Mehta, J. - (1.)THE pltf. sued the deft, for recovery of rent, amounting to Rs. 272 -8 -0. The pltf.'s case is that the deft. took on rent the shop belonging to the pltf. on the agreed rent of Rs. 25 p.m. & he executed a rent note on 29 -4 -1948. The deft, fell in arrears in payment of rent from 29 -4 -1948 to 13 -5.1949 & the arrears amounted to RS. 321 -10 -9. The deft. paid Rs. 50 towards the rent & after deducting this amount the pltf. claimed Rs. 273 -8 -0 for arrears of rent.. Hence this suit for RS. 372.8 -0. The deft, admitted the tenancy & admitted execution of the rent note but the main contention of the deft. is that under the Accommodation Control Ordinance, Gwalior State, Smt. 2004, the pltf. can in no ease charge rent exceeding the rent, calculated on the basis of the maximum annual rent. The maximum annual rent is defined as rent of any accommodation as 1/30th part of the market value & the further explanation is that the market value is the valuation as entered in the House Tax Register of the Municipal Committee on the basis of which house tax could be collected on 1 -1 -1948. According to the deft, in the Municipal Register the value of the house is entered as Rs. 3200 & therefore, the maximum rent per year would amount to Rs. 108 & therefore, the pltf. cannot charge rent, of Rs. 25 per month. It was also contended that the Small Cause Ct. had no jurisdiction to entertain the suit & the deft, has previously instituted a suit in the Ct. of the Sub -Judge for the fixation of rent. The lower Ct. fixed the maximum rent at Rs. 9 P.M. & decreed the pltf.'s suit for Rs. 94 8.0. The pltf. has come up in revision & the main contention of the pltf. is that under S. 5, cl (4), Small Cause Ct. Judges had no jurisdiction of fixing the rent. It was contended that where the landlord or the tenant as the case may be, claims that the rent is inadequate or excessive, he may institute a suit for fixation of rent in the Ct. of the Sub -Judge, having territorial jurisdiction. It was also contended that sub -cl. (4) of S. 5. Accommodation Ordinance, bars the jurisdiction of the Judge, Small Cause Ct. In my opinion the Judge, Small Cause Ct., had no jurisdiction in the matter in view of S. 5, sub -cl. (4) & in view of the contention of the deft. that he had already previously instituted a suit in the Ct. of the Sub -Judge for the fixation of rent., the Small Cause Ct. Judge should have stayed the suit. In my opinion S. 10, Civil P.C., bars the trial of the suit in Small Cause Ct. This is also the view taken by this Ct. in a case reported in Dulhanmal v. Abdul Radar,, A.I.R. 1950 MP. 8.
(2.)I , therefore, allow the revision, set aside the decree of the lower Ct. & remand the case to the trial Ct. for disposal after the determination of fair rent by the Sub -Judge, Ujjain. As a condition precedent the deft. shall give security to the satisfaction of the lower Ct. for the performance of the decree that may be passed or shall deposit the amount of rent under the agreement. The amount should be held in deposit & the amount in excess of fair rent may be refunded after the decision of the suit. The appct. is entitled to the costs of this petn.
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