Mohd. Jafar Iqbal v. Nawab Begam — 1979 DIGILAW 292 (ALL)

JUDGMENT : K.N. SINGH, J. 1. This is an application in revision u/s 115 of the CPC against the judgment and decree of the courts below decreeing the Plaintiff-opposite party's suit for recovery of arrears of rent and ejectment. 2. Smt. Nawab Begum, Plaintiff-opposite party, filed a suit for recovery of arrears of rent and ejectment against the Defendant and seven others with the allegation that the building in dispute was a new building not subject to the U.P. Act XIII of 1972 and that Mohd. Zafar Iqbal, the Defendant-applicant, was tenant of a portion of the building on a rent of Rs. 70/-per mensem, he had committed default in payment of rent inspite of service of notice. The Plaintiff claimed a decree for arrears of rent and also for electric charges. The Plaintiff asserted that the Defendant-applicant had agreed to pay the electricity charges for the entire building after realising the same from another tenant Tasleemuddin and he was to deposit the same in the Hydel Department. Tasleemuddin had vacated the house without paying electricity charges. The Defendant-applicant had failed to deposit the electricity charges in the office of the Hydel Department, as a result of which electricity was disconnected. Subsequently electricity was resumed and the Plaintiff had to pay a sum of Rs. 30/-as reconnection charges. The Plaintiff claimed decree for rent as well as for arrears of electricity charges. The Defendant-applicant contested the suit and asserted that the building in question was an old construction and it was subject to U.P. Act XIII of 1972. He further asserted that on receipt of Plaintiff's notice he had remitted the entire rent to the Plaintiff and as such he was not a defaulter. With regard to the Plaintiff's claim for electricity charges, the Defendant-applicant asserted that he was not personally liable for electricity charges and he denied that he ever agreed to realise the electricity charges from other tenants and deposit the same in the Hydel Department. 3. The trial court decreed the Plaintiff's suit for recovery of arrears of rent and ejectment on the finding that the Defendant had failed to pay electricity charges to the Plaintiff and as such be was a defaulter and liable to ejectment. 3. The trial court decreed the Plaintiff's suit for recovery of arrears of rent and ejectment on the finding that the Defendant had failed to pay electricity charges to the Plaintiff and as such be was a defaulter and liable to ejectment. On revision by the Defendant the Additional District Judge affirmed the findings and decree of the trial court even though he held that the Defendant was not in arrears of rent, but since he had failed to remit the electricity charges he was defaulter and liable to ejectment. The Defendant has now preferred this revision application in this Court. 4. The sole question which arises for determination is as to whether electricity charges are included within the expression "rent" and the Defendant-applicant was liable to ejectment on the findings recorded by the courts below. As already noted, there is no dispute that on receipt of the notice of demand the Defendant-applicant had remitted the entire arrears of rent to the Plaintiff and both the courts below have held that the Defendant had not committed any default in payment of rent but since he had failed to pay electricity charges, he was a defaulter liable to ejectment. The findings of the courts below are based on the assumption that electricity charges were part of rent. 5. The expression "rent" has not been defined by the U.P. Act XIII of 1972 (hereinafter referred to as the Act) although it seeks to regulate the letting and rent of buildings. The expression "Rent" as defined by Section 105 of the Transfer of Property Act, 1882 means the consideration payable by a lessee to the lessor for the transfer of right to enjoy a premises whether by money or share of crops or service or any other thing for value. The expression "rent" in relation to tenancy of a building would mean the agreed amount of money payable by the tenant to the landlord for the use and occupation of the premises. In the absence of any statutory provision rent is generally fixed under an agreement between the lessor and the lessee, namely, the landlord and the tenant in consideration of the letting of the building. 6. In the absence of any statutory provision rent is generally fixed under an agreement between the lessor and the lessee, namely, the landlord and the tenant in consideration of the letting of the building. 6. Section 4(2) of the Act lays down that except as provided in Sections 5, 6, 7, 8, and 10 rent payable for any building shall be such as may be agreed upon between the landlord and the tenant and in the absence of any agreement the standard rent. Even if there is an agreement between the landlord and the tenant Sections 5, 6, 7, 8 and 10 contain provisions for determination of rent in case of dispute. Section 5 provides for the rent payable by a tenant in respect of a building subject to the provisions of U.P. Act III of 1947. Section 6 makes provision for enhancement of rent on account of improvement in the building. Section 7 lays down that subject to any contract in writing to the contrary a tenant is liable to pay rent to the landlord in addition to and as part of the rent, water tax and 25 per cent of enhanced house tax. Section 8 confers power on the District Magistrate to settle disputes arising with regard to the amount of standard rent. Section 9 lays down a criteria for determining standard rent. Section 10 makes provision for appeal against the order of the District Magistrate. It would thus be seen that Section 7 is only provision which expressly lays down that water tax and part of the house tax shall form part of the rent but this would be subject to a contract in writing to the contrary between the landlord and the tenant. If there is no agreement between the landlord and the tenant the latter will be liable to pay water tax and house tax as part of the rent. The Act does not provide that the tenant shall be liable to pay electricity charges to the landlord as part of the rent. However, if the landlord and tenant agree that electricity charges would be paid as part of rent the tenant will be liable to eviction if he commits default in payment of the same. The Act does not provide that the tenant shall be liable to pay electricity charges to the landlord as part of the rent. However, if the landlord and tenant agree that electricity charges would be paid as part of rent the tenant will be liable to eviction if he commits default in payment of the same. In the absence of any contract the electricity charges do not fall within the ambit of the expression "rent" payable by a tenant, therefore a tenant is not liable to ejectment even if he fails to pay electricity charges. 7. In Karnani Properties Ltd. v. Miss Augustine AIR 1957 SC 209 the Supreme Court considered the provisions of West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) and observed thus: The term "rent" has not been defined in the Act. Hence it must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, the term "rent" is comprehensive enough to include the payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installation and other amenities agreed between the parties to be provided by and at the cost of the landlord the conclusion irresistible is that all that is included in the term "rent" is within the purview of the Act.... In Sheo Shanker v. Sanwal Singh ILR 1963 Raj. 470, Modi, J. held that apart from those cases where an inclusive rent is fixed between the parties to cover the charges for electricity and water consumption by the tenant, the charges payable by a tenant for the electricity do not and cannot fall within the meaning of the term "rent" payable by him to the landlord. In P.L. Kureel Talib Mankab, Vidhan Parishad Vs. Beni Prasad and Another, AIR 1976 All 362 , T.S. Misra, J. also took the same view and held that rent included all payments agreed by the tenant to be paid to the landlord for use and occupation not only of the building but also of electric installations. In P.L. Kureel Talib Mankab, Vidhan Parishad Vs. Beni Prasad and Another, AIR 1976 All 362 , T.S. Misra, J. also took the same view and held that rent included all payments agreed by the tenant to be paid to the landlord for use and occupation not only of the building but also of electric installations. In Mani Kant v. Babu Ram Dixit AIR 1978 All 148, M.P. Mehrotra, J. repelled the contention of a tenant for the abatement of rent for the period during which electric current was not supplied to him by the landlord on the ground that the contracted rent did not include charges for electrical current and as such any amount payable by the tenant towards electrical charges did not form part of rent. These authorities leave no room for any doubt that electrical charges in respect of consumption of electrical energy by a tenant do not form part of rent unless there is an agreement to the contrary between the tenant and the landlord. 8. In the instant case, the premises in dispute was let out to the Petitioner under a rent note executed on 14th March, 1973, (Ex. 4). Under this document the landlord agreed to let out the premises in dispute to the applicant for residential purpose on a rent of Rs. 70/-per mensem. Clause 2 of the agreement stipulated that the second party, namely, the applicant-tenant, will bear the cost of electrical fittings, its repairs and electricity charges. Clause 3 further stipulated that the first party, namely, the landlord shall bear the house tax and the rest of the taxes will be paid by the second party, namely, the tenant. The rent note did not contain any agreement between the parties that the tenant shall pay any electricity charges to the landlord as part of the rent. The building in dispute was let out to the Petitioner on a rent of Rs. 70/-per mensem which included the amenity of electricity although the tenant was to bear the expenses for consumption of electrical energy. The trial court ignored the stipulation as contained in the rent note Ex. 4, and recorded a. finding that the electricity charges formed part of the rent merely on the basis of oral evidence which could not vary the terms and conditions agreed upon between the parties as contained in the rent note. The trial court ignored the stipulation as contained in the rent note Ex. 4, and recorded a. finding that the electricity charges formed part of the rent merely on the basis of oral evidence which could not vary the terms and conditions agreed upon between the parties as contained in the rent note. The lower revisional court also committed patent error in holding that since the tenant had agreed to pay electrical charges over and above the amount of Rs. 70/-per mensem as rent, the electric charges formed part of the rent. If the Petitioner tenant had failed to pay electrical charges and if the landlord had paid the same the tenant was liable to pay the same to the landlord, but in case of any default no decree for eviction could be passed against him. On the findings recorded by the courts below the Plaintiff was certainly entitled to a decree for recovery of electrical charges but he was not entitled to a decree for Petitioner's ejectment on the ground of Petitioner having committed default in payment of electrical charges. 9. In view of the above discussion, 1 allows the revision partly and set aside the decree and order of the courts below in so far as it directs Petitioner's eviction. Parties shall bear their own costs.