SAGARMAL AGARWALLA Vs. ANNAPURNA NEOGI

JUDGEMENT

(1.) This appeal has been preferred by the defendant against the decision of a learned Single Judge of this Court reversing the judgment and decree of the trial Court dismissing the plaintiff's suit for recovery of Rs. 7,000/-, consisting of Rs. 5,550/- as house rent and Rs. 1,455/- as Municipal taxes in respect of a house situate within the Dhanbad Municipality let out to the defendant as a tenant from September, 1949 to September, 1952. The total comes to Rs. 7,005/-, but Rs. 5/- was shown in the plaint as remitted.

(2.) According to the plaintiff, the monthly rent was fixed at Rs. 150/-, besides municipal taxes, while, according to the defendant, he was allowed to occupy the nouse by one S. K. Neogi, a nephew of the plaintiff's husband, on the assurance that fair rent would be settled later on. It was further asserted by the defendant that, inasmuch as no fair rent had been settled, the contract of tenancy was unlawful* and that he never agreed to pay Municipal taxes in addition to the rent. In oral evidence, however, the case of the defendant was that the rent fixed was only Rs. 100/- per month. He also claimed a set off of Rs. 234/-from the rent due, as he had spent the same in whitewashing and other necessary repairs of the house on the assurance of the said S. K. Neogi that the same would be adjusted at the time of payment of the rent.

(3.) The learned Subordinate Judge found, on the basis of the admission of the defendant, that the agreed rental was Rs. 100/- per month without any kind of municipal taxes. He was, however, unable to grant a decree to the plaintiff, as the contract of tenancy was unlawful, inasmuch as no fair rent had been fixed, as required by the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947). In respect of the claim of the defendant for cost of repairs, the learned Subordinate Judge found that, though repairs had been made, the amount of cost incurred for the same had not been proved. The suit was dismissed on the 26th September, 1953, and the plaintiff pre- ferred an appeal to this Court on the 10th February, 1954. The plaintiff made an application to House Controller under Bihar Act III of 1947 (hereinafter to be referred to as 'the parent Act') km the 15th November, 1954 for determination of the fair rent, and the Controller fixed Rs. 150/-per month as the fair rent "exclusive of municipal taxes with effect from the occupation of the building" by the defendant. An appeal by the defendant to the appellate authority under the parent Act against this order was dismissed on the 3rd November, 1955; and an application in revision against the said order was dismissed by the Commissioner on the 17th January, 1957. The hearing of the first appeal was taken up by the learned Single Judge on the 15th December, 1958, and on that date certified copies of the orders of the House Controller, the Appellate Authority and the Commissioner were admitted as additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure on behalf of the appellant. The learned Single judge decreed the plaintiff's suit for rent and Municipal taxes, as claimed, in accordance with the order of the House Controller, as confirmed by the higher tribunals. It appears from the judgment of the learned Single Judge that the question regarding the amount of the contractual rent or the question regarding repairs was not considered.