USTA AHMEDOO Vs. AB REHMAN DARZI

JUDGEMENT

(1.) THIS is the plaintiffs civil second appeal and arises out of a suit for the recovery of rent in respect of the premises held by the defendants respondents.

(2.) , The plaintiff instituted the suit for the recovery of Rs 21875 in the court of Second Additional Munsiff, Srinagar with the averment that the defendant respondent had taken on lease the shop at the rate of Rs. 50/ per annum from the father of the plaintiff and the defendants 2 to 4 in the year 1956 for a period of one year under rent note dated 5 -2 -1956. There was a stipulation in the rent note that in case the defendant continued to occupy the shop after the expiry of the period of lease, then he would be liable to pay rent at the rate of Rs. 75/ - per annum; A suit for the recovery of rent upto May, 1960 was already instituted against the defendants which culminated in the passing of the decree against the defendents. The present suit was instituted on 8 -5 -1968. In the present suit the plaintiff claimed rent from May 1965 to

(3.) LST May, 1968 at the rate of Rs 75/per annum. The trial court decreed the suit of the plaintiff. It enforced the clause in the agreement according to which the plaintiff was entitled to charge Rs 75/ - per annum. The trial court decreed the suit of the plaintiff. It enforced the clause in the agreement according to which the plaintiff was entitled to charge Rs. 75/ - per annum instead of Rs 50/. On appeal the learned District Judge overset the finding of the trial court. The learned appellate court did not agree with the trial court that the plaintiff could claim rent at the rate of Rs 75/ - annum. The court allowed the claim of the plaintiff only at the rate of Rs.50/ - per annum. 3. The short point taken by the appellant in this appeal is that the lower appellate court has wrongly decided the question of the rate of rent. Learned counsel appearing for the appellant has submitted that the plaintiff was within his rights to charge rent at the rate of Rs, 75/ -per annum as it was a condition agreed to by the parties in the agreement. The prayer for enforcement of this clause could not be rejected merely on the ground that the it was a penal clause. The learned counsel has also assailed the judgment of the lower appellate court on the ground that it had taken in to consideration some extraneous circumstance which was not relevant for the decision of the case. In support of his contention the learned counsel has among others relied upon AIR 1973 Delhi: 122 (197 Lab IC(No.11; SC) and also in an unreported judgment of a DB of this court given in First appeal Nos 21 to 24 of 1969: Gh. Qadir Shora vs Padma Devi dated 20 -7 -1971.