M.H. Beg, J. - (1.) THIS is a Defendant land -lord's second appeal. The Plaintiff -Respondent was a tenant of an accommodation described as No. 7/1446 -47 Zila Hotel, Court Road, Saharanpur'. As the accommodation had been allotted to the Plaintiff tenant without any settlement of rent with the landlord, the Plaintiff filed an application Under Section 3 -A of the UP (Temp.) Control of Rent and Eviction Act (hereinafter referred to as 'the Act') for a declaration of annual reasonable rent presumably because no agreement on rent could be arrived at between him and the landlord. The RC and EO, exercising the powers of the DM under the Act, had ordered, on 24 -11 -1960, the Applicant tenant before him to file a certified copy of the municipal assessment in 1942 of the accommodation in dispute. It was a matter of admission between the parties that the accommodation was in a building constructed before 1942. It, however, appears that the tenant was unable to file any certified copy of the municipal assessment of the accommodation. The landlord's pairokar had filed an affidavit showing that the accommodation was previously occupied by a tenant paying Rs. 18/ - per month and that this was its assessed rent in 1942. Evidently, there was no separate assessment of the particular portion which was allotted to the Plaintiff tenant, probably the assessment was of the whole building. However, as the parties had not provided the best evidence of what the municipal assessment of the accommodation in dispute was, the RC and EO accepted the affidavit field on behalf of the landlord and held, by an order dated 5 - -6 -1961 (Ex.1), that the annual reasonable rent of the accommodation was Rs. 270/ -, calculated at the rate of Rs. 22/8/ - per month, that is to say, 25% more than the assumed municipal assessment. Thereafter, the Plaintiff tenant filed a review application which was dismissed by the RC and EO on the ground that no review against a quasi -judicial order was provided under the Act. The Act itself provided the remedy of the party aggrieved by an order Under Section 3A of the Act. This remedy was a suit in a civil court for either a declaration or determination of rent in accordance with Sub -section (4) of Section 5 of the Act. Section 16 of the Act lays down: No order made under this Act by the State Government or the DM shall be called in question in any court.
(2.) INSPITE of the above mentioned provisions, the Plaintiff -tenant did not file a suit in accordance with Section 5 Sub -section (4) of the Act. But, he filed a suit for a declaration that the order passed by the RC and EO (exercising the delegated powers of the DM) was ultra vires. No such suit can be filed under the provisions of Section 5 Sub -section (4) of the Act. The Plaintiff tenant, however, claimed that the RC and EO's jurisdiction Under Section 3 -A of the Act did not extend beyond giving a declaration of "the annual reasonable rent" which was determined automatically by the municipal assessment and was defined as follows by Section 2 Sub -section (f) of the Act: 2(f) "Reasonable annual rent" in the case of accommodation constructed before 1 -7 -1946, means - - (1) if it is separately assessed to municipal assessment, its municipal assessment plus 25 per cent, thereon; (2) if it is a part only of the accommodation so assessed, the proportionate amount of the municipal assessment of such accommodation plus 25 per cent, thereon; (3) if it is not assessed to municipal assessment - - (i) but was held by a tenant on rent between 1 -4 -1942 and 30 -6 -1946, fifteen times the rent for one month nearest to and after 1 -4 -1942 and, (ii) if it was not so held on rent, the amount determined Under Section 3 -A and in the case of accommodation constructed on or after 1 -7 -1946, means the rent determined in accordance with Section 3 A. Section 3 -A of the Act reads as follows: 3 -A. Determination of annual reasonable rent by the DM - -(1) The DM may, on the application of a person who has been allotted any accommodation to which Sub -clause (1) of Clause (f) of Section 2 applies, declare the annual reasonable rent payable therefor. The DM may likewise, on the application of a person who has been allotted any accommodation or of the landlord, determine the reasonable annual rent of the accommodation to which any of the remaining provisions of the said clause may be applicable. (2) In determining the reasonable annual rent the DM shall take into account: (a) if the accommodation was constructed on or after 1 -7 -1946, the cost of land and the cost of construction, maintenance and repairs thereof, its situation and any other matter, which, in the opinion of the DM, is material and, (b) if it is accommodation falling Under Sub -clause (2) or para (i) of Sub -section (3) of Clause (f) of Section 2, the principles therein set forth, and (c) if it is accommodation falling Under Para (ii) of Sub -clause (3) of Clause (f) aforesaid, the principles set forth in Clause (a) of Sub -section (1) of Section 6. (3) Subject to the result of any suit filed Under Sub -section (4) of Section 5, the rent declared or determined by the DM under this section shall be the annual reasonable rent of the accommodation. Section 5 Sub -section (4) of the Act which, according to the landlord, was applicable here, lays down: 5(4). - -If the landlord or the tenant claims that the annual reasonable rent of any accommodation to which the Act applies is inadequate or excessive or that the reasonable annual rent declared by the DM Under Section 3 -A is not correct, or, if the tenant claims that the agreed rent is higher than the annual reasonable rent, he may institute a suit for declaration or as the case may be for fixation of rent in the court of the Munsif having territorial jurisdiction, if the annual rent claimed or payable is Rs. 500/ - or less and in the court of the Civil Judge having territorial jurisdiction if it exceeds Rs. 500/ -, provided that the court shall not vary the agreed rent unless it is satisfied that the transaction was unfair and in the case of lease for a fixed term made before 1 -4 -1942, that the term has expired.
(3.) THE learned Munsif had therefore, dismissed the Plaintiff tenant's suit repelling the various grounds on which the order of the RC and EO dated 5 -6 -1961 was said to be without jurisdiction. Among the grounds given was that the RC and EO had first declared the annual reasonable rent and then, on the Defendant's application had re determined it in the absence of the Plaintiff. This ground was rejected by both the courts below. In other words, both sides had opportunity to produce evidence.;