Subba Rao, J.
1. This is an application for issuing a writ of certiorari to quash the order of the learned Subordinate Judge of Vijayawada made in appeal against the order of the Rent Controller. The petitioner had been a tenant of the respondents since 1940. He filed an application before the Rent Controller, H. R. C. No. 153 of 1947 in 1947 for fixation of a fair rent. That application was disposed of by an order dated 14-11-1947 and the Rent Controller held that the rent of Rs. 20 per month was a fair rent. He preferred an appeal against the said order in Misc. A.S. No. 216 of 1947. But that appeal was not pressed as the matter was settled between the parties.
In the present application, he asked the Rent Controller to fix a fair rent of about Rs. 4 or Rs. 5 per month on the ground that the rent paid by him was very excessive. When that application came up for disposal before the Rent Controller, the landlord did not appear and he was declared ex parte. After taking the evidence of the petitioner, the Rent Controller fixed the fair rent at a sum of Rs. 20 per month. The petitioner preferred an appeal to the learned Subordinate Judge of Vijayawada. The learned Subordinate Judge held that as the fair rent was fixed in the previous application, the present application was not maintainable. In case the application was maintainable, he thought that a sum not more than Rs. 6 per month would be the fair rent. The petitioner filed this writ to quash that order.
Mr. Shankar Rao raised before me two points, (1) that the appellate court had no jurisdiction to admit fresh evidence in the appeal and (2) that the second application was not maintainable. A perusal of the judgment discloses that in the appeal, the respondent filed Exs. B. 1 and B. 2. Ex. B. 1 is the order made by the Rent Controller and Ex. B. 2 is the certified copy of the memo of appeal against that order.
In the affidavit filed before me, the petitioner stated that the appellate court had no jurisdiction to admit additional evidence at the appellate stage and that no notice of the application was given to him. A perusal of the judgment does not show that either of these two objections were raised before the learned Subordinate Judge; nor does the affidavit state that such objections were raised but the learned Subordinate Judge disallowed them. In the absence of such allegation in the affidavit and in the absence of any such contention having been raised before the learned Subordinate Judge I do not feel I am justified in allowing the petitioner to raise this question for the first time in a writ of certiorari.
2. The next question is whether, when the Rent Controller fixed a fair rent on an application filed by the tenant, the tenant can file another application for the same relief. Section 4 of the Madras Buildings (Lease and Rent Control) Act of 1949 prescribes the procedure for fixing the fair rent. It also narrates the considerations, to which the Rent Controller will have due regard in fixing the fair rent. The Act gives an appeal to the Small Cause Judge against that order. It makes a provision for the increase of rent under certain contingencies viz., if the landlord made an addition, improvement or alteration to the building. Section 5 also provides an enquiry in case there is a dispute between the landlord and the tenant in respect of the reasonableness of enhancement; but no provision has been made either for filing a second application for fixing a fair rent or for reducing the rent already fixed by the Rent Controller. The Legislature realising this lacuna in the Act has added Sub-section (2) to Section 5 which reads :
'Where after a fair rent of a building has been fixed under this Act there is a decrease or diminution in the accommodation or amenities provided the tenant may claim a reduction in the fair rent as so fixed.'
This sub-section obviously cannot apply to an application that was made prior to the introduction of the amendment. Further the present application was not filed on the basis that there was a decrease or diminution in the accommodation or amenities provided by the landlord. This application was filed ignoring the previous application for the same relief. I am therefore of opinion on a fair reading of the provisions of the Act that under the Act a tenant cannot file another application for the same relief for fixing the fair rent. The order of the lower court is correct. This application is therefore dismissed with costs -- Advocate's fee Rs. 50.