The High Court has the power to interfere under S. 115, Civil P. C., with the order of the Civil Judge if it decides the jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested.

Headnote:
U. P. Temporary Control of Rent and Eviction Act (U. P. III of 1947) - S. 3-A, 5 (4) - Reasonable annual rent - Determination - Jurisdiction of Civil Court - Revision by High Court under S. 115, Civil P. C. - Maintainability.
Fact of the Case:

The landlord filed a suit under S. 5 (4) of the U. P. Temporary Control of Rent and Eviction Act (U. P. III of 1947) (hereinafter termed the Act) for the fixation of "reasonable annual rent" of the accommodation in dispute, alleging that he had "constructed anew" a big godown and expended a large sum of money on it. The House Allotment Officer fixed the rent at Rs. 35 per mensem, which was subsequently raised to Rs. 40 per mensem. The landlord then instituted a suit on the ground of inadequacy of the reasonable annual rent, alleging that he had constructed the portion of the accommodation "anew" and put up ferroconcrete roof 80 x 25 feet. The defense was that there was no construction at the request of the respondent but it had been undertaken in order to put up another storey on the top of the old building; that as far as the accommodation in possession of the respondent was concerned there was no new construction of accommodation after June 30, 1946; that the ferro-concrete roof had in no way benefited him, on the other hand the space at his disposal had diminished because of the number of pillars constructed and the lowering of the roof. The trial court increased the "reasonable adequate rent" to Rs. 55-8-0. The High Court, in revision under S. 115 of the Code of Civil Procedure, held that if the accommodation was a new construction erected after June 30, 1946, the suit was maintainable and the High Court could not interfere with the finding of the Civil Judge as to the amount of rent. If on the other hand, the construction was an old one, the suit did not lie and the agreed rent would continue to be payable. It also held that the construction on the upper storey was a new construction but as far as the accommodation in the occupation of the respondent was concerned the construction could not be called new construction and therefore S. 3-A was not applicable and as no suit lay at the instance of the landlord to have the agreed rent enhanced, the tenant was only liable to pay the agreed rent and no more. The revision petition was therefore allowed and the suit of the appellant was dismissed.
Finding of the Court:

The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided. The High Court held that the Civil Judge had wrongly decided that the construction was of a date after June 30, 1946 and therefore fell within S. 3-A.
Issues: Whether the High Court could, in revision under S. 115 of the Code of Civil Procedure, interfere with this decision of the trial court.
Ratio Decidendi: The jurisdiction of the civil Court to entertain a suit for the fixation of reasonable annual rent under S. 5 (4) of the Act depended on the determination of the jurisdictional fact, i.e., the date of construction of the accommodation, whether it was before or after 30th June 1946. If the accommodation was constructed before that date, the suit was incompetent and if after, the suit would lie. The High Court had the power to interfere under S. 115, Civil P. C., with the order of the Civil Judge if it decided the jurisdictional fact erroneously and thereby assumed jurisdiction not vested in it or deprived itself of jurisdiction so vested.
Final Decision: Appeal dismissed.

Judgment

J. L. KAPUR, J. : This is an appeal by special leave against the decision o the High Court of Judicature at Allahabad passed in revision under S. 115 of the Code of Civil Procedure. The landlord who was the plaintiff in the trial court is the appellant before us and the tenant who was the defendant is the respondent.

2. The facts of this appeal are that in 1938 the respondent took on rent the accommodation in dispute which is termed a tal on a monthly agreed rent of Rs. 21-4 as. and was using the same for the purpose of stacking timber. A portion of it was a covered godown which had three walls and a kucha roof. On January 28, 1950, the appellant made an application to the House Allotment Officer under S. 3-A of the U. P Temporary Control of Rent and Eviction Act (U. P. III of 1947) (hereinafter termed the Act) for the fixation of "reasonable annual rent" of the accommodation in dispute. He therein alleged that in January 1949 he had "constructed anew" a big godown 80 x 25 x 11 feet according to the instructions of the respondent and expended a fairly large sum of money on it and was therefore entitled to a monthly rent of Rs. 165. The House Allotment Officer fixed on February 18, 1950, the rent at Rs. 35 per mensem which on review was raised on May 25, 1950, to Rs. 40 per mensem. He held that the accommodation was not a newly constructed accommodation as the respondent had been a tenant from 1938. He determined the increase of rent on the basis of the building that was added by the new construction. He also held that :

"The cost of land, the floor area of godown and rent of other similar premises would be irrelevant as all of these existed before new construction and were included in rent before new construction."

3. The appellant thereupon instituted a suit on the ground of inadequacy of the reasonable annual rent under S. 5 (4) of the Act alleging that he had constructed the portion of the accommodation "anew" and put up ferroconcrete roof 80 x 25 feet and that the construction was undertaken at the request of the respondent who had agreed to pay enhanced rent but had refused to do so; that although the House Allotment Officer, Mathura had fixed the rent of the accommodation at Rs. 35 which was subsequently raised to Rs. 40 per mensem, the proper rent should not be less than Rs. 115 per mensem and therefore prayed for the enhancement of "reasonable annual rent." The defence was that there was no construction at the request of the respondent but it had been undertaken in order to put up another storey on the top of the old building; that as far as the accommodation in possession of the respondent was concerned there was no new construction of accommodation after June 30, 1946; that the ferro-concrete roof had in no way benefited him, on the other hand the space at his disposal had diminished because of the number of pillars constructed and the lowering of the roof. He also pleaded that the suit was not maintainable under the Act and that no suit could be filed "after the order of the House Allotment Officer." The relevant issues raised were:-

(1) "Whether the suit is not maintainable in view of any provisions of the Act No. 3 of 1947 ?

(2) Whether the suit after the fixation of rent by the House Allotment Officer is not maintainable?

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(5) What should be the reasonable and proper rent of the accommodation in suit ?"

4. The learned Additional Civil Judge found that the suit was not barred because of the Act; that the suit against the order of the House Allotment Officer was maintainable; that newly constructed accommodation on the whole was bigger and more spacious than the old kacha hall and that the accommodation had increased and after taking into consideration the amount spent on the construction he increased the "reasonable adequate rent" to Rs. 55-8-0.

5. Against this decree of the learned Judge the respondent took a revision to the High Court under S. 115

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