DOGAR MAL Vs. GURANDITTA MAL MALHOTRA

JUDGEMENT

(1.) THE dispute between the parties is with regard to the tenancy of an intermediate storey of a. building consisting of a shop, which has been marked B, as to the first storey of the building, an intermediate storey or miani marked A, and two rooms and a courtyard marked C in the plan on the record filed by the tenant. The whole property was let to the tenant by the landlord at a rental of Rs. 35/ - p.m., inclusive of electricity charges.

(2.) THE tenant vacated on March 1, 1982, all other parts of the property excepting the intermediate storey or miani marked A in the plan. In other words the tenant surrendered the tenancy of the remaining part of the building and the courtyard to the landlord retaining with himself only the intermediate storey or miani. In April 1962, he remitted by money order a sum of Rs. 90/ - to the landlord as rent for the months of January and February, 1962, at the rare of Rs. 35/ - per mensem and Rs. 20/ - for the month of March, 1962. The landlord received the money order, but noted on the receipt that the payment of the rent was short by Rs. 15/ -. It is accepted on both sides that it could only be so short by Rs. 15/ - if the rent for the month of March, 1962, was also Rs. 35/ -, which would mean that, while the tenant surrendered every other part of the property, excepting the intermediary storey or miani, the landlord did not reduce the rent from Rs. 35/ - to Rs. 20/ - per mensem, as claimed by the tenant. On that, the tenant gave a notice to the landlord that the agreed rent for the intermediary storey or miani was Rs. 20/ - per mensem, inclusive of the electric energy, and the respondent replied that the rent was Rs. 35/ - per mensem inclusive of electric energy.

(3.) IT is not a matter of controversy between the parties at this stage that the rent of the intermediary storey or miani is Rs. 35/ - per mensem, the arguments having proceeded on the basis that the rent for that part of the building is Rs. 20/ - per mensem, inclusive of electric energy. The first contention of the Learned Counsel for the landlord is that there is a case of composite rent for part of the building let and for use of electricity, which cannot be split on any rational basis, and therefore the case is entirely outside the purview of the East Punjab Act III of 1949. In this respect, he refers to S. Raja Chetty v. Jagannathadas Govindas, A.I.R. 1990 Mad. 284, in which the learned Judges held that a lease of land and building together with fixtures, talkie equipments, machinery and other articles is not a lease of a mere building or a building with compound and furniture of the sort covered by the definition of 'building' in section 2 of the Madras Buildings (Lease and Rent Control) Act (XV of 1946) and an application to evict the tenant therefrom is not governed by that Act. The learned Judges were further of the view that splitting up of the rent into rent for ground and superstructure, for hire of furniture, and for hire of talkie equipments and machinery, fittings and lessors' fixtures, was extremely artificial and not to effect a division of the lease into separate contracts, namely one of the lease of the building and the other of the hire of the furniture so as to make the provisions of the Act applicable. This case was followed in Konijeti Venkayya v. Thammana Peda Venkala Subbarao : A.I.R. 1957 A.P. 619, and there the case was of a lease of an oil mill consisting of buildings, machinery and plant intended to be used for purposes of manufacturing oil and the question before the learned Judges was whether such a lease was governed by the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949. The learned Judges held that the property leased was really a factory and the terms and conditions of the lease showed that the machinery and the oil expellers were considered to be important components of the property leased. They were further of the opinion that it could not be said that the lessees would be entitled to remain on the land and the building but could not have possession of the machinary, plants and other property let by invoking the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949, and they observed that the split of a composite lease such as in that case into separate contracts of lease of the buildings and hire of the machinery would be to destroy the lease altogether and frustrate its object. It is immediately apparent that on facts neither of the two cases has any bearing on the facts of the present case. Here the lease is of a building and in the rent is included the cost of amenity in the shape of cost of electric energy. The Learned Counsel for the landlord refers to section 2(a) of the East Punjab Act III of 1949 which defines the word 'building', and contends that the rent of Rs. 20/ - per mensem is not for a building 'as defined in that provision', but this is a fallacy for the figure of Rs. 20/ - is rent for intermediary storey or miani of the house for the tenancy of the tenant and for the use of electricity therein. It is rent for 'building' as that word is defined in. section 2(a) of the Act and in addition a charge for the use of electricity therein. So there is a lease of the intermediary storey or the miani with a rent for it and in addition a charge for use of electricity this is not a case of composite rent as in the two cases already cited. No doubt the parties do not say what amount out of Rs. 20/ ªwas agreed to be rent of the intermediary storey or miani and what sum was to remain for electricity charges. The authorities have found that basis from the fair rent of the whole of the property which the landlord had fixed because he is himself a tenant of another person in the year 1954 and they have worked out the proportionate basic rent on which they have arrived at the figure of the fair rent of Rs. 4.12 Paise per mensem for the part that remains let with the tenant. It is not open to the landlord in view of the previous decision in regard to the fair rent of the whole of the building to challenge this figure and it has not been seriously challenged. This does provide of sound and adequate basis on which the figure of Rs. 20/ - per mensem can be split into what is fair rent per mensem and the balance remains as the cost of electric energy per mensem.