RAMESHLAL SANTUKA Vs. SURESHLAL SANTUKA

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned Additional Subordinate Judge, Cuttack, initiating an enquiry regarding assessment of rent payable in respect of three shop rooms forming subject -matter of the partition suit. The defendant is the petitioner.

(2.) THE facts leading to the present petition may be stated in brief. The petitioner and the opposite party (plaintiff) are natural brothersbelong to a trading family. The opposite party filed a suit for: partition against the petitioner claiming half share in the suit property consisting of land and buildings. In course of the proceedings of the suit, he made a petition registered as Misc. Case No. 342 of 1982 under Order 40, Rule 1 for appointment of a receiver in respect of the suit property and further made another petition registered as Misc. Case. No. 343 of 1932 under Order 39, Rule 1 of the Code of Civil Procedure ('Code' for short) praying for issuance of temporary injunction in order to restrain the petitioner from making further constructions on the suit property and alienating any portion thereof in any manner. Both the Misc. Cases were disposed of by the learned Additional Subordinate Judge by a common order dated 26.11.1982. He appointed the petitioner as the receiver in respect of three shop rooms with a direction that he shall deposit the rent thereof which may be determined after due enquiry. He posted the case to 30.11.1982 for enquiry as to the assessment of rent The enquiry, however, could not take place because the opposite party applied for adjournment on the ground that he had preferred an appeal against the order of the trial Court. The learned Additional Subordinate Judge refused to issue temporary injunction and passed some incidental orders with which we are not presently concerned. The opposite party filed M. A. 546 of 1982 in this Court challenging the order, whereby, the petitioner was appointed as receiver. This Court on 21.12.1982 disposed of the aforesaid case and passed the following order : ' Heard Mr. B. K. Mohanty for the appellant and Mr. B. M. Patnaik for therespondent:I do not propose to disturb the arrangement made by the trial Court in regard to receivership. Both parties are satisfied if I direct disposal of the suit bythe end of February, 1983. Mr. Mohanty for the appellant want? that I should direct that no further construction should be undertaken. According to Mr. Patnaik, the trial Court has already indicated about it in its order. To clarify the position, I direct that without leave of the trial Court, no further construction should be made till the disposal of the suit. ' Thus the order of appointment of the petitioner as receiver was upheld. After the aforesaid order of this Court was communicated to the trial Court, the following order was passed on 7.1.1983.

(3.) MR . Patnaik urged that the Civil Court cannot determine the fair rent of a tenement because, according to Section of the Orissa House Rent Control Act, jurisdiction has been vested on the Controller for fixation of fair rent. Therefore, the trial Court being a Court ofcivil jurisdiction cannot hold an enquiry for assessment of the rent of the three shop rooms. Learned counsel for the opposite party drew my attention to Section 20(1) (b) of the aforesaid Act and contended that a period of five -years has not elapsed since construction of the three shop rooms and, therefore, the provisions of Section 5 shall not be applicable. This is a matter which the learned Addl. Subordinate Judge shall determine at the time of enquiry. It shall be open to the parties to agitate this point of lack of jurisdiction with facts as to when the construction of the three shop rooms was completed. Such material is not available nor placed during hearing of this case and so I am of the opinion that this is a matter which can be enquired into after the parties place facts and evidence before the trial Court.