JUDGMENT The landlord Sudera Enterprises Pvt. Ltd. levied distress-warrant under section 53 of Presidency Small Cause Court Act, 1882 against two tenants Puspa Devi Gourisaria and Jaikrishnan Pratap Rai Gangawani figuring as petitioners in two revisional cases for arrears of rent for eleven moths form July, 1988 to May, 1989, in the Presidency Small Causes Court, Calcutta in respect of shop rooms in air conditioned market at, Shakespeare Sarani. The Registrar issued distress warrant in Distress Case Nos. 29 and 30 of 1989 against the tenants. The tenants filed objection under section 60 of the said Act before the fifth Bench of the Court of Small Causes. The court overruled all the objections of the tenants and dismissed the application on 24.7.89. The tenants feel a aggrieved by the decision. 2. The tenants now challenge the levy of distress Common question calls for consideration in both the cases. 3. Mr. Roychowdhury appearing for the tenants-petitioners contends that in these cases levy of distress warrant is unwarranted both on facts and law. 4. Section 53 Presidency Small Cause Courts Act, 1882 reads. Application for distress warrant-Any person claiming to be entitled to arrears of rent of any house or premises to which this chapter extends, or his duly constituted attorney, may apply to any Judge of the Small Cause Court, or to the Registrar of the Small Cause Court, for such warrant as is hereinafter mentioned. 5. It is contended that unless rent is in arrear distress warrant under this provision cannot issue. Secondly, distress warrant cannot also issue for any claim other than rent. 6. In support of the first contention it is argued that the rent for the entire disputed period has been deposited with the Rent Controller by the tenants. Tenant Puspa Devi, however, defaulted for July, 1988. Mr. Basu contends that the amount deposited falls far short of rent agreed upon. The tenants claim that they have deposited rent at the rate last amicably paid by the tenants and accepted by the landlord. Rent upto June, 1988 had been accepted by the landlord. Since the landlord refused to accept rent thereafter the tenants deposited rent with the Rent Controller. 7. Two questions are inextricably mixed together. It has to be decided first as to what is the rent. Rent upto June, 1988 had been accepted by the landlord. Since the landlord refused to accept rent thereafter the tenants deposited rent with the Rent Controller. 7. Two questions are inextricably mixed together. It has to be decided first as to what is the rent. The answer will dispose of other two questions, viz., whether rent was in arrear to warrant a distress and whether distress warrant was issued for any claim other than rent. 8. The term rent has not been defined in the Statute. Section 4 of West Bengal Premises Tenancy Act. 1956 lays down that in absence of fixation of fair rent the tenant is liable to pay the rent agreed upon. 9. Admittedly the parties settled the terms of tenancy by virtue of an agreement dated 31st March, 1980. The relevant provisions as quoted below should be carefully examined to determine whet the parties agreed to pay and receive as rent. Paragraph-I-“o Hold the same unto the tenant as monthly tenant from the 1st day of April one thousand nine hundred and eighty according to English Calendar at a consolidated monthly rental of Rs. 1350/- only comprise of a basic rent of Rs. 100/- only service charges of Rs. 100/- only for the services to be rendered in respect of items mentioned in Schedule 'C' hereunder and air conditioning charges of Rs. 1050/- only clear of all deductions to be paid to the landlord on or before the 1st day of each and every English Calendar month for the month immediately preceding. Paragraph-II-The tenant doth hereby covenant with the landlord as follows: (5) To strictly, regularly and punctually pay to the landlord such proportion of the existing owners' and occupier's share of Municipal Rates and Taxes of the said Premises No. 1, Shakespeare Sarani, Calcutta, the present agreed payable amount being Rs. 75.30 and also all future increase or increases in the Municipal Rates and Taxes and all other taxes, charges, cesses, levies, impositions, that have been or may be hereafter be levied imposed collected or realised in respect of the demised premises. besides the consolidated rent as aforesaid, in proportion to the floor area of the demised premises having regard to the total tenantable area of the building. Paragraph III-And it is hereby also agreed by and between the parties as under. besides the consolidated rent as aforesaid, in proportion to the floor area of the demised premises having regard to the total tenantable area of the building. Paragraph III-And it is hereby also agreed by and between the parties as under. (c) In case of any increase or increases from lime to time in the per unit rates of electricity consumption charges the monthly air conditioning charges of Rs. 1050/- only payable by the tenant hereinbefore provided shall automatically stand increased in the ratio similar to the ratio of the increase or increases in the per unit rate of the electricity charges as per High Tension Rate 'B' of the Calcutta Electric Supply Corporation (India) Limited and the tenant shall pay the monthly air-conditioning charges at such increased rate or rates along-with the monthly rent and service charges payable by the tenant. (e) At the expiry of every five years during the subsistence of the tenancy hereby created the consolidated monthly rent shall automatically stand increased by a sum equivalent to 10% thereof and the tenant shall pay the consolidated monthly rent at such increased rates without any demur or raising any objection whatsoever. 10. In terms of the aforesaid agreement initially the rent of Puspa Devi was fixed at Rs. 1350/- ; the break-up being basic rent Rs. 200/-, service charge Rs. 100/- and A. C. change Rs. 1050/-, and that of Pratap Rai at Rs. 1435/- the break-up being basic rent Rs. 165/- service charge Rs. 70/- and A. C. charge Rs. 1200/-. 11. There is no controversy that both the tenants paid enhanced rent subsequently. Puspa Devi paid rent amicably upto June, 1988 at the rate of Rs. 2757.31 and Pratap Rai at the rate of Rs. 1833.71 upto June, 1988. The former deposited rent with the Rent Controller at the rate of Rs. 2757.31 from August, 1988 and the latter a the rate of Rs.1833.71 from July. 1988. Mr. Roychowdhury contends that the rent last paid to the landlord by the tenants amicably may be taken to be the agreed rate of rent. 12. Instead the landlord claimed rent @ Rs. 3145.68 from July, 1988 to December. 1988 and @ Rs. 4571.68 from January, 1989 to May, 1989 and Rs. 4288 as multi storeyed building tax for the month of March, 1989 against Puspa Devi. The landlord accordingly levied distress warrant for a total sum of Rs. 12. Instead the landlord claimed rent @ Rs. 3145.68 from July, 1988 to December. 1988 and @ Rs. 4571.68 from January, 1989 to May, 1989 and Rs. 4288 as multi storeyed building tax for the month of March, 1989 against Puspa Devi. The landlord accordingly levied distress warrant for a total sum of Rs. 41,775.36. The service charge has been enhanced from Rs. 100/- to Rs. 110/- per month. The tenant does not question it since per-presumably she agreed to pay it at an enhanced rate and so she paid rent at a higher rate till June, 1988. The landlord claimed in addition Corporation tax, commercial surcharge, enhanced rate of air conditioning charges, multi-storeyed building tax. In the case of Pratap Rai also similar additional charge bas been claimed and distress warrant has been levied for a total sum of Rs. 23451.68. 13. The whole grievance is against enhancement of A. C. charges and the additional charges, viz, corporation tax, commercial surcharge, multi -storeyed building tax. 14. The tenants argue that the air-conditioning charges cannot be increased for two reasons. In the first place, the air-conditioning is not necessary or rather it is discontinued during winter and therefore the charge is not leviable and secondly it ceases to be part of rent since it is variable. The parties have agreed to the payment of A. C. charges in terms stipulated in paragraph I. Paragraph III (c) speaks of enhancement and mode of calculation. Mr. Basu appearing for the landlord urges that air conditioning remains in aperation even during winter else otherwise there shall be suffocation. This submission is not controverted during argument. Mr. Basu further contends that on account of variation the rent does not lose its character. 15. Mr. Roychowdhury relied upon the Supreme Court decision in (1) Chhotelal v. Kebal Krishan Mehta, AIR 1971 SC 987 to contend that A. C. charges cannot from part of rent since the amount is variable. In the case before the Supreme Court the rent was payable in advance and electricity charge was payable on consumption. Supreme Court found that while the rent was payable in advance but the electric charge being determinable only on consumption after expiry of the month the two together cannot constitute rent. According to the Supreme Court the electric charges being variable cannot form part of rent. Supreme Court found that while the rent was payable in advance but the electric charge being determinable only on consumption after expiry of the month the two together cannot constitute rent. According to the Supreme Court the electric charges being variable cannot form part of rent. In the facts of the case the legal proposition laid down by the Supreme Court cannot be followed in the instant case. It is no absolute proposition that even periodical variation of rent will forfeit the character of rent. As a matter of fact, in this agreement the parties have agreed for escalation of rent at an interval of five years. Provision for enhancement of A. C. charges as contained in paragraph III(3) will indicate as to when the enhancement will be made and the mode of such enhancement. Unlike the Supreme Court case the enhancement does not depend upon the consumption by the tenant; rather it is dependent upon the variation of charges form time to time by the licensee. Such periodical enhancement in the facts of our case does not rob away the character of rent. 16. The agreement has fixed basic rent. It has provided for service charge also. The agreement also stipulates what services would be rendered in Schedule ‘C’ of the agreement. These services are incidental to tenancy and not independent of it. Since it is integral part of tenancy the service charge cannot but form part of rent (2) Anita Dasgupta v. A. C. Sett, 88 CWN 242. 17. It is urged by Mr. Rouchowdhury that A. C. charge Corporation tax, commercial surcharge and multi-storied building tax cannot constitute rent. The levy of A. C. charge is covered by paragraphs I and III (c) of the agreement. Other levies by the landlord are covered under paragraph II(5) of the agreement. The stipulation also provides how to work out the liability. As a matter of fact, the mathematical part of assessment is not challenged. It is only the right to realise as part of rent that is challenged. 18. Now the controversy boils down to the question as to whether all these levies can constitute rent. I have already pointed out that the legislators have not chosen to define rent. We will find the definition given by the Judges. 19. Mr. It is only the right to realise as part of rent that is challenged. 18. Now the controversy boils down to the question as to whether all these levies can constitute rent. I have already pointed out that the legislators have not chosen to define rent. We will find the definition given by the Judges. 19. Mr. Mookerjee appearing for the landlord contends that if the charges, under the agreement were payable to the taxing authorities by the tenant instead of to the landlord such levies can by no means be termed as rent. But it will appear form the agreement that the levies were leviable by the landlord. 20. Let us see how the English people defined rent. Mr. Mookerjee refers to Woodfall's Landlord and Tenant (1978 Ed.), Vol-I, The author has referred to (3) Greater London Council v. Counally, (1970)2 QB 100. The Court has opined that rent is sufficiently certain if it can be calculated with certainty at the time when payment is done. It will appear from the terms of the agreement that all the levies are ascertainable by adopting the method provided for in the agreement. So the levies satisfy this test. 21. Both the Counsel appearing for the landlord rely upon a good number of decisions to impress upon me that all the levies are covered by the term rent. In other words, basic rent together with other levies constitute rent. 22. In (4) Samrose v. Gebbard, (l958) 1 WLR 235 and (5) Sidney Trading Co. Ltd. v. Finsbury Borough, (1952)1 All ER 460 the courts held that rent is a monetary compensation payable by the tenant in consideration for the grant. The court is specific to hold in (6) Property Holding Co. v. Clark, (1948) 1 KB 630 that rent includes additional payment for amenities such as gas, cooker, certain fixtures, furnishing and lighting for common parts of the building. 23. Indian Courts have in essence adopted the definition given by the English Court. Supreme Court held in (7) State of Punjab v. British India Corporation Ltd., AIR 1963 SC 1459 that rent in its wider sense means any payment made for the use of the land or building. In (8) K. Davalji v. Mohammed Bhai. 23. Indian Courts have in essence adopted the definition given by the English Court. Supreme Court held in (7) State of Punjab v. British India Corporation Ltd., AIR 1963 SC 1459 that rent in its wider sense means any payment made for the use of the land or building. In (8) K. Davalji v. Mohammed Bhai. AIR 1970 SC 102 Supreme Court as a matter of fact upheld a distress proceeding levied for realisation of municipal tax which was found to be a part of rent. Calcutta High Court while upholding the constitutionality of the provision for distress in the Act held in (9) Lall, Krishna Mundra v. Fatik Chandra Hazro, ILR 1973 (1) Cal 343 that service charge was part of rent. Reliance has bet n placed upon K. Davalji's Case (Supra). Numerous cases were reviewed by M. N. Roy, J. in (10) Usha Ranjan Bhattacharya v. Mahalakshmi Thacker, 1975(1) Cal LJ 204 to define rent. In this case basic rent was fixed at Rs. 99/-. A charge of Rs. 11/- was leviable on account of lift, water, scavenging service. The learned Judge said that rent is whole amount agreed to be paid by the tenant for his enjoyment of what has been let out to him, whether described as rent or otherwise. I am in respectful agreement with the view that the levy need not necessarily be termed as rent in order to constitute rent. This decision has been followed by a Division Bench of this Court in Anita Dasgupta v. A. C. Sell (Supra). Another Division Bench subscribed the same view in (11), Parul Banerjee v. Anand Kumar Agarwala, 1979(2) Cal LJ 297. In this case rent and maintenance charge were fixed at Rs. 300/- and Rs. 250/- respectively. Relying upon (12) Karnani Properties v. Anqustine, AIR 1957 SC 309 Court observed that rent is comprehensive enough to include all payment agreed by the tenant to be paid to the landlord for use and occupation not only of the building and its appurtenances but also all fittings, electric installations and other amenities. 24. By these long line of decisions rent bas thus been defined as all payments agreed to be made by the tenant to the landlord for enjoyment of the demised property. It is immaterial whether the levy is termed as rent or otherwise. 25. Mr. 24. By these long line of decisions rent bas thus been defined as all payments agreed to be made by the tenant to the landlord for enjoyment of the demised property. It is immaterial whether the levy is termed as rent or otherwise. 25. Mr. Roychowdhury places reliance upon a Division Bench decision of our Court in (13) Sikha Dutt v. Prosanto Kumar Lahiri, 1988(2) CRN 69. In this case basic rent was fixed at Rs.1230/-. Municipal tax was payable the to the landlord separately. Court held that municipal tax was no refit. As a matter of fact, separate payment is not the determining factor. In Anita Dasgupta's Case (Supra), case rent and service charge were realised separately by two separate receipts. Nevertheless service charge was held to be rent. Sikha Dutt’s Case bas not taken notice of many of the decisions referred to above. The Bench overlooked that any amount, rent or other levy payable to the landlord for enjoyment of the property must be held to be rent. So the judgment is a judgment per incuriam. With deep respect to the learned Judges I am unable to follow the decision. 26. It can therefore be held that all the levies agreed by the tenants to be paid to the landlord for enjoyment of the suit shop rooms are rent. 27. So rent was in appear. Distress was leviable for charge other then basic rent. The basic rent and other charges constitute rent. 28. The second branch of argument of Mr. Roychowdhury is that distress cannot be levied during the pendency of a fixation of fair rent proceeding. Reliance is placed upon (14) P. V. Shetty v. B. S. Giridhari, AIR 1982 SC 83 . There is no controversy that distress warrant bas been levied during the pendency of a fation of fair rent proceeding. But I don't find any bar in law. In the case cited Supreme Court stayed the eviction proceeding until disposal of fixation of fair rent proceeding since fixation of fair rent bad an impact upon the protaction of the tenant. In the instant case there was neither any stay of distress proceeding nor the tenants have any scope to ask for it. The process is cosrcive and expar. In the case cited Supreme Court stayed the eviction proceeding until disposal of fixation of fair rent proceeding since fixation of fair rent bad an impact upon the protaction of the tenant. In the instant case there was neither any stay of distress proceeding nor the tenants have any scope to ask for it. The process is cosrcive and expar. In the next place, the landlord is entitled to rent at the rate agreed upon until fixation of fair rent in view of section 4 of the West Bengal Premises Tenancy Act. 29. The last argument of Mr. Roychowdhury is that this High Court in Suit No. 601 of 1989 has directed the tenants to deposit rent with some person and the tenants have been doing so accordingly. It is contended that this court may take notice of that Court to hold that distress can no more survive. I am unable to accept this contention for two reasons. In the first place, this Court is examining only the propriety of the order challenged. So it need not take notice of the facts involved in a pending suit. I might have taken notice but for the second reason. The tenants can very well draw the attention of the Presiding Judge for an appropriate order in the pending suit taking notice of the distress proceeding. Remedy is still open there. All the pleas taken by the tenants therefore fail. The impugned orders cannot be interfered with. The revisional applications fail. Let copy of this order go down to the court below.