ZAHIDA KHATOON Vs. KARAMCHAND THAPAR AND CO LTD

JUDGEMENT

(1.) This revision has been filed Under Section 115 of the Code of Civil Procedure against an order fixing the rent of an accommodation Under Section 5(4) of the UP (Temporary) Control of Rent and Eviction Act 1947. The opposite party brought the suit on the allegation that the agreed rent was Rs. 270/- per mensem which was excessive and unfair and consequently sought that the rent be reduced to Rs. 100/- per mensem. The applicant contested the suit alleging that the agreement for rent was fair and reasonable and there was no cause for reduction of the rent. The learned Civil Judge framed two issues as follows:

(2.) Further it appears to me that, even if it be held that the learned Civil Judge did not give a finding that the transaction was unfair, it is not possible to hold that a revision lies to this Court Under Section 115, Code of Civil Procedure. Mr. Niamatullah learned Counsel for the applicant did not rely on Clause (c), Section 115, Code of Civil Procedure to urge that this revision could be entertained by this Court. He relied upon Clause (a), Section 115, Code of Civil Procedure. According to him, when the learned Civil Judge had given no finding that the transaction was unfair, the subsequent order reducing the rent was in exercise of jurisdiction not vested in the court. It is correct that under Sub-section (4) of Section 5 of the UP (Temporary) Control of Rent and Eviction Act the rent can not be reduced unless the transaction has been held to be unfair. That is the law which the court has to administer when dealing with a suit under that provision of law. The court has jurisdiction to decide that suit once it is instituted. In deciding the suit, it has to give effect to this provision of law. If in giving effect to this provision of law the court wrongly interprets the law or misapplies it, it would be an error in the decision only and not a question of exercise of jurisdiction not vested in it. It was for the court to find out whether the transaction was or was not unfair. If the transaction was not unfair, the court still had jurisdiction to proceed further with the case and pass the order dismissing the suit. If the court came to the view that the transaction was unfair, it had jurisdiction to decide what should be the amount of reduction and to fix the rent thereafter. In either case, the jurisdiction to pass further orders did vest in the court. In the exercise of that jurisdiction, the court might pass a correct order or a wrong order. The order may be incorrect on facts or against law but that would make no difference as the order would still be in exercise of jurisdiction vested in the court. Learned Counsel for the applicant referred me to a decision of the Privy Council in Joy Chand Lala Babu v. Kemleaksh Choudhury, 1949 AIR(PC) 239 In support of his proposition that in such a case it must be the exercise of jurisdiction not vested in the court. In that case the decision of the Subordinate Judge which was considered by the Privy Council was to the effect that a particular loan was a commercial loan which point was relevant in order to decide whether the proceedings could or could not be taken under the Bengal Money Lenders Act X of 1940. The Subordinate Judge held that the loan was a commercial loan as a result of which the proceedings under that Act could not be maintained and the Subordinate Judge was bound to dismiss the proceedings. He could not determine the rights of the parties under the Bengal Money Lenders Act thereafter which, were claimed in that suit. The circumstances in which the Privy Council in that case held that the court had refused to exercise jurisdiction vested in it, were thus different from the circumstances of the present case. Here the decision on the question whether the transaction was fair or unfair did not affect the continuance or discontinuance of any proceedings in the Court under the UP (Temporary) Control of Rent and Eviction Act. The decision affected the decree which was to be passed in the suit and determined whether the suit was to be decreed or dismissed. The error was therefore not an error affecting jurisdiction but it only affected a decision given in exercise of the jurisdiction vested. Consequently this revision Under Section 115, Code of Civil Procedure is not entertainable. The revision is dismissed with costs.