P L D 1962 Dacca 112 (PLP)

6. No appeal was preferred at the instance of the landlady opposite‑party as against the decision in H. R. Case No. 411 of 1957. The present petitioner, however, preferred the two appeals against the decision of the Rent Controller in both the cases. These two appeals were heard together and eventually dismissed by the learned Subordinate Judge.

7. The present Rules had been obtained against the decision of the learned Subordinate Judge in both the appeals. The learned Advocate for the petitioner in Civil Revision Case No. 169 of 1960 contends that the Rent Controller while determining the standard rent ought to have given effect to such fixation either from the commencement of the lease, that is, from January 1955, or at least from January, 1957. He also submits that if calculations are made in that way there would have been no default on the part of the tenant concerned. According to him the Rent Controller having found that some time. In 1952 standard rent had already been fixed in relation to premises in question it ought to have been held that the rent was an incident of the property in dispute and as such in the eye of law it was in force and continuity ever since 1952.

8. I feel, however, unable to agree with learned Advocate for the petitioner on this point. In view of the express provision made under section 15 of the Act it is difficult to hold that the Rent Controller had any option in the circumstances or discretion in the matter to give a retrospective effect to the operation of the order fixing the standard rent beyond what was done in the present case. According to section 15 (1) of the Act when in fixing the standard rent under section 14 of the Act if the rent which was being paid at the tune o3 the application is decreased by the Controller, the standard rent fixed shall be payable from the month next after the date of application, unless for reasons] to be recorded by the Controller he decides that such rent should' operate from any earlier or later date. The ordinary rule asp laid down seems to be that the standard rent when fixed should be payable front the month next after the date of application, There being no extraordinary circumstances in view of the contract between the parties, I do not think the Rent Controller acted with any material irregularity in the exercise of jurisdiction in making the order fixing the standard rent operative from the month of September 1957, the application having been filed in the month of August 1957. It is true that standard rent in relation to the same premises had once previously been fixed sometime in 1952 at the instance of another party who was then occupying the premises in question. But the order is made on 9‑3.59 was made at the instance of the present tenant‑petitioner. As this order was to ensure for the benefit of the present parties it can hardly be suggested that whatever beneficial interest might be claimed by the previous tenant by virtue of the previous order of fixation of standard rent, could also be claimed by the present peti tioner. It is not unkown that with or without the knowledge of the fact or possibility of there being a standard rent, parties are free and they also usually agree to pay at a higher or reduced rent. It is only when the dispute between the parties arises that an order for fixation of standard rent is sought for and that order when passed is ‑to be and remain operative or effective between the parties in the proceeding. As such ft is difficult to agree with the learned Advocate for the petitioner that any effect to the order as passed on 9‑3‑59 could be given from any time earlier than what has been allowed by the Rent Controller and confirmed by the learned Subordinate Judge.

9. So far this Rules (Civil Revision Case No. 169 of 1960), is concerned, it is accordingly discharged without any order as to costs.

10. With regard to the Rule as issued in Civil Revision Case No. 170 of 1960 both the learned Advocates appearing for the parties have contested the matter very forcefully. According to the learned Advocate for the petitioner it has been the allegation of his client that a sum of Rs. 3,000 was paid to the landlady as an advance to cover the rent for two years, namely, 1955 and 1956. It has also been alleged that improvements have been effected after incurring an expenditure of about Rs. 6,

000. The learned Advocate further contends, that in fact there was a stage when there was a negotiation for sale of the premises itself. His further contention is that as the permission sought for was based on the ground of default pure and simple, it was the duty of the Rent Controller as also of the learned Subordinate Judge to enquire and determine as to whether there were any reasonable circumstances or grounds within the meaning of section 19 (2) of the Act in view of which the permission asked for could be refused.

11. The learned Advocate for the opposite‑party, on the other hand, contends that the claim for Rs. 6,000 said to have been spent for addition and alteration of the house having been negatived by the Courts below and there being nothing on record convincing enough to suggest that there was actually a negotiation for sale which might have raised a hope in the mind of tenant concerned that he might acquire the title of the property itself and that in such event he might not be required to pay any rent whatsoever there was no merit in the contention of the learned Advocate for the petitioner that the permission applied for could be refused for reasons indicated in section 19 (2) of the Act. On a reference to the evidence of P. W. 1, Amir Ali who hays deposed on behalf of the landlady it appears that a sum of Rs. 3.000 was paid in advance to cover the rent that might fall due for 1955 and 1956. It further appears as admitted by him that the tenant opposite‑party (the present petitioner) made some repairs to the premises without their permission. According to his further evidence the tenant claimed that he spent Rs. 6,000 but in his estimate it would not exceed Rs.

500. It is thus clear from the evidence that some amount was spent by the tenant towards the repairs of the premises in question. As it was spent without the permission of the Rent Controller the tenant was certainly not entitled to get refund of the same but the fact remains that repair works, which are usually the burden of the landlord concerned were undertaken by the tenant. A further fact remains that the tenant was under a pressing need to have this house as it appears from the parties that a sum of Rs. 3.000 had been advanced at the time when the tenant was inducted into the premises. D. W. 1 Ahmed Hussain in his examination‑in‑chief says: "As negotiation was going on for selling the house I did not come to Court earlier for fixation of fair rent. I am always prepared to pay fair rent after fixation." In cross‑examination this part of the evidence of the tenant Ahmed Hussain seems to have been confirmed when he says :‑ For improvement of the premises I spent Rs. 6,000 P. W. 1 Amir Ali does not say anything in this regard to the negotiation for sale in his examination‑in‑chief. He, however, says in his cross‑examination that the opposite‑party proposed to purchase in 1958 but they did not agree. It seems thus clear that there was some evidence as adduced by the parties to indicate th‑it there was some negotiation for sale at some stage or other. It is quite true that the sum of Rs. 6,000 or whatever sum spent by the tenant on account of repairs or otherwise was not refund able in the circumstances of the case for want of a permission from the Rent Controller: but it does not necessarily follow from that, that he is not entitled to any consideration from Court w regard to the question as to whether permission should be given to sue him in ejectment merely on the ground of default. Similarly if there was some negotiation for sale at any relevant stage t at might raise some hope in the mind of the tenant concerned that the rigorous clause or stipulation about payment of rent every month might be relaxed in view of such negotiation. It can hardly be suggested in view of the fact that the tenant occupied the premises on payment of a sum of Rs. 3,000 as advance rent that he was not at all serious about his dealing with the landlady concerned. The landlady herself has not given any evidence and it is not a case of the landlady that she requires the premises on her own account. The learned Advocate for the petitioner in this connection referred to rule 6‑A as promulgated under section 37 of the Act. This was published in a Notification dated 22‑10‑54 and it is in the following terms: ‑ "In the case of an application under subsection (2) of section 19 of the Act for permission to institute or proceed with a suit or proceeding for evicting a tenant from premise, on the ground of non‑compliance with the provisions of the Act as to the payment or deposit of rent, the Controller may, if necessary, determine the standard rent of the premises when he is satisfied that reasonable grounds exist for such non- compliance and may require the tenant to pay or deposit the arrear rent before an order is made by the Controller rejecting the application." Considering the language of section 19 (2) of the Act rule 6‑A seems to be quite consistent with the underlying intention of the Legislature that the Rent Controller should be little more vigilant in safeguarding the interest of the tenant when the permission applied for on behalf of the landlord to sue the tenant in ejectment is made only on the ground of default. The Rent Controller seems to have been given powers even to determine the standard n rent of the premises when he is satisfied that reasonable grounds exist for non‑compliance with the provisions of the Act and then to allow the tenant an opportunity to pay or deposit the arrear rent before an order is made rejecting the application fort permission. It follows on a construction of this Rule read with the provisions of subsection (2) of section 19 of the Act that In case there was likelihood of dispute on the score of absence of any standard rent that dispute could be resolved by fixation of the standard rent and by allowing a tenant to pay up according to the standard rent all arrears upto the date of the order. In the event of the tenant defaulting even in such circumstances the permission to sue in ejectment on the ground of default could be granted In favour of the landlord concerned.

12. There might be other circumstances as well reasonable enough for consideration in the context of things. It goes without saying that there has been a case for fixation of standard rent and that has resulted ultimately in favour of the tenant. It cannot, therefore, be ruled out of consideration that there was some dispute or misgivings between the parties as to what should have been a just and fair rent technically called standard rent.

12. Apart from that the question as to whether the tenant spent any amount for repairs of the house for which the landlady herself was primarily responsible and the further question as to whether there was a bona fide negotiation for sale at the relevant stage, in my opinion deserve consideration as to whether those circumstances were reasonable enough within the meaning of section 19 (2) of the Act and whether in view of such circumstances the permission applied for could be refused. On a reference to the judgments of the Courts below it seems the Rent Controller as also the learned Subordinate Judge did not take into consideration all these factors and circumstances. If after consideration of these factors and circumstances the learned Subordinate Judge or the Rent Controller arrived at any particular decision or finding, It would have been quite helpful for this Court to decide as to whether there was any error In the exercise of jurisdiction. It seems the learned Subordinate judge and the Rent Controller concentrated upon the only question as to whether the tenant paid even at the agreed rate of Rs. 125 during the period from January, 1957, till August, 1957 and as it was more or less admitted that no payment was made at the agreed rate at the rate of Rs. 125 per month he was found to be a defaulter. It will not be out of place to mention here that it was worth consideration as to whether in a case where the standard rent appears to have been fixed at a future date at a rate lower than the agreed rate of rent the circumstances of non‑payment at the old agreed rate should have afforded a reasonable ground for consideration as to whether there was in sub stance a default in regard to payment of rent within the meaning of the Act. As these facts and circumstances do not appear to have been considered either by the Rent Controller or by the learned Subordinate Judge, I think it desirable that further Investigation should be made in this connection. It appears that a petition was filed before the learned Subordinate Judge on behalf of the petitioner stating that some documents had been filed before the Home Rent Controller and that those documents should also be considered for a fair disposal of tire case. It seems the prayer as made on behalf of the tenant‑petitioner was not allowed. In order to consider as to whether the tenant spent any amount bona fide for the repairs or other works in relation to the suit premises which were primarily the burden of tire landlady concerned, the tenant‑petitioner ought to have been given a chance to produce whatever documentary evidence he had In this connection. This aspect of the case having also not been considered, I am inclined to think that the learned Sub ordinate Judge as also the Rent Controller has failed to give full consideration to the material facts before granting permission in favour of landlady opposite‑party. It will not be out of place to mention here that the petitioner has already deposited all arrear rents at the rate of Rs. 100 per month upto the month of December, 1960. The learned Advocate for the opposite‑party does not dispute that the entire amount due on this Account has been actually deposited. This is another circumstance, which also deserves consideration in this connection. In the result, this Rule is made absolute, the judgment and order as passed by the learned Subordinate Judge and the Rent Controller in Miscellaneous Appeal No. 111 of 1959 in H. R. Case No. 317 of 1957 respectively are set aside and this case is remitted to the Rent Controller for further investigation and determination according to law in the light of the evidence on record and of further evidence that may be adduced in this behalf by the parties. The parties will bear their own costs throughout this stage. K. B. A. Rule made absolute.