BAIJNATH PRASAD KEYAL Vs. SHAMBHU SHARAN SHRIVASTAVA

JUDGEMENT

(1.) This application has been filed by the defendant and it is directed against an order passed on the 13th January, 1972, by which the learned Munsif has recalled an order dated the 11th August, 1970 and has restored an earlier order dated the 8th October, 1969.

(2.) The relevant facts are as follows. A suit is pending in the court below instituted by the plaintiff-opposite party for the eviction of the petitioner. In that case, on 5th August, 1968, a consent order was passed by the trial court to the effect, that the defendant should deposit rent at the rate of Rs. 81/- per month. The defendant had come upto this court in Civil Revision No. 1072 of 1968 and the case was remanded by this Court by judgment and order dated the 7th January, 1969, for making certain calculation for the deposit of rent. Thereafter, on 8th October, 1969, the trial court had passed its second order with respect to the deposit of rent by the defendant. It appears, that, the defendant bad been ordered to deposit Rs. 81/- per month. This order has not been produced in this Court and nothing more can be said with respect to that order. It appears that the fair rent of the portion occupied by the defendant was fixed by the Rent Controller at Rs. 5/- per month sometime in 1969 and, therefore, the trial court passed another order on 11th August, 1970, amending its order dated the 8th October, 1969. It is said, that, the Court had calculated rent to be deposited by the defendant at Rs. 5/- per month. It also appears that the annual valuation of* the holding was enhanced from Rs. 660/- to Rupees 3,600/- sometime in 1969 and the final order of fixation of rent was passed by the Commissioner on the 6th August, 1971, remanding the matter to the Controller for revising the rent on the footing of the enhancement of the annual valuation. It is stated, that, the Controller fixed the rent of the defendant at Rs. 81/- per month. Thereafter, the plaintiff applied on 3rd January, 1972, for the restoration of the order dated the 8th October, 1969, on the footing that the monthly rent payable by the defendant was Rupees 81/-. In such circumstances, the impugned order has been passed.

(3.) Learned counsel for the petitioner has argued, that, the court below should have made calculations to find out from what period to what period the defendant was liable to deposit rent at the rate of Rs. 81/- per month and then for what period he was entitled to deposit rent at a lesser amount, say, Rs. 5/-, which was the rent fixed by the Controller on 2nd December, 1969. In such circumstances, it is urged, that, the case should be remanded to the trial court again for calculation. It is quite clear, that, the argument which is being advanced in this Court had not been advanced before the trial court, asking it to make the calculation which is being put forward by the learned counsel for the petitioner in this Court. It is not necessary at all to remand the case to the trial court because the calculation must have been made in the order dated the 8th October 1969 and, if variations have to be made, then the defendant can himself calculate the amount at the rate at which he is liable to deposit the rent. He will be at liberty to deposit the rent according to his own calculation at his risk. If these calculations are not in accordance with law or are not in accordance with the order passed by the Court, then, no doubt, the Court will pass appropriate orders at a later stage, if necessary. At the request of the learned counsel for the petitioner, the defendant may deposit the amounts calculated by him on or before the 1st December, 1972. With these observations, the civil revision is disposed of. There will be no order for costs. The order of stay is vacated. Let the records be sent down expeditiously.