Decided on April 09,1949

Dulhammal Rizumal Appellant
ABDUL KADAR Respondents

Cited Judgements :-



Rege, J. - (1.)THESE are petitions against the decree passed by the Judge, Small Cause Court, Indore, in suits for recovery of rent. The Defendant therein admitted the rent notes on which the suits wore founded but contended that the landlord could not, by reason of the provisions of the Indore House Rent Control Order claim more than 35% of the rental value as entered in the House Tax book of the municipality, A prayer was made for stay of the suits on the ground that an application had been made to the Bent Controller for determination of the fair rent under Section 4, Bent Control Order. The learned Judge overruled the contention and decreed the suits on the basis of the rent note.
(2.)THE Rent Controller has jurisdiction under the Bent Control Order to determine the fair rent; but the remedy for recovery of unpaid rent has to be sought in civil Courts. One of the material questions and the most important one in such cases is regarding the quantum of rent recoverable by the landlord, and where a special rabbinate is created for the determination of the question, the jurisdiction of civil Courts must be deemed to have been taken away pro tanto, while such a tribunal exists; and if the determination of this question is not within the jurisdiction of the civil Court, there cannot be a "formal expression of an adjudication which so far as the Court expressing it conclusively determines the rights of the patties with regard to all or any of the matters in controversy in the suit." That is, there can be no decree. In the cases under consideration, applications were made to the Bent Controller prior to the institution of the suits and that officer was seized of the jurisdiction to determine the "fair rent". Section 5, Bent Control Order fixes the ceiling for fair rent and Section 6, Clause (a)(b) provide that the landlord shall not claim and shall not be entitled to claim any rent in excess of such fair rent and the agreement to pay rent in excess of such fair rent shall pro tanto be null and void. It was urged on behalf of the Respondents that these clauses apply after the determination of fair rent by the Controller and the power of the civil Court to decree on the basis of the agreement between the parties is not taken away. It was further contended that Section 6(d), Bent Control Order provides for the refund of the sum paid in excess of the fair rent; but in the view I take, no decree could be passed where the validity of rent notes was contingent on the determination of fair rent by another tribunal which was duly seized of the matter prior to the institution of the suits on the rent notes; and the suits should in the circumstances have been stayed until the final determination of the fair rent. There is no direct authority on the point; but the observations of their Lordships of the Privy Council in Annamalay v. Thornhill, A.I.R. 1931 P.C. 263 at P. 261 :, 134 I.C. 331, are an useful guide. That was a case in the name of a firm for recovery of money on the balance of an account; and a decree was passed notwithstanding an objection that the firm had failed to register the business name and could not therefore make a claim. An appeal was preferred against the decree; and during its pendency another suit was filed for recovery of the same amount. A plea of res judicata was upheld by the trial Court and the suit was dismissed. Their Lordships expressed their regret:
That the second action was not adjourned pending the decision of the appeal in the first action as that would have simplified procedure and saved expanse.

In Channan Kuer v. Sahadeo Singh, A.I.R. 1929 Oudh 341 : 4 Luck. 573, it was observed that the inherent powers of the Court are not limited or otherwise affected by the express pro -visions of the Code of Civil Procedure, and a suit can be stayed by the Court from the provisions of Section 10 of the Code if it is necessary to do justice between the parties The same view has been taken in Kodumal Jethanand v. Tilak Ram, A.I.R. 1929 Lah. 12 :, 113 I.C. 783. In Salamat Rai v. Municipal Committee, Rawalpindi, A.I.R. 1930 Lah. 526 :, 122 I.C. 495, Jailal J. held that Section 151 was applicable in the circumstances, though not Section 10, Code of Civil Procedure, and ordered that the trial Court may proceed with the case but not pronounce judgment until an appeal in a case in regard to the same property but in another right was decided. The principle underlying the cases appears to be to avoid the situation of two tribunals trying the same matter.

(3.)THE decrees are set aside and the cases remanded to the trial Court for disposal after the determination of fair rent by the Rent Controller. As a condition precedent the Defendants shall give security to the satisfaction of the lower Court for the performance of the decree that may be passed or shall deposit the amount of the rent under the agreement. The amount shall be held in deposit and the amount in excess of fair rent may be refunded after decision of the suit.

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