CHATRU LAL Vs. PARKASH CHAND

JUDGEMENT

(1.) THE present petition has been filed by the tenant aggrieved by the order of the Rent Controller, allowing the application for fair-rent filed by the respondent-landlord.

(2.) THE facts of the case are that an application for fixation of fair rent of the premises in dispute was filed by the respondent on September 7, 1983 and after notice to the petitioner-tenant, was allowed on May 9, 1985 and the fair rent in respect of the premises in dispute was fixed with effect from September 7 1983. The respondent thereafter moved another application on 1 2. 1989 again for re-fixation of fair rent on the ground that there has been a very sharp rise in the Price Index, which necessitated its revision. This application was opposed by the petitioner stating that as it had been filed within a period of five years from August 14, 1986 the date on which the fair rent had been fixed pursuant to the first application filed on September 7, 1983, this application was not maintainable, in view of the embargo placed by Section 5 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (hereinafter called 'the Act' ). The Rent Controller vide his order dated May 23, 1989, framed the following preliminary issue :" whether this petition is not maintainable ? OPR" This issue was decided in favour of the respondent-landlord and the matter was taken up in appeal by the petitioner before the Appellate Authority, who found that the appeal against such an order was not maintainable and accordingly dismissed it on that ground. The present petition was, thereafter, filed along with an application for condonation of delay and after the delay had been condoned, the present petition was admitted.

(3.) THE sole argument made by Mr. H. L. Sarin, Senior counsel appearing for the petitioner is that a bare reading of Sections 4 and 5 of the Act indicates that the period of five years was to be reckoned from the date on which the earlier application had been allowed and not with retrospective effect from the date on which that application had been filed. Coming to the facts of the present case, he has stated that as the first application had been allowed on May 9, 1985, the second application filed on February 1, 1989, being within five years from that date was not maintainable. In support of his case, he has cited Kishori Lal v. Hari Chand, (1988-2) 94 P. L. R. 671, and Vijay Kumar and another of Kaithal v. Ram Lal, 1987 H. R. R. 349. This stand has been controverted by the respondent's counsel Mr. Jaswant Jain. He has urged that the very reading of Sections 4 and 5 would indicate that when the fair rent has been fixed under Section 4 of the Act, no increase or decrease in such fair rent, would be permissible for a period of five years as en joined by Section 5 and this Section does not refer to the date of the application but to the date from which the fair rent has been re-fixed. He has, therefore, urged that as the fair rent had been re-increased from the date of filing of the application, as enjoined by law the starting point for determining the period of five years, would be the date of application. In support of his case, he has relied upon some of the judgments cited by the counsel for the petitioner and also Shakuntla Devi v. Nafe Singh, 1990 H. R. R. 349.