. The 1st Additional Chief Judge by his judgment dated 6th February 1962 negatived the only contention which was raised before him that the contract of tenancy was void as that was entered into in contravention of section 3 of the Act. He was hot called upon to consider that in case the contract is found to be void whether the plaintiff would be entitled to compensation for use and occupation as was ruled by the trial Court. Sections 3 and 4 of the Act, in so iar as they are relevant, read as follows "3(1). If any house situated in any area specified by the Government by notification in the Official Gazette is vacant on the date of such notification or becomes vacant after such date, the landlord of such house shall give intimation thereof in the prescribed form to the Controller. (3) A landlord shall not, without the permission of the Controller let, occupy or permit to be occupied such house without giving intimation and for a period of fifteen days from the date on which inti- mation is received or within a period of one week after the termination of the proceedings under clause 6, if any which ever is later. Section 4: