A.K. Mishra, J.
The appeal has been preferred by the Defendants aggrieved by judgment and decree dated 23.3.2004 passed by I Additional District Judge. Bhopal in Civil Suit No. 47-A/2003.
The Plaintiff-respondent filed the instant suit for ejectment of Defendants-tenants on the ground of arrears of rent and for mesne profits. Defendants also filed a counter claim for declaring the agreement dated 31.7.1999 to be void, further relief was sought that rent at the rate of Rs. 900/- per month could be recovered by the Plaintiff.
The Plaintiff averred that the suit premises were given on 31.7.1999 for four months at the rate of Rs. 20,000/- per month and thereafter the rent was to be Rs. 30,000/- per month. It was also agreed that there would be 40 beds and on increase of 10 beds, rent was to be enhanced by Rs. 750/- per bed, and in case number of beds reduces below 40, rent was to be reduced accordingly at the rate of Rs. 750/- per bed initially the hospital was started with 40 beds, thereafter number of beds were increased to 100, however the Defendants failed to pay the rent regularly, inspite of notice arrears of rent were not paid nor the accommodation was vacated, the amount of Rs. 4.00.000/- was adjusted in the rent, consequently the suit was filed for recovery of Rs. 8,45,280/-.
The Defendants in their written statement resisted the claim of Plaintiff on the ground that Plaintiff has failed to fulfill the terms and conditions of agreement, counter was not provided on first floor, number of patients did not increase inspite of increase in number of beds. Agreement was not registered, the portion of the hospital has been converted into Peoples College of Para Medical Science and Research Centre and number of beds had reduced by 33, Rent Controller was also approached for fixation of standard rent as such it was prayed that the further proceedings in the suit be stayed, rent could not be more than Rs. 900/- per month, agreement dated 31.7.1999 was not valid.
The trial Court has found that the agreement was made initially for four months at the rate of Rs. 20,000/- per month and thereafter rent was to be paid at Rs. 30,000/- variable on the basis of number of beds above 40 or below 40. Defendants failed to pay the rent as agreed in the agreement dated 31.7.1999 thus, Plaintiff has been held entitled to Rs. 8,44,110/- and for mesne profits during pendency of the suit, there was failure on part of Defendants to pay the rent inspite of notice, thus, Plaintiff was held entitled to seek ejectment; accordingly decree for ejection and arrears of rent has been passed, agreement has been held to be valid.
Shri N.S. Kale, learned senior counsel appearing with Shri Kapil Patwardhan for Appellants has submitted that Clause (3) of agreement (Ex.P-2) dated 31.7.1999 which makes the rent dependent upon the number of beds, is against the provisions of Sections 5 and 6 of M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act"). He has further submitted that Peoples Medical College had been started, thus, there was reduction in number of beds, that has not been taken into consideration by the trial Court. He has relied upon statement of Dr. V.N. Patel (DW3). He has also submitted that there should have been increase in the number of patients, thus, the number of beds was not material, what was infact intended is that rent was to be enhanced in case of increase in number of patients, number of patients did not increase as such Clause (3) be construed in the manner that rent was to be increased in case there was increased in number of beds more than 40. He has also submitted that the hospital was inaugurated on 16.10.1999, thus, there was no reason to realize the rent before inauguration of hospital.
Shri Ashok Lalwani, learned Counsel appearing for Respondent has submitted that Clause (3) of the agreement could not be said to be void or hit by Section 5 or 6 of the Act. It is permissible to realize the contractual rent till fixation of standard rent is done by Rent Controller u/s 10 of the Act by the Rent Controlling Authority. He has relied upon a decision of this Court in Idol Shriji Lakherapura, Bhopal v. Gappulal and Anr. 1977 JLJ 87 and vet Anr. decision in Shankerlal v. Matthulal 1980 JLJ 332.
The first question for consideration is whether Clause (3) of the agreement dated 31.7.1999 could be said to be violative of Sections 5 and 6 of the Act. Clause (3) of the agreement deals with fixation of rent as agreed between the parties that the hospital would be started with 40 beds and in case number of beds was increased by 10, then rent was to be increased at Rs. 750/- per bed per month, in case number of beds was reduced below 40 beds, then rent would be reduced by Rs. 750/- per bed per month.
Section 5 of the Act provides that when rent in excess of standard rent cannot be recovered by the landlord. Any agreement for the payment of rent in excess of the standard rent shall be construed as if it were an agreeent for the payment of the standard rent only. No doubt that the provision is in supersession of the agreement to the contrary entered into between the parties, that is landlord and tenant and the liability of the tenant shall cease to make the payment at higher rate of agreed rent in case standard rent is determined by the Rent Controlling Authority. In such event the liability of tenant will be reduced to such lesser amount. In the instant case, Rent Controller has not fixed the standard rent u/s 10 of the Act thus, it was incumbent upon the Defendants-tenants to make the payment as per Clause (3) of the agreement entered into between the parties. It has not been controverted that tenant has failed to carry out the obligations to deposit the rent as envisaged u/s 13 of the Act.
Coming to submission raised by Shri Kale, learned senior counsel that Clause (3) amounts to enforcing unlawful charges which cannot be claimed or received by a landlord. Section 6 of the Act is quoted below :
6. Unlawful charges not to be claimed or received. - (1) Subject to the provisions of this Act, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary.
(2) No person shall in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy of any accommodation :
(a) claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever, in cash or in kind, in addition to the rent;
(b) except with the previous permission of the Rent Controlling Authority, claim or receive the payment of any sum exceeding one month''s rent of such accommodation as rent in advance.
(3) It shall not be the lawful for the tenant or any other person acting or purporting to act on behalf of the tenant or a sub-tenant to claim or receive any payment in consideration of the relinquishment, transfer or assignment of his tenancy or sub-tenancy, as the case may be, of any accommodation.
(4) Nothing in this section shall apply to any payment made under an agreement by any person to a landlord for the purpose of financing the construction of the whole or part of any accommodation on the land belonging to, or taking on lease, by the landlord, if one of the conditions of the agreement is that the landlord is to let to that person the whole or part of the accommodation when completed for the use of that person or any member of his family :
Provided that such payment shall not exceed the amount of agreed rent for a period of five years of the whole or part of the accommodation to be let to such person.
(5) Any payment made under Sub-section (4) shall be deemed to be the payment of rent in advance for such period from the commencement of the tenancy to which it is relatable.
Section 6 of the Act consists of two distinct parts dealing with different situations. Sub-sections (1), (2) and (3) deals with prohibition to claim or receive any rent in excess of the standard rent, non-obstante clause has also been provided in Sub-section (1) of Section 6. No premium or pugree or claim or any consideration can be received in cash or in kind, in addition to the rent. Rent of more than one month''s in advance cannot be received except with the permission of Rent Control Authority. When we consider the aforesaid provision of Sub-sections (1), (2) and (3) of Section 6 of the Act, in our opinion, Clause (3) of the agreement cannot be said to be hit by the aforesaid provisions as the amount fixed under Clause (3) is that of the agreed rent between the parties and as we have held that till standard rent is fixed, the rent agreed to be paid in the mode contained in Clause (3) of the agreement is payable. The amount cannot be said to be of premium, pugree or claim or other consideration in addition to the rent. When we come to Sub-section (4) of Section 6 which makes out that if any payment is made under any agreement by any person to a landlord for the purpose of financing the construction of the whole or part of any accommodation on the land belonging to, or taking on lease, by the landlord, the bar of Section 6 shall not apply. Sub-section (5) provides that the amount paid under Sub-section (4) shall be deemed to be the payment of rent in advance for such period from the commencement of the tenancy to which it is relatable. The instant case does not fall within the purview of Sub-section (4) and Sub-section (5) of Section 6 of the Act. We are in agreement with the view taken by a Single Bench of this Court in Idol Shriji Lakherapura, Bhopal v. Gappulal and Anr. (supra), in which it has been opined that if standard rent is fixed then only Section 5 of the Act will apply with full force but if neither standard rent exists nor is determined the tenant is bound to pay contractual rent. Similar view has been taken in Shankerlal v. Matthulal (supra). Thus, in view of aforesaid, Clause (3) of the agreement could not be said to be violative of Section 5 or 6 of the Act.
Coming to submission raised by Shri Kale that there was reduction in number of beds as stated by Dr. V.N. Patel (DW3). In para 3, he has stated that Para Medical College had been started in the hospital in place of Ward No. 1 and 2 which were semi-ward and ICU ward, but Dr. V.N. Patel is totally silent as to number of beds, on the contrary, when we consider statement of Irfaan Hussain, Defendant No. 2, he has admitted in para 9 that 100 beds were required in the hospital for the reason that it was not legally permissible to open the Dental College without having hospital of 100 beds. On the basis of 100 beds in the hospital, Dental College had been started. Thus, it is clear that number of beds were 100 as per the legal requirement, the submission raised by Shri Kale that number of beds had been reduced is not supported by the aforesaid evidence referred to adduced by the Defendant.
Coming to the submission that Clause (3) in essence depends upon the number of increase of patients, there was no increase in the number of patients. When we closely scrutinize Clause (3) number of patients was not material, number of beds was material at a given point of time some beds may be kept vacant for one reason or the other in the hospital, but rent was not to be enhanced or reduced on that basis, parties are bound by the agreement or mode of fixation of rent, consequently we reject the submission.
Shri Kale has also relied upon decision of this Court in Munnalal v. Premchand Jain 1968 JLJ SN 36, wherein this Court has laid down that compensation cannot be awarded to a landlord due to breach committed by the tenant. It is not a case of compensation, thus, the aforesaid decision has no application to the facts of instant case.
No other point was raised.
Resultantly, we find no merit in the appeal, appeal deserves dismissal, same is hereby dismissed. However, we leave the parties to bear their own costs as incurred of this appeal.
