Bhagwan Dass and another vs Smt. Santosh

J.V. Gupta, J.—This order will also dispose of Civil Revision Petition No. 3612 of 1986, as both the petitions arise out of the same order of the Appellate Authority dated August 18, 1986.

The tenancy started on June 1, 1975 on a monthly rent of Rs. 206/-. The landlord moved an application u/s 4 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. for fixation of fair rent on January (Sic)0, 1981. The Rent Controller taking Rs. 206/- the agreed rent to be the basic rent, fixed Rs. 230/-, as the fair rent vide order dated January 11, 1984. Aggrieved against the said order of the Rent Controller, both the parties filed appeals. Therein, the learned Appellate Authority sent for the report from the Rent Controller vide order dated September 5, 1985, as to the market rate of rent prevailing at the time when the application for fixation of the fair rent was made. Against the said order of the Appellate Authority sending for the report, the tenant filed Civil Revision Petition No. 3480 of 1985 in this Court. The same was dismissed on April 2, 1986. The tenant approached the Supreme Court in Civil Writ Petition No. 12584 of 1985 and also filed SLP (Civil) No. 5781 of 1986, against the judgment of this Court dated April 2, 1986. Both those cases were disposed of by the Supreme Court with the following orders on May 8, 1986,--

The Writ Petition is dismissed as not pressed

Special leave petition is dismissed with the reservation that the Petitioner would have liberty to raise the ground in appeal pending before the Court below.

Subsequent thereto, the Appellate Authority vide order dated August 18,1986, modifide the order of the Rent Controller and fixed the fair rent at the rate of Rs. 547.50 per month. Aggrieved against the said order, the landlord has filed Civil Revision Petition No. 3612 of 1986 whereas tenant Bhagwan Dass has filed Civil Revision Petition No. 2711 of 1986.

The learned Counsel for the tenant-Petitioner submitted that in view of the Division Bench judgment of this Court in Registered Firm M/s. Bhagwan Singh and Co. v. The Central Bank of India Branch at Kaithal (1988-1) P.L.R. 290, whereby the earlier judgment of this Court in Kailash Chander Jain v. Mool Raj Sandi 1982 (2) Rent. L.R. 274, was overruled, the agreed rent will be the basic rent and not the market rent, as found by the Appellate Authrority. Thus, according to the learned Counsel, the fair rent fixed by the Rent Controller was the right one. On the other hand, the learned Counsel for the landlord-Respondent submitted that the said Division Bench judgment of this Court will not be applicable to the facts of this case, because the matter has already come to the High Court in Civil Revsion Petition No. 3480 of 1985. That was the petition filed against the order sending for the report from the Rent Controller. The said order of the Appellate Authority dated September 5, 1985, was maintained and the civil revision petition was dismissed on April 2, 1986. That being so, the said order of sending for the report from the Rent Controller had become final between the parties and simply because the subsequent judgment taking a contrary view had come into being, it could not be made applicable to the parties. In any case, argued the learned Counsel, even if the basic rent is to be taken at the rate of agreed rent, i.e., Rs. 206/- per month, even on the calculations the rent would come to Rs. 309/- per month and not Rs. 230/- per month as found by the Rent Controller.

Faced with this situation, learned Counsel for the tenant submitted that the said order of the Appellate Authority dated September 5, 1985, had not become final between the parties in view of the Supreme Court order, re-produced above, dated May 8, 1986.

After hearing the learned Counsel for the parties, I am of the considered opinion that the said order of the Appellate Authority had become final between the parties when Civil Revision Petition No. 3480 of 1985 against the order of the Appellate Authority was dismissed by this Court on April 2, 1986. The tenant had gone to the Supreme Court by way of SLP which was dismissed with the observations inter alia that the Petitioner would be at liberty to raise the ground in appeal pending before the Court below. At that time, the appeal was pending before the Authority but no such ground was urged there. In paragraph 10 of the judgment, the Appellate Authority observed,--

With the earlier decision given by my learned predecessor on 5.9.1985 and the dismissal of the revision petition against that order by the Hon''ble High Court on 2.4.1986, the only question that survives", "for determination is that what should be the basic rent of the premises in dispute and what should be the fair rent. In fixing the basic rent, the provisions applicable are of Clause (b) of Sub-section (2) of Section 4 of the Act. It is to be found out as to what was the rate of rent prevailing in the locality for similar buildings on the date of the application.

It is, therefore, evident that it was never agitated before the Appellate Authority as to what should be the basic rent The whole discussion of the Appellate Authority is as to what should be the market rent prevailing at the time when he application for fixation of fair rent was filed in the year 1981. Apart from that, there is nothing on the record to show as to what was the prayer made before the Supreme Court. In the High Court as well while deciding Civil Revision Petition No. 3480 of 1985, it was never urged that the order sending for the report was bad in any manner. Only the vires of Section 4 of the Act, were challenged at that time. Under the circumstances in the absence of any pleading of the copy of grounds of the SLP before the Supreme Court, it could not be said as to what was left open for the tenant to raise before the Court below. Thus, taking into consideration the facts and circumstances of the case, it is evident that as regards the parties, the said order of the Appellate Authority dated September 5, 1985, had become final and the same could not be challeged now in view of the subsequent judgment of this Court in Registered Firm M/s. Bhagwan Singh and Company''s case (supra).

Consequently, both the revision petitions fail and are dismissed with no order as to costs.