JUDGMENT
N.L. Untwalia, J.
1. The plaintiff-petitioner in this application under Section 25 of the Provincial Small Cause Courts Act filed a suit against the defendant-opposite party for realisation of Rs. 99.80 P. Rs. 90/- on account of the defendant’s share of latrine tax paid by the plaintiff to the Municipality and Rs. 9.80 P. on account of cost of giving notice, etc. The plaintiff’s case is that in Title Suit No. 17 of 1960 (It seems by mistake in paragraph 2 of the decision of the court below the number of the title suit given is 17 of 1963), there was a compromise on the 24th January, 1963, on the basis of which the defendant agreed to pay in respect of the premises in his occupation Rs. 57/- per month as rent. Under the Bihar & Orissa Municipal Act, 1922 (Bihar & Orissa Act 7 of 1922), the tenant is liable to pay his share of the latrine tax; and, if it is paid by the owner, the latter is entitled to recover it from the former. Hence, the suit was filed for recovery of Rs. 90/- on account of nine quarters of the latrine tax at the rate of Rs. 10/- per quarter for the period 1st of January, 1963 to the
31st March, 1965.
2. The defendant took the plea that the monthly rental of Rs. 57/- included latrine tax also, and he is not liable to pay any latrine tax separately.
3. The learned Small Cause Court Judge relying upon the provisions of law contained in Section 8(i)(b) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947) has held that the plaintiff is not entitled to recover any latrine tax from the defendant. Hence, the revision by the former.
4. Title Suit No. 17 of 1960 was filed by the plaintiff against the defendant for his eviction on certain grounds. In that, a compromise was entered on the 24th January, 1963. Ext. A is the certified copy of the decree passed on the basis of the compromise entered into between the parties. The compromise petition forms part of this decree. Ext. A was withdrawn by the parties, but another certified copy of the compromise petition was shown to me. On reading the contents of the compromise petition, it appeared to me that by agreement of the parties the rent payable by the defendant for the premises in his occupation as a tenant was fixed at Rs. 57/- per month with effect from the 1st February, 1963. The basis for the enhancement of the rent by agreement of the parties was enhancement in municipal tax as also because of the enhancement of the rate of rent prevailing in the locality.
5. An application under Section 5 of the Bihar Act III of 1947 had been made by the tenant before the Building Controller (Sub-divisional Officer), Hajipur, Ext. 1 is the certified copy of the final order dated the 10th June, 1963, passed in the case aforesaid for fixation of fair rent. The tenant-petitioner was absent, but on the basis of a petition on record dated the 15th April, 1963 stating that the municipal assessment had been increased and the rate of rent agreed between the parties was Rs. 57/-, the Building Controller, accepting the position as mentioned in that petition to be a reasonable one, dropped the proceeding for fixation of rent by his order dated the 10th June, 1963. The effect was that the rent was increased by an agreement of the parties entered into on the 24th January, 1963 with effect from the 1st February, 1963 and on account of that fresh agreement between the parties the proceeding for fixation of fair rent was dropped and no fair rent was determined under Section 5 of the Bihar Act III of 1947 in accordance with the provisions contained in Section 8 of that Act. Section 8(i)(b), wherein it has been stated that “the landlord shall riot be entitled to recover from the tenant in addition to the amount, any municipal rates, taxes or cesses in respect of such building except in accordance with the provisions of Section 8A” does not come into play in a case where the rent has been fixed, increased or enhanced by agreement of parties. The provision contained in Section 8(i)(b) of Bihar Act III of 1947 will abrogate the general provision contained in Sections 135 and 136 of Bihar & Orissa Act 7 of 1922 only when fair rent has been determined and not otherwise. That being so, in accordance with the provision of law contained in Sections 100, 135 and 136 of the Bihar & Orissa Municipal Act, 1922, I have got to hold that the plaintiff-landlady is entitled to realise the latrine tax in question from the tenant defendant over and above the rate of rent agreed to between the parties on the 24th January, 1963 in the compromise (Ext. A).
6. It, however, appears to me that the proceeding for fixation of fair rent was dropped on the 10th June, 1963, because of the agreement entered into between the parties on the 24th January, 1963, and this was dropped under a misapprehension. The defendant-tenant may, if he is so advised, file an application before the Building Controller to revive (?) the proceeding which was erroneously dropped under some misapprehension on the 10th June, 1963 or file a fresh application under Section 5 of the Bihar Act III of 1947. The proceeding thereafter for fixation of fair rent-either the old one or the new one, as the case may be, will be brought to a conclusion in accordance with law.
7. Mr. S.N. Misra, appearing for the defendant-opposite party, submitted on the basis of the provision of law contained in Section 4 of Bihar Act III of 1947 that the landlady in this case is not entitled to realise any latrine tax over and above the amount of Rs. 57/- I do not think that Section 4 helps the tenant in this case. The consideration of the said provision of law may be relevant when the question of rent comes in; but, since as I have said above, fair rent was not determined in this case, Section 8(1)(b) of Bihar Act III of 1947 does not come into play; and that being so, under Bihar & Orissa Act 7 of 1922, the landlady is entitled to recover the latrine tax in question from the tenant-defendant.
8. In the result, I allow the application in revision, set aside the decision of the court below and decree the plaintiff’s suit for recovery of Rs. 90/- only, the amount of latrine tax said to be due from the defendant. The plaintiff is not entitled to get any amount on account of cost incurred by her for sending notice, etc. On the facts and in the circumstances of the case, I shall direct the parties to bear their own costs throughout.