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Khalli Panda and anr. Vs. Dharam Gouda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 258 of 1966
Judge
Reported inAIR1967Ori172
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151; Orissa House Rent Control Act, 1958 - Sections 5 and 8
AppellantKhalli Panda and anr.
RespondentDharam Gouda
Appellant AdvocateC. Rath and ;R.K. Patra, Advs.
Respondent AdvocateH.G. Panda, Adv.
DispositionPetition dismissed
Cases ReferredMohd. Ismail v. Sakina Begum. In
Excerpt:
.....of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra..........an application on 5-7-65 under section 5 of the orissa house rent control act for fixation of a fair rent. the plaintiff also filed an application for eviction under section 7 of the said act. both the cases are now pending before the house rent controller. on 11-8-66, the petitioners filed an application under sections 10 and 151, civil p. c., for stay of proceedings in the aforesaid money-suit until disposal of the application under section 5 by the house rent controller. the learned subordinate judge by his order dated 13-8-66 rejected this application. it is against this order of rejection the petitioners have filed this revision. 5. the question for consideration is whether it is open to the court to stay the civil suit in exercise of its powers under sections 10 and 151, civil.....
Judgment:
ORDER

R.K. Das, J.

1. Petitioner No. 1 is the father of petitioner No. 2. They are occupying a house belonging to the plaintiff-opposite party in the town of Berhamjmr from 18-4-57. It was the case of the plaintiff that the rent of the said house was originally fixed at Rs. 70/-whereas the case of the defence was that the rent was fixed at Rs. 50/- (fifty). We are not however concerned at this stage with that part of the controversy.

2. The plaintiff filed Money Suit No. 51/ 65 in the Court of the Subordinate Judge, Berhampur, for realisation of arrears of rent covering a period of three years that is, from 15-6-62 to 15-5-65 claiming the rent at the rate of Rs. 100/- per month.

3. In the written statement the defendants took the plea that the rent payable was Section 30A and that it was neither Rs. 70/- nor Rs. 100/- as alleged by the plaintiff.

4. After filing of the money-suit the defendants-petitioners filed an application on 5-7-65 under Section 5 of the Orissa House Rent Control Act for fixation of a fair rent. The plaintiff also filed an application for eviction under Section 7 of the said Act. Both the cases are now pending before the House Rent Controller. On 11-8-66, the petitioners filed an application under Sections 10 and 151, Civil P. C., for stay of proceedings in the aforesaid money-suit until disposal of the application under Section 5 by the House Rent Controller. The Learned Subordinate Judge by his order dated 13-8-66 rejected this application. It is against this order of rejection the petitioners have filed this revision.

5. The question for consideration is whether it is open to the Court to stay the Civil Suit in exercise of its powers under Sections 10 and 151, Civil P. C. in a case of this nature. The essential conditions to make out a case for stay of a suit under Section 10 Civil P. C. are that there must be two suits in respect of the same subject-matter and for the same relief between the same parties or their representatives and the previously instituted suit is pending. The subsequent suit to be stayed should satisfy the aforesaid conditions. In the present case, the proceedings before the House Rent Controller first of all cannot be taken to be a suit. No doubt, the word 'suit' has not been defined in the Code of Civil Procedure but it has been explained to mean a civil proceeding instituted by presentation of a plaint, See AIR 1933 PC 63, Hansraj v. Dehra Dun Mussoorie Electric Tramway Co. Ltd.

6. The next question is whether the subject-matter of both the cases are the same. In the case before the Rent Controller the relief asked for is one for fixation of a fair rent in accordance with the provisions of Sections 5 and 8 of the House Rent Control Act (hereinafter said as 'the act') which I shall examine a little later, whereas in the civil suit the relief asked for is a decree for arrears of rent. As to the application of the provision of Section 151, Civil P. C. to cases of this nature no doubt wide inherent powers have been vested in a Court under Section 151, Civil P. C. but as is well settled, such powers should not be exercised to override the express provisions of the Code. (See AIR 1964 SC 993. Arjun Singh v. Mohindra Kumar).

7. Mr. Panda contended that Sections 10 and 151, Civil P.C. have no application to a case under, the Orissa House Rent Control Act and further the party who himself is a defaulter cannot invoke the inherent powers of the Court under Section 151, Civil P. C. He relied upon a decision of the Hyderabad High Court reported in AIR 1953 Hyd 55, Mohd. Ismail v. Sakina Begum. In that case while a suit for arrears of rent was pending before the Civil Court, an application was filed by the tenant for determination of fair rent before the Rent Controller. An application under Sections 10 and 151, Civil P. C. was made for stay of the eviction proceedings. The learned Judge held that there is no justification in allowing the petitioner to utilise his own laches to the disadvantage of the respondent by putting him to unnecessary expenses. He himself having defaulted in making regular payment, cannot ask the Court tp exercise the inherent powers under Section 151, Civil P. C. I am in respectful agreement with this view of the learned Judge in the above case.

8. In the present case, admittedly the petitioners were in arrears of rent for several years. The only plea taken by the defendants was that the rent sent to the plaintiff by money order was refused by him and that they had no laches on their part. But this appears to have happened some time in 1963, that is, more than two years prior to the institution or the suit. There was no bar for the defendants to deposit the admitted amount in the Court or to pay the same to the plaintiff. Apart from this, the subject of enquiry in an application under Section 5 of the House Rent Control Act is entirely different from the issues involved in the civil suit.

Section 5 of the Orissa House Rent Control Act runs thus :--

'5 (1) Any landlord or a tenant may make an application to the Controller to fix a fair rent.

Pending final decision on the application the controller shall fix a provisional rent. Final decision when made, shall be deemed to have taken effect from the date of application and all amounts paid as provisional rent shall be adjusted towards payment of final rent.

2. The application of the tenant shall be dismissed if he fails to pay the provisional rent regularly'.

Mr. Panda, rightly pointed out that in view of the express terms of Section 5 that the provisional rent fixed by the Controller shall take effect from the date of application, the decision of the House Rent Controller will have no bearing on the suit pending before the Civil Court. It is necessary at this stage to refer to the law as was previously in existence. Sub-section (2) of Section 4 of the House Rent Control Act 1947, runs thus :--

''In case of any difficulty regarding the fixation of rent with reference to municipal or union registers or in the absence of such registers, an application shall be made to the Controller who shall fix a fair rent in the manner hereinafter provided. Pending final decision by himself, the Controller may fix a provisional rent which shall be binding on all parties concerned. Final decision when made shall be deemed to have taken effect from the date of application or the creation of tenancy whichever is earlier and all amounts paid as provisional rent shall be adjusted towards payment of final rent'.

Thus, the provisions of Sections 4(2) and 5(1) of the old and new Act respectively are substantially the same except that the words 'or the creation of tenancy whichever is earlier' have been omitted in Section 5(1) of the new Act. This deletion has been deliberately made to obviate possible hardship to the landlord as the legislature intended that any rent fixed by the Controller on the application of the party shall take effect from the date of application only irrespective of the date of creation or commencement of the tenancy.

Section 8(c) of the new Act, 1958, makes it further clear. It says that when the Controller has determined the fair rent of a house, any sum in excess of the determined rent paid after the date of application under Section 5 in respect of a house for any period after the said date shall be refunded to the person by whom it was paid, or at the option of such person otherwise adjusted. Thus, the provisions in Sections 5(1) and 8(c) read together make it absolutely clear that the fixation of fair rent made by the House Rent Controller shall take effect from the date of application, and in this case, it will take effect from 5-7-65, when the defendants filed an application under Section 5 of the Act for fixing a fair rent.

9. The suit in the present case relates to a period prior to that and covers a period of three years from 15-3-63 and whatever be the decision of the House Rent Controller will take effect from the date of application and will be binding on the parties concerned. Thus, the subject-matter and the relief asked for in both the cases are entirely different. Section 10 of the Civil Procedure Code has thus no application. The learned Subordinate Judge has rightly rejected the prayer of the defendants to stay the money-suit No. 51/66 pending before him. The suit must accordingly proceed and be disposed of in accordance with law without any further delay.

There is no merit in this Revision and itis accordingly dismissed, but in the circumstances there would be no order for costs.


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