CHAUBE JAGDISH PRASAD Vs. GANGA PRASAD CHATURVEDI

JUDGEMENT

(1.) This is an appeal by special leave against the decision o the High Court of Judicature at Allahabad passed in revision under S. 115 of the Code of Civil Procedure. The landlord who was the plaintiff in the trial court is the appellant before us and the tenant who was the defendant is the respondent.

(2.) The facts of this appeal are that in 1938 the respondent took on rent the accommodation in dispute which is termed a 'tal' on a monthly agreed rent of Rs. 21-4 as. and was using the same for the purpose of stacking timber. A portion of it was a covered godown which had three walls and a kucha roof. On January 28, 1950, the appellant made an application to the House Allotment Officer under S. 3-A of the U. P Temporary Control of Rent and Eviction Act (U. P. III of 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 Rs. 165. The House Allotment Officer fixed on February 18, 1950, the rent at Rs. 35 per mensem which on review was raised on May 25, 1950, to Rs. 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:

(3.) 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 ferroconcrete roof 80 x 25 feet and that the construction was undertaken at the request of the respondent who had agreed to pay enhanced rent but had refused to do so; that although the House Allotment Officer, Mathura had fixed the rent of the accommodation at Rs. 35 which was subsequently raised to Rs. 40 per mensem, the proper rent should not be less than Rs. 115 per mensem and therefore prayed for the enhancement of "reasonable annual rent." The defence was that there was no construction at the request of the respondent but it had been undertaken in order to put up another storey on the top of the old building; that as far as the accommodation in possession of the respondent was concerned there was no new construction of accommodation after June 30, 1946; that the ferro-concrete roof had in no way benefited him, on the other hand the space at his disposal had diminished because of the number of pillars constructed and the lowering of the roof. He also pleaded that the suit was not maintainable under the Act and that no suit could be filed "after the order of the House Allotment Officer." The relevant issues raised were:-