KAMAL SINGH KOTHARI Vs. KHEMCHAND RAJKUMAR

JUDGEMENT

(1.) This Rule was issued at the instance of the plaintiffs in respect of an order passed by the Full Bench in the Small Cause Court, Calcutta by which it dismissed the plaintiffs' claim to the enhanced portion of the occupier's share of taxes from the opposite party. The opposite party is admittedly a tenant under the petitioners and the rent was Rs. 102/- per mensem besides electricity charges. The petitioners filed a suit against the opposite party claiming the electric charges due and also a sum of Rs. 183.60 as the enhanced portion of the occupier's share of taxes for three years at the rate of Rs. 5.10p per month. The learned Judge in the trial Court rejected this portion of the claim which was also upheld by the Full Bench. Hence this application,

(2.) The plaint does not disclose that there was any liability on the part of the defendant to pay the occupier's share of the taxes. On the other hand the plaint proceeds on the basis that the rent was inclusive of occupier's share of taxes. That would also appear from the fact that up to now the petitioners did not claim the occupier's share of taxes from the tenant-opposite party. Mr. Surana, on behalf of the petitioners, relies on Section 201 of the Calcutta Municipal Act, 1951 to show that the tenant is liable for the occupier's share of the taxes. That would be under the general law, but that can always be superimposed by an agreement and, in this particular case, as would appear, the agreement between the parties was that the rent was inclusive of occupier's share of the taxes. There was never any agreement that any enhancement of the taxes would have to be paid by the tenant. There is no such averment even in the plaint. Section 201 referred to above, also does not entitle the landlord to claim the enhancement. Moreover, under this section the landlord can claim only if he has paid the entire consolidated rent and the plaint does not disclose that he had done so. Moreover, the term 'rent' as defined in the W, B. Premises Tenancy Act, would mean the fair rent as fixed for the premises and, in other cases, the rent agreed upon until fair rent is fixed. Admittedly, the fair rent has not been fixed and, as I have already pointed out, the agreed rent is inclusive of the occupiers share of taxes. If the petitioner's grievances had been genuine he could have approached the Rent Controller for fixation of a fair rent but he has not done so and he wants to get at the tenant in a roundabout way. I hold that the tenant is not liable to pay occupier's share of taxes in this ease as his rent is inclusive of occupier's share of taxes, and as such he would not be liable for enhanced portion of the occupier's share of taxes.

(3.) The Rule is accordingly discharged. Each party will bear its own costs in this Court.