Devkrishna Gaur And Others vs Lakhanlal And Others

The present appeal is preferred under Section 32 of the M.P. Accommodation Control Act, 1961 against the order dated 03-08-2002 passed by the 8th

Additional District Judge, Gwalior in Civil Appeal No.16/1997 allowing the appeal preferred by the respondents/tenants and set aside the order dated

26-04-1997 passed by the Rent Controlling Authority, Gwalior in case No.2/79-80/90-2 with further direction for consideration of the matter afresh.

2- Case involves chequered history. Tenant Parmanand (represented through his L.Rs. as respondents) inducted in the suit shop prior to 1948.

Proceeding for fixation of fair rent was initiated vide case No.31/1950 before the Rent Controlling Officer, Gwalior and it appears that parties agreed

over Rs.51/- per month as rent w.e.f. August, 1948 and consent order was passed on 09-04-1951. It is further submitted by the appellants that on 06-

10-1952 matter was reagitated at the instance of tenant for fixing the fair rent which was rejected on the ground of estoppel. In appeal, the matter

was remanded and in second appeal, Division Bench of this order vide order dated 10-05-1957 in Miscellaneous Petition No.69/1954 upheld the order

of Rent Controlling Authority.

3- After enforcement of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') landlord /appellants (through his

predecessor) Shrikrishna Gaur submitted an application on 21-05-1963 for fixation of standard rent under Section 10 of the Act. The application got

rejected as not maintainable vide order dated 06-09-1965 in the light of compromise deed between the parties. However in Miscellaneous Appeal

No.125/1965 vide order dated 13-10-1966 matter was remanded back and the order of remand was confirmed on 24-08-1967 by this Court in Second

Appeal No.5/1967. On remand Rent Controlling Authority fixed the standard rent of suit shop @ Rs.31.80 per month w.e.f. 21-05-1963 and the said

order was challenged in appeal in which direction for fixing the rent @ Rs.60/- per month w.e.f. August, 1948 was passed.

4- Tenant/respondents challenged the order vide M.A.No.23/1971 in which vide order dated 29-08-1979 this Court was pleased to remand the matter

back to the Rent Controlling Authority to fix the standard rent in the light of provisions of Section 10(4) of the Act. In compliance of the direction of

this Court, RCA considered relevant factors as contained in Section 10(4) of the Act and fixed the standard rent as Rs.300/- per month vide order

dated 26-04-1997. The said rent was to be paid from the date of application i.e. 21-05-1963. It appears that RCA relied upon the formula issued in

circular of the Finance Department of the Government of Madhya Pradesh of year 1966 for fixing the reasonable rent.

5- Respondents preferred appeal vide No.15/1997 before the 8th ADJ, Gwalior in which vide order dated 03-08-2002, lower appellate Court set aside

the order of RCA and remanded the matter back to fix the rent under Section 7 of the Act, therefore, the appellants are before this Court.

6- According to learned counsel for the appellants, once this Court in M.A.No.23/1971 vide order dated 29-08-1979 remanded the matter back to the

RCA for fresh disposal in the light of directions given in paras 5,6 and 7 of the order wherein directions were given to fix the standard rent as per

provision of Section 10(4) of the Act thus, lower appellate Court erred in again remanding the matter back to the trial Court for determination of

standard rent as per Section 7 of the Act. This is contrary to the spirit of remand order. 7- Learned counsel for the respondents opposed the prayer

made by learned counsel for the appellants and submitted that impugned order has rightly been passed wherein directions have been given for

consideration of case as per Section 7 of the Act. Fact situation warrants that matter ought to have been considered as per the provisions of Section 7

of the Act. He prayed for dismissal of appeal.

8- Heard learned counsel for the parties at length and perused the record.

9- This Court vide order dated 16-05-2007 admitted this second appeal on the following substantial question of law:

Whether the impugned order passed by learned appellate Court is beyond the remand order passed by the High Court and is not sustainable in the eye

of law ?

10- From the fact situation, it appears that it is long drawn battle between the landlord and tenant for fixation of standard rent as well as for eviction. It

further appears from submission of parties and from different orders passed by the Court from time to time that the appellants have successfully

evicted the respondents/tenants from the suit premises. Therefore, appellants are entitled for fixation of standard rent only for the period from the date

of application to the date of eviction of respondents from the suit premises. There cannot be any dispute in this aspect. Lower appellate Court vide

order dated 03-08-2002 dealt with in detail about this aspect and rightly concluded that the standard rent can be fixed by the RCA between the period

of date of application till eviction decree.

11- Now the question is fixation of standard rent. From perusal of different orders passed by this Court, specially the order dated 29-08-1979 passed in

M.A.No.23/1971 this Court remanded the matter back to the RCA for fresh disposal of the case in the light of the direction made in the said order.

Relevant extract of the said order is reproduced for ready reference:

“6. In the present case, when even according to the lower appellate Court, the other criteria of rate of rent, as shown in the Municipal assessment

register on 1-1- 1948, was not available, and the present case could not fall under the other residuary clauses of Section 7 of the Act, it was apparently

a case where it was not possible to fix the standard rent in accordance with the provision of Section 7. It is true that the above referred decision was

reported subsequently during the pendency of this Miscellaneous appeal, but since the legal position stands settled today when the appeal is being

heard and decided, it will not be possible to sustain the order impugned.

There would have been no occasion for directing a remand if the Rent Controlling Authority or the lower appellate Court would have applied

Section 10(4) of the Act and if there was material on record to make an order in accordance with the provision of Section 10(4) of the Act. In the

present case, neither the Rent Controlling Authority nor the lower appellate Court has dealt with the application in the light of the provisions of sub-

section (4) of section 10 of the Act. For deciding the application in accordance with the provision of Section 10(4) of the Act, various factual aspects

become relevant. It is, therefore, necessary to remand the matter to the Rent Controlling Authority with the direction that after giving due opportunity

to the parties to establish their case in the light of the provision contained in sub-section (4) of Section 10, the application may be decided afresh and

the standard rent may be fixed in accordance with the said provision. The order impugned made by the lower appellate Court and that of the Rent

Controlling Authority are set aside and the case is remanded back to the Rent Controlling Authority for a fresh disposal in the light of the directions

made above.â€​

12- The said order specifically mandates RCA to decide the case of fixation of standard rent as per the provision of Section 10(4) of the Act because

it was discussed in the said order that the mode provided under Section 7 of the Act is not practically possible to follow in the fact situation of the case

because record of the Municipal Corporation for assessment was not available. Perusal of the said order reveals that this Court at the relevant point of

time decided controversy considering the relevant aspect and thereafter directed the RCA to decide as per Section 10(4) of the Act.

13- This Court in the case of Rajaram Vs. Vithabai and others, 1990 JLJ 71 held that the Court to which case is remanded back has to comply with

the order of remand and any action not in compliance with the order of remand or acting contrary to the order of remand is contrary to law. This

Court can profitably refer the judgment to take a stand that after remand, jurisdiction of the lower Court depends upon the terms of the order of

remand and has to comply the terms of the order of remand. This is equitably applicable for the lower appellate Court which was hearing the matter

after remand when RCA passed the order. Here, RCA complied with the terms of remand but lower appellate Court exceeded its jurisdiction when it

ignored the order of remand and terms contained into it and proceeded on the assumption as if no order of remand exists. Therefore, the order vitiates

from jurisdictional error and lower appellate Court caused illegality in passing the impugned order ignoring the order of remand and terms contained

into it. RCA rightly passed the order fixing the rent as Rs.300/- while considering the locality, vicinity and situation of the shop along with area.

14- The application dated 21-05-1963 by the appellants was under Section 10 of the Act and therefore, it cannot be termed as an application preferred

under Section 7 of the Act. RCA has taken into consideration the long drawn legal history of the case and the deposition of Shrikrishna Gaur and other

witnesses Shanti Swaroop Gupta. Both the witnesses supported the case of the appellants. From the order dated 26-04-1997 passed by RCA it

appears that RCA made spot inspection along with the parties on 05-04-1997 and after taking into account all the relevant principles enumerated in

Section 10(4) of the Act, decided the case. No arbitrariness or illegality can be palpably found in the order of RCA. Lower appellate Court vide

impugned order has taken hyper technical approach and has remanded the matter back to the RCA for fresh adjudication as per Section 7 of the Act.

Same is not permissible specifically when this Court vide order dated 29-08-1979 decided the terms of the controversy in categorical terms and

directed the RCA to decide the case as per Section 10(4) of the Act which RCA rightly did.

15- Looking to the long drawn battle which continued for more than 60 years, therefore, instead of remanding the matter back for fresh adjudication,

impugned order dated 03-08-2002 passed by the 8th Additional District Judge, Gwalior is set aside and order dated 26-04-1997 passed by the RCA is

hereby affirmed. However, it is made clear that the appellants landlord shall be entitled for standard rent for the period from the date of institution of

application till the date of passing of eviction decree.

Appeal stands allowed and disposed of.