TMI Blog1998 (12) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1947) (hereinafter termed the Act) for the fixation of reasonable annual rent of the accommodation in dispute. He therein alleged that in January 1949 he had constructed anew a big godown 80 x 25 x 11 feet according to the instructions of the respondent and expended a fairly large sum of money on it and was therefore entitled to a monthly rent of ₹ 165. The House Allotment Officer fixed on February 18, 1950, the rent at ₹ 35 per mensem which on review was raised on May 25, 1950, to ₹ 40 per mensem. He held that the accommodation was not a newly constructed accommodation as the respondent had been a tenant from 1938. He determined the increase of rent on the basis of the building that was added by the new construction. He also held that: The cost of land, the floor area of godown and rent of other similar premises would be irrelevant as all of these existed before new construction and were included in rent before new construction . The appellant thereupon instituted a suit on the ground of inadequacy of the reasonable annual rent under s. 5(4) of the Act alleging that he had constructed the portion of the accommodation anew and put up ferro-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also held that the construction on the upper storey was a new construction but as far as the accommodation in the occupation of the respondent was concerned the construction could not be called new construction and therefore B. 3-A was not applicable and as no suit lay at the instance of the landlord to have the agreed rent enhanced, the tenant was only liable to pay the agreed rent and no more. The revision petition was therefore allowed and the suit of the appellant was dismissed. The main controversy raised between the parties was whether the High Court could, in revision under S. 115 of the Code of Civil Procedure, interfere with this decision of the trial court. The respective contentions were these: The appellant contended that it was within the jurisdiction of the Additional Civil Judge to decide the question of the date of construction of the accommodation and in doing so he could decide rightly or wrongly as the matter was within his jurisdiction and therefore the High Court had no power to interfere merely because in its opinion the decision was erroneous. In other words, this question was -merely one of the facts in issue between the parties unconnected with jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of the land lord or the tenant, determine the reasonable annual rent thereof. (2)In determining the reasonable annual rent under sub- section (1) the District Magistrate shall take into account- (a)if the accommodation was constructed after June 30, 1946, the cost of construction and of maintenance and repairs of the accommodation, its situation and any other matter, which in the opinion of the District Magistrate, is material and (b) if it is accommodation- (i) falling under clause (2) or sub-clause (1) of clause (3) of sub-section (f) of section 2, the principles therein ,set forth, and (ii) falling under sub-clause(1) of clause (3) of subsection (f) aforesaid, the principles set forth in clause (a) of sub-section (1) of section 6. (3 )Subject to the result of any suit filed under sub- section (4) of section 5, the rent fixed by the District Magistrate under this section shall be the annual reasonable rent of the accommodation. Agreed rent was defined in s. 5(1) of the Act to be........................ the rent payable for any ac- commodation to which this Act applies shall be such as may be agreed upon between the landlord and the tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted and not assessed to municipal assessment but held by a tenant between April 1, 1942, and June 30, 1946, and the third part with accommodation constructed on or after July 1, 1946, and these last two were to be determined in accordance with the provisions of s. 3-A which empowered the District Magistrate to do so. Sub-section (1) of this section gave power to the District Magistrate to determine the reasonable annual rent in the case of accommodation constructed after June 30, 1946, or falling under cl. (ii) of sub-s. 3 of section 2 (f) i.e. if it was not assessed to municipal assessment though constructed before July 1, 1946, and was not held by a tenant between April 1, 1942, and June 30,1946. Subsection 2 of s. 3-A laid down the factors to be taken into consideration in determining the reasonable annual rent and under sub-s. 3 the rent so fixed was to be the annual reasonable rent of the accommodation but this was subject to the result of a suit filed under s. 5(4). Therefore under s. 3-A the District Magistrate was entitled to determine the amount of reasonable annual rent when either of the two facts on which his power depended was shown to exist i.e. (1) the accommodation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Civil Judge held:- I am therefore of the opinion that portion of the building in suit which has been newly replaced must be treated as a new accommodation, and hence this Court can determine its rent under the provisions of s. 5(4). In view of the fact that it is a new accommodation no question of agreed rent arises and the landlord can bring a suit for fixation of rent . Two facts therefore stand out clearly in the judgment of the trial court (1) that it was the existence of a newly constructed accommodation which gave jurisdiction to the court to determine its reasonable annual rent and (2) that as it was a newly constructed accommodation, the question of agreed rent did not arise. The High Court, in our view, approached the question quite correctly when it stated that the question for determination was whether the accommodation had been constructed before or after June 30, 1946, and that if it was constructed before that date the suit was incompetent and if after, the suit would lie. The contention raised by the appellant in this Court was that the decision of the trial Court as to whether the accommodation was constructed before or after July 1, 1946, cannot be chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunals to proceed in a case where a certain state of facts exists or is shown to exist. The difference is that in the former case the tribunal has power to determine the facts giving it jurisdiction and in the latter case it has only to see that a certain state of facts exists. In the present case the appellant asked for a determination of reasonable annual rent under s. 3-A on the ground that the accommodation was constructed after June 30, 1946, and the House Allotment Officer therefore had power to determine the reasonable annual rent. In order to give jurisdiction to the civil court there bad to be in existence a reasonable annual rent as defined under s. 2(f) whether it fell within its first two clauses or was determined under s. 3-A. The reason. able annual rent could be varied at the instance of the landlord or the tenant on the ground of its inadequacy or excess but the landlord could not bring a suit to vary the agreed rent nor could the court entertain such a suit although it was open to the tenant to do so and the court could at his instance entertain such a suit. The proceedings before the civil court are not by way of an appeal from any order under s. 3-A made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result. In the present case their Lordships are of opinion that the High Court, on the view which it took that the loan was not a commercial loan, had power to interfere in revision under sub-s. (b) of s. 115 . In Keshardeo Chamria v. Radha Kissen Chamria [1953] S.C.R. 136 both these judgments of the Privy Council as also the previous judgments in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1884) L.R. 11 I.A.237 and Balakrishna Udayar v. Vasudeva Aiyar (1917) L.R. 44 I.A. 261 were reviewed and it was held that s. 115 of the Code of Civil Procedure applies to matters of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it. Thus if a subordinate court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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