JUDGMENT
A.D. Mane, J.
1. This civil revision application is filed by the original defendant-tenant against the judgment and decree dated April 11, 1986, passed by the lower Appellate Court reversing the judgment and decree passed in a suit for recovery of arrears of rent.
2. The material facts are these :
The respondent-landlord filed Small Cause Suit No. 165 of 1983 against the petitioner for the recovery of sum of Rs. 1,050/- being the arrears of rent for six months from December, 1982 to May, 1983 at the rate of Rs. 175/- per month. The petitioner disputed the said claim, inter alia, stating that the respondent was not entitled to claim more that the agreed rent of Rs. 150/- per month. It has been submitted by the petitioner that the agreed rent of Rs. 150/- which was fixed at the time when the premises were let out was increased to Rs. 160/- from January 1980 and to Rs. 175/- from December, 1980. The petitioner, therefore, submitted that the respondent was not entitled to increase the rent under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. Therefore, the petitioner submitted that he was entitled for adjustment of the excess amount paid to the respondent in future rent.
3. The learned trial Judge while dismissing the respondent’s suit directed that the rent amount payable upto May, 1983 be adjusted in the excess payment made by the petitioner to the respondent and the respondent shall pay to the petitioner, a sum of Rs. 25/- towards balance amount. It may be stated that the learned trial Judge has relied on a decision in the case of Sk. Jameel Ahmed Sk. Farid v. Naseem Gulab Sk. w/o. Syed Samshur Rahman Kadi, 1981 Mh. L.J. 847 : 1981 Bom.C.R. 808 in support of the claim of the petitioner.
4. In appeal preferred by the respondent, the learned Additional District Judge, although accepted that the initial agreed rent was Rs. 150/- different from the view taken by the learned trial Judge, as, according to him, the case cited supra relied on is not applicable to the facts of the case.
5. The important question which arises for consideration is whether the ‘agreed rent’ includes ‘agreed increase in the rent’ within the meaning of expression “rent” as used in section 12 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter referred to as ‘the Act’). In answer to this question regard may be first had to the evidence of the respondent. The respondent in his evidence has stated:
“I leased out the suit house to the defendant in 1978. In 1978 the rent was Rs. 150/- per month. There was agreement to increase the rent by 10% and as per the agreement he has increased the rent.”
It was suggested and which suggestion was denied that the petitioner agreed to the increase in rent under the threat of eviction. The respondent has, however, stated that the taxes have been increased twice after the initial agreed rent of Rs. 150/-. But it is an accepted fact that he produced no evidence in proof of that fact which was seriously challenged by the petitioner on the ground that no municipal taxes were increased during the relevant years. The petitioner in his evidence has also stated that the agreed rent was Rs. 150/- and the respondent has wrongly represented him that the rent was required to be increased as taxes have been increased. He has stated that the taxes have not been increased from 1978 onwards. On the question as to whether the municipal taxes have been increased or not, neither the learned trial Judge nor the learned Additional District Judge recorded their findings.
6. Now section 12 of the Act so far as it is material is as follows:
12.(1) Where the Controller has determined the fair rent of a house-
(a) the landlord shall not claim, receive or stipulate for the payment of any premium or other like sum in addition to such fair rent, or save as provided in sections 10 and 11 any rent in excess of such fair rent,
(b) ……….Proviso …..
(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.
(3) Any stipulation in contravension of sub-section (1) or sub-section (2) shall be null and void.
(4) …………….
(5) …………….”
In the instant case admittedly the Controller has not determined the fair rent of the premises. On plain reading of section 12(2) of the Act it is clear that where fair rent of house has not been so determined the landlord is not entitled to receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent and any sum paid in excess of the agreed rent in consideration of grant, continuance or renewal of the tenancy of house shall be refunded by the landlord to the person by whom it was paid or at the option of the person otherwise shall be adjusted by the landlord and such a stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void. In the absence of any evidence or finding recorded by the courts below it cannot be said that the respondent was justified in increasing the rent on account of increase in the municipal taxes. Therefore, regard may be had to the testimony of the respondent, referred to above, wherein the respondent has unmistakably stated that there was agreement to increase the rent by 10% and as per the agreement he has increased the rent. The question which arises is whether the increase in rent on the basis of the alleged agreement is permissible.
7. In Sk. Jameel’s case (cited supra) a similar question had arisen as to whether an agreement providing for enhancement of the rent in consideration of continuance or renewal of tenancy is hit by section 12(2)(b) read with section 12(3) of the Act. The learned Single Judge of this Court while interpreting the provisions of section 12 of the Act held that the expression “agreed rent” as used in section 12 of the Act, means, “rent first agreed and the agreed increase as permitted by the Act.” It necessarily follows that the term “rent” as used in section 12 of the Act does not include the expression “increased rent”. Therefore, any sum paid in consideration of continuance or renewal of lease must necessarily mean the amount charged over and above the originally agreed rent either by way of additional premium or otherwise in consideration of continuance or renewal of lease. It will be seen from the provisions of section 12(2) of the Act that there is express prohibition for the landlord to claim, receive or stipulate for the payment of any premium or other like sum in addition to fair rent, otherwise than the permitted increases as provided in sections 10 and 11 of the Act. This is evident from the provisions of sub-section (2) of section 12 of the Act, which further lay down that where the fair rent has not been so determined the landlord shall not receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent. It may be emphasised that sub-section (3) of section 12 of the Act makes such stipulation made in contravention of sub-section (1) or sub-section (2) is null and void. Therefore it is not open for the respondent to claim the increase in rent on account of an agreement to increase the rent by 10%, on the basis of such agreement which is hit by section 12(2) and (3) of the Act.
8. It may be stated that in Sk. Jameel’s case the agreement of tenancy was for a period of three years and on the expiry of said period there was further agreement between the parties whereby the period of lease was extended on the stipulation that the landlord will be entitled to charge 20% rent more than the initially agreed under the Rent Note. The agreement containing such a stipulation for periodical increase in rent was held to be void. The present case, therefore, stands on similar footing and I respectfully agree with the view taken by the learned Single Judge in Sk. Jameel’s case (cited supra). There is, therefore, no doubt that the respondent is prohibited to receive excess rent than the agreed rent on the basis that there was an agreement or stipulation in the agreement for 10% increase in the rent. The learned Additional District Judge, therefore, mis-read the ruling cited before him and allowed the claim of the respondent on the basis of stipulation in the agreement for increase of rent, which is null and void under the Act.
9. It may be stated that Mr. K.S. Naik, learned Counsel for the petitioner, tried to contend that in the absence of any compulsion or exploitation alleged and proved by the petitioner-tenant, the plea for adjustment of the excess amount paid towards the rent is not permissible on the doctrine of in pari delicto. He relied on the decision of the Supreme Court in Budhwanti and another v. Gulab Chand Prasad, . In my opinion the ratio of that case cannot be applied to the facts of the present case, because of express provisions contained in section 12 of Act. There is no dispute that the fair rent has not been determined as yet and therefore, the expression “agreed rent” has to be taken into account. As stated above, “agreed rent” means “rent first agreed and the agreed increase as permitted by sections 10 and 11 of the Act”. Therefore, unless the respondent establishes that there has been increase in the municipal taxes it will not be possible to accept his claim on the basis of further increase of rent during the relevant period.
10. The courts below have, however, not paid their attention to an issue as to whether the landlord has proved that there has been increase in municipal taxes as a result of which he was required to pay more taxes than the taxes which he used to pay at the time of the agreed rent. Therefore, the case requires remand on that count alone.
11. The result is that Civil Revision Application No. 137 of 1987 is partly allowed. The judgment and order passed by the learned Additional District Judge is quashed and set-aside in regard to view taken by the learned Additional District Judge in regard to the claim for adjustment of rent but the view taken by the learned trial Judge is upheld. The suit of the respondent is, however, remanded to the trial Court with a direction to allow the parties to lead evidence on the question of increase in municipal taxes and other permitted taxes and proportionate increase in the rent, if any. The trial Court is further directed that in the event there has been any increase in taxes it should consider the claim of the plaintiff for increase of rent permitted under the Act and decide the suit, according to law. There shall be no order as to costs.
12. The plaintiff has filed Civil Revision Application No. 879 of 1990 to meet the objection of the petitioner to his appeal before the learned Additional District Judge. Therefore, that civil revision application will have to be rejected in view of the aforesaid order. It is accordingly rejected with no order as to costs.