Bapna - (1.) THIS is a revision against an order of the learned Munsif City, Jodhpur, dated 18th October, 1951.
(2.) THE opposite party sued the petitioner for recovery of Rs. 600/- on account of rent at the rate of Rs. 200/-per month. THE petitioner admitted tenancy as also execution of the agreement of lease fixing the rent at Rs. 200/ per mensem, but pleaded that the rent was excessive and that prior to the institution of the suit he had made an application to the Rent Controller under Marwar House Rent Control Act 1949 for determination of fair rent. He prayed that the suit should be stayed pending decision as to the amount of fair rent by the Rent Controller. Mr. Vidhyasagar, the Presiding Officer of the court passed an order that the suit could be stayed if the defendant deposited the amount sued for in court within a particular period. THE amount was deposited but in the meanwhile Mr. Vidhyasagar was succeeded by Mr. M., J. Mardia, who was of opinion that the order passed by his predecessor did not amount to stay of the suit but only an indication of his mind that he would consider that prayer. THE learned Munsif referred to sec. 7 of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (Act No. 17 of 1950) and observed that under that section the stay of suit could only be made by the court dealing with the matter of fixation of standard rent. The defendant has come in revision and it is urged on his behalf that his petition having been presented to the Rent Controller prior to the enforcement of Act No. 17 of 1950, it will be decided according to the provisions of the Marwar Act, 1949 as provided by sec. 27 of the Rajasthan Act and that in the Marwar Act there was no power given to the Rent Controller to issue an injunction or direction to a civil court to stay a suit. Learned counsel also urged that the measure of fixation of standard rent was different in the Marwar Act from that provided in the Rajasthan Act, and that he apprehended various difficulties if he withdrew the petition from the Rent Controller and approached the court under the new Act. Learned counsel for the opposite party urged that under the Marwar Act, the Controller had power to fix a date from which his order would take effect and there could be no presumption that he would fix a date prior to his passing an order. In any case, it was great hardship on the landlord to be deprived of the amount till the decision by the Rent Controller who is not under the jurisdiction of this Court. On behalf of the petitioner reliance was placed on Duthanmal Rizumal vs. Abdul Kadnr (A.I.R. 1950 Madhya Bharat, 8) where in similar circumstances an order of stay was granted by the court. There does not appear any great point in continuing the suit when the decision of the court is likely to be affected by the decision of the Rent Controller, and it is possible also that the question of costs may depend upon the order that may be passed by Rent Controller. The order passed by Mr. Vidhyasagar though loosely worded, indicated quite definitely that he was of opinion that the suit should be stayed if the defendant deposited the amount sued for in the court, though technically Mr, Vidhyasagar did not pass the order of stay in so many words. The view of the learned Munsif, that an order of stay should be obtained from the tribunal dealing with the matter of fixation of fair rent, is not correct since the proceedings for fixation of fair rent were not started under the Rajasthan Act. No. 17 of 1950, but under the Marwar House Rent Control Act, 1949, which did not give such powers to the Rent Controller. As pointed out by learned counsel for the petitioner, the old petitions were to be decided in accordance with the old law and there being a difference of standards under the two Acts, the petitioner cannot be compelled to withdraw his earlier petition which is validly pending before the Rent Controller, and to take fresh proceedings under the new Act. As the real matter in controversy between the parties in the civil court depends upon the decision that would be made by the Rent Controller, it would be in the interest of justice that the trial of the suit should be stayed. Learned counsel for the opposite party urged that it was not a 'case decided' within the meaning of sec. 115 of the Code of Civil Procedure, but as held in Bibi Gurdevi's case, by the Full Bench of the Lahore High Court (A. I. R 1943 Lab. 65), the word 'case' need not be construed in a narrow way so as to exclude every interlocutory order, and in the present case an issue was framed particularly on the point whether the suit should be stayed, and the learned Munsif passed an elaborate order in that behalf. The other question whether the court had exercised its jurisdiction not vested in it by Law, or failed to exercise jurisdiction so vested in it, or acted in the exercise of its jurisdiction illegally or with material irregularity, was also raised by learned counsel for the opposite party, but as pointed out by their Lordships of the Privy Council in a recent case, N.S. Venkatagiri Ayyangar and another vs. The Hindu Religious Endowment Board, Madras (A. I. R. 1949 P. C. 156), the words 'acting with material irregularity" mean committing some error of proce-dure in the course of trial which is material in that it may have affected the ultimate decision. Now, in this case, if the suit is not stayed, a decree will be passed according to the stipulated rate of rent, while if the suit is stayed until the decision by the Rent Controller, the ultimate decision will be according to the decision of the Rent Controller. It will be therefore, proper in this case to stay the trial of the suit till the, decision by the Rent Controller. It was urged by learned counsel for the opposite party that in that case the money deposited should be paid over to him and he would be prepared to give security for refund of the amount if it is ultimately found to be due under the order of the Rent Controller. This would appear to safeguard the interest of the defendant in ample measure. I, therefore, direct that the trial of the suit be stayed pending determination of the fair rent by the Rent Controller subject to the condition that the amount deposited by the defendant shall be paid to the plaintiff opposite party on his giving security to the satisfaction of the lower court that he would pay or deposit in court or payment to the defendant any amount to which he may not be entitled in pursuance of any order passed by the Rent Controller. No order as to costs. ;