JAGDISH CHANDRA Vs. BIHARILAL AND OTHERS

JUDGEMENT

(1.) This is plaintiff's second appeal arising out of a suit for recovery of a sum of Rs. 1,481.00. Briefly, the plaintiff's case was that the plaintiff was a tenant in the house bearing municipal No. 117 situated at Naya Bazar, Neemuch Cantonment, that the said house was owned by defendants No. I to 5. who had instituted a suit against the plaintiff for eviction and for recovery of arrears of rent and mesne profits; that the said suit was registered as civil Original suit No. 35 of 1965 and a decree for eviction and for arrears of rent amounting to Rs. 512.00 and mesne profits at the rate of Rs. 60.00 per month was passed on 25-3-1965; that an appeal preferred against that decree was dismissed on 7-9-11 65 and Civil Second Appeal No. 588 of 1965 preferred against the decree passed by the lower Appellate Court was also dismissed on 28-4-1966. The plaintiff averred that prior to the institution of the aforesaid suit he had commenced proceedings against defendants No. I to 5 before the Rent Controlling Authority on 3-11-1962 for fixation of standard rent and ultimately in Civil Misc. Appeal No 198/68 arising out of those proceedings, the High Court by its judgment dated 9-9-1969, held that the standard rent which the plaintiff was liable to pay from 3-12-1962 was Rs. 10.20 p. per month instead of the contractual rent of Rs 60.00 per month. The plaintiff averred that the defendants had recovered from the plaintiff rent from 3-11-1962 to 25-3-65, the date of the decree passed by the trial Court in eviction suit, at the rate of Rs. 60.00 p.m. though they were entitled to receive rent at the rate of Rs. 10 p.m. by virtue of the judgment of this court in civil misc. appeal No. 108/68. The plaintiff, therefore, contended that he became entitled to recover from the defendant the excess rent amounting to Rs. 1432/. along with notice charges and interest. The suit was resisted by the defendants inter alia on the ground that in accordance with the judgment and decree passed by the trial court, which were affirmed by this court in civil second appeal no. 558 of 65 in the suit instituted by the defendants against the plaintiff for eviction and for recovery of arrears of rent and mesne profits, the defendants had received rent at the rate of Rs. 60.00 p.m. up to 27-6-63 when the tenancy was terminated and mense profits at the rate of Rs. 60.00 per month thereafter and hence the plaintiff was not entitled to any relief. The learned trial judge, decreed the plaintiff's suit. On appeal by defendants No. 1 to 4, the lower appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court. Hence the plaintiff has preferred this second appeal.

(2.) Having heard learned counsel for the parties, I have come to the conclusion that this appeal deserves to be partly allowed. In the suit instituted by the defendants against the plaintiff for eviction and for arrears of rent and mesne profits, the trial court by its judgment dated 25-3-1965 Ex. D-2 had held that the defendants were entitled to recover a sum of Rs. 612.00 on account of arrears of rent till 27-3-63 and thereafter rent at the rate of Rs. 60.00 per month till the tenancy was terminated and there after a sum of Rs. 60.00 p.m. by way of mesne profits. It is not disputed that the trial court in that case has held that the tenancy terminated on 27-6-63. The trial court had further held that the proceedings for determination of standard rent before the Rent Court Controlling Authority would not be affected by the decision of the trial Court. The decree passed by the trial court for arrears of rent up to 27-6-63 when the tenancy was terminated, was thus so far as arrears of rent were concerned, subject to the decision in the proceedings before the Rent Controlling Authority on the question of Rent payable by the plaintiff. The decree passed by the trial court was affirmed in first appeal and second appeal and has become final. It is admitted that in the proceedings before the Rent Control Authority for determination of standard rent, the matter was ultimately decided by this Court in Civil Misc. Appeal No. 108 of 68 by judgment Ex. P. 14 and the standard rent was determined at Rs. 10.:0. per month. This standard rent, it was further held, was payable by the plaintiff from 3-11-62. Thus, from 3-11-62 to 27-6-63, the plaintiff was liable to pay rent at the rate of Rs. 10.20 p.m. but he had admittedly paid rent at the rate of Rs. 60.00 per month. Therefore, for 7 months and 25 days, the plaintiff has paid excess rent at the rate of Rs. 49.80 per month and he would, therefore, be entitled to recover the amount of Rs. 300.00 from the defendants.

(3.) As regards the amount claimed by the plaintiff on account of excess rent paid to the defendants from 27-6.63 to 25-3.65, that claim cannot be upheld. In the suit for eviction instituted by the defendants against the plaintiff, the trial Court had held that after the determination of tenancy of the plaintiff I on 7-6-63, the plaintiff was liable to pay mesne Profits. The learned counsel for the appellant relied on Chandrabalibai and others Vs. Jagdish Singh and others, 1978 JLJ 293 . and contended that the decision of the trial Court was wrong as regards the date of the termination of tenancy. But the decree passed by the trial Court has become final and the question as to whetter the trial Court in that case as or was not right in holding that the tenancy was determined on 27-6-63 cannot be agaitated in these proceedings. As regards Madhorao Ramandra Salunke Vs. Rambharosesingh Zalimsingh, AIR 1960 Madhya Pradesh 30 . relied upon by the learned counsel for the appellant, it is not clear from the reported decision in what terms was the decree passed by the trial Court in that case. The learned counsel for the plaintiff appellant also brought to my notice the decision Ex. P-14 of this Court in Civil Misc. Appeal No. 108/68, arising out of the proceedings before the Rent Controlling Authority and contended that it was held in that case that the standard rent was payable upto 25-3-65, the date of the decree passed by the trial Court in eviction suit. But the question as to the date up to which the standard rent would be payable by the plaintiff was not for consideration before the Rent Controlling Authority as the only jurisdiction of the Rent Controlling Authority was to fix standard rent and to specify the date from which the standard rent so fixed would be deemed to have effect in accordance with the provisions of Sec. 10 (7), of the M.P. Accommodation Control Act, 1961. The Rent Controlling Authority under the aforesaid Act has no jurisdiction to determine the date of termination of tenancy. It follows that in an appeal arising out of the order passed by the Rent Controlling Authority, the appellate Court will not have jurisdiction to decide a question which the Rent Controlling Authority could not decide. The decision of the question of the date of termination of tenancy which directly arose in the eviction suit filed by the defendants, whether right or wrong has become final and is binding. It is not a decision without jurisdiction. By virtue of that decision, the defendants became entitled to receive mesne profits at the rate of Rs. 60.00 p.m. from the plaintiff from the date of termination of tenancy. Under the circumstances, the claim of the plaintiff for the period subsequent to 27-6-63 cannot be upheld.