JUDGMENT - N.P. CHAPALGAONKAR, J.:---Petitioner herein, owner of the house bearing No. 3-5-100 situated at Chudibazar, Aurangabad, filed a Small Cause Suit bearing No. 91/1981 in the Court of Civil Judge (S.D.) Aurangabad, claiming rent for the period from 1st October, 1979 to 28th February, 1981 for 17 months at the rate of Rs. 50/-. This suit came to be filed on 7th March, 1981. The defendant -tenant in the written statement contended that originally the rent agreed was only Rs. 8 per month and this was recovered once a year or sometimes six monthly and not regularly. It is further contended that the landlord being an influential person recovered rent at the rate of Rs. 10/- per month for some period, thereafter at the rate of Rs. 30/- per month and thereafter at the rate Rs. 50/- per month to which he was not at all entitled under the law. Relying on a reported judgement of this Court in the case (Sk.Jameel Ahmed Sk. Farid v. Naseem Gulab Sk. w/o Syed Samshur Rahman Kadi)1, 1981 Mh.L.J. 847 the defendant contented in the return statement that whatever amount the defendant -tenant has paid to excess of the rent agreed i.e. Rs. 8/- be adjusted towards the rent payable by the defendant to the plaintiff. He had made a counter claim of Rs. 72.50 ps. from the plaintiff being the cost for sending the rent by Money Orders which were refused by the plaintiff and further prayed for a compensatory cost. This counter claim was also answered by the plaintiff on 2nd December, 1982. 2. After recording the evidence, learned Civil Judge (S.D.), Aurangabad, dismissed the suit of the plaintiff, granted a decree in favour of the defendant allowing his counter claim to the effect that is sum of Rs. 1,512/- paid by the defendant in excess of the agreed rent during the period of 3 years prior to the suit adjusted towards the rent to be paid top the plaintiff from 1st March, 1981 on wards. He further decreed a sum of Rs. 72,50ps. being the sum spent by the defendant in sending Money Orders. It is this decree which is challenged in the Civil Revision Application. 3. I heard Shri K.G. Navandar, learned Counsel appearing for petitioners; and Shri G.P.Tapadia, learned Counsel appearing for respondent . He further decreed a sum of Rs. 72,50ps. being the sum spent by the defendant in sending Money Orders. It is this decree which is challenged in the Civil Revision Application. 3. I heard Shri K.G. Navandar, learned Counsel appearing for petitioners; and Shri G.P.Tapadia, learned Counsel appearing for respondent . It is the submission of Shri Navadar that there is no payment made in excess of the agreed rent in this case. Though it is true that was at first agreed at Rs. 8/- per month, it was subsequently enhanced by mutual agreement between the landlord and the tenant. Shri Navandar further submits that the every fact that the defendant has paid the rent at the rate of Rs. 10/-, Rs. 30/- and Rs. 50/- shows that there was an agreement between the plaintiff and the defendant, an oral one, to pay this rent at the enhanced rate. He further submitted that the plaintiff has not recovered any sum other than the agreed rent from the defendant and, therefore, the defendant's claim that he has paid a sum of Rs. 1,512/- in excess of the agreed rent will have to be rejected. Shri Navandar further submits that the judgment of this Court in Sk. Jammel's case (cited supra ) was misread by the learned trial Judge and the trial Judge has misinterpreted the provisions of section 12 of the Hyderabad Houses (Rent, Eviction and Lease ) Control Act, 1954 (for the purpose of the brevity the Act is hereinafter referred to as 'Hyderabad Rent Act'). He submits that what if prohibited by law is not an agreement in respect of the rent between the landlord and the tenant, but merely a premium or the like sum. When thew land lord and the tenant have agreed to enhance the rent and to pay at the rate of Rs. 50/- p.m. , the provisions of section 12 (1)(a) will not bar the claim of the landlord for the recovery of that rent only on the ground that it was more than what was agreed initially in the original agreement. Shri. Navandar further submits that the mode of payment agreed between the parties was not of sending the rent by the Money Orders. The tenant was under an obligation to tender this rent to the landlord as per provisions of section 15(2)(i) of the Hyderabad Rent Act. Shri. Navandar further submits that the mode of payment agreed between the parties was not of sending the rent by the Money Orders. The tenant was under an obligation to tender this rent to the landlord as per provisions of section 15(2)(i) of the Hyderabad Rent Act. Therefore, he submits that the decree for Rs. 72.50 ps is also unwarranted. 4. Shri Tapadia, learned counsel appearing for respondent , submits that the landlord was compelled to pay the rent at the rate of Rs. 50/- and this was not an agreement arrived at out of the free will of the parties. Therefore, there is no evidence in the case to hold that here was a further agreement between the landlord and the tenant to pay the rent at the enhanced rate and hence the decree passed by the trial Court is perfectly justified. He further made a grievance that for no reason the landlord has refused the Money Orders and hence the cost of sending these Money Orders awarded by the trial Judge is also correctly awarded. Shri Tapadia further submits that even assuming there was an agreement to pay the rent at enhanced rate, such an agreement would be a contravention of section 12(2)(a) of the Hyderabad Rent Act and consequently violative of section 23 of the Indian Contract Act. 5. Pleadings of the parties taken together, will go to show that admittedly the defendant - tenant has paid the rent at the rate of Rs. 50/- per month for some time immediately proceeding the period for which rent is asked for in suit. There is no evidence on record to show that this was recovered by some coercion. Defendant has advanced the rent by Money Order calculating it at the rate of Rs. 50/- per month. Therefore, it will have to be taken that the landlord and the tenant agreed that the rent of the premises shall be Rs. 50/-. It is the submission of Shri Tapadia that since the originally agreed rent was of Rs. 8/-, any further agreement to pay the rent at enhanced rate, assuming it was so shall be invalid. He placed reliance on Jameel's case (supra). In Sk. 50/-. It is the submission of Shri Tapadia that since the originally agreed rent was of Rs. 8/-, any further agreement to pay the rent at enhanced rate, assuming it was so shall be invalid. He placed reliance on Jameel's case (supra). In Sk. Jameel's case the question before this court was whether a stipulation contained in Clause 7 of the agreement between the parties in that case stipulating 20 per cent increase in the monthly rent after every three years valid. Mody, J. held that such a stipulation in the agreement providing for enhancement in the rent in consideration of continuance of renewal will be hit by section 12(2)(b) read with section 12(3) of Hyderabad Rent Act . Mody, J. In that case, did not agree with the ratio of the judgment in the case of (D.K. Aswathanarayanaiah v. Nallapula Sanjeeviah)2, reported in A.I.R. 1965 A.P. 33. A similar situation in a contract between the landlord and tenant was held to be valid by Ekbote, J. in the aforesaid decision of the Andhra Pradesh High Court. Ekbote, J in that case held that: "Sub-section (2) is not applicable to a case of increase in rent under an agreement on the two grounds: Firstly, the phrase "agreed rent" may mean the rent fixed by a single indivisible contract covering two different periods or by two independent contracts entered into one after the other original period of lease was over. Secondly, sub-section (2) relates only to the stipulation of a premium or other like sum and does not concern itself with the payment of an increased agreed rent. It would therefore be not correct to apply the provisions of sub-section (2) to the facts of the case." Ekbote, J. was of the opinion that there is no prohibition for the increase of rent by a contract between the parties in cases where fair rent is not fixed, a stipulation in the contract that the agreed rent shall be Rs. 300/- for the first three years and then tenant shall have option to vacate the premises or pay rent at the rate of Rs. 400/- per month shall be valid so far as enhancement of the rent is concerned. 6. Section 9 of the Hyderabad Rent Act provides that the Controller, shall on application by the tenant or landlord, fix a fair rent after holding summary enquiry. 400/- per month shall be valid so far as enhancement of the rent is concerned. 6. Section 9 of the Hyderabad Rent Act provides that the Controller, shall on application by the tenant or landlord, fix a fair rent after holding summary enquiry. Section 12(1) speaks about the prohibition against a landlord for accepting any premium (Popularly known as 'Pagadi') or other like sum. Section 12(1) speaks about this prohibition in respect of the case wherein fair rent has been fixed, and sub-section (2) speaks about the cases herein the fair rent has not been determined. Sub-sections (2) and (3) of Section 12 are quoted below - "12(1) … 12(2) where the fair rent of a house has not been so determined - (a) the landlord shall not after the commencement of this Act receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent; (b) save as provided in clause (a), any sum paid in excess of the agreed rent under this Act whether before or after the commencement of this Act in consideration of the grant, continuance or renewal of the tenancy of the house after such commencement shall be refunded by the landlord to the person by whom it was paid or at the option of the person otherwise adjusted by the landlord. 12(3) Any stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void. The word premium appearing in the sub-section is not defined in the Hyderabad Rent Act. It is not the case of any of the parties that any premium was asked for by the landlord or paid by the tenant. It is the submission of Shri Tapadia that the words like sum includes the enhancement of rent by agreement. The distinction between the premium and rent was explained by the Full Bench of the Madras High Court in the case of (The Chief Controlling Revenue Authority, Madras, Referring Authority v. S.M. Adbul Jammal and another) 3, reported in A.I.R. 1970 Mad. 288 (v 57 c 78). The full Bench of the Madras High Court observed thus: Premium is one paid in consideration of the conveyance implied in the lease and is quantified in lump, whether it is paid outright or by instalments over a period or promised to be paid at a certain time. 288 (v 57 c 78). The full Bench of the Madras High Court observed thus: Premium is one paid in consideration of the conveyance implied in the lease and is quantified in lump, whether it is paid outright or by instalments over a period or promised to be paid at a certain time. But a rent, while it is also a consideration of a lease, is in lieu of the enjoyment which the lease has and particularly as consideration therefore. The further feature of rent is, it is payable as and when it accrues unlike a premium the liability of which arises at the time of contract is entered into." Section 105 of the Transfer of Property act, 1882 defines the premium to mean the price paid for transfer of a right to enjoy the property made for a certain time and the money, share, service or other things rendered periodically or on specified occasions to the transferer by the transferee to be the rent. Relying on this definition, a learned single Judge of the Madras High Court, Natesan, J. in case of (S. Venkataramanaswami Ayyar v. Abdul Wahad)4, reported in A.I.R. 1969 Madras 473 negatived contention that there can be no fresh agreement for rent after coming into force of the Act. He referred with approval following observation of another single Judge of the same High Court in an earlier case (I.L.R. (1961) Madras 1243) "The question then is whether such an amount is within the scope of "other like sum". The scope of those words has to be understood in the light of the doctrine of ejusdem generis. Only a sum which has some resemblance to what is comprehended by the word "premium" will come within the scope of words "other like sum." 7. Effect of Section 12(2) was also considered by this Court in the case of (Madanalal Kanyalal v. Ashokkumar Dagdulal Bohara)5, (Civil Revision Application No.475 of 1985 and 538 of 1985) by K.N. Patil, J. Noticing the distinction between the "enhancement of rent " and "premium or other like sum", he observed thus : "Admittedly, in both the cases under section 9 of Act, fair rent has not been determined. What sub-section (2) of Section 12 of the Act prohibits is the receipt of any premium or other like sum in addition to the agreed rent by the landlord. What sub-section (2) of Section 12 of the Act prohibits is the receipt of any premium or other like sum in addition to the agreed rent by the landlord. In the absence of definition or explanation of the expression 'Agreed rent' in the Act, it will have to be given its ordinary meaning, that is to say, 'agreed rent between the parties' . There is nothing is section 12 of the Act to indicate that the 'agreed rent ' is the rent which was originally agreed at the time of letting out the premises to the tenant . By mutual agreement between the parties, the originally agreed rent may be increased or decreased." I am in respectful agreement with Patil,J. in this judgement. Patil, J. has also considered Sk. Jameel's case (supra) and found that while deciding this case, it was not brought to the notice of Mody, J., that the provisions of section 12(2) of the Hyderabad Rent Act are pari materia the provisions of section 6 of the Madras Rent Act which was considered by the Andhra Pradesh High Court in D.K. Aswathanarayanaiah;s case (supra). Mody.J in Sk. Jameel's case observed that prohibition contained in section 6(2) of the Madras Rent Act is for accepting premium or other like sum and in the Hyderabad Rent Act it is "any sum paid in excess of the agreed rent". Sub-section ( 2)(a) of section 12 of the Hyderabad Rent Act infact prohibits to receive or stipulate for the payment of any premium or other like sum only in addition to the agreed rent. An enhancement in the rent by further agreement between the parties cannot be said to be a premium or other like sum. Prohibition contained in section 12 of the Hyderabad Rent Act , therefore, relates only to the premium and the sum which has a resemblance with the premium. It neither prohibits any enhancement of rent by the parties or stipulate to that effect, when the fair rent is not fixed. 8. A distinction can be made between the two cases, firstly the cases in which the rent was enhanced by a subsequent or new agreement between the landlord and tenant and the other cases may be wherein the enhancement is stipulated by a clause in the agreement arrived at between the landlord and the tenant. 8. A distinction can be made between the two cases, firstly the cases in which the rent was enhanced by a subsequent or new agreement between the landlord and tenant and the other cases may be wherein the enhancement is stipulated by a clause in the agreement arrived at between the landlord and the tenant. Since in the case at hand this Court is not called upon to consider whether any stipulation in the same contract about the enhancement of the rent is valid or not, it is besides the point to rely on the judgement of Mody, J. in Sk. Jameel's case. Here is the case of a subsequent agreement and what is to be decided is whether such an agreement would be hit by provisions of section 12 of the Hyderabad Rent Act and consequently by section 23 of the Indian Contract act. 9. No fair rent is fixed under section 9 of the Act in the instant case. Therefore, the landlord and the tenant were at liberty to enhance the rent and the fact that the tenant has adjusted this amount goes to show that such enhanced rent at the rate of Rs.50/- per month was agreed between the parties. In the circumstances, the trial court was not justified in holding that the payment made in excess of Rs.8/- per month, taking that to be the agreed rent only, as an excess payment and holding that the tenant is entitled for the adjustment of the same towards rent for the future period. Therefore, the decree passed by the trial Judge directing the adjustment of Rs.1,512/- towards the rent payable in future i.e. from 1.3.1981 onwards, will have to be quashed and set aside. 10. It is the submission of Shri Tapadia, learned counsel appearing for respondent, that since the rent was not accepted and apprehended a mala fide intention on the part of the landlord, the rent was sent by money orders. Assuming this to be true, expenses incurred for tendering the rent to the landlord would not be deductible from the amount of rent in all cases. It is the submission of Mr. Tapadia that the respondent is entitled for deduction of money order commission under section 13 of the Hyderabad Rent Act . Assuming this to be true, expenses incurred for tendering the rent to the landlord would not be deductible from the amount of rent in all cases. It is the submission of Mr. Tapadia that the respondent is entitled for deduction of money order commission under section 13 of the Hyderabad Rent Act . Sub-section ( 2) of section 13 of the Act is produced below:- "13(2) :- If the landlord refuses to accept or evades the receipt of any rent lawfully payable to him by a tenant in respect of any house, the tenant shall be entitled to remit the rent by money order after deducting the money order commission." Section 13(2) of the Act would come into play only when the rent was properly tendered as required by other provisions of the Act and if monthly rent tendered at the stipulated time is not accepted by the landlord then the tenant would be at liberty to send the rent by money order by deducting the money order commission. It is nowhere pleaded by the defendant -tenant that any time he had tendered the monthly rent within the stipulated time as described in section 15(2)(i) of the Act. The first money order refused is of two months and no reason has been advanced either in the pleadings or before me as to why this rent was tendered for the two months. In the absence of any cogent evidence to prove that the landlord had refused the monthly tender of the rent properly made, it is not possible to accept the submission of Mr. Tapadia that the defendant -tenant would be entitled for money order commission from the landlord. Therefore, even this part of the decree granting a sum of Rs.72.50 ps. to the defendant from the plaintiff as money order commission, will have also to be set aside. 11. Shri Tapadia, then submitted that looking to the conduct of the plaintiff, the rent was accepted not regularly per month but as different inter alia and often once a year or once after every two years. Therefore, it cannot be said that the tenant had disobeyed the legal obligation to pay the rent regularly. The question whether the tenant is defaulter or not is not the subject matter either of this revision or of the Small Cause Suit from which the revision arises. Therefore, it cannot be said that the tenant had disobeyed the legal obligation to pay the rent regularly. The question whether the tenant is defaulter or not is not the subject matter either of this revision or of the Small Cause Suit from which the revision arises. These aspects will have to be considered by the proper forum when the occasion arises. 12. This takes us to the question as to what decree should have been passed in the Small Cause Suit. Shri Tapadia has pointed out that the suit was filed on 7th March, 1981, but after filing of the suit a sum of Rs.750/- being rent for 15 months for the period from October, 1979 to December, 1980 was sent by money orders to the landlord and this money order is accepted by the landlord. Another money order on the same day was also sent by the tenant to the landlord remitting a sum of Rs.550/- as rent for the period from January, 1981 to November, 1981, even this money order is accepted by the landlord. In view of this fact, there is no need to pass a decree for recovery in the Small Cause Suit as the payment is already made. Though on the date of filing of the suit the plaintiff had right to recover a sum of Rs. 850/- from the tenant, since the amount is paid to the plaintiff by money orders during the pendency of the suit, he would only be entitled for the cost of the suit and nothing more. 13. In the result , Civil Revision Application No. 368 of 1986 is allowed. The Judgement and decree passed by the Civil Judge, Senior Division, Aurangabad, on 26 November, 1985, in Small Cause Suit No. 91 of 1981 is hereby set aside and the following decree is substituted: "Small Cause Suit no. 91 of 1981 is decreed. However, plaintiff is entitle only to the cost of this suit." Rule is made absolute in the above terms. There be no order as to costs of this Civil Revision Application. Rule made absolute. -----