- (1.) S. R. Singh, J. This petition by New India Assurance Company Gorakhpur stems from proceedings instituted for en hancement of rent under Section 21 (8) of the U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act 1972, and is directed against the orders dated 21-12-1991 and 20-9-1993 passed by the Rent Con trol and Eviction Officer Gorakhpur and the appellate authority respectively.
(2.) APPLICATION for enhancement of rent was moved by the respondent-landlords on 6-12-1989 and the prayer therein was that the rent of the premises be raised to the extent of one-twelfth of the 10% of the then market value of the premises with effect from 1-1-90. The Rent Control & Eviction Officer, by its order dated 21-12-91, found that the market value of the building under tenancy, was Rs. 5 lacs and one-twelfth of the 10% of the market value would be Rs. 4,166 which was nailed down as the monthly rent of the premises in addition to water tax and house tax payable with effect from 1-1-1990. The tenant went up in appeal impugning the said order and the respondent-landlord preferred a cross objection. The point raised by the respon dent-landlords in cross-objection was that the enhanced rent should be made payable from 1st January 1990 i. e. from the commen cement of the month of tenancy following the date of the application. The appellate authority by its judgment and order dated 30-9-1993 found the market value of the part of building occupied by the tenant to be Rs. 3,47,600 and therefore, one-twelfth of the 10% of the said market value would come to Rs. 2900 which would be the rent payable per month with effect from 1st January 1990. I have heard Smt. Poonam Srivas tava, appearing for the petitioner and Sri G. N. Verma appearing for the respondent-landlords. Smt. Poonam Srivastava, counsel appearing for the petitioner, canvassed that the rent of the premises in dispute was en hanced earlier from Rs. 250 to Rs. 500 per month with effect from 1-1-1986 and there fore, further enhancement in rent was an interdict in view of second proviso to Sec tion 21 (8) of the Act which postulates' that a similar application for further enhance ment may be made after expiration of the period of five years from the date of the last order of enhancement. ' The contention ad vanced by the counsel for the petitioner is misconceived. The so-called order of en hancement of rent was, in fact, not an order of enhancement within the meaning of Sec tion 21 (8) of the Act. In fact, the rent was earlier enhanced under a compromise reached between the parties in proceedings under Section 21 (1) (a) of the Act. A perusal of Annexure 7 to the counter af fidavit would signify that the monthly rent of the premises in dispute was re-fixed at Rs. 500 per month with effect from 1-1-86 and the proceedings under Section 21 (1) (a) culminated in being decided in terms of the said compromise. It being not an order charac teristic of the order of enhancement under sub-section (8) of Section 21 of the Act, the bar created by second proviso to Section 21 (8) of the Act, would not apply. The learned counsel for the petitioner, then moved on to urge that the cross-objection was not maintainable and the appellate court had no valid reasons to modulate the order passed by Rent Control & Eviction Officer peremptorily directing the enhanced rent payable from 1-1-90 in stead of 1-1- 1991. The submissions ad vanced by the learned counsel appearing for the petitioner cannot be lent countenance inasmuch as Section 10 (2) of the clearly stipulates that the appellate authority may confirm, vary or rescind the order or remand the case to the District Magistrate for rehearing and may also take any additional evidence and pending its decision, stay operation of the order under appeal in such terms, if any as he thinks fit. The provisions of Section 10 apply, mutatis-mutandis, in relation to an appeal preferred under Sec tion 22 of the Act against any order under Section 21 of the Act. The power to vary vested in the appellate authority may be exercised even in favour of a respondent to the appeal. The provisions of Order 41, Rule 22 of the Code of Civil Procedure, which provide for cross objection, may not apply but the principles contained in Order 41, Rule 33 can be pressed into service with the aid of Section 10 (2) of the Act while disposing of an appeal arising out of Sec tion 21 of the Act. Since the 1st proviso to Section 21 (8) of the Act its provides that 'the rent so-enhanced, shall be payable from the commencement of the month of tenancy following the date of the application', the appellate authority was justified in directing that the enhanced rent would be payable from 1-1-90 inas much as the application for enhancement was admittedly filed on 6-12-89. 1st January 1990, was, therefore, the commencement of the month of tenancy following the date of the application.
(3.) NO other point was pressed into ser vice by the learned counsel for the petitioner. In the result, the petition fails and is accordingly dismissed. Petition dismissed. .;